ABSTRACT
Chapter 1 described legal reasoning as a shorthand term for evaluating the fairness bywhich courts and judges exercise political power. Our argument has proceeded in four steps. First, in a political system committed to the rule of law, the law must in fact rulepeople must act consistently with the law. Second, courts have unquestioned power to interpret what the law means in legal cases. Third, rules of law are often unclear when applied to specific cases, so cases are constantly appealed on points of law and judges must choose what the law means. But now the obvious question arises: How can judges follow the law if at the same time they choose what the law means? Hence the fourth step: Judges who exercise political power under the rule of law must justify their choices. In commonlaw nations, judges do this through the medium of legal reasoning, which requires them to render decisions that fit together, or harmonize, rules of law, facts of cases, social background facts, and widespread social values. (This is not an expectation in civil-law nations such as France, where judges do not give extensive justifications for their decisions.)
In constitutional law, the third and final type of law this text examines, we encounter what we conventionally think of as the most truly political part of law. Political science has historically paid close attention to constitutional law but has largely ignored common law and statutory law. It has also largely ignored state constitutions, though all 50 states have them, and though they also play a role in some important political controversies. Why should this be so?
