The Download of the Week is Bootstrapped: A (Qualified) Defense of Practice-Based Constitutional Argument by Alma Diamond. Here is the abstract:
We have our Constitution in common, even if we share very little else. This, at least, is a core tenet of our constitutional order: that we share in a single framework of duties and entitlements despite our underlying moral, political, and philosophical differences. But is it really possible to occupy a shared legal world if we live in very different moral, political and philosophical worlds? This is the question raised by deeply consequential constitutional controversies in an increasingly polarized society. It is a question about the basis of, and justification for, constitutional law. Is our constitutional law ultimately a matter of moral evaluation or perhaps even of political expediency? If it is, do we have constitutional law in common with those with whom we disagree morally, or with whom we are politically misaligned?
These questions push us to confront deep and persistent jurisprudential debates about the possibility, and logic, of distinctively legal justification: justification that rests on its own bottom, which does not depend for its force on further moral truths. The most familiar jurisprudential account of such legal justification is H.L.A. Hart’s. For him, we have shared social frameworks that determine our constitutional law independently of moral considerations. Within constitutional discourse, a wide range of authors that have relied on Hart to put forward practice-based accounts of our constitutional law. The most prominent recent example is Baude and Sachs’s so-called “positive” argument for originalism, but the tradition is a longer and broader one. Practice-based constitutional arguments attempt to find shared social resources to make sense of our law precisely when our moral resources leave us divided. These arguments have been widely criticized on two fronts. First, they are criticized as jurisprudentially confused. Second, they are criticized for illicit bootstrapping: drawing normative conclusions from descriptive premises. As a result, many have concluded that practice-based constitutional arguments are best abandoned.
This Article intervenes at this crucial point in constitutional discourse to clarify the structure and force of practice-based constitutional arguments and to caution against their abandonment. I provide a detailed analysis of the jurisprudential view they rely on, and of the nature and validity of “legal bootstrapping”. And I draw attention to the important choices facing practice-based constitutional arguments: precisely where we draw the line around legal validity determines the value we ascribe to legal community. I argue for a mode of practice-based constitutional argument that conceives of legal validity in wider terms than Baude and Sachs, but narrower terms than those who would abandon practice-based constitutional arguments altogether. Practice-based constitutional arguments are important, especially in times of polarization. They should not be abandoned. But for precisely this reason, they should not be distorted in favor of preferred substantive outcomes or interpretive positions.
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