Constitutional Interpretation as Problem Solving: How the Modalities Work

The standard forms of constitutional argument—the modalities—are central to one of the most important approaches to constitutional interpretation: constitutional pluralism. Both originalists and non-originalists use the modalities. This Essay explains how they work. 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 toolkit for analyzing and solving constitutional problems. Our use of the modalities presumes that at any point in time, some arguments are better than others. This assumption is central to constitutional argument as a rhetorical practice of giving reasons. Many different kinds of history can help us make arguments with the modalities. There is no artificial limit on the kinds of history that can be relevant to constitutional interpretation. 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. 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 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 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.