Author’s Response: Further Reflections on Law and Legitimacy in the Supreme Court

Author’s Response: Further Ref‌lections on Law and

Legitimacy in the Supreme Court

RICHARD H. FALLON, JR.*

ABSTRACT

This Article responds to comments on my book Law and Legitimacy in the

Supreme Court by Professors Gillian Metzger, Scott Soames, Lawrence Solum,

and Keith Whittington. It defends the main theses that my book develops and

engages further questions that Professors Metzger, Soames, Solum, and

Whittington either raise or provoke.

TABLE OF CONTENTS

I. THE AGENDA OF LAW AND LEGITIMACY IN THE SUPREME COURT. . 386

A. The Nature of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386

B. Law, Legitimacy, and Constitutional Theory . . . . . . . . . . . . . 387

C. How to Choose or Develop a Constitutional Theory:

Ref‌lective Equilibrium Theory . . . . . . . . . . . . . . . . . . . . . . . . 389

D. Applying Ref‌lective Equilibrium Theory to Identify or Develop

a First-Order Constitutional Theory . . . . . . . . . . . . . . . . . . . 391

II. CHALLENGES TO REFLECTIVE EQUILIBRIUM THEORY AND MY

ACCOUNT OF NORMATIVE CONSIDERATIONS BEARING ON THE

CHOICE OF FIRST-ORDER CONSTITUTIONAL THEORIES . . . . . . . . . . 392

A. Normative and “Positivistic” Grounds for Theory Choice . . . 392

B. Theory Choice Within a Ref‌lective Equilibrium Framework. . . 395

III. COMPARISONS BETWEEN MY THEORY AND PUBLIC MEANING

ORIGINALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401

A. Fixing the Terms of Comparison . . . . . . . . . . . . . . . . . . . . . . 402

B. Response to Criticisms of My Multiple Meanings Thesis. . . . . 409

* Story Professor of Law, Harvard Law School. This article is an expanded and revised version of

the remarks that I delivered in response to commentators and earlier panel discussions in the Symposium

on April 12, 2019. I am grateful to Emily Massey for enormously helpful comments on a prior draft.

© 2020, Richard H. Fallon, Jr.

383

C. Constraint by Original Meaning . . . . . . . . . . . . . . . . . . . . . . 413

IV. THE RELEVANCE OF SOCIOLOGICAL LEGITIMACY TO MORAL AND

LEGAL LEGITIMACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

V. LEGITIMACY DEFICITS IN HISTORICAL CONTEXT AND PROSPECTS

FOR THEIR FUTURE REMEDIATION IN A POLARIZED ERA . . . . . . . . . 419

The questions that should most concern people who care about the

Constitution and constitutional law are diverse, though interrelated. Among them

are these: Is the Constitution binding law in the United States and, if so, why? Is

the Constitution morally legitimate? Was its meaning f‌ixed at the time of its ratif‌i-

cation? Can it have multiple meanings? How should Supreme Court Justices

interpret the Constitution? And—perhaps before we get to that question—how

should the Justices choose among or develop theories of constitutional interpreta-

tion? What is the relationship between law, morality, and tactical expediency in

constitutional adjudication, and what should it be?

A number of these questions—which I take up in Law and Legitimacy in the

Supreme Court

1

—arise at the intersection of law, political science, moral philoso-

phy, and the philosophy of language. In the book’s preface, I acknowledged the

intellectual riskiness of adopting positions that span all of these disciplines. But I

emphasized that the most important questions about law, language, and legiti-

macy in the Supreme Court transcend disciplinary bounds. Accordingly, my

most fervent aspiration was to frame issues and provoke interdisciplinary

conversation.

Given my hopes for interdisciplinary engagement, I could scarcely be more

delighted by the responses that my book elicited from the distinguished scholars

who participated in this Symposium.

2

Gillian Metzger is a legal scholar of the

f‌irst rank whose work ranges across constitutional and administrative law. Scott

Soames is a preeminent philosopher of language. Law professor Lawrence Solum

possesses a stunning breadth of philosophical knowledge that he has deployed

with great insight in def‌ining and defending constitutional originalism. Keith

Whittington is a highly distinguished political theorist who has already exerted a

large inf‌luence on legal debates and who will undoubtedly continue to do so.

Among my reasons for gratitude to these commentators is that each has engaged

my arguments with discernment and charity before proffering challenges.

1. RICHARD H. FALLON, JR., LAW AND LEGITIMACY IN THE SUPREME COURT (2018).

2. Gillian E. Metzger, Considering Legitimacy, 18 GEO. J.L. & PUB. POL’Y 353 (2020); Scott

Soames, Originalism and Legitimacy, 18 GEO. J.L. & PUB. POL’Y 241 (2020); Lawrence B. Solum,

Themes from Fallon on Constitutional Theory, 18 GEO. J.L. & PUB. POL’Y 287 (2020); Keith E.

Whittington, Practice-Based Constitutional Law in an Era of Polarized Politics, 18 GEO. J.L. & PUB.

POL’Y 227 (2020).

384 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:383

In this response, I could not possibly address all of the commentators’ ques-

tions and criticisms, nor react to all of their provocative and insightful observa-

tions. In replying selectively, I begin in Part I with a summary of Law and

Legitimacy in the Supreme Court’s main themes. My purpose in doing so is not to

correct anyone’s account, but to clarify how various parts of my argument f‌it to-

gether. Some of the interconnections are integral not only to the book, but also to

my responses to the commentators in this Symposium.

Parts II and III, which respond mostly to comments and criticisms by

Professors Soames and Solum, are organized topically, to ref‌lect the twin aspects

of the constitutional theory that Law and Legitimacy in the Supreme Court advan-

ces. The Ref‌lective Equilibrium Theory that my book lays out and defends in

Chapter Six is a meta-theory, designed to guide the development and choice of a

f‌irst-order constitutional theory. Part II replies to criticisms of Ref‌lective

Equilibrium Theory by Professor Soames, who maintains that the choice of a

f‌irst-order constitutional theory requires no normative judgment, and by

Professor Solum, who challenges my account of the normative considerations on

which theory choice ought to depend.

Part III defends the partially sketched f‌irst-order constitutional theory that

emerges from parts of Law and Legitimacy in the Supreme Court in which I assert

claims about the obligations and constraints to which good-faith participants in

constitutional arguments are subject. In his paper for this Symposium, Professor

Solum attempts a head-to-head comparison of my Ref‌lective Equilibrium Theory

with Public Meaning Originalism (PMO). That comparison is not precisely apt.

As I said in Law and Legitimacy in the Supreme Court, Ref‌lective Equilibrium

“is a second-order theory,” designed to guide the development of and choice

among constitutional theories, and “does not preclude the possibility that some

form of originalism might be the best f‌irst-order theory.”

3

Nonetheless, Professor Solum is correct that I spoke in the book of “applying

Ref‌lective Equilibrium Theory to concrete constitutional cases” as the means by

which Justices and others sould work out, over time, the substantive and meth-

odological elements of their f‌irst-order constitutional theories.

4

Professor Solum

is further correct that, in discussing the obligations and constraints to which good

faith participants in constitutional argument are subject, Law and Legitimacy in

the Supreme Court embraces assumptions and endorses both substantive and

methodological premises that PMO (by his account) rejects.

Accepting that the outlines of the f‌irst-order theory that emerge from Law and

Legitimacy in the Supreme Court can be compared with PMO, Part III responds

to some of the critical arguments that Professors Solum and Soames offer in ana-

lyzing my f‌irst-order theory and comparing it with versions of PMO. Before

doing so, however, Part III begins with an important point of framing. In response

to objections that my theory is insuff‌iciently complete and leaves too many issues

3. FALLON, supra note 1, at 146.

4. Id. at 145.

2020] AUTHOR’S RESPONSE 385