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Law and Legitimacy in the Supreme Court
Richard H. Fallon
出版
Harvard University Press
, 2018-02-19
主題
Law / Constitutional
Law / Jurisprudence
Law / Judicial Power
Philosophy / Political
Political Science / American Government / Legislative Branch
ISBN
0674975812
9780674975811
URL
http://books.google.com.hk/books?id=5KdFDwAAQBAJ&hl=&source=gbs_api
EBook
SAMPLE
註釋
Why do self-proclaimed constitutional ÒoriginalistsÓ so regularly reach decisions with a politically conservative valence? Do Òliving constitutionalistsÓ claim a license to reach whatever results they prefer, without regard to the ConstitutionÕs 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. FallonÕs account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.