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Motivation for a ruling must be distinguished from constitutional causality

Properties2
tagsja-picks, define, causal_relationships, primary_study, singleton, xref, category/causal-relationships
aliases@bobbitt_reflections_1994, loc. 807

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Motivation for a ruling must be distinguished from constitutional causality

Evidence

How would an historical fact simpliciter confer constitutional status on a proposition entirely apart from any legal basis? If it means that the Justices may have been motivated by the importance of the freedom to travel to the American experience, I imagine this may have been so (although consistency with “absent forensic evidence” moves again close to the mystery genre). But the relevance of this point depends upon confusing motivation with causality. The mere wish to celebrate interstate travel does not write an opinion. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 807

Categorization

  • DEFINE: Clarifies the distinction between a judge’s motivation and the legal-causal basis for a ruling.
  • XREF: connects to: The debate arose over the fundamental question of the source of federal sovereignty. Did the Union derive its authority from the states, or the people acting through the states, or the people acting directly, or from its predecessor (the Confederation or the British Crown)? Historians have drawn the connection between the Republican and Federalist sides of this debate to the older Country and Court parties of eighteenth-century English politics, but it is Powell who, with characteristic legal insight, links this debate with the choice of constitutional interpretive modes. Republican partisans campaigned for a stringently textual approach to constitutional interpretation, construing grants of congressional authority narrowly vis-à-vis the states and more broadly against the Executive.; This is Tushnet’s move in the debate about the counter-majoritarian objection to judicial review. I have given an argument that shows that what we thought were issues crucial to legitimacy were not so; and that the objection itself, insofar as it implicates legitimacy, can, I think, be decisively answered. My answer does not require one to count up, as it were, the many reasons for and against judicial review. Instead, it asks that we stick to the actual question being asked. Like Albert, Mark Tushnet is distressed by this and wants to re-orient the question so that it fits the calculations that make the problem so bedeviling in the first place. This is, I believe, the crucial move of the map of explanations. It changes ground, and then claims for itself the primacy of the original discussion. In such maps, one invariably encounters such phrases as, ‘What we’re really talking about here is …’ or ‘What the writer was really doing was…,’ or ‘What really motivated him was …’ And that is why it is so mortifying when it turns out that the casual causalist has got the facts wrong. I think, instead, that they are vulnerable to an irremediable flaw. If, as is asserted, the causalist can discern, beneath the surface, an otherwise hidden mechanics, how can we know that he, too, is not motivated by something as obscure to himself as he believes the true motives of others are to them? When, exactly, is Freud’s cigar not just a cigar?; Classical constitutional puzzles reduce fundamentally to questions of legitimacy and legitimation. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 16 (+11 more)

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