Table Of ContentCONSTITUTIONAL FAT E
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CONSTITUTIONAL
FATE
Theory of the Constitution
Philip Bobbit t
New York Oxfor d
OXFORD UNIVERSITY PRESS
Copyright © 1982 by Oxford University Press, Inc.
First published by Oxford University Press, New York, 1982
First issued as an Oxford University Press paperback, 1984
Library of Congress Cataloging in Publication Data
Bobbin, Philip.
Constitutional fate.
Includes bibliographical references and index.
I. Judicial review—United States. I . Title.
KF4575.B63 198 4 347.73'1 2 83-1734 3
ISBN 978-0-19-503422-6 (pbk.) 347.3071 2
Printing (last digit): 13
Printed in the United States of America
To Rebekah Johnson Bobbitt
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I would like to say "This book is written to the
glory o f God " bu t nowaday s that woul d b e
chicanery, that is, the tric k of a cheat, for i t
would not be rightly understood. I mean sim-
ply that it came at an end of another's suffering
and is intended to serve a value I cannot name
that is other than mere self-regard. Insofar as I
have failed t o be in harmony with this value,
my book will fall short of the vision it is an at-
tempt to express.
ACKNOWLEDGMENTS
There are many persons to whom I have shown the manuscript
that preceded this book, so many in fact that a lawyer might say
publication has long since occurred. Those faithful and respon-
sive readers know who they are; I know who some of them are.
One group of students, my seminar in the 1978-197 9 terms,
earned my enduring affection so patient were they with my ef-
forts and so willing to test theoretical approaches at a time and
in an environment that can scarcely have encouraged thes e ap-
proaches. The members of this group were Gary Amsterdam,
Parker Folse , Barbar a Lipscomb , Oli n McGil l an d Richar d
Pappas. The Dea n of the University of Texas Law School, Er-
nest Smit h an d hi s Associat e Dean s Georg e Schatzk i an d
Michael Sharlot , collaborate d t o contriv e writin g tim e an d
financial support for me. At an important time the Russell Sage
Foundation supplied additional funds to support my work, in-
terrupted b y service in Washington in 1980-1981 . Douglass
Cater and Joseph Slater, of the Aspen Institute, and Marshall
Robinson and Peter Dijanosi of Russell Sage, cooperated i n this
generous effort . I ough t als o t o mentio n letter s fro m m y
teachers, Gran t Gilmor e and Gilber t Harman , tha t came at
times when I was convinced that no serious, sensitive reading of
my wor k was likely an d tha t publicatio n ought t o be aban-
ACKNOWLEDGMENTS I X
doned. Professor Barbara Aldave, my colleague, has been my
companion in countless conversations whose benefit has been
almost wholly mine. Susan Rabiner, of the Oxford University
Press, has been a hopeful but not intrusive editor. Mark Sagoff,
of the Center for Philosophy and Public Policy at the University
of Maryland, has been helpful.
The firs t draf t of this manuscript was written in Austin,
Texas. Sinc e the n wor k o n thi s boo k ha s proceede d i n
Washington, London, Vienna and Oxford; it leaves my hands
as I have just returned to Austin and my house where the ini-
tial work was done. In all these places there have been persons,
unacknowledged here, who have assisted me. There is another,
however, without whom that first draft could not have been
done. Miss Katherine Burghard, careless of her many sacrifices
and efforts on my behalf, was my indispensable ally and sup-
port. I f ther e i s merit in the result , it is merit that she ha s
helped bring into being.
Excepting thes e acknowledgments , I hav e ha d doubt s
about providing a preface. My aim in this book is to plunge the
reader into a world, the experienc e o f which wil l cultivate a
particular sensibility toward the Constitution so that, at least as
to the fundamental question of the legitimacy of judicial re-
view, the matter can be debated with a sense of fitness and not
hollowly. A preface is of course likely to detract from this ex-
perience becaus e i t must be constructe d ou t o f th e stylisti c
materials it wishes to do away with. But I have become con-
vinced that, without some introductory guide, the book is likely
to be misunderstood an d i t would be irresponsible of me to
allow a misplaced popularity to stand uncorrected out of vanity.
This book presents a general theory of Constitutional deci-
sion. It is not written in a conventionally theoretical manner .
The wa y in which this theory is presented is naturally deter-
mined by some of the assumptions of the theory itself and, like
it, differs fro m th e standard models in this subject. This is a
difference i n kind and therefore i t is to be expected tha t the
mode of presentation i s different also. The standar d model s
are presented i n a standard way. The difficult y arises because
the method of presentation cannot prevent the contemporary
reader from assimilating it into the standard modes. For exam-
