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.

Rogers Smith describes the adverse influence of modern liberalism's governing ideas on the development of American constitutional law and offers a new, more purposive theory to suit contemporary needs. He begins with a fresh analysis of the liberal goals shared by America's constitutional framers and points out the weaknesses of their political thought. Examining vital constitutional doctrines of due process, free speech, voting apportionment, and economic welfare, he demonstrates how contemporary law is often an incoherent patchwork of principles drawn from different historic versions of liberalism.

Smith considers and discards the major modern theories in political philosophy that bear on constitutional law: the democratic relativism of Alexander Bickel and John Hart Ely, the higher-law views inherited from America's religious traditions, and the neo-Kantian liberalism of Ronald Dworkin and John Rawls. Returning instead to the early liberalism of John Locke, he suggests how a theory centered on the Enlightenment commitment to promoting human capacities for reflective self-direction, or “rational liberty,” might better guide current constitutional debates.

Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.