Six Modalities of Constitutional Interpretation Explained

Many concepts considered inherent in the U.S. Constitution, such as individual rights or the separation of powers, are not explicitly stated in the document. This highlights that the Constitution can be interpreted in various ways beyond its literal text. Understanding these different methods of constitutional interpretation is crucial for lawyers, judges, and scholars.

Modalities of Constitutional Interpretation

Philip Bobbitt, a prominent constitutional law scholar at Columbia Law School, identifies six modalities, or ways, of making a constitutional argument. These modalities provide a framework for understanding how meaning is derived from the Constitution.

1. Textual Argument

This is the most familiar modality, where an argument is grounded in the literal text or a specific clause of the Constitution. For example, a judge might cite Article 1, Section 8, to confirm Congress's power to coin money because the text explicitly states it. Textual arguments are generally clear and straightforward.

2. Constitutional Structure

When a specific clause is absent, but a power or right is believed to be implicitly granted, one might look to the Constitution's structure. This involves making an argument based on the relationships among different parts of the document. For instance, arguing that the framers enumerated Congress's powers first in Article 1, before the executive, suggests an intent for the legislative branch to be supreme. Another structural argument might be that outlining congressional powers before restrictions implies an expansive interpretation of those powers.

3. Historical Argument (Original Intent/Meaning)

Historical arguments are employed when the text is ambiguous. This involves looking back to the time the Constitution was written to understand the original meaning and usage of specific words or concepts. This approach is often referred to as original intent or original meaning. Some Supreme Court justices, particularly those on the conservative wing, favor these arguments. For example, to understand the intended scope of the Second Amendment, one might examine how the right to bear arms was understood in post-revolutionary America. This modality is considered conservative because it tethers interpretations to meanings from over 200 years ago.

4. Prudential Argument

A prudential argument evaluates or interprets the Constitution based on practical considerations and potential consequences. This involves asking "what will happen if" a certain interpretation is adopted. For example, one might consider the impact on the relationship between Congress and the president if the executive is granted a particular power, or the implications of a court declaring a right not explicitly stated in the Constitution. Judges often use prudential arguments to avoid overreach, leading to rulings that are conservative and incremental. A classic example is the "slippery slope" argument, which questions what other unenumerated powers or rights might be asserted if a particular power or right is granted.

5. National Character or Ethos

This modality is less clear-cut and involves making arguments based on the lived experiences and evolving values of the American people. Lawyers might argue that a certain interpretation "feels right" based on the national character. This concept is evident in discussions about rights and liberties not explicitly listed in the Constitution. It is also seen in death penalty cases, where judges refer to "evolving standards of decency" to determine what constitutes cruel and unusual punishment, such as prohibiting the execution of minors or individuals with certain IQs based on changing American understandings of punishment.

6. Doctrinal Argument (Judicial Precedent)

This is often considered the most important modality for judges and lawyers. A doctrinal argument relies on judicial precedent, meaning earlier court rulings, to argue how a current case should be decided. Judges are generally loyal to existing precedent and are reluctant to overturn previous holdings. Therefore, a constitutional argument is more compelling if it can cite a similar case decided in the past and argue that the previous ruling should apply to the current facts. However, when precedent does not exist, the other modalities become more relevant.

These six modalities represent significant ways to make constitutional arguments, though others certainly exist. Lawyers and scholars often use one or a combination of these methods to interpret the Constitution. As one studies constitutional law, it is helpful to identify which type of argument is being made and to consider which modalities are most persuasive. This practice helps in developing a legal mindset.