Constitutional Interpretation

by Philip Bobbitt

Constitutional interpretation is an issue which has come under considerable scrutiny in the USA, in the light of such happenings as the nomination of Robert Bork for the Supreme Court, and the Iran-Contra affair. This book is intended as an overview of the debate on constitutional interpretation, and employs historical, textual, doctrinal, prudential, ethical and structural methods of criticism. It also tries to show how constitutional issues are addressed by different people, such as the President, Members of Congress and students of political science.

Genres: Law

228 pages, Hardcover

First published June 1, 1991

About the author

Philip 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).

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.