The Modalities: A Primer
As I mentioned in my introductory post, one of my ambitions for this site is to create a resource library for those interested in learning about constitutional theory. This post is the first of what I hope will be many in that vein: a basic primer on the six so-called "modalities" of constitutional argument. There's a reason why I'm starting here, which is that these modalities are going to come up a lot in basically everything I write on any topic. The modalities are how I think about constitutional questions, and so I want my readers who aren't already familiar with them to have a basic idea what I'm talking about.
Before I discuss each of the six modalities themselves, it's worth saying a few words about the whole concept of "the modalities of constitutional argument." I'm only going to scratch the surface in this post; it's an incredibly deep topic, and anyone who's interested in the full treatment should go read Constitutional Fate and Constitutional Interpretation by Philip Bobbitt. (The latter is unfortunately out of print. Also be warned: these books are... delphic, and not for the faint of heart.)
But the basic idea is that there are multiple different ways of trying to answer legal questions. If you've paid any attention at all to constitutional law in current events, you probably know that this is something people love to yell about. Everyone's got their own idea about The Right Way To Interpret The Constitution. My view, however – following Bobbitt, among others – is that there isn't just one right way. Instead, there is a family of equally legitimate "forms of argument" available to legal decision-makers. No one modality has any kind of priority over the others; when analyzing a constitutional question, then, I will typically want to canvass what arguments bear on the question from all six of the modes. The interplay among these different methods is part of what makes constitutional law so intellectually rewarding.
Again, I'm sure I will have much more to say about the theory of constitutional decision-making going forward. But this should be enough to be getting on with. So without further ado, let's meet the modalities themselves!
TEXT
This is probably the most intuitive one of the six. When faced with a constitutional decision, our first instinct is likely to be... to pull up the text of the Constitution and see if there's anything in the text that bears on the question before us! For example, if I am a judge hearing a criminal case against someone charged with criticizing the mayor, the text of the First Amendment is likely to be quite relevant to my decision! For most purposes, it's not necessary to delve much deeper into the theory of the textual modality than that.
People instinctively give the text a kind of primacy, and there's some reason for that. The text, after all, is the connection between the People and their Constitution: the way We can act to shape our Constitution to our liking is by writing new constitutional text into law. In order for that connection to be meaningful, decision-makers have to actually give effect to the text.
However, the text is famously quite open-ended, especially in comparison to modern constitutions. There are very few constitutional questions that are immediately settled by looking at the text, and fewer still of any interest. Oftentimes, even when the text does speak to an issue, it does so only obliquely or by implication. And even where it does speak directly, some interpretation is usually required: I mentioned the First Amendment up above, but there is of course enormous disagreement about what "the freedom of speech" is.
Another oft-neglected point is that, in those few cases where the text really does speak absolutely unambiguously, we should absolutely expect that the other modalities will concur in the same result. Indeed, if you think you've come up with an argument in some other mode that the extremely plain and unambiguous text is wrong, you are almost certainly doing it wrong. So the case where giving primacy to the text is necessary to respect popular sovereignty is almost never going to arise in practice.
History
Text and history are often confused for one another. This is partly, I think, mischief from the originalists, who profit from conflating the two, and in particular from trying to make historical argument sound like it's really just about the text. But that's wrong; I'm sure I'll expand on this point later. For present purposes it's enough to say this: the historical modality is concerned with the intentions and understandings of the people who adopted the Constitution. (This includes, by the way, the people who adopted the various amendments, as recently as 1971 or 1992 or 2020 depending on how you view it.) This is sometimes referred to as the "original intent."
Text vs. history is a dichotomy that shows up all over the place in law, basically whenever you have a written legal instrument. Think contracts, wills, that sort of thing, but also statutes. These documents aren't merely writings, they're the memorialization of legally-significant acts. When we understand the document, then, we're trying to understand the act: what did this person or entity do when they wrote this? And every single time courts are faced with a question of that nature, they run into the same basic dilemma: do we follow what the person/entity understood themselves to be doing, what they intended to do, or only according to the words themselves? It turns out the only answer anyone's ever been able to come up with is "eh, it depends." The Constitution is one of these written legal instruments, and sure enough, you see the same basic dynamic.
The important thing to know about historical argument, however, is simply that it does concern the Constitution as a written thing, the memorialization of a specific moment in time, a specific act. As such, properly speaking it only concerns the history up to that crucial moment, everything that might have informed the mindset of the ratifiers at the moment of ratification. If someone is citing post-ratification practice at you, even though that practice is from a long time ago, they're (generally) not doing historical argument at all. Instead, they're probably doing...
Doctrine
A core concept of the rule of law is legal consistency. If the same legal issue arises in two different people's cases, we want to resolve it the same way in each case. Picture a king holding court and hearing petitions from his subjects. A man has asked him for relief in some matter, and the king instinctively refuses the petition. But then one of his advisors comes over and whispers in his ear that he heard a very similar case last week, and last week he granted the petition.
That's basically doctrinal argument.
This is often collapsed to argument from precedent, and it certainly involves the application of precedent. But the deeper idea is one of consistency, fairness, and impartiality. Legal rules, once articulated, are to be applied across the board, in all cases to which they apply, without fear or favor – until and unless they are overruled, that is. This ensures that decisions are not based on who the parties are. People don't win cases because of their status – e.g., because they're a friend of the judge – nor do they lose because of their ultimate aims – e.g., a freedom of information request that is denied because the judge doesn't like what the plaintiff intends to do with the information.
In order to realize this ideal, we need judicial decisions to be accompanied by written opinions explaining the legal basis for the decision, and we need a system of precedent ensuring that the courts are applying a consistent, coherent body of legal principles when making their decisions.
I sometimes distinguish between "high" and "low" doctrinal arguments. The low form – not that there's anything wrong with that, to be clear – is the simple invocation of precedent. At the trial court level, this is mostly what it looks like. The thing is, though, at the higher level, "precedent" isn't a fixed thing. Sometimes existing case-law is wrong, and a doctrinalist is willing to correct these mistakes when necessary. "Higher" doctrinal argument, then, isn't just about conformity to existing precedent, but about building a coherent body of legal principles as a whole.
This is why lawyers (and especially appellate judges!) love hypotheticals. An extremely common form of doctrinal argument is something like "we could do X in this case, but then that would imply doing Y." If there's some reason to think Y is bad/wrong, that weighs against doing X today. The constraining factor here is that you can't just have your cake and eat it too. You can't/aren't supposed to invent good-for-this-train-only principles to decide the case before you; you have to be willing to live with the consequences of applying those same principles consistently across the board.
Doctrinal argument is the bread and butter of the common law. And ours is very much a common law constitution. It is as much a framework for decision-making as it is a list of specific rules; there are any number of constitutional questions that the text simply does not speak to. Doctrinal argument, then, is a key part of how the skeleton of the text has grown over time into a robust body of constitutional practice. A question comes up – say, who gets to fire cabinet officials? – and while the text does not speak to that question, we can try to decide the case in a way that's consistent with what the text does say.
Prudence
Prudential argument, to my mind, is the toughest to pin down. Conceptually, it is simply argument from consequences. It is the idea that judges (and decision-makers more broadly) ought to be attuned to the consequences of their actions. Which sounds nice. But... attuned how? What consequences count as good, which as bad? Because this is so open-ended, prudential argument has a kind of protean quality to it. It can also seem to converge with "do whatever I, the judge, think will make the world a better place," which starts to seem a bit lawless.
The most notable tradition of prudential jurists runs from Louis Brandeis through Felix Frankfurter and Alex Bickel, and is very much concerned with judicial restraint. The idea here is not that judicial review is bad or illegitimate, but rather that it is both important and fragile. These thinkers are acutely aware that the courts' authority rests, in the end, only upon the respect they command. Therefore, they want the courts to avoid over-exerting themselves, spending down their political capital you might say. They tend to love jurisdictional tricks that allow the courts to avoid deciding controversial cases on the merits.
But that's hardly the only version of prudentialism out there. You may have heard the phrase "the Constitution is not a suicide pact." It's not terribly in vogue right now, as opposed to during the World Wars a century ago, but it expresses a quintessentially prudential philosophy. You can see some of Lincoln's arguments for his actions during the Civil War in a similar vein: if I do not act, the Constitution itself will fall, and therefore I must break specific constitutional rules to save the thing in its entirety.
These national-security arguments share with the Brandeis-Bickel types a basic judicial conservatism, a willingness to overlook certain technical constitutional violations. But prudence can weigh on the other side as well. I am inclined to view the Supreme Court's reasoning in Miranda v. Arizona as classically prudential: a person who does not know their rights cannot assert their rights, and therefore without the Miranda warning, those rights would be rendered meaningless in at least some number of cases. The much-misunderstood majority opinion in Griswold v. Connecticut is similar.
What all these prudential arguments have in common, in my view, and what sets them apart from "bad" arguments that merely substitute in the judge's own preferences, is that they are in some way, shape, or form about vindicating the values of the Constitution itself. Even when a prudential judge will let what a textualist might consider a clear constitutional violation slide, it is in the interests of the constitutional system as a whole.
Structure and Ethos
The last two modalities are, I think, best covered together. They are what Bobbitt terms structural and ethical argument – not as in argument from moral philosophy or whatever, but from ethos, i.e., from character. These are the least familiar/intuitive methods, I think because they are the most distinctively constitutional. Text and history show up wherever there are written legal instruments, and doctrine and prudence characterize all common law judging. Structure and ethos, however, are about the Constitution as an organic act. It is not just any old legal instrument, you see; it's the special kind by which one entity (here, the People) creates another and imbues it with a portion of its own authority. Constitutions are not the only organic acts in our legal culture: you also have, say, corporate charters, as well as agency agreements generally. (As Akhil Amar has written, the Founders drew heavily on principles of agency law when devising their theories of constitutional government.) But the main place these forms of argument come up is constitutional law.
They are about, I would say, the ways in which the Constitution allocates power between the People and their various government institutions. They share the quality of not being especially attuned to particular textual provisions – although neither can avoid being informed by the text; rather, they regard the Constitution as an organic whole. For this reason, people who aren't accustomed to thinking along these lines will sometimes look at you funny when you express a structural argument. You get a lot of "where does it say that??" and the answer is, well, nowhere, but it's kind of implicit in the whole thing. I believe I once got yelled at a bunch online for saying something about how the president's function really does mean that they can't be prosecuted while in office. (I think that's what it was, anyway.)
What's the difference between structure and ethos, then? Bobbitt initially suggested that the former is useful for questions of government powers, the latter for individual rights, but that's clearly not the right way to think about it, and indeed I've heard Bobbitt acknowledge as much. It's an interesting question, and mostly beyond the scope of this primer. My tendency though is to draw the line something like this: structural arguments claim that something must follow necessarily from some aspect of the constitutional arrangement, whereas ethical arguments claim only that the particular character of our institutions has a certain implication.
A classic structural argument, then, would be something like this: even before the Bill of Rights was adopted, a state could not constitutionally have restricted discussion of national political topics, for this would make a mockery of the national democracy. This takes something we know to be true (the structure established by the Constitution is a federal republic) and draws a particular inference about the distribution of political authority (specifically as between the states and individual citizens). Of course the starting-point will typically need to be established through other methods, text or history in the ordinary case. The distinctively structural factor is the way the inference is drawn.
A classic ethical argument, on the other hand, might look like this: the text of the Constitution never actually spells out what kind of margin is needed to pass a bill through Congress, but we know that it's a simple majority because that's implicit in the entire Lockean social-contract tradition out of which the Constitution, and in fact the American nation as a whole, sprung. It's not exactly a claim that X implies Y or that X couldn't function without Y. Rather, the claim is that some feature of our national political culture is implicitly reflected in the Constitution. Could you have a system with a different threshold required for passing legislation? Perhaps, but we don't.
One thing that the discussion of structure and ethos illustrates is that the lines between these different modalities are not always that crisp. In fact I think all fifteen of the boundary-lines have at least some fuzz to them. The point of listing all six, therefore, is not so much to be able to say with exactness which modality any given argument falls into (although that can certainly be fun). The really important boundary-line, rather, is between these six modalities as a whole, which make up the materials of legitimate constitutional law, and everything else, which is not part of legitimate law.
In fact I think contemplating some other modalities, the ones that aren't legitimate in our legal system, helps both to throw the whole concept of a modality into somewhat starker relief and to illustrate that all six of the ones I've mentioned are basically commonplace. Imagine, then, that a judge came into court and said "I've decided to rule for the plaintiff, because I flipped a coin and it came up heads." That would be a problem! People, notably including the defendant, would be quite upset! The same is true if the judge said they were ruling for the plaintiff because that's what the Bible, as they understand it, required of them. Or because that's what their favorite character from their favorite novel would have done.
We would all immediately parse this as "the judge isn't doing law." Or, to put it somewhat less gingerly, "Who let that guy in here?? Are we sure he's a judge?!" Whereas if the judge says "I am ruling for the plaintiff because the text of the Constitution says so," or "because that's what the original intent of the Founders requires" or "because that's what prior case law requires" we would immediately parse that as doing law. Similarly if they say something about "federal supremacy" (a structural argument) or "basic fairness" (ethos), or even if they say something about how ruling for the defendant would have various bad consequences. All of that is normal law-stuff. We're used to lawyers and judges talking in those registers, even if we may not like what they have to say in any particular decision.
A corollary is that legal decision-making isn't, and cannot be, a purely mechanical, deterministic thing. It's not that unusual for there to be considerations from different modalities pushing in different directions in the same case! And so if there's law-stuff on this side and law-stuff on that side... it starts to seem impossible for there to be a Single Correct Legal Answer in every case. But at this point we're getting into those deeper philosophical waters that I said at the beginning I basically didn't intend to cover here. The point of this primer is simply to help my readers identify and comprehend arguments within these different forms, as they come up (and they will!) in the stuff I write here.