and their presence in our political discourse does not require us to deny them legitimacy or to corrupt our forms of decision according to law. American constitutional law can be a profoundly moral enterprise, but

Evidence

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other — Philip Chase Bobbitt, Reflections Inspired by My Critics, 15 (#corroborates, via linked claim)

In my case, they see me playing a double game: While I profess to derive legitimacy for legal argument from the use of the modalities, I also want to be able to defend certain decisions and certain practices, and thus I play both a descriptive and a normative role. Balkin and Levinson conclude that I must either accept whatever is practiced or abandon my pose as simply a descriptive observer. These descriptions depend on several assumptions that I do not share, and especially on conflating the ideas of legitimacy and justification and ignoring the distinction between constitutional decisionmaking and constitutional discourse. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 451 (#expands, via linked claim)

Categorization

  • XREF: connects to: Legitimacy can be derived from constitutional practices rather than from justifications. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 15; Forms of constitutional argument are validated by their presence in practice, not by approval — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437; Appeal to tradition may be legitimate within constitutional law — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1068 (+7 more)

Broader Connections