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62 N.Y.U. L. Rev. 715 (1987)
Reconstructing Rawls's Theory of Justice: Developing a Public Values Philosophy of the Constitution

handle is hein.journals/nylr62 and id is 729 raw text is: RECONSTRUCTING RAWLS'S THEORY OF JUSTICE: DEVELOPING A PUBLIC VALUES PHILOSOPHY OF THE CONSTITUTION STEPHEN M. GRIFFIN* Mr. Griffin integrates John Rawls's influential A Theory of Justice with Rawls's later writings in order to challenge some of its critics and to show how together these writings provide the best theory of justice available. After reviewing the major principles of Rawls's theory ofjustice, Mr. Griffln argues that the theory supports the construction of a public values philosophy of the Constitution. A public values philosophy, he argues, is better suited to our constitutional system than the dominant political and constitu- tional theory of this century-democratic relativism. Rawls's theory, as it is interpreted by Mr. Griffin, is a basis for a public values philosophy that justifies the values in the Constitution because the values can be affirmed from the original position and be- cause they are public considered judgments. Mr. Griffin concludes that such a per- suasive justification of constitutional values will contribute to a debate about the Constitution among all educated citizens and ultimately will ensure the continuation, extension, and appropriate revision of these values over time. INTRODUCTION A relatively new kind of constitutional theory involves applying moral and political philosophy to explain, justify, and criticize aspects of constitutional law.' This Article explores the relevance of political phi- losophy to constitutional law by providing a new interpretation of John Rawls's theory of social justice.2 Despite the early enthusiasm for Rawls's theory among legal scholars,3 it appears that the passage of time has confirmed the fear of Thomas Grey that A Theory of Justice is a book which risks the fate of being much discussed but little read.4 As various criticisms took their toll, many concluded that Rawls's theory * Research Instructor in Law, New York University. B.G.S., 1979, University of Kansas; J.D., 1983, University of Kansas; LL.M., 1986, New York University. The author gratefully acknowledges the helpful advice and comments of William Nelson, Lawrence Sager, David Richards, and Rex Martin. I See, e.g., R. Dworkin, Taking Rights Seriously (1977); D. Richards, Toleration and the Constitution (1986); R. Smith, Liberalism and American Constitutional Law (1985). 2 See J. Rawls, A Theory of Justice (1971). 3 See Merritt, Justice as Fairness: A Commentary on Rawls's New Theory of Justice, 26 Vand. L. Rev. 665, 665, 679 (1973); Tushnet, Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 Tex. L. Rev. 1307, 1316 (1979). 4 Grey, The First Virtue (Book Review), 25 Stan. L. Rev. 286, 327 (1973). It is notewor- thy that, generally, Rawls's book was discussed in the law reviews by philosophers, not law- yers. See, e.g., Feinberg, Justice, Fairness, and Rationality (Book Review), 81 Yale L.J. 1004 (1972); Fried, Book Review, 85 Harv. L. Rev. 1691 (1972) (reviewing A Theory of Justice); McBride, Social Theory Sub Specie Aeternitatis: A New Perspective (Book Review), 81 Yale L.J. 980 (1972). 715 Imaged with the Permission of N.Y.U. Law Review

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