Constitutional argument runs on the rails of "modalities." These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters--the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the "anti-modalities" of constitutional law and to investigate their implications.
The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning--from general moral theory to emotional judgment to many cost-benefit calculations--the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law's "resonance gap. " Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm.
Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.INTRODUCTION I. METHODS AND MODALITIES A. Method Exclusivity B. Modalities, Non-Modalities, and Anti-Modalities II. CONSTITUTIONAL ANTI-MODALITIES A. Caveats and Complications B. A Typology 1. Policy Arguments 2. Fundamentalist Arguments 3. Partisan Arguments 4. Emotional Arguments 5. Popularity Arguments 6. Logrolling Arguments C. Summary Observations III. POSITIVE IMPLICATIONS A. The Resonance Gap B. The Return of the Repressed: Modalization, Modification, Marginalization IV. NORMATIVE IMPLICATIONS A. Status Quo Advantages B. Status Quo Syndromes V. CONFRONTING THE ANTI-MODALITIES A. Narrowing the Gap B. Narrowing Constitutional Law CONCLUSION
All constitutional lawyers are familiar with the modalities of constitutional argument, whether or not by that name. These are the forms of argument that are considered legitimate within the legal profession for establishing propositions of constitutional law. They include appeals to the text of the canonical document, appeals to the understandings and intentions of its Framers and ratifiers, appeals to judicial precedent, and so on. In Philip Bobbitt's influential account, the modalities dictate "the way we decide constitutional questions in the American legal culture." (1) They make up "a legal grammar that we all share and that we have all mastered." (2)
Yet investigations into the acceptable forms of argument tell only half the...