Legalizing public reason: The American dream, same-sex marriage, and the management of radical disputes

Abstract

Beginning with Rawls's claim that the Supreme Court is the exemplar of public reason, we develop a theory of how reasoned arguments are used in political disputes. We argue that justices often make piecemeal arguments and that this fragmented style of argumentation extends beyond the bench. The result is that many political disputes are “legalized” – not because public arguments are necessarily about laws, but because public arguments often unfold in the same ambiguous way that they do on the Court. We illustrate our argument by examining the use of American Dream talk in the dispute over same-sex marriage (SSM).

Citation

Bybee, K.J. and Ghosh, C. (2009), "Legalizing public reason: The American dream, same-sex marriage, and the management of radical disputes", Sarat, A. (Ed.) Studies in Law, Politics and Society (Studies in Law, Politics, and Society, Vol. 49), Emerald Group Publishing Limited, Leeds, pp. 125-156. https://doi.org/10.1108/S1059-4337(2009)0000049008