US constitutional argument forms derive from common-law modes overlaid on the state.

Evidence

I have long argued that we have the modalities we do because the Anglo-Americans took the forms of argument at common law and superimposed these on the state when they imposed a written, limiting constitution on the state. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 225

Categorization

• XREF: Connects to Bobbitt’s broader thesis in Constitutional Fate about the six modalities of constitutional argument. — connects to: Constitutional doctrine develops as replications and mutations of one fundamental structure — Philip Chase Bobbitt, Reflections Inspired by My Critics, 215; Common law rules arise from comparing cases, not from tracing prior logic — Burton, Steven J, An Introduction to Law and Legal…, 222; 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 Wittgensteinian. The first charge is supported by evidence of a contrived conflict with Karl Llewellyn. 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 judicial review. Llewellyn was interested in the practices of not just legal deciders, but also interest groups and citizens at large. ‘A national constitution… involves in one phase or another the ways of a huge number of people-well-nigh the whole population.’ The practices on which we have each focused may overlap, but they are different because the institutions we are examining are different. The whole population is rarely called upon to make legal decisions with respect to the Constitution, although they are involved in constitutional discourse almost continuously, a distinction that this Symposium has underscored as important to my work. (+3 more)

Related

• 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 0.91)
• Forms of constitutional argument are validated by their presence in practice, not by approval (similarity 0.84)
• 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 0.83)
• 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 0.81)
• Constitutional doctrine develops as replications and mutations of one fundamental structure (similarity 0.81)
• When Winter discloses that ‘in effect, then, Bobbitt concedes that law faces the very predicament that Unger identifies’—that legal decisions are sometimes indeterminate—he discloses nothing… (similarity 0.81)
• Constitutional interpretation and constitutional discourse are distinct practices. (similarity 0.81)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.79)
• Philip Chase Bobbitt — Reflections Inspired by My Critics (similarity 0.78)
• 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 0.78)
• Legal and non-legal deciders draw on different but overlapping argument forms. (similarity 0.78)

Broader Connections

• 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)
• A legal principle emerges from a long line of decisions. #corroborates (0.45) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 134
• Common law rules arise from comparing cases, not from tracing prior logic #corroborates (0.40) — Burton, Steven J, An Introduction to Law and Legal…, 222