This paper discusses the various ways that deliberative democratic theory intervenes in debates about constitutional theory. After a brief introduction, Section II begins with foundational views that employ deliberation as a framework to reconstruct constitutionalism as such. In Section III I canvas theories that delineating how we ought to be deliberating about constitutions within established liberal democratic orders. This moves the discussion from a constituent function of deliberation to a constituted function and role. This section pays special attention to public reason arguments. The question of how we should be deliberating about constitutional essentials naturally leads to the question of who should be deliberating about constitutional essentials in Section IV. There are three natural answers to this question: courts, legislatures, and citizens. Within deliberative democracy theory the answer is often a combination of these three but there are important variations. In Section V, I take a deeper dive into citizen participation in deliberative constitutionalism. I argue that deliberative constitutionalism offers a view of democratic constitutionalism that differs from political and popular constitutionalism both of which are focused on reducing the power of courts vis-à-vis legislative institutions rather than enhancing the participatory power of citizens.

Impartiality as a property of government is central to many of the major constitutional concerns of liberal democracy. This essay tersely considers the nature and implications of impartiality in three main areas: the rule of law; the distinction between the right and the good; and freedom of speech. Because of constraints of space, each of the discussions in this paper is no more than a sketch of the complex matters that are at issue in debates over impartiality.

This introduction assesses a range of popular and scholarly attitudes toward the current state of American democracy, identifying in them a dominant theme of modern democratic theory, namely, an aversion to conflict. Just as John Rawls believed democratic societies to be perennially threatened by a “mortal conflict” between comprehensive doctrines and their “transcendent elements not admitting of compromise,” and so proposed a theory of liberal order aimed at preempting, containing, and resolving these conflicts, so contemporary critics perceive the intractable disagreements and polarizations of American political culture to be only corrosive and destabilizing. They propose strategies for achieving social cohesion grounded in a sense of national unity, shared history, or common identity more fundamental to difference. Many religious persons and traditions exhibit a similar aversion to conflict, believing it to indicate some form of sin, injustice, or moral error. I question this presumption that conflict is inherently vicious, ruinous, or violent, and begin to sketch an alternative view of conflict as basic to human creaturehood and potentially generative for social life.

The deliberate targeting of Japanese civilians in the firebombing of sixty cities and in the use of the atomic bomb to break morale and compel unconditional surrender raised serious moral issues. But should historians read today’s values back to the Asia Pacific War? There is a longstanding debate among historians over whether it is their place to pass judgment or whether they should maintain a detached and objective position in their work. In this chapter, we see how carpet bombing, targeting of civilians, and finally Hiroshima and Nagasaki were so horrific that it became difficult to maintain moral neutrality. Instead, the main lines of debate and controversy centered on the issue of what standards should be applied. We explore the varieties of moral judgments reached by historians and the norms that should govern the issue.

In Chapter 3, I confront views offered by anti-cosmopolitan theorists. According to the first anti-cosmopolitan view, our obligations to guarantee the substance of the right to subsistence is owed primarily to our compatriots. These obligations outweigh our obligations to those beyond our borders. According to the second anti-cosmopolitan view, we don’t have any obligations beyond our own borders. On these views, our obligations to others are delimited by the particularities of our reciprocal relationship with our compatriots. In response, I draw from John Rawls to articulate an institutional conception of rights. On such a conception, our obligations toward others arise in particular contexts where we interact with and coerce one another vis-à-vis our participation in an institutional scheme. Because we are implicated in trans- and supranational economic, political, and social institutions, we interact institutionally with severely poor people. Employing such an argument serves as a defense against anti-cosmopolitan theorists.

Rawls assesses conceptions of justice in terms of how stable a society governed by them would be. I describe how Rawls presents this view of stability differently in A Theory of Justice and Political Liberalism. I then argue that G.A. Cohen’s objections to this view largely fail insofar as we grant Rawls the claim that the task of principles of justice is to provide fair terms of cooperation. But I then develop an objection to this claim by drawing on Cohen’s critique of Rawls’s treatment of the circumstances of justice. These circumstances are more capacious than Rawls allows. Nonetheless, contra Cohen, we can retain one of the key insights of Rawls’s project, which is that justice is fundamentally about realizing a certain kind of relationship rather than realizing a particular distribution of goods. I sketch a Kantian conception of the relevant relationship and consider the role stability plays in it.

Suggesting the term of a “method of insulation,” this paper analyzes a development that characterizes Rawls’s thought after the publication of Theory. He sought to strengthen his theory of justice by seemingly weakening it, that is, by reducing its philosophical – and especially metaphysical – core commitments to what is absolutely essential for the theoretical enterprise to be successful, aiming at “doctrinal autonomy” and a “free-standing” conception of justice. In reconstructing the main “declarations of philosophical independence” until Political Liberalism, the major achievements but also the problems of this view are discussed. For there came a point at which the method of insulation endangered rather than strengthened the autonomous normative standing of Rawls’s “political” conception of justice.

This essay shows the continued value of Rawls’s public reason project. Its internal tendency is to generate new ideas. To do so, I review seven models of public reason, beginning with A Theory of Justice. Following Political Liberalism, I focus on Rawls’s unaddressed problem of justice pluralism. Rawls did not contain reasonable disagreement abou tjustice. Failing to stop it requires developing a fourth model of public reason. If Rawlsians accept justice pluralism, they must explore Gerald Gaus’s public reason project, so I introduce three models of public reason in Gaus’s work. The final model has only begun to bear fruit, generating a research program Gaus called the New Diversity Theory. Rawls and Gaus show that the public reason project remains a fertile research program

The success of a democratic society depends, Rawls thought, on members having a shared sense of justice, a common basis for reasoning about what is right. Otherwise, disagreements born from conflicts of interest and identity – and associated “distrust and resentment” – will have corrosive effects on social cooperation. But can we reasonably hope for a broadly shared sense of justice? Religious and philosophical pluralism arguably leave hope for an overlapping consensus on a conception of justice sufficient to cabin those corrosive effects. But what about the pluralism of conceptions of justice themselves? I argue that, even on favorable assumptions about people and social cooperation, we should expect serious disagreement about conceptions of justice and the forms of democracy they recommend, as well as conflicts between and among the interests and identities of citizens who endorse those competing conceptions. Even on these favorable assumptions, then, we have reason to worry – as I think Rawls always did – about the fragility of democracy.

John Rawls has been sharply criticized, most notably by Charles Mills, for not sufficiently addressing questions of racial justice. Specifically, Mills has argued that it is a deep flaw in Rawls’s framework (and in much liberal theory that has followed Rawls’s example) that it cannot account for the legitimacy of reparations claims for past racial injustices. In response to this influential charge, the present chapter argues that reparations for racial injustice can be understood and defended within the framework of justice as fairness. It discusses the political morality of reparations and its relation to racial justice. It also explores the often-misunderstood relationship between reparative justice and distributive justice.

Some commentators have expressed puzzlement about the influence a short paper of mine may have had on the development of John Rawls’s thought after the publication of A Theory of Justice in 1971. The issue arises because Rawls said in the Introduction to Political Liberalism that my paper had played a role in the evolution of his views, yet readers have found it difficult to understand how or why it did so. By examining some of Rawls’s published and unpublished lectures from the late 1970s and early 1980s, and drawing on correspondence I had with him during those years, I try to provide some context for his remarks about my paper and to refresh people’s memory of the issues that were on Rawls’s mind during that period. This may help to illuminate the position he eventually arrived at in Political Liberalism and some of the motivations for it.

Waseem Yaqoob examines how four prominent German political philosophers responded to the ‘crisis of historicism’ by re-thinking the relation between ethics, politics and history. The trigger for the crisis was Germany’s defeat in World War I, when the presumed convergence of the monarchical nation state with ethical fulfilment and historical destiny dissolved in defeat and political upheaval. Among the first to respond was Friedrich Meinecke, whose earlier confidence in that convergence was replaced by an awareness of historical contingency, and of the difficulty of aligning ethics with reason of state. Notoriously harder line was Carl Schmitt, for whom an appreciation of contingency in a ‘world of enemies’ entailed the assertion of sovereignty at the expense of ethics. With the collapse of Nazism and advent of the Cold War, Reinhart Koselleck renewed Schmitt’s critique of moralising historical philosophy (identified with the Enlightenment), before turning to ‘conceptual history’ to suggest that the state would best adapt to the accelerating temporality of modernity by avoiding all normative choices. By contrast, Hannah Arendt would seek in the contingency of history the space to make such choices, and the opportunity to revive the ancient ideal of active citizenship. In conclusion, Yaqoob sets German post-Historicist thinking off against the anti-historical tendency of Anglo-American political philosophy associated with John Rawls, suggesting that the former may offer a more sophisticated historical ‘realism’ than that current among Rawls’ critics.

The fact of religious pluralism is one of the most challenging questions for contemporary liberal democracies. Political theorists variously argue that religious belief and practice can be a support for prosocial morality, can cause social division, may prevent citizens from adopting important civic norms, or should simply be an area of civic competence. All of these positions carry significant consequences for democratic education. This chapter surveys a range of positions present in political theory and democratic education literature, drawing on historical and contemporary examples from Western democracies, particularly the American context. The chapter concludes by exploring the possibility that modern liberal democratic regimes are properly considered religious themselves, and by considering the implications of this notion for debates regarding democratic education.

Within liberal societies, citizens endorse a range of religious, moral, and philosophical views (e.g., Buddhism and utilitarianism). Despite this doctrinal diversity, John Rawls’ account of political liberalism holds that there is a form of democratic equality that is realizable by all citizens. Citizens can be equally politically autonomous if they enjoy equal political power and justify the exercise of that power with public reasons. A political liberal education for democratic citizenship would teach students how to participate in political decision-making, and how to use public reasons when helping to decide fundamental political questions. Political liberalism also can accommodate diverse educational options for families, but this accommodation is limited by political liberalism’s concern for the future political autonomy of students. This concern distinguishes the political liberal account from the “convergence” account of public justification. Unlike political liberalism, the convergence account fails to respect adequately the future political autonomy of students.