Response or Comment
Although it has been observed that approaching an allegedly universalistic theory by asserting the time- and culture-bound nature of that theory is an attack of some sort, Professor Ball does not take my lectures to be a rebuke to the enterprise in which he, Professor Tushnet, and others are engaged. Instead, he complains that I do not examine the relation between constitutional argument, on the one hand, and, on the other, social, political, and economic interests. This is a mistaken reading of my work. It is nice to be told that Tushnet and Ball accept my formulation "that in our theories are our fates" and that they go on from there, but if they really accepted my formulation they would accept the bankruptcy of "going on from there." For the point the formulation tries to achieve is that theoretical requirements have driven law; that judicial review is legitimated by these theoretical moves and not by what are thought to be more fundamental social and class motives; that the vocabulary of social and economic interest is itself just one more set of theoretical conventions, and, indeed, one of little relevance to constitutional decisionmaking; that the constitutional types of argument are not determined by political and economic theory.
Philip C. Bobbitt,
A Reply to Professor Ball,
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1121