Winner of the Thomas M. Cooley Book Prize, Georgetown Center on the Constitution
Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy.
Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate.
Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.
Very careful, meticulously researched and referenced, balanced in its treatment of issues, fair to opposing positions, and successful in offering a subtle and nuanced perspective that takes multiple considerations into account, Fallon's treatment of the varieties of legitimacy, of the role of precedent, and of questions of official obedience to Supreme Court rulings will make useful contributions to the now existing literature.
This book stands head and shoulders above the competition in the graceful and insightful way in which it combines Fallon's well-known mastery of constitutional law and practice and his ability to grasp and deploy a deep understanding of the work that philosophy can contribute to constitutional understanding.
Thoughtful and timely…Fallon wisely argues for a conception of legitimate judicial decision-making in which we accept that law is influenced by political, practical, and moral considerations, even as we strive to ensure it is not dominated by them.
Practical and philosophical, Fallon’s book prompts readers to revisit constitutional theories in a fresh and valuable way.
- 2019, Winner of the Thomas M. Cooley Book Prize
- 240 pages
- 6-1/8 x 9-1/4 inches
- Belknap Press
Sorry, there was an error adding the item to your shopping bag.
Sorry, your session has expired. Please refresh your browser's tab.