Themes from Fallon on Constitutional Theory

Abstract

Professor Richard Fallon’s Law and Legitimacy in the Supreme Court is a deep, original, and important contribution to constitutional theory. Fallon’s book is extraordinary, ranging across fundamental issues in normative constitutional theory and connecting to important ideas from political philosophy, metaethics, and the philosophy of language. This Essay explores three themes from Fallon and reflects on the significance of Fallon’s work for contemporary constitutional theory. The first theme concerns the idea of constraint by the constitutional text: Fallon develops a challenge to the claim that the legitimacy of judicial review requires that judges be constrained by the constitutional text. Part I of this Essay situates Fallon’s challenge in the context of contemporary originalist constitutional theory. Discussion of the first theme aims to reveal difficulties with Fallon’s claim that the existence of multiple kinds of meaning undermines certain forms of constitutional originalism. The second theme derives from Fallon’s exploration of the foundational role of the idea of reflective equilibrium in normative constitutional theory. Part II of this Essay suggests that the role of constitutional theory requires that reflective equilibrium be reconceptualized in terms of intersubjective agreement among citizens who affirm a plurality of moral, religious, and ideological perspectives: in other words, it is a we and not an I that should aim for a relationship of consistency and mutual support between our considered constitutional judgments. Exploration of the second theme aims to reveal a difficulty with a first-person singular approach to reflective equilibrium. The third theme is prompted by Fallon’s exploration of the idea of legitimacy. Part III of this Essay suggests that constitutional legitimacy has a complex structure, including both multiple dimensions and functions. Investigation of the third theme aims to uncover the ways in which constitutional legitimacy constrains the options available to normative constitutional theory. The three themes are woven together in the final Part of the Essay, which reflects the implications of Fallon’s work for the great debate between originalism and living constitutionalism. Part IV of the Essay suggests the ways in which originalists might respond to Fallon’s important, deep, and learned challenges to the case for constitutional originalism.