Balkinization: How the Modalities Work: Constitutional Interpretation as Problem Solving

How the Modalities Work: Constitutional Interpretation as Problem Solving

I have posted a draft of my latest essay, How the Modalities Work: Constitutional Interpretation as Problem Solving, on SSRN. Here is the abstract:

The modalities of constitutional argument are shared cultural tools for thinking about the Constitution, analyzing legal problems, and formulating arguments to resolve them. Constitutional interpretation is a kind of problem-solving, and the modalities are our legal culture’s tool kit for analyzing and solving constitutional problems.

Many different kinds of history can help us make arguments with the modalities. Therefore there is no artificial limit on the kinds of history that can be relevant to constitutional interpretation. The central question is whether the history we employ furthers the specific kind of legal argument we are making.
Our use of the modalities presumes that at any point in time some arguments are better than others. Disagreements about the Constitution are pervasive and may be never-ending, but this does not mean that all arguments are of equal value. Although people change their minds about the merits of particular legal arguments, what does not change is the assumption that some legal arguments are better than others. This assumption is central to constitutional argument as a rhetorical practice of giving reasons.

Although there is no general hierarchy of the modalities that applies in every case, not all of the modalities are equally relevant in a given case. In some cases, some modalities are more important than others. The modalities are also not incommensurable. First, their boundaries are not fixed and some arguments may fit into more than one modality. Second, our views about the best argument within one modality may be shaped by our views about the best arguments in others.

If we think of constitutional interpretation as problem solving, it would be very surprising if the standard forms of legal argument were incommensurable. Instead, the modalities offer different perspectives or approaches to a given problem. Lawyers and judges use the modalities with a defeasible assumption of coherence: that employing different ways of looking at a problem can help them converge on a single answer or a small set of answers.

One should not fear that multiple modalities give judges too much leeway in constitutional interpretation. The primary constraints on judges are those that arise from professional education, socialization, and internalization of the judicial role. At any point in time, these intersubjective constraints can keep interpretations of the Constitution within certain limits. But in highly polarized times like those we live in, lawyers and judges may increasingly disagree, not only about the best interpretation of the Constitution, but even about what kinds of legal arguments are off-the-wall and on-the-wall. When this happens, the reason is not the size of the available toolkit for arguing about the Constitution. Rather, the problem is the ways that political polarization affects legal socialization and judicial self-conception. When constitutional rot is ascendant, the problem that constitutional law faces is not too many modalities. Rather, the problem is the decay of norms of political forbearance, social trust, professional legal culture, and the judicial role.

Theories of constitutional interpretation may be good at justifying or legitimating particular decisions. But we should not expect that they will do much work in actually constraining judges. Experience has shown that theories of interpretation rarely force judges to do anything they do not otherwise want to do. Even when a theory demands a specific answer, a judge always has to decide whether to follow the theory in a particular case. Thus, the central value of interpretive theory is legitimation rather than judicial constraint.

Posted 12:35 PM by JB [link]