قانون و مشروعیت در دیوان عالی کشور

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 Constitutions 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. Fallons account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed. The Book Addresses Questions About The Roles Of Law And Politics And The Challenge Of Legitimacy In Constitutional Adjudication In The Supreme Court. With All Sophisticated Observers Recognizing That The Justices' Political Outlooks Influence Their Decision Making, Many Political Scientists, Some Of The Public, And A Few Prominent Judges Have Become Cynical Realists. In Their View Justices Vote Based On Their Policy Preferences, And Legal Reasoning Is Mere Window-dressing. This Book Rejects Cynical Realism, But Without Denying Many Realist Insights. It Explains The Limits Of Language And History In Resolving Contentious Constitutional Issues. To Rescue The Notion That The Constitution Is Law That Binds The Justices, The Book Provides An Original Account Of What Law Is And Means In The Supreme Court. It Also Offers A Theory Of Legitimacy In Supreme Court Adjudication. Given The Nature Of Law In The Supreme Court, We Need To Accept And Learn To Respect Reasonable Disagreement About Many Constitutional Issues. If So, The Legitimacy Question Becomes: How Would The Justices Need To Decide Cases So That Even Those Who Disagree With The Outcomes Ought To Respect The Justices' Processes Of Decision? The Book Gives A Fresh And Counterintuitive Answer To That Vital Question. Adapting A Methodology Made Famous By John Rawls, It Argues That The Justices Should Strive To Achieve A Reflective Equilibrium Between Their Interpretive Principles, Framed To Identify The Constitution's Enduring Meaning, And Their Judgments About Appropriate Outcomes In Particular Cases, Evaluated As Prescriptions For The Nation To Live By In The Future. The Book Blends The Perspectives Of Law, Philosophy, And Political Science To Answer Theoretical And Practical Questions Of Pressing National Importance-- Introduction -- Legitimacy And Judicial Authority -- Constitutional Meaning : Original Public Meaning -- Constitutional Meaning : Varieties Of History That Matter -- Law In The Supreme Court : Jurisprudential Foundations -- Law In The Supreme Court : Constitutional Constraints -- Constitutional Theory And Its Relation To Constitutional Practice -- Sociological, Legal, And Moral Legitimacy : Today And Tomorrow. Richard H. Fallon, Jr. Includes Bibliographical References And Index. "The book addresses questions about the roles of law and politics and the challenge of legitimacy in constitutional adjudication in the Supreme Court. With all sophisticated observers recognizing that the Justices' political outlooks influence their decision making, many political scientists, some of the public, and a few prominent judges have become Cynical Realists. In their view Justices vote based on their policy preferences, and legal reasoning is mere window-dressing. This book rejects Cynical Realism, but without denying many Realist insights. It explains the limits of language and history in resolving contentious constitutional issues. To rescue the notion that the Constitution is law that binds the Justices, the book provides an original account of what law is and means in the Supreme Court. It also offers a theory of legitimacy in Supreme Court adjudication. Given the nature of law in the Supreme Court, we need to accept and learn to respect reasonable disagreement about many constitutional issues. If so, the legitimacy question becomes: how would the Justices need to decide cases so that even those who disagree with the outcomes ought to respect the Justices' processes of decision? The book gives a fresh and counterintuitive answer to that vital question. Adapting a methodology made famous by John Rawls, it argues that the Justices should strive to achieve a "reflective equilibrium" between their interpretive principles, framed to identify the Constitution's enduring meaning, and their judgments about appropriate outcomes in particular cases, evaluated as prescriptions for the nation to live by in the future. The book blends the perspectives of law, philosophy, and political science to answer theoretical and practical questions of pressing national importance"--Provided by the publisher "The book addresses questions about the roles of law and politics and the challenge of legitimacy in constitutional adjudication in the Supreme Court. With all sophisticated observers recognizing that the Justices' political outlooks influence their decision making, many political scientists, some of the public, and a few prominent judges have become Cynical Realists. In their view Justices vote based on their policy preferences, and legal reasoning is mere window-dressing. This book rejects Cynical Realism, but without denying many Realist insights. It explains the limits of language and history in resolving contentious constitutional issues. To rescue the notion that the Constitution is law that binds the Justices, the book provides an original account of what law is and means in the Supreme Court. It also offers a theory of legitimacy in Supreme Court adjudication. Given the nature of law in the Supreme Court, we need to accept and learn to respect reasonable disagreement about many constitutional issues. If so, the legitimacy question becomes: how would the Justices need to decide cases so that even those who disagree with the outcomes ought to respect the Justices' processes of decision? The book gives a fresh and counterintuitive answer to that vital question. Adapting a methodology made famous by John Rawls, it argues that the Justices should strive to achieve a "reflective equilibrium" between their interpretive principles, framed to identify the Constitution's enduring meaning, and their judgments about appropriate outcomes in particular cases, evaluated as prescriptions for the nation to live by in the future. The book blends the perspectives of law, philosophy, and political science to answer theoretical and practical questions of pressing national importance"-- Provided by publisher Cover -- Title Page -- Copyright -- Dedication -- Contents -- Preface -- Introduction -- 1. Legitimacy and Judicial Authority -- 2. Constitutional Meaning -- 3. Constitutional Meaning -- 4. Law in the Supreme Court -- 5. Constitutional Constraints -- 6. Constitutional Theory and Its Relation to Constitutional Practice -- 7. Sociological, Legal, and Moral Legitimacy -- Notes -- Acknowledgments -- Index Richard Fallon offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Based on an ideal of good faith, his account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.