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…

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.

Evidence

Constitutional interpretation by formal decisionmakers committed to confine their decisions to legal bases is not the same practice as constitutional discourse, which, among other things, evaluates those decisions. Constitutional argument is available to the public at large (which constitutes the largest group of constitutional deciders) only because the language and means of such argument have a resonance in the rest of our cultural life. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 767 (#corroborates, via linked claim)

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 (#contradicts, via linked claim)

Categorization

• XREF: connects to: That these borders may be disputed-that there is, in Balkin and Levinson’s term, no ‘consensus’-rather proves my point. For there would be no reason for radicals to dispute the inclusiveness of legal argument if in fact all were permitted.; 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 (+5 more)

Related

• 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… (similarity 0.92)
• Constitutional interpretation and constitutional discourse are distinct practices. (similarity 0.90)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.89)
• Forms of constitutional argument are validated by their presence in practice, not by approval (similarity 0.89)
• I further believed that journalists, and citizens generally, could make use of these forms of legal argument, although they were not confined to legal argument in making constitutional decisions… (similarity 0.89)
• Legitimacy can be derived from constitutional practices rather than from justifications. (similarity 0.88)
• Legitimacy and justification are distinct concepts in constitutional theory. (similarity 0.87)
• 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 0.86)
• Legal propositions are true only within the practice’s own recognized forms (similarity 0.84)
• 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 0.84)
• Constitutional law’s foundational modalities derive legitimacy from use alone, not external validation. (similarity 0.83)
• Constitutional law and jurisprudence need have only contingent historical connections. (similarity 0.83)
• US constitutional argument forms derive from common-law modes overlaid on the state. (similarity 0.81)
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions. (similarity 0.81)
• Legal legitimacy is structural contingency, not shared conviction (similarity 0.81)

Broader Connections

• Constitutional interpretation and constitutional discourse are distinct practices. #corroborates (0.85) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 767
• Legitimacy can be derived from constitutional practices rather than from justifications. #contradicts (0.80) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 15
• That these borders may be disputed-that there is, in Balkin and Levinson’s term, no ‘consensus’-rather proves my point. For there would be no reason for radicals to dispute the inclusiveness of… #corroborates (0.70)
• Forms of constitutional argument are validated by their presence in practice, not by approval #corroborates (0.65) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437
• 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 (0.60)
• 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… #corroborates (0.60)
• Winter asserts ‘Consider how a Wittgensteinian such as Bobbitt might respond to Unger’s argument. First, he would exhort us to abandon the question of justification precisely because it… #responds-to (0.55)
• Illegitimacy is not delivered to the law from outside, as virtually all contemporary theorists maintain. Patterson also sees why, in Constitutional Fate, I chose the problem of judicial review as… #expands (0.50)