How Constitutional Construction is Connected to the Constitution

JB

A familiar criticism of Living Originalism is that constitutional construction is untethered to the Constitution, so that in the construction zone people can do whatever they think best. This is not my view. In Living Originalism, I pointed out that people must use the modalities of argument to persuade others that their proposed interpretations of the Constitution are the best ones, and that the modalities play a crucial role as a platform for persuasion about how to build out the Constitution-in-practice over time. Several chapters of the book use the modalities to construct arguments about different provisions of the Constitution. These chapters make use of familiar arguments from constitutional text, purpose, and structure.

In Arguing About the Constitution, I explained that in constitutional construction, we must put ourselves on the side of the Constitution and attempt to further it in good faith, and that way that we show that our arguments are connected to the Constitution and further the Constitution is through the use of eleven standard forms of argument directed to persuading others about the best way to further the Constitution and its purposes.

In this post, I want to develop these ideas further by contrasting my approach to the modalities with that of my friend Philip Bobbitt.

People engage in constitutional construction by using the standard modalities of constitutional argument. It is best to think of the modalities as problem solving devices. When we implement the Constitution in practice, we need ways of deciding how the Constitution should apply. The modalities are a tool kit for doing this. They connect the Constitution to more specific doctrines, applications, and determinations that together comprise the law of the Constitution. Put another way, the modalities are means of ensuring that our constructions are constructions *of* the Constitution and not simply of what we would like to do.

The Constitution contains many principles and standards. It also contains rules that may conflict with each other, and silences where it is not clear what the Constitution requires. As we move through history, the Constitution continuously creates problems of application. How do we make the principles and standards in the Constitution more determinate and apply them to specific cases? What do we do if particular provisions in the Constitution appear to conflict? How do we harmonize different parts of the text? What do we do if the text appears not to have contemplated a particular problem but that problem needs to be solved?

To answer these questions, we need a set of tools for thinking about constitutional problems as they arise. The modalities are that toolkit. They are basic rhetorical topics for legal argument in the American legal tradition. They existed in various forms prior to the Constitution, and they have been used continuously since its adoption. They are common topics for solving legal problems in the common law legal culture we inherited and adapted from Great Britain, and once the Constitution was adopted, people immediately began using them to argue about the Constitution, and have done so ever since.

The tools in this toolkit connect proposed constructions to the Constitution. They show why a proposed construction is a construction of the Constitution as opposed to simply our own policy preference. To be sure, our constructions will often align with what we think is good or bad, right or wrong. But in order to be an interpretation of the Constitution, our constructions must be more than that. We have to convince other people that our proposed interpretation is an interpretation of the Constitution itself. We must show people that our proposed construction is the best way of furthering the law's spirit and purposes.

Why do the modalities connect the Constitution to its constructions? Each type of argument is based on a reason why a construction of the Constitution is justified and appropriately furthers the Constitution. For example, structural arguments are based on the idea that a good interpretation of the Constitution furthers how the different parts of the Constitution should work, both separately and together. Arguments from purpose are based on the idea that a good interpretation furthers the purposes behind the law. Thus, each modality offers a way of asking the question: what is the best way to further the constitutional project? And each modality asks this question from a different perspective.

Randy Barnett and Evan Bernick have argued that constitutional construction must be made in good faith and consistent with the Constitution's letter and spirit. By spirit,  they explain that they mean function and purpose. So their theory of construction looks like a special case of my account of how constructions connect to and further the Constitution. Arguments from purpose and function (i.e., structure) are two of the standard modalities of constitutional argument. These modalities are designed to connect proposed constructions to the Constitution. Do arguments from the other modalities also further the Constitution's spirit? My guess is that Barnett and Bernick would not claim that arguments from purpose and function are the only permissible arguments in constitutional construction. That is because they make many other kinds of arguments in their writing. Rather, I think that they would say that arguments from other modalities can also be used in constitutional construction as long as these arguments are made in good faith and are consistent with the Constitution's letter and spirit. At that point, their position converges with my own.

Philip Bobbitt's original formulation of the modalities viewed them as ways that propositions of constitutional law were true. But he also argued that the modalities were incommensurable, that all were of equal status, that none had priority over the others, and that when they conflicted, there was no way of deciding between them. Instead, one had to go beyond the modalities and resort to individual conscience. This meant that there might be a sizeable set of constitutional questions in which resort to the modalities did not yield an answer, and so individual decisionmakers had to look to their own vision of what was right and wrong.

Bobbitt's theory of conscience seems to undermine what I regard as the central point of using the modalities, which is to connect constructions to the Constitution in ways that are plausible to other people, rather than simply relying on our own sense of what is best. For this reason, I think about the modalities differently than Bobbitt does.

First, I emphasize that the modalities are problem solving devices. Think of them as a set of tools. Now everybody knows that some tools are more appropriate for some jobs than for others. You can use a screwdriver to pound a nail into wood, but it is normally better to use a hammer. You can fasten a screw to a board by hammering it in place, but it would probably be better to drill a small hole first, and then use a screwdriver. So it is with the modalities. When we begin to use them, we immediately have a sense of which ones are appropriate for the kind of problem we face. To be sure, we can can change our minds as we listen to other people-- the same is true with other kinds of tools, as well-- but the basic principle still applies. For some questions, some of the modalities don't seem particularly relevant or useful. Now if some tools are more appropriate for some questions than others, the idea that the modalities apply equally to all constitutional questions cannot be correct. For some questions, some modalities will be more central to our discussions. For some problems, some modalities simply won't be very helpful, and so we won't use them or regard them as equally important.

Second, because the modalities are problem solving devices, there is no reason to think that they are incommensurable. They offer different ways of looking at a problem. Often the best way to solve a problem is to look at it from different angles. And what you originally thought was the best way to solve a problem might change as you view it from a different perspective. So too with the modalities. You might start with textual arguments. But when you turn to another modality of argument, say structure, what seemed obvious no longer seems so obvious. And this, in turn, may change your view of what the best textual argument is. In similar fashion, your developing views about about the best structural approach may affect your developing views about the best way to characterize precedent (including your views on when to expand, narrow, distinguish, or overturn precedents), and vice-versa. When people argue with each other, they offer different approaches in the hopes that this will change people's minds not only about the best argument within a particular modality, but other in modalities as well.

In Bobbitt's model, it appeared as if there was a single best structural, purposive, or precedential argument, and the problem was that these might sometimes conflict, so we would have to turn to individual conscience. But that is not how constitutional argument works. The modalities are not a single thing, but classes of similar kinds of arguments. There are usually multiple ways of articulating purpose, multiple ways of thinking about structure, multiple ways of characterizing precedent, and so on. There are different arguments and positions *within* each modality, rather than across modalities. So in general the modalities themselves don't conflict. Rather different arguments within each modality conflict, and some of these may reach the same conclusions as arguments in other modalities. Therefore, as people grapple with problems and argue with each other, their views about the best argument within each modality may also change through a sort of reflective equilibrium. The basic insight should be familiar-- Richard Fallon argued for a coherentist view of the modalities in 1987.

All this means that the modalities themselves--which are essentially classes of rhetorical topics--are not generally incommensurable, because how we think the arguments in one modality often affects how we think about arguments in the others. That is not because each way of thinking is reducible to the others according to a predetermined formula, but because people aim for a coherent approach to solving the particular problem that is before them and persuading other people about why their approach is best. As they do this, they may decide that certain types of argument just aren't very useful for solving a particular problem, and that the best arguments within the relevant modalities point in more or less the same direction.

Bobbitt argued that when the modalities conflict, we must go beyond them and decide according to our individual consciences. I disagree. Constitutional argument, like persuasion generally, is a social practice. We are influenced by what other people think (or what we think other people think) when we decide what constructions are plausible or implausible. This is the point of my distinction between what is "off-the-wall" and "on-the-wall" in constitutional argument. What is "off-the-wall" depends not only on what we think but what we think other people think. 

The same is true of legal problem solving. When we attempt to solve a legal problem, we are always influenced by the views of others, even if we think our position is highly original and even daring. We solve legal problems by persuading both ourselves and constructing persuasive arguments for an imagined audience of others. In analyzing constitutional questions, we decide what constructions we think are best by working through the modalities, not outside them. That is because the modalities are tools for thinking with. Discard them, and it is hard to conceptualize legal problems in the first place.

In sum, constitutional construction is always tethered to the Constitution through standard forms of legal analysis and argument. The modalities are traditional tools for legal analysis, problem solving and persuasion inherited from the common law that predate the Constitution and have been used continuously since its adoption. Using the modalities shows other people why our constructions are connected to the Constitution and further the Constitution. Not all modalities are equally relevant or equally useful for every question. Modalities do not conflict, but arguments within modalities often do conflict, and we try to decide which versions are best through a process of reflective equilibrium. The modalities are not incommensurable, because we often look at problems from multiple perspectives and try to achieve coherence. In cases of conflict, we do not go beyond the modalities and decide solely according to individual conscience. Rather, constitutional construction is a social practice that uses common topics. We think through the modalities to analyze and solve legal problems, to persuade others, and to persuade ourselves.