Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1994 Reflections Inspired by My Critics Philip Chase Bobbitt Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Jurisprudence Commons Recommended Citation Philip C. Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869 (1994). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1133 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1994 Reflections Inspired by My Critics Philip Chase Bobbitt Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Jurisprudence Commons Recommended Citation Philip C. Bobbitt, Reflections Inspired by My Critics, 72 Tex. L. Rev. 1869 (1994). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1133 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Reflections Inspired by My Critics Philip Bobbitt* The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudenceis justification. 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 purposes. By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation.' These questions were the principal subject of ConstitutionalFate, although there are many views expressed there that bear on other contemporary legal issues. At the same time, I also wished to propose a way of understanding constitutional law that changed its relationship to jurisprudence, as practiced nowadays, rendering some * Baker & Botts Professor, The University of Texas School of Law and Marsh Senior Research Fellow in War Studies, King's College, University of London. A.B. 1971, Princeton University; J.D. 1975, Yale University; Ph.D. 1983, Oxford University. I wish to thank three persons whose criticisms have had so influential an effect on this Essay: Ms. Catherine Kemp, Mr. Scott Williams, and Mr. J.C. Rozendaal. Although they are enrolled as students at the Law School, it is I who have learned from them, and I think of them truly as colleagues. It is a pleasure also to thank Professor Betty Sue Flowers, of the English Department, who made extensive comments on an earlier draft, as well as many thoughtful readers-Professors Levinson, Laycock, LeClereq, Markovits, and Powers-who are on the Law Faculty. Of course, none of these persons is responsible for the errors that, despite their efforts, yet remain. 1. Examples of these problems are the dilemmas posed by the constitutional assessment of the acts of democratically elected officials and sometimes, the reversal of those acts by an unelected judiciary, see PHILIP Boarnr, CONSTITUTIONALFATE 243-49 (1982) [hereinafter BonrT, FATE] (rejecting the attempt to legitimate judicial review on the grounds of any foundational political theory), by the necessity to give content to unenumerated rigbts while remaining within a written constitution, see, e.g., id. at 121-77 (showing how ethical argument can be used to limit the powers of government), and by the conflict between a government acting for the people but limited by law and a sovereign people bound by law but with unlimited control over the content of that law, see, e.g., Akhil R. Amar, The Consent of the Governed: ConstitutionalAmendment Outside Article V, 94 COLUM. L. REv. 457, 459 (1994), discussed infra text accompanying notes 137-59. 1869 1870 Texas Law Review [Vol. 72:1869 jurisprudential questions far less insistente and some largely unexplored questions central. 3 As such, this work is also thus directed to a descrip- tion of how a constitutional system is evaluated, and how our responsi- bilities within that system are discharged-a system that depends so greatly on the exercise of conscience. This description, I believed, is mainly a matter of justification, and it is the principal subject of Constitutional Interpretation. If one believes, as I do, that justification does not assure legitimacy, whenever one evaluates a proposed system one must ask not only whether it is easier to justify, but also whether it will be able to achieve and maintain legitimacy. A large part of Constitutional Interpretation is devoted to three constitutional cases: Missouri v. Holland,4 the confirmation hearings of Robert Bork, and the Iran-Contra Affair. The reader is asked to work through these problems using the techniques developed in Constitutional Fate and recapitulated in ConstitutionalInterpretation.Because the people of this country have an important legal role to play in constitutional law, these exercises are meant to teach the legal methods by which constitutional problems are addressed. And because understanding is the product of learning how to do something, these exercises provide an instance of the process I am claiming to be at work. The reader must judge. Although I believe my work to be original, and would disclaim this vanity should its ideas belong to others, I hardly think my views are unprecedented. Indeed, I hold that our earliest American political ideas of the state have much in common with the perspectives I present. Let me give one construction of the ideas of my precursors and suggest that these anticipate the separation of legitimacy and justification that is so fundamental to my work. It was once common to assert that our framers, Jefferson and Madison in particular, were American acolytes to European thinkers such as Locke and Montesquieu.5 This has led to much mischief, particularly with 2. For example, what political or ethical theory is necessary to justify a constitutional system such as ours? See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 181 (1991) [hereinafter BOBBITT, INTERPRETATION] (arguing that attempts to justify the legal system through political theory "never exist outside the seminar room, in part because the values society labors to preserve are contradictory"). 3. For example, what sort of people must we be to make a system such as I have described function justly? See id. at 178-79 (arguing that one of the central implications of Constitutional Interpretation is how we might be better educated to make more just decisions). 4. 252 U.S. 416 (1920). 5. See, e.g., CARL BECKER, THE DECLARATION OF INDEPENDENCE: A STUDY IN THE HISTORY OF POLITICAL IDEAS 27 (1922) ("Most Americans had absorbed Locke's works as a kind of political gospel; and the Declaration [ofIndependence], in its form, in its phraseology, follows closely certain sentences in Locke's second treatise on government."); HENRY S. COMMAGER, JEIFFER.SON, NATIONALISM, AND THE ENLIGHTENMENT 84 (1975) ("[Nleither Jefferson nor the American people invented [the] principles [contained intheDeclaration ofindependence].. .. [T]hey were elaborated by the generation of Lilburne, Cromwell, Sidney, Milton, and above all John Locke in seventeenth- 19941 Reflections Inspired by My Critics 1871 constitutional concepts such as the separation of powers,6 as to which Madison's ideas may be said to be sharply opposed to those for which Montesquieu is most known,7 and with respect to the natural rights of man, as to which Jefferson's opinions are erroneously said to derive from Locke and (or) Hobbes.! When Jefferson wrote that "[A]II Men are created equal," 9 it was once thought that he meant no more than that in the eyes of God (for Locke), or in the eyes of the rule of law (for Hobbes), all persons stood to be weighed by the same scales."0 Although Jefferson may have had these ideas in mind, I think he meant something more than this-something quite distinct-and I imagine the American relationship to European thought to have been far less that of a client than is usually supposed. I am inclined to believe that the framers were an authentically American, uniquely American, and uniquely lawyerly generation of thinkers who have as much in common with twentieth-century pragmatists as with seventeenth-century empiricists (or rationalists)." All men are palpably not created equal, in any practical way, being endowed with various deficits and advantages, except in this one respect: All may choose their moral commitments. All must choose. 2 This right-to make a moral life-is "unalienable" because it cannot be sold or given away. Even if the chooser is in bondage, he is independent in this century England .... '); MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION 72-78 (1978) (contending that the notions of self-evidence and equality