Law and Legitimacy in the Supreme Court by Professor Richard Fallon explores the relationship between normative legitimacy and the Supreme Court’s role in constitutional interpretation and construction. This essay interrogates Fallon’s ideas in the context of the great debate between originalism and living constitutionalism via the development of the themes. The first theme focuses on the relationship between Fallon’s views and the originalist claim that constitutional interpretation and construction should be constrained by the original public meaning of the constitutional text. The second theme focuses on Fallon’s development of the idea of reflective equilibrium as a method for constitutional theory and practice. The third theme focuses on the structure of normative constitutional legitimacy, contrasting Fallon’s focus on the substantive justice of constitutional norms with an alternative approach that conceptualizes constitutional legitimacy as a multidimensional process value. The essay begins and ends with praise for Law and Legitimacy in the Supreme Court: Fallon’s book is important, wide-ranging, and deep; it is essential reading for constitutional scholars.
Lawrence B. Solum, Themes from Fallon on Constitutional Theory, 18 Georgetown Journal of Law & Public Policy, 287–351 (2020).