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 as were government officials. The constitutional discourse of which the people were an essential part could be enriched by legal argument, and judicial decisions need not be either ignored or passively accepted.

Evidence

The available forms of argument are different for those deciders who are confined to legal argument-like government officials sometimes are-and those who are not. Sometimes, as in the confirmation example, the forms of legal argument (here, the text) will direct the decider to enlarge her list. And sometimes those deciders who are not so limited-the People, for example-will wish to consult the specifically legal forms, as I shall discuss below. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496 (#expands, via linked claim)

Second, they conflate constitutional argument (an activity confined to those persons whose decisions must be explained in terms of legal argument) with constitutional discourse (an activity that takes up the same subjects, and which may include legal argument, but which, though constrained by its own modalities of argument, is not confined to legal argument). — Philip Chase Bobbitt, Reflections Inspired by My Critics, 409 (#expands, 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.; Legal and non-legal deciders draw on different but overlapping argument forms. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496; Constitutional argument and constitutional discourse are distinct activities with different boundaries. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 409

Broader Connections