In my case, they see me playing a double game: While I profess to derive legitimacy for legal argument from the use of the modalities, I also want to be able to defend certain decisions and certain practices, and thus I play both a descriptive and a normative role. 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 share, and especially on conflating the ideas of legitimacy and justification and ignoring the distinction between constitutional decisionmaking and constitutional discourse.

QUESTION: The distinction between legitimacy and justification, and between decisionmaking and discourse, seems central to the author's method but isn't fully unpacked here. Builds on: "Legitimacy can derive from existing practices rather than external justifications."

Philip Chase Bobbitt, Philip Chase Bobbitt - Refl…, loc. 451