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Constitutional Fate: Theory of the Constitution
Here, Philip Bobbitt studies the basis for the legitimacy of judicial review by examining six types of constitutional argument--historical, textual, structural, prudential doctrinal, and ethical--through the unusual method of contrasting sketches of prominent legal figures responding to the constitutional crises of their day.
- GenresLaw
304 pages, Paperback
First published October 28, 1982
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About the author
Philip Bobbitt
21 books53 followersPhilip Chase Bobbitt is an American author, academic, and public servant who has lectured in the United Kingdom. He is best known for work on military strategy and constitutional law and theory, and as the author of Constitutional Fate: Theory of the Constitution (1982), The Shield of Achilles: War, Peace and the Course of History (2002) and Terror and Consent: the Wars for the Twenty-first Century (2008).
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Displaying 1 - 4 of 4 reviews
September 2, 2009
This man is my professor. His brain is awesome.
February 20, 2025
The big idea behind Bobbitt's framework lies in its claim that constitutional interpretation operates through multiple, equally legitimate forms of argument: six distinct modalities of constitutional grammar—historical, textual, structural, doctrinal, ethical, and prudential— offering insight into the deep meaning of various constitutional provisions like the Fourteenth Amendment's Citizenship Clause where historical, ethical, and structural arguments converge to establish fundamental principles of political membership.
The framework's practical utility becomes particularly evident when applied to constitutional questions like those presented in Roe. The decision's reliance on doctrinal arguments derived from privacy jurisprudence, ethical claims about personal autonomy, and prudential considerations regarding practical implementation demonstrates how different modalities interact in constitutional reasoning. Moreover, the historical complexity surrounding abortion regulation—with its distinction between pre- and post-quickening treatment at common law juxtaposed against nineteenth-century statutory restrictions—illustrates how multiple modalities can generate competing insights that resist simplistic resolution (Justice Barrett criticizing Alito..) Rather than viewing this interpretive complexity as a weakness, Bobbitt's framework suggests it represents an essential feature of legitimate constitutional discourse.
Critics might reasonably question whether the framework provides sufficient guidance for resolving conflicts between different modalities, and I'm not positive that this apparent limitation reflects the inherent complexity of constitutional interpretation itself.
It is apparent that Bobbitt is adapting Wittgenstein. Just as Wittgenstein argued that language games are self-contained systems of meaning, Bobbitt suggests that constitutional interpretation achieves legitimacy through its adherence to accepted forms of argument within the constitutional tradition itself. Self-contained rules of recognition in con. law, like in chess, language, etc.
From a strict Wittgensteinian perspective, though, Bobbitt's attempt to categorize constitutional arguments into six discrete modalities risks creating exactly the kind of artificial taxonomic structure that Wittgenstein warned against (literally in his preface). Wittgenstein emphasized that language games emerge organically from social practices and resist systematic categorization. By attempting to systematize constitutional interpretation into distinct modalities, formal-legalistic one's at that, Bobbitt may be engaging in precisely the kind of theoretical abstraction that Wittgenstein sought to critique.
Ironically, Bruce Ackerman approximates closest to Wittgenstein, arguing that We the People have repeatedly risen up to transform the Constitution through sustained institutional engagement and popular mobilization & therefore, the Constitution is best understood as a historically evolving expression of We the People's considered judgments.
The corollary here is Leo Tolstoy who criticized historians for their use of the Great Man theory of history, which assumes that a few great people, like Napoleon, control the course of history. Tolstoy believed that history is shaped by the collective will of individuals, and that the actions of a single person (or modality) are not sufficient to explain the complex movements of bodies of people, or bodies of law..
If Wittgenstein is correct that meaning emerges from practice rather than theory, then any attempt to systematize constitutional interpretation—even one as sophisticated as Bobbitt's—may misconceive the nature of constitutional discourse.
The framework's practical utility becomes particularly evident when applied to constitutional questions like those presented in Roe. The decision's reliance on doctrinal arguments derived from privacy jurisprudence, ethical claims about personal autonomy, and prudential considerations regarding practical implementation demonstrates how different modalities interact in constitutional reasoning. Moreover, the historical complexity surrounding abortion regulation—with its distinction between pre- and post-quickening treatment at common law juxtaposed against nineteenth-century statutory restrictions—illustrates how multiple modalities can generate competing insights that resist simplistic resolution (Justice Barrett criticizing Alito..) Rather than viewing this interpretive complexity as a weakness, Bobbitt's framework suggests it represents an essential feature of legitimate constitutional discourse.
Critics might reasonably question whether the framework provides sufficient guidance for resolving conflicts between different modalities, and I'm not positive that this apparent limitation reflects the inherent complexity of constitutional interpretation itself.
It is apparent that Bobbitt is adapting Wittgenstein. Just as Wittgenstein argued that language games are self-contained systems of meaning, Bobbitt suggests that constitutional interpretation achieves legitimacy through its adherence to accepted forms of argument within the constitutional tradition itself. Self-contained rules of recognition in con. law, like in chess, language, etc.
From a strict Wittgensteinian perspective, though, Bobbitt's attempt to categorize constitutional arguments into six discrete modalities risks creating exactly the kind of artificial taxonomic structure that Wittgenstein warned against (literally in his preface). Wittgenstein emphasized that language games emerge organically from social practices and resist systematic categorization. By attempting to systematize constitutional interpretation into distinct modalities, formal-legalistic one's at that, Bobbitt may be engaging in precisely the kind of theoretical abstraction that Wittgenstein sought to critique.
Ironically, Bruce Ackerman approximates closest to Wittgenstein, arguing that We the People have repeatedly risen up to transform the Constitution through sustained institutional engagement and popular mobilization & therefore, the Constitution is best understood as a historically evolving expression of We the People's considered judgments.
The corollary here is Leo Tolstoy who criticized historians for their use of the Great Man theory of history, which assumes that a few great people, like Napoleon, control the course of history. Tolstoy believed that history is shaped by the collective will of individuals, and that the actions of a single person (or modality) are not sufficient to explain the complex movements of bodies of people, or bodies of law..
If Wittgenstein is correct that meaning emerges from practice rather than theory, then any attempt to systematize constitutional interpretation—even one as sophisticated as Bobbitt's—may misconceive the nature of constitutional discourse.
February 6, 2023
This is a deeper book than my review is giving it credit for, but I found the elliptical way it was written difficult to wrap my head around. I think I will benefit more from the book if I read it a second time.
September 12, 2025
A good, concise book on constitutional arguments. Bobbitt clearly likes Wittgenstein.
Displaying 1 - 4 of 4 reviews