Roger Hertog Program on Law and National Security
The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is 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 Constitutional Fate, 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 jurisprudential questions far less insistent and some largely unexplored questions central. As such, this work is also thus directed to a description of how a constitutional system is evaluated, and how our responsibilities 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.
Philip C. Bobbitt,
Reflections Inspired by My Critics,
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1133