Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal way to justify the choice of one approach over another. Bobbitt ultimately concluded that such acts of ‘decision’ are the product of ‘judicial conscience’; which some individuals possess (or exercise) to a greater degree than others.
I have always felt that Bobbitt’s resolution is probably correct, but still unsatisfying. I think we can do a little more to explain the processes of interpretive theory choice, even if those choices ultimately remain idiosyncratic and individual. To that end, I look to another account of choices made between incommensurable theories—that Thomas Kuhn gave in his work on scientific paradigm changes. Kuhn argued that, while no universal algorithm defines a ‘correct’ decision to adopt a new scientific paradigm, there are broadly shared choice criteria or ‘values’ that scientists regularly refer to when justifying their decisions. It is, Kuhn suggested, the scientist’s willingness to discuss and explain these underlying value judgments that makes her approach ‘scientific.’
This paper attempts to apply some lessons from Kuhn’s work to constitutional practice, particularly the choices we must make between Bobbitt’s interpretive modalities in outcome determinative cases. I derive a list of four overlapping and sometimes competing ‘constitutional values’—constraint,*flexibility,* representation,* and identity—from texts in the constitutional canon. I look to the canon because it important that the values I identify are broadly shared, as that is what allows them to serve as a somewhat ‘objective’ set of choice criteria. That is, when we make an interpretive theory choice, we should justify it in terms of the purposes we widely believe the Constitution serves in our legal practice. I then speculate on the ways that underlying value judgments may have influenced interpretive theory choices in several Supreme Court opinions, and conclude that judges should be more transparent in acknowledging and defending these often obscure processes.
- Theory Choice
Available at: http://works.bepress.com/ian_bartrum/16/