Constitutional Interpretation

by Bobbit

Philip Bobbitt's seminal contribution, Constitutional Fate, first described the six fundamental forms of interpretive argument and showed how these operated to legitmate judicial review. In Constitutional Intepretation he takes up the remainder of this how are we to decide which
forms should govern when, in hard cases, the differing methods of interpretation yield different results? How do forms of constitutional argument that maintain legitimacy also thereby ensure justice? This classic work is a layman's primer by which a student can learn to analyze constiutional
problems from a legal point of view.

Genres: Law

Hardcover

First published June 1, 1991

Reviews

[Mauni · Rating 4 out of 5]

The relationship between competing modalities remains undertheorized. Bobbitt acknowledges, "The incommensurate nature of the various modalities of argument... means that there can be no algorithm by which their conflicts may be resolved." pp204. When historical arguments suggest one interpretation while structural considerations demand another, the framework offers no internal mechanism for adjudication.

Where Bobbitt sees incommensurable modalities, others argue the Constitution's text contains internal references and patterns that can guide interpretation more definitively. This approach represents what Amar terms a "distinctively architectural" way of reading the Constitution, wherein: "[T]he Constitution's interpreters are not merely reading a text; they are reading a text that itself sets up an intricate system of rule and relationships, and points of connection."

Amar's approach does not dismiss the legitimacy of Bobbitt's various modalities but rather suggests that intratextual analysis can help determine which modal interpretation best aligns with the Constitution's overall structure and meaning.

But this approach risks creating artificial coherence by assuming semantic consistency where historical and contextual evidence suggests meaningful variation (Ackerman). Amar's emphasis on textual patterns, while valuable, may understate the significance of external historical context, political theory, and evolving social understanding that inform constitutional meaning. Additionally, the intratextualist approach's reliance on semantic parallels may lead interpreters to draw connections between constitutional provisions that, despite textual similarities, serve fundamentally different purposes within the constitutional structure (making this less useful than Bobbitt).

Bobbitt's six modalities of constitutional interpretation operate much like a sophisticated legal version of rock-paper-scissors, except that all six can potentially triumph or yield in any given match, and occasionally they all lose simultaneously.

[Tamra · Rating 4 out of 5]

Bobbitt argues that Constitutional judicial review falls into one of six modalities (historical, textual, structural, doctrinal, ethical and prudential). This method of interpretation is incredibly helpful when trying to wade through all of the arguments around 'activist' judges and the judicial patterns of interpretation.