"Should 'public reason' developed under US establishment clause jurisprudence apply to Australia?" by Anthony K Thompson

Article

Should 'public reason' developed under US establishment clause jurisprudence apply to Australia?

The University of Notre Dame Australia Law Review (2015)

Anthony K Thompson, The University of Notre Dame Australia

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.

Disciplines

Publication Date

2015

Citation Information

Thompson, A. K. (2015). Should 'public reason' developed under US establishment clause jurisprudence apply to Australia? The University of Notre Dame Australia Law Review, 17, 107-134