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?
Evidence
The majority attempts to disprove point B (legislative history of enforcement of franking laws), instead of disproving point A (Postal Service enforcement), which is the real issue at stake. Logicians call this technique the fallacy of irrelevance, ignoratio elenchi. — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1012 (
#responds-to, via linked claim)
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 (
#expands, via linked claim)
[This book] discards the notion that law takes place within a framework that is independent of the structure of legal argument. It rejects the view that a set of legal presuppositions exists that are discoverable in the absence of legal argument, upon which legal argument is supposed to depend. The entire enterprise in which others are engaged seems to be based on a confusion between the justification [of the system]—which is that legitimation that results from the operation of the various [modalities]—and a hypothesized causal explanation for [law] derived from socio-political thcories.’ — Philip Chase Bobbitt, Reflections Inspired by My Critics, 181 (
#corroborates, via linked claim)
Categorization
- XREF: connects to: Social change is explained by overdetermination drawn from Freud; Tushnet is one of the most accomplished constitutional scholars of our period. He combines a commitment to utter honesty with a voracious intellect and an indefatigable pen. Surely, if there is anyone capable of overcoming the customary assumptions of explanation that are so much a part of our contemporary intellectual life, it is he. When he comes to believe that the unquestioned aspects of our lives are not the petty stylistics of class, but are the profound tyrannies of unreflectively ascribing psychological dynamics to other people, I should not be surprised if his iconoclasm turns to attack the very shibboleth that currently casts a shadow on his work.; To charge that he levels a similar claim against many different sorts of thinkers is only a negative criticism if Patterson’s claims are unwarranted; otherwise, it merely measures the scope of his achievement. It is always difficult, as both Winter and Patterson doubtless know, to argue philosophically in a law journal. My own view is that law has much to teach philosophy and that, until rather recently, jurisprudence has not exploited the epistemological advances of post-war philosophy. (+7 more)
Related
- Tushnet is one of the most accomplished constitutional scholars of our period. He combines a commitment to utter honesty with a voracious intellect and an indefatigable pen. Surely, if there is… (similarity 0.87)
- Motivation for a ruling must be distinguished from constitutional causality (similarity 0.85)
- Intellectual honesty may turn Tushnet’s iconoclasm against fashionable explanatory shibboleths (similarity 0.81)
- Proving a different point than the actual issue is the fallacy of irrelevance (similarity 0.78)
- Classical constitutional puzzles reduce fundamentally to questions of legitimacy and legitimation. (similarity 0.78)
Broader Connections
- Proving a different point than the actual issue is the fallacy of irrelevance
#responds-to(0.75) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1012 - Motivation for a ruling must be distinguished from constitutional causality
#expands(0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 807 - Justifying a legal system differs fundamentally from causally explaining it through politics or psychology
#corroborates(0.65) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 181 - Intellectual honesty may turn Tushnet’s iconoclasm against fashionable explanatory shibboleths
#corroborates(0.55) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 667