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Reconstructing the Public Square
Cardozo Law Review (2003)
  • Robert Justin Lipkin

This Article offers a rapprochement between two warring factions over the role of religion in publicly justifying laws. One faction, embracing "inclusionism," is skeptical of any constraints on democratic debate and adopts an eclectic attitude welcoming religious arguments in the public square along with secular arguments. Yet, understood in this fashion, inclusionism is committed to the propriety of those religious arguments, which may in fact create a "Tower of Babel" environment in which American citizens are unable to genuinely communicate with one another. For this reason, and because religious arguments are sometimes divisive, the opposing faction embraces "exclusionism" which seeks to limit the public square to secular arguments only. Yet, restricting the freedom of religion and speech rights of religious citizens is unfair, and more dangerously, appears incompatible with both the purposes of the First Amendment and democracy. How then can the dangers associated with both inclusionism and exclusionism be avoided?

This Article attempts to formulate a principled compromise between these two factions by replacing the distinction between the religious and the secular with the novel distinction between the dedicated and the deliberative. Dedicated arguments and reasons - including both religious and secular ones - insist on a canonical and fixed language and form of reasoning for discussing public policy. By contrast deliberative arguments and reasons - including both religious and secular ones - insist on a tentative, pragmatic, fallibilistic language and form of reasoning with which to conduct democratic debate. This Article then suggests that democracy in the public square is best understood as committed to the thesis that dedicated arguments be "reconstructed" into deliberative ones, and that all deliberative arguments - whether religious or secular - play an equal role in justifying coercive laws in democratic societies. The Article then evaluates an important objection to the Reconstruction Thesis, which helps to better illuminate the Thesis's rationale. The Article concludes with a conception of complex democracy, which is presupposed by the Reconstruction Thesis and enables us to see its plausibility and attractiveness.

  • jurisprudence,
  • religion,
  • law
Publication Date
Citation Information
Robert Justin Lipkin. "Reconstructing the Public Square" Cardozo Law Review Vol. 24 (2003)
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