This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law takes the two sides of public reason and stretches them over time, forming a three-dimensional overlapping consensus. This concept takes all of the legal and political concepts deeply entrenched in our history, and forms a uniquely American conception of higher law. This piece argues for public reason as both a useful and normatively compelling model of higher law formation.
Available at: http://0-works.bepress.com.library.simmons.edu/gordon_ballingrud/2/