Saturday, March 03, 2018

Rethinking the Modalities of Constitutional Interpretation


I have posted my latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, on SSRN. Here is the abstract:

Constitutional construction is the element of constitutional interpretation that implements and gives effect to the Constitution. Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project; the second is a set of techniques derived from the common law. Lawyers and politicians adapted common law techniques for construing legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or “topics” that are characteristic of American constitutional law. These topics are tools for the analysis of legal problems and for the generation of legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation.

Constitutional topics connect the text of the Constitution to its implementation; they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution. The article explains the topical approach to constitutional argument and contrasts it with Philip Bobbitt’s well-known theory of “modalities” of constitutional argument. Unlike Bobbitt’s model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories.

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Back in 2013, I wrote an article on how lawyers use history in constitutional interpretation: The New Originalism and the Uses of History.  I argued that lawyers channel history through existing modalities of legal argument-- that is how history gains authority in law.

One difficulty I faced was that Bobbitt's famous theory of six modalities is not well designed to talk about how lawyers use history. That is because Bobbitt treated "historical argument" as a single modality, instead of something used by all modalities; and he also identified "historical argument" with arguments about original intention.

This led me to propose a new list of modalities--one that allowed for the many different uses of history in constitutional argument, and that did not limit "historical argument" to adoption history or original intentions.

But there were still further problems. Bobbitt's theory of the modalities was inconsistent with all forms of originalism. Yet originalists use the modalities all the time. He argued that the modalities were wholly incommensurable and that conflicts between them could only be resolved by individual conscience. But this, too, was not an accurate account of how lawyers argue.

The next step, which I take in this article, is to rethink what we really mean by "modalities" of constitutional argument. In fact, the idea behind recurring forms of argument is very old; it emerged in Ancient Greek and Roman rhetoric. The current article, Arguing About the Constitution, shows what the modalities really are, why they help us expound the Constitution, how they assist in the development of constitutional doctrine, and why they are compatible with many different kinds of constitutional theories.

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