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\"In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr., provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, Second Edition combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics\"-- Provided by publisher.

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct \"original public meanings\" that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (\"PMO\") ascends toward a position of dominance within the Supreme Court, both practitioners and critics should recognize the limited capacity of historical and linguistic facts to settle modern issues. To understand successful constitutional communication, this Article argues, requires a distinction between \"minimal\" original public meanings, which either are entailed by language and logic or are otherwise noncontroversial, and the richer and more determinate meanings that originalists often purport to discover. When the Constitution says that each state shall have \"two Senators,\" \"two\" means two. By contrast, when members of the Founding generation disagreed about the meaning of a constitutional provision—as they frequently did—the idea of a uniquely correct and determinate more-than-minimal meaning that existed as a matter of linguistic and historical fact is chimerical. Judges can of course reach determinate conclusions, but seldom can those dispute-resolving conclusions be ones of simple historical fact. Insofar as practitioners of PMO—including Justices of the Supreme Court—purport to discover more-than-minimal original public meanings that provide determinate resolutions to contested cases, skepticism is in order. The problem with claims about more-than-minimal original public meanings is conceptual, not epistemological. Although public meaning originalists speak of \"evidence\" establishing the historical validity of disputed claims about original public meanings, they have no adequate account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning that extends beyond minimal and noncontroversial meanings. After identifying the conceptual limitations of public meaning originalism, this Article examines the resulting challenges for both theorists of PMO and for originalist and nonoriginalist Justices alike. It also draws lessons concerning the nature of and necessary conditions for successful constitutional communication across generations.

The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among leading scholarly critics—to see interconnected problems in a sufficiently broad frame. This Article refocuses analysis along four interconnected dimensions. First, it examines relevant constitutional history, centrally including that of the maxim “for every right, a remedy.” That maxim has exerted significant generative force, but it has also been widely misunderstood. Second, the Article reviews and critiques recent Supreme Court decisions involving constitutional tort claims, many of which reflect fallacious assumptions. Third, the Article addresses the question, What role would damages and injunctive remedies for constitutional violations play in a justly and prudently designed legal system unfettered by historical accidents and path dependence? Commentators almost invariably assume that any gap between constitutional rights and individually effective, make-whole remedies is inherently regrettable. This Article refutes that premise. Although an ideal regime would substitute entity liability for officer liability and afford broad opportunities for victims of constitutional violations to vindicate their rights, it would not always authorize recovery of money damages. Finally, the Article considers reforms that the Supreme Court could effectuate in the absence of action by Congress. Among other proposals, it calls for expansion of municipal liability in suits under 42 U.S.C. § 1983 and for reinvigoration of Bivens actions, but it defends the main outlines of qualified immunity doctrine against a spate of recent critics.

Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal \"meaning. \"Seeking to rectify that deficiency, this Article explores the meaning of \"meaning.\" Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term—and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision's semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its \"real\" conceptual meaning, and its intended, reasonable, and previously interpreted meanings. Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments. When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge —which frequently requires a choice among the literal, contextually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions—reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.

In litigation under the Equal Protection, Free Exercise, Establishment, Free Speech, and dormant commerce clauses, among others, the Supreme Court sometimes inquires whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent. In a comprehensive reexamination of the nature and significance of forbidden legislative intentions, purposes, and motivations, this Article shows that the Court's references invoke varied senses of legislative intent, some of which are subjective and others objective, some of which are coherent and others of which are incoherent. The Article also demonstrates that the Court has provided disparate indications of the significance that should attach to a finding of forbidden intent. These include automatic statutory invalidation, the application of strict judicial scrutiny, and further inquiry into whether the legislature, absent a forbidden motivation, would have enacted the same statute anyway. After mapping confusions in current law, this Article argues that courts should never invalidate legislation solely because the legislature acted with forbidden intentions. Substantive tests of validity should ultimately determine constitutionality. Nevertheless, the Article defends a role for intent-based inquiries — pursuant to intelligibly specified rules for ascribing intentions to multimember bodies — in triggering elevated judicial scrutiny under some constitutional provisions.

This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions' authority and thus are themselves ultra vires. The need for the judiciary to press to the outer limits of its jurisdiction to rein in ultra vires action by other institutions renders political question rulings less categorical, and also less distinct from merits decisions, than both judges and commentators have often imagined. The inescapable role of the courts in identifying ultra vires action by other branches also highlights the possibility of ultra vires action by the courts themselves. The paired risks of ultra vires action by the courts and ultra vires action by other branches if the courts could not assert jurisdiction to restrain them—both made vivid by the political question doctrine—define what this Article calls the ultra vires conundrum. The ultra vires conundrum, in turn, gives rise to what we might think of as ultimate political questions: What happens if courts err in their determination of the outer bounds of their own power? If the courts act ultra vires, do their decisions bind conscientious officials of other branches? And if not, who gets to decide when judicial action is ultra vires? Besides formulating the ultra vires conundrum and answering the questions that define its core, this Article solves a number of more traditional, interrelated puzzles about the political question doctrine that appear in a newlight once the ultra vires conundrum lies exposed. It also traces previously unexplored connections between political questions and the ideal of the rule of law.

This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals and that explains the linkages between the two. This Essay's potentially larger contribution lies in its provision of a template for thinking about judicial candor. Different people begin with different understandings or intuitive conceptions. To arbitrate among rival perspectives, this Essay posits that discussion needs to begin with familiar patterns of linguistic usage, but insists that analysis cannot stop there. Against the background of linguistic and theoretical disagreement, intellectual progress requires examination of why we have reason to care about judicial candor in the various senses in which that term can be used. At the last stage, the selection of a conception of judicial candor must turn on normative considerations. Consistent with that credo, this Essay not only explains, but also justifies, its conclusions about what judicial candor minimally requires and about the further ideals that it embodies, even if fallible and timepressed human judges understandably fall short of ideal candor in many cases.

The doctrines that license \"facial challenges\" to the constitutionality of statutes are widely misunderstood. So are the two leading devices for limiting facial challenges' potentially wrecking-ball effects: narrowing or saving constructions and severability doctrine. This Article advances entwined theses about facial challenges, narrowing constructions, and statutory severability. Although the Supreme Court long maintained otherwise, facial challenges are commonplace. Besides being mandated by such familiar constitutional tests as strict judicial scrutiny, they reflect the nature of many constitutional rights. Given the pervasiveness of facial challenges, narrowing constructions and severance of otherwise-invalid statutes both play vital roles in preserving a myriad of statutes from total invalidation. But they also invite questions about whether courts impermissibly \"rewrite\" statutes in order to save them-or, conversely, about whether courts wrongly refuse to salvage statutes that they dislike for policy reasons. Successful responses to these challenges require distinctions that the Supreme Court too often fails to observe, possibly due to confusion. Saving constructions are statutory interpretations, properly disciplined by canons of construction and theories of interpretation. In contrast, statutory severance occurs following a determination that a statute, as properly interpreted, is constitutionally invalid. Severing an invalid statute thus requires judicial agency, not interpretation, but agency that is restricted by separation-of-powers principles that this Article delineates. This Article's prescriptions concerning facial challenges, saving constructions, and statutory severance have neither a liberal nor a conservative valence. The Article 's analysis does, however, show the necessity for courts to act as sometime-helpmates to Congress in making statutes workable by severing them. The courts' necessary role in severing statutes illuminates the inadequacies of some, though not all, textualist theories of statutory interpretation.

Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior or intuitive methodological assumptions (which sometimes may be vague or indeterminate) and our intuitive judgments concerning the appropriate results in particular cases. If our ex ante methodological theories are under deter minate, reflection on new cases' facts will lead us to specify our premises more fully. Moreover, in instances of initial conflict between judgments of desirable case-specific outcomes and previously adopted methodological commitments, the Reflective Equilibrium Hypothesis advanced in this Essay holds that adjustment can occur on either end. If we argue about constitutional issues in good faith, normally we will adapt our judgments concerning correct results to methodological premises that we have previously endorsed. But sometimes reflection on new cases will provoke an elaboration, qualification, or rethinking of methodological commitments. After advancing the Reflective Equilibrium Hypothesis as an explanatory theory of the main currents of constitutional argumentation, this Essay offers a brief normative defense.

Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy - legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only \"minimally\" rather than \"ideally\" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right.