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Article
Metaphors and Modalities: Meditations on Bobbitt's Theory of the Constitution
William and Mary Bill of Rights Journal (2008)
  • Ian C Bartrum, Yale Law School
Abstract

This article builds on Philip Bobbitt’s remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted “modalities” of argument. I attempt to supplement Bobbitt’s theory—which has a static and exclusive quality to it—with an account of interpretive evolution based in Max Black’s interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt’s modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of constitutional practice: from constitutional theory I take Akhil Reed Amar’s theory of “intratextualism”; from constitutional advocacy I select Louis Brandeis brief in Muller v. Oregon; and from constitutional judging I look to the Supreme Court’s decision in Brown v. Board of Education. I conclude that the concept of modal metaphors offers practitioners a principled and grammatical way to create new constitutional meanings and resolve constitutional dilemmas.

Keywords
  • bobbitt,
  • metaphor,
  • wittgenstein,
  • modalities,
  • max black
Disciplines
Publication Date
Fall 2008
Publisher Statement
This is a draft of an article which appears in final form at 17 William and Mary Bill of Rights Journal 157.
Citation Information
Ian C Bartrum. "Metaphors and Modalities: Meditations on Bobbitt's Theory of the Constitution" William and Mary Bill of Rights Journal Vol. 17 (2008)
Available at: http://works.bepress.com/ian_bartrum/3/