Toward a Reflective Equilibrium: Making Our Constitutional Practice Safe for Constitutional Theory
28 Pages Posted: 17 Dec 2018
Date Written: November 29, 2018
Book Review: Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)
Fallon departs from the traditional traces of our contemporary constitutional theory. He is redirecting us to new questions about the Constitution, the role of the Court, and the nature of the legitimacy of the Republic. By focusing on the foundations for the moral legitimacy of the Court and the Constitution, Fallon would shift our constitutional discourse away from the sterile debate over constitutional interpretation and originalism and other theoretical issues. That would be a signal achievement in its own right. By casting the discussion of legitimacy in the fundamental new terms that look expressly to our moral and political theory and our constitutional practice—rather than in the narrower, traditional terms of the countermajoritarian dilemma and the role of, and limits on, judicial discretion—Fallon tacitly challenges the dominant positivism that has informed both most originalism and the competing constitutional theories of originalism’s critics.
Fallon’s project is to move us beyond the current debates about constitutional theories of interpretation and his argument that the Court ought to adopt a process of pursuing a reflective equilibrium in its constitutional decision and constitutional practice in order to enhance the legitimacy of our constitutional law and the Court. The first strategy is commendable, but his proposed path reflects an unstated and misplaced commitment to the logical priority of theory. Fallon purports to articulate an account of constitutional practice, but he cannot cast off a fundamental commitment to the priority of concepts, theory, and interpretation. The second argument for a practice of reflective equilibrium may generate a more plausible account of constitutional adjudication than the dominant models in the legal academy, but Rawlsian reflection—even in the situated, historical, thick sense defended by Fallon—is not likely the path forward in understanding the nature of constitutional decision in adjudication or in enhancing the legitimacy of the Constitution and the Court.
Keywords: Richard Fallon, constitutional law, legitimacy, originalism, constitutional interpretation, countermajoritarian dilemma, Rawls, reflective equilibrium, deferentialism, judicial discretion, Soames, Brandom, constitutional construction, New Originalism
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