When courts exercise judicial review, should they invalidate laws that are not motivated by public reason? For proponents of public reason, a standard response might be that laws not motivated by public reason are impermissible under the liberal principle of legitimacy. But this response must confront the permissibility objection, which holds that a law’s motivation is irrelevant to its moral permissibility. Against this objection, this chapter defends a motivational requirement for purposes of judicial review. In some cases, an agent’s motivation can be relevant to the permissibility of the agent’s actions. This chapter also argues that laws with mixed motives, both nonpublic and public, may be permissible, but courts have reason to give such laws careful scrutiny in determining whether they are publicly justified.

Frank I. Michelman takes up a proposition from John Rawls that a stricter constraint of constitutional fidelity applies to supreme court judges in a constitutional democracy than to citizens acting politically as litigants, voters, organizers, and otherwise as agitators for political causes to determine whether this proposition fits with Rawls’s other political ideas. It is, however, not immediately clear how this proposition can fit with Rawls’s proposed “liberal principle of legitimacy,” according to which a country’s constitution is to figure as a public procedural pact, by appeal to which citizens justify to each other their exertions of the coercive political powers that they hold as citizens in a democracy. Answering requires careful specification of the respects in which the fidelity constraint is to be looser for citizens than for judges, close analysis of the Rawlsian constitution-centered “principle of legitimacy,” and consideration of Rawls’s later writings that modify in some crucial respects the principle of legitimacy.