Legislation and Legitimacy within the Supreme Courtroom

Winner of the Thomas M. Cooley Ebook Prize, Georgetown Heart on the Structure

Why do self-proclaimed constitutional “originalists” so repeatedly attain choices with a politically conservative valence? Do “dwelling constitutionalists” declare a license to achieve no matter outcomes they like, with out regard to the Structure’s language and historical past? In confronting these questions, Richard H. Fallon reframes and in the end transcends acquainted debates about constitutional legislation, constitutional concept, and judicial legitimacy.

Drawing from concepts in authorized scholarship, philosophy, and political science, Fallon presents a concept of judicial legitimacy primarily based on a great of fine religion in constitutional argumentation. Good religion calls for that the Justices base their choices solely on authorized arguments that they genuinely imagine to be legitimate and are ready to use to related future instances. Originalists are appropriate about this a lot. However good religion doesn’t forbid the Justices to refine and modify their interpretive theories in response to the novel challenges that new instances current. Fallon argues that theories of constitutional interpretation ought to be works in progress, not inflexible formulation laid down upfront of the unforeseeable challenges that life and expertise generate.

Legislation and Legitimacy within the Supreme Courtroom provides theories of constitutional legislation and judicial legitimacy that settle for many tenets of authorized realism however reject its corrosive cynicism. Fallon’s account each illuminates present follow and prescribes urgently wanted responses to a legitimacy disaster by which the Supreme Courtroom is more and more enmeshed.