89 Texas L. Rev. 653
The two concerns that Professor Sandel explores in Justice, according to Professor Abramson, are whether it is possible for legal reasoning to remain neutral with regard to moral and religious values, and, if such neutrality is possible, whether it is also desirable. Sandel answers both questions in the negative. Abramson notes that, for Sandel, there is often no way to decide the legal issue without deciding the underlying moral question. Thus, the “jurisprudential paradigm” should be shifted from moral neutrality to moral engagement and identifies the controversies over abortion and same-sex marriage to illustrate this shift.
According to Sandel, the best way to interpret the Constitution is “in light of the civic republican tradition that animated the founding generation and that continues to instill moral value in democracy.” Abramson challenges some of the implications of this viewpoint, notably the moral worth of different types of speech. Abramson notes that Sandel’s support for morality-based legal reasoning is problematic because different interpretations may be equally grounded in different moral views, and, under Sandel’s model, a group’s rights will be left at the mercy of a majority’s moral views.