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Sadurski, Wojciech --- "Judicial review and Public Reason" [2018] ELECD 776; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 337

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 17

Section Title: Judicial review and Public Reason

Author(s): Sadurski, Wojciech

Number of pages: 20

Abstract/Description:

After a brief introduction to Public Reason, this chapter discusses the interconnection between Public Reason and judicial review. Canvassing examples from Canada, the United States, Germany, and Australia, the author argues that Public Reason can be, and in fact has been in certain cases, used to examine the constitutionality of motives behind legislation under review. After highlighting the evidentiary difficulties of identifying and proving motives within such a framework and outlining the clashes this can create between the judiciary and the legislature, this chapter concludes by arguing that Public Reason can help identify or “objectify” which motives are acceptable and which are not to allow review to work backwards from effects to impermissible motives. Such an approach would avoid the evidentiary issues presented above and put the legislature on notice of what would be required of future legislation.