In Introduction to Law you met the schools of statutory interpretation, and in Civics and Government you met judicial restraint and activism. Constitutional law asks a harder version of the same question. The text is short and old, its key phrases are broad ("commerce among the several States," "due process of law"), and a mistake can be fixed only by the Court itself or by an amendment. So what counts as a good argument about what the Constitution means?
In Constitutional Fate (1982) and Constitutional Interpretation (1991), the scholar Philip Bobbitt answered by describing, not prescribing. He read two centuries of opinions and briefs and found six kinds of argument that lawyers and judges accept as legitimate. He called them the modalities of constitutional argument.
| Modality | It asks | A typical move |
|---|---|---|
| Textual | What do the words mean? | "Congress" in the First Amendment names the legislature, so the clause limits lawmaking. |
| Historical | What did the framers and ratifiers understand? | Quoting the Convention, the ratification debates or the Federalist. |
| Structural | What follows from how the government is built? | A state cannot tax a federal bank, because one government cannot control another that is supreme in its sphere. |
| Doctrinal | What do the precedents hold? | Applying a test from an earlier case to new facts. |
| Prudential | What will the consequences be? | A rule courts cannot administer, or one that would cripple the government in a crisis, is a poor reading. |
| Ethical | What does the American constitutional ethos value? | Reasoning from limited government or the dignity of the individual. |
Why it works
Key idea
Worked example: Spotting the modalities in McCulloch
- Marshall notes that the Constitution, unlike the Articles of Confederation, does not say "expressly" delegated powers. That is a textual argument (comparing words).
- He recalls that the First Congress chartered a bank in 1791 after full debate. That is historical (early practice).
- He reasons that a constitution can mark only "great outlines" and must leave the means to Congress. That is structural.
- He argues that a state power to tax the bank could destroy a federal institution. That is structural too, with a prudential warning about consequences.
Answer: Text, history, structure and consequences, all pointing the same way. That convergence is part of why the opinion has lasted.
Worked example: Where the modalities split
- Make the textual argument first; it sets the outer bounds.
- Add whatever historical evidence exists, and say how strong it is.
- Distinguish the unfavorable precedent and show the favorable one fits better (doctrinal).
- Close with structure or consequences to show the reading is workable.
Answer: It uses several modalities and is candid about which are strong. Judges are persuaded by convergence, and they notice when a brief hides a weak point.
Common mistake
The framers argued in these modes too. Read how Madison reasons from structure in Federalist No. 51, and how Brutus answered with consequences and history. The schools in the next two lessons, originalism and living constitutionalism, are theories about how to rank and combine these modalities.