Public Reason, Constitutional Review, and the Rights of the Unpopular

This paper examines the ways in which the idea of public reason is concretized through constitutional adjudication practice, especially in cases where the rights of individuals who possess “unpopular traits” in a particular society are invoked to challenge law that purportedly reflects what the majority supports or prefers. In such cases, social cohesion, public morality, and tradition are among the justificatory reasons frequently provided by the government. Through a case study of the Constitutional Court of South Korea, the research explores whether, and why, such arguments of legislative purposes have or have not been successful in different contexts involving minorities’ rights. While the Court conducted a proportionality review in each case, divergences have been observed among decisions concerning non-citizens, women, and sexual minorities.