Constitutional Democracy and Judicial Supremacy: John Rawls and the Transformation of American Politics

by Jerome C. Foss


At the time of the American Founding, political science was primarily concerned with the study of institutions and institutional design. Political scientists wanted to understand how institutions operate and what arrangements would result in the best constitutional order capable of approaching the common good. Political philosophy was a partner in this project insofar as it helped clarify the questions related to the common good and human flourishing.

During the course of the twentieth century, political science shifted its focus from institutional matters to the behavior of political players (voters, politicians, judges, lobbyists, etc.). As this shift became more prevalent, political philosophy lost much of its professional luster. Questions of the common good and human fulfilment were relegated to the realm of values that could only be answered by individuals in their private capacities. Citizens became viewed as value-holders and rights-bearers that entered the political arena hoping to achieve whatever they viewed to be in their self-interest. The conception of a common interest was all but lost.

While this newer model of political science yielded useful insights, it rested on a rather bleak conception of humans as rationally self-interested and autonomous animals. The bleakness of this model led some academics to hope for a new theory of government that would raise the old questions of political philosophy without jeopardizing modern methodologies.

John Rawls is often regarded as the theorist who reinvigorated the study of political philosophy among American political scientists. Since his 1971 book A Theory of Justice, Rawls has been considered the preeminent spokesman for Anglo-American political philosophy primarily contributing to the world a defense of a theory he calls justice as fairness, which aims at preserving individual liberty while encouraging greater social cooperation and respect.

Though many find Rawls’s work to be inspiring, others claim that his political philosophy is insufficient compared to the tradition of political inquiry going back to Socrates. Rawls’s theory, they claim, lacks any real insights into human nature or the purpose of political life. The heated tone over his legacy provides evidence that something more concrete than a philosophical exposition is at stake in his essays and books.

In what is both an important contribution to scholarship on Rawls and American political institutions, Jerome C. Foss provides a fresh reading of Rawls’s corpus with an eye to the late theorist’s political intentions, an approach that goes a long way toward explaining the intractable debate over Rawls’s legacy. Foss argues that Rawls is best put into conversation not with Locke, Kant, Hegel, and other seminal thinkers of political philosophy, but with the framers of the American constitution. Rawls’s theory aims not so much at pointing political scientists and other academics toward the search for a common good, but rather seeks to justify political actors, particularly judges, in reorienting American politics to fit a more egalitarian society. No other book gives as systematic an account of how Rawls aims at supplanting the constitutional republicanism of the American founding with a more democratic regime.

Constitutional Democracy and Judicial Supremacy: John Rawls and the Transformation of American Politics is an important volume for all political science and philosophy collections focused on John Rawls, public and constitutional law, American political thought and institutions, and judicial politics.


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