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…

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)

Related

• Legitimacy can be derived from constitutional practices rather than from justifications. (similarity 0.94)
• 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… (similarity 0.92)
• Forms of constitutional argument are validated by their presence in practice, not by approval (similarity 0.91)
• Legitimacy and justification are distinct concepts in constitutional theory. (similarity 0.89)
• For me, the use of the six forms of constitutional argument is the way we decide constitutional questions in the American legal culture. The use of these six forms maintains the legitimacy of… (similarity 0.88)
• Legal propositions are true only within the practice’s own recognized forms (similarity 0.88)
• Legal legitimacy is structural contingency, not shared conviction (similarity 0.87)
• It is true that, in my law classes, I spend a good deal of time with students practicing various kinds of argument. Every professor does this-every one must, although perhaps usually less… (similarity 0.87)
• Constitutional law’s foundational modalities derive legitimacy from use alone, not external validation. (similarity 0.86)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.84)
• Legitimacy is better understood as contingency control than as justification or consent. (similarity 0.83)
• US constitutional argument forms derive from common-law modes overlaid on the state. (similarity 0.83)
• Constitutional interpretation and constitutional discourse are distinct practices. (similarity 0.82)
• Classical constitutional puzzles reduce fundamentally to questions of legitimacy and legitimation. (similarity 0.82)
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions. (similarity 0.82)

Broader Connections

• It is true that, in my law classes, I spend a good deal of time with students practicing various kinds of argument. Every professor does this-every one must, although perhaps usually less… #expands (0.65)
• Legitimacy can be derived from constitutional practices rather than from justifications. #corroborates (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 15
• Forms of constitutional argument are validated by their presence in practice, not by approval #corroborates (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437
• Legitimacy and justification are distinct concepts in constitutional theory. #expands (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 451
• Legal systems rest on customary social rules rather than moral foundations #corroborates (0.55) — HLA Hart, The Concept of Law (Clarendon Law…, 56
• As he does with Wittgenstein, Winter intends to indict me for the particularist fallacy and for practice fetishism, though in my case it is not because I am a behaviorist, but because I am a… #expands (0.55)
• Appeal to tradition may be legitimate within constitutional law #expands (0.50) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1068
• Justifying a legal system differs fundamentally from causally explaining it through politics or psychology #qualifies (0.40) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 181