Should ‘Public Reason’ Developed Under US Establishment Clause Jurisprudence

Abstract

John Rawls’ idea of public reason holds that comprehensive doctrines including religion should not be allowed a voice in the public square. Such ideas prevent society achieving that ‘overlapping consensus’ which is said to be a requirement for enduring peace and progress. However, the suggestion that some ideas should be excluded from public debate is anti-democratic. This article reviews Rawls’ idea of public reason’ against its US legal context and suggests it was a response to US Supreme Court decisions concerning their First Amendment. Though our framers copied most of that clause into the Australian Constitution, the High Court has interpreted it completely differently. The article concludes that Rawls’ idea of public reason does not fit in a Westminster democracy tied to parliamentary sovereignty rather than judicial review.