Metaphors and Modalities Meditations on Bobbitts

8/19/2019 Metaphors and Modalities Meditations on Bobbitts

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Metaphors and Modalities: Meditations on Bobbitt’s Theory of the Constitution

Ian C. Bartrum*

Language is the Flesh-Garment, the Body, of Thought. I said that imagination wove this

Flesh-Garment; and does not she? Metahors are her stuff! e"amine Language; . . . what

is it all #ut metahors, re$ognised as su$h, or no longer re$ognised; still fluid and florid,or now solid-grown and $olourless? If those same rimitive garments are the osseous

fi"tures of the Flesh-Garment, Language,%then are metahors its mus$le and living integuments.

-Thomas Carlyle1

In two remarkable books, written nearly a decade apart, Philip Bobbitt has brought

udwig !ittgenstein"s cataclysmic insights on the nature o# language to bear on the study o#

$merican constitutionalism.2 The #irst o# these books, entitled &onstitutional Fate, sets out to

e%plore and describe the con&ersation that is the $merican Constitution, and in so doing breaks

sharply with traditional e##orts to disco&er, in some e%ternal source, a set o# #oundational

constitutional meanings that might 'usti#y or discredit particular legislation, decisions, or

policies.3 (rom the outset, Bobbitt asks us to recogni)e that the Constitution is not an arti#act

that e%ists in some space apart #rom us whose nature we might better search out by poking,

teasing, or holding up to the proper light. +ather the Constitution is the sear$h it is neither more

nor less than the ra$ti$e both in court and classroomo# constitutional law. aw, / hewrites in the second book, is something we do, not something we have as a result o# what we

do./4 0ust as the later !ittgenstein abandoned the search #or #i%ed, e%ternal re#erents and

suggested that some words" meaning is disco&erable only in their use,5 Bobbitt discards the

* I thank Philip Bobbitt, Bruce $ckerman, ennis Patterson, and the members o# the 2e%t 3eneration egal 4cholars4ymposium at 5ale aw 4chool #or help#ul comments on earlier dra#ts. I must reser&e my deepest gratitude,howe&er, #or $khil +eed $mar who #reely o##ered his in&aluable support and guidance throughout this endea&or.1

T678$4 C$+59, 4$+T7+ + 94$+T:4 T69 I(9 $2 7PI2I724 7( 69++ T9:(94+;C ?Charles (.6arrold, ed. 1@>=A. ennis Patterson has undertaken an insight#ul analysis o# Bobbitt"s work and its relationship to !ittgenstein"s. 'eeennis Patterson, &ons$ien$e and the &onstitution, @> C7:8. . + 9. =D ?1@@>A ?book re&iewA also ennisPatterson, (ittgenstein and &onstitutional Theory, = T9E. . + 9. 1F>= ?1@@GA.> P6IIP B7BBITT, C724TIT:TI72$ ($T9 T697+5 7( T69 C724TIT:TI72 [email protected] P6IIP B7BBITT, C724TIT:TI72$ I 2T9+P+9T$TI72 G ?1@@1A ?emphasis addedA.H 'ee :!I3 !ITT3924T9I2, P6I747P6IC$ I 294TI3$TI724 >-=, D- ?3.9.8. $nscombe trans., BasilBlackwell J 8ott d. ed. DDDA ?1@H>A ?presenting a theory o# meaning based on practice and usage as well astraditional re#erenceA. I ha&e recently heard Tony


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4isyphean search #or absolute constitutional meanings and commits himsel# instead to describing

the internal grammar o# constitutional discourse.

Bobbitt breaks constitutional grammar down into si% modalities/ o# argument, each o#

which can produce legitimate assertions o# constitutional meaning

M1N the histori$al ?relying on the intentions o# the #ramers and rati#iers o# theConstitutionA MN te"tual ?looking to the meaning o# the words o# the Constitutionalone, as they would be interpreted by the a&erage contemporary man on thestreet/A M>N stru$tural ?in#erring rules #rom the relationships that the Constitutionmandates #rom the structure it sets upA MGN do$trinal ?applying rules generated by precedentA ethi$al ?deri&ing rules #rom those moral commitments o# the$merican ethos that are re#lected in the ConstitutionA and MN rudential ?seekingto balance the costs and bene#its o# a particular ruleA.6

&onstitutional Fate undertakes, in biographical #orm, an e%ploration o# each o# these modalities

o# argument. Bobbitt gi&es us historical argument through the story o# !alter Crosskey"s

contro&ersial multi-&olume epic )oliti$s and the &onstitution, he e%plores te%tual arguments in

the 'udicial work o# 6ugo Black, and doctrinal argument emerges #rom a discussion o# 6enry

6art and the $merican aw Institute. Bobbitt credits Charles Black"s 'tru$ture and *elationshi

in &onstitutional Law with re&itali)ing and gi&ing name to structural argument, and he sees

prudential argument at work in $le%ander Bickel"s The Least +angerous Bran$h.7 The #inal

modality, ethical argument, is Bobbitt"s own contribution to the le%icon, and he de&otes much o# the remainder o# the book to e%ploring the deri&ation and application o# arguments that rely on

the ethos o# $merican democracy.8

But Bobbitt"s inspired e##ort to escape the regressions that persist in #oundational

accounts o# constitutional meaning lea&es some important kinds o# Kuestions unanswered. (irst,

his depiction o# constitutional practice has a static Kuality to it he does little to e%plain how the

modalities o# argument may e&ol&e or e%pand o&er time. 4econd, Bobbitt struggles to pro&ide a

principled account o# constitutional decision-making in the rare and di##icult case where the

di##erent modalities may point towards di&ergent, yet eKually legitimate, outcomes. 9 Both o#

B7BBITT, I 2T9+P+9T$TI72, sura note G, at 1-1>.= 'ee B7BBITT, ($T9, sura note >, at @[email protected] 'ee id . at @>-1==.@ Bobbitt de&otes much o# his second book to this problem, which he resol&es with an ultimate appeal to 'udicialconscience./ It takes some #ancy #ootwork, howe&er, to demonstrate that this conscience/ is not actually theultimate e%ternal re#erent or #oundationwhich would de#eat the entire pro'ect. +ather, Bobbitt sees conscience as


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these issues arise as a result o# Bobbitt"s original insight, which is committed to an account o#

constitutional meaning and legitimacy de#ined solely by the internal grammar o# constitutional

practice. I# it is the accepted grammar that bestows legitimacy, that grammar must also be

capable o# e%cluding certain kinds o# arguments as illegitimateit is this e%clusionary impulsethat gi&es rise to Bobbitt"s these-and-only-these-modalities stasis. ikewise, when #aced with

di&ergent modalities, it is tempting to look outside the practice #or a means o# resolution

perhaps by ranking the modes o# argumentbut to indulge such a temptation is ultimately to

resort to #oundationalism and abandon the !ittgensteinian pro'ect entirely.10

I do not imagine that I can pro&ide complete answers to these lingering and &e%ing

Kuestions, particularly those surrounding the origins o# the basic modalities,11 but I do hope in

this paper to pro&ide an internal, practice-based account o# the e&olution o# constitutional

discourse. I# success#ul, this account will incorporate the resolution o# di##icult cases as among

the possible moments o# grammatical ?and thus constitutionalA creati&ity. In appealing to

!ittgenstein, Bobbitt re&eals the basic similarities between constitutional practices and linguistic

practices, and thus, as we begin to consider how our constitutional discourse might grow and

e&ol&e, it seems appropriate to e%amine the means by which our language does the same. !hile

it is likely that language e&ol&es in a number o# di##erent ways, I suggest that one o# the most

part o# the act o# decision-making, which is itsel# part o#and not e%ternal tothe practice o# constitutional law. Inthis sense, a decision does not de#ine ultimate constitutional meaning, rather it becomes one #eature in the ongoingdialogue and practice. 'ee I 2T9+P+9T$TI72, sura note G, at 1>-H. !hile I agree with this approach to the

problem in principle, I do not think it pro&ides enough account o# the grammatical methods by which such decisionsmodi#y and enlarge the constitutional discourse.

I should point out that Bobbitt pro&ides an e%cellent, practice-based account o# intramodal con#licts an issue I donot take up here.1D (or a thought#ul attempt at such a ranking scheme, see +ichard 6. (allon, 0r., &onstru$tivist &oheren$e Theoryof &onstitutional Interretation, 1DD 6$+. . + 9. 11F@, 1H-F ?1@F=A.11 8y intuition on this Kuestion is that the te%tthus te%tualismcame #irst, and that the other modalities grew up&ery Kuickly as part o# the interpreti&e practice. To analogi)e to language practice, this is something like the

phenomenon o# designation and deri&ation that is rigorously e%plored within the so-called causal theory o# re#erence./ 'ee, e.g., 4$:


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important and substantial #orm o# linguistic growth and creati&ity is what we call metahor .12 It

is in part through metaphor that we capture and e%press new meanings, e%pand our linguistic

capabilities, andperhapse&en enhance our cogniti&e capacities. In Carlyle"s terms, a strong

metaphor may gain acceptance, ossi#y, and become part o# our literal discourse then newmetaphors, with still &ital #igurati&e content, become the mo&ing partsthe so#t growth tissue

o# our e%pressi&e grammar and practice. $nd so it is with our constitutional practice strong

argumentati&e modalities ha&e ossi#ied into the accepted grammar o# constitutional law, but there

are always new arguments, built on #igurati&e uses o# the accepted modalities, that make up the

#luid and #lorid #rontiers o# constitutional discourse.

This paper employs a particular theory o# metaphors8a% Black"s &ersion o# the

intera$tion theory in the hope o# pro&iding a use#ul account o# the e&olution o# constitutional

law.13 I contend that is in the interaction, or #igurati&e blending, o# Bobbitt"s modalities that we

create new constitutional meanings and surmount constitutional impasses, and that we can only

'udge the merits o# such endea&ors o&er time, as we see which o# our metaphors ossi#y and

which #all away. 4een this way, constitutional law, like language, is a creati&e practice, and its

great practitioners are more poets than logicians. 8y application o# Black"s theory to

constitutional law is, in this sense, itsel# metaphoric, as was Bobbitt"s original application o#

!ittgenstein I do not suggest that there is a literal relationship between linguistic practice and

law practicebut rather a metaphoric one.14 8y hope is that by superimposing an idea #rom the

philosophy o# language onto the study o# constitutional law, I can say something #igurati&e about

the growth o# law that is di##iculti# not impossibleto say literally. It is probably too much to

hope that my metaphor may e&entually ossi#y and become part o# the le%icon, as has Bobbitt"s.15

1 There are, o# course, other tropes that may operate to similar e##ectmetonymy and synecdoche come to mind and theoretical accounts o# these #orms may also ha&e use#ul application to the study o# constitutional discourse.

The limited goal o# this paper, howe&er, is to begin a discussion o# the most common o# these #igurati&e modes andto e%plore its relationship to law-as-practice.1> This is in no way meant to suggest that Black"s theory is the most recent or sophisticated theory o# metaphor onlya theory I #ind particularly persuasi&e and apt #or the purposes o# my argument here. (or an e%cellent, more recent,approach see 3eorge ako##, &ontemorary Theory of Metahor , in 89T$P67+ $2 T67:36T D ?$ndrew7rtony ed., 1@@>A.1G !hat is o# #undamental importance is that they are both ra$ti$es, by which I mean a social organi)ing systemwithin which certain acts or utterances are recogni)ed and meaning#ul, and others are not.1H ennis Patterson has noted that, when asked #or his opinion on the best recent book on constitutional theory,aurence Tribe responded, OThere are two, and they"re both by the same author." +ecommending Philip Bobbitt"s&onstitutional Fate and &onstitutional Interretation./ ennis Patterson, 1D1 8IC6. . + 9. 1=>1

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!ith that said, this paper begins with a brie# e%amination o# Black"s interaction theory,

and his contro&ersial claim that metaphors can actually create new meanings or semantic content.

I then pro&ide e%amples o# interacti&e metaphor at work in three paradigmatic spheres o#

constitutional discourse theory, ad&ocacy, and 'udging.16

I look #irst to theory with ane%amination o# $khil +eed $mar"s persuasi&e discussion o# the approach he calls

intrate%tualism./17 I then e%plore metaphorical ad&ocacy as practiced by ouis Brandeis in his

#amous brie# in Muller v. /regon. I turn #inally to 'udging and discuss perhaps the most

canonical o# twentieth-century constitutional decisions Brown v. Board of 0du$ation. In each o#

these spheres o# constitutional discourse, I see something akin to Black"s theory o# metaphor

underlying moments o# grammatical creati&ity, and I conclude that it is only in assessing the

acceptance or re'ection o# these metaphors o&er time that we can truly e&aluate their

constitutional merit.

I. 8$E B$C


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work o# +obert (ogelin21 but in the twentieth-century theorists increasingly challenged this

classical account as simplistic and incomplete. 4ome argued that, unlike a simile, a success#ul

metaphor con&eys something more than can be literally paraphrased a contention that, i# true,

ele&ates metaphor to a place among the most important o# linguistic #orms.22

Perhaps the most interesting o# these new theories emerged #rom the work o# 9nglish

philosopher and literary critic I&an +ichards, who is perhaps best known #or his collaborations

with Charles 7gden.23 +ichards strains at the bit o# a classical tradition that has reduced

metaphor to a sort o# happy e%tra trick with words . . . . a grace or ornament or added power o#

language, not its constituti&e #orm./24 +ather, he sees something more pro#ound and creati&e at

work, and he comes thus to an early interaction theory o# metaphor, upon which 8a% Black

would build his own theoretical edi#ice se&eral decades later.25 To begin, +ichards posits that

the mechanics o# metaphor are deri&ati&e o# the basic mechanics o# thought M(Nundamentally

MmetaphorN is a borrowing between and intercourse o# thoughts, a transaction between conte%ts.

Thought is metaphoric, and proceeds by comparison, and the metaphors o# language deri&e

there#rom./26 6e then goes on to suggest that a metaphor results #rom the interaction o# two

distinct ideas ?or conte%tsA, which 8a% Black would later label the frame and fo$us terms o# a

gi&en metaphor .27 The frame is the principal idea or conte%t that a metaphor hopes to illuminate,

while the fo$us is the secondary idea or conte%t that interacts with the principal to create the

metaphor. To take Plautus again as an e%ample, man"s relation to man/ is the frame, while

1 'ee generally + 7B9+T (739I2, (I3:+$TI95 4P9$

'ee, e.g., C.A ?emphasis in originalA.H Id . at F@-@H, 1DD. !. Bedell 4tan#ord has presented a similar account, which he calls an integration theory. !.B99 4T$2(7+, 3+99A. Id. at @G. ?emphasis in originalA.= Id . at @. +ichards actually has his own, somewhat con#using labels #or these termsthe tenor and the vehi$le

but I ha&e chosen to use Black"s labels throughout #or the sake o# consistency. Id . at F. In choosing the labels frame and fo$us, Black employed his own metaphor by in&oking the concept o# a painting or photograph. Black iscom#ortable using metaphors ?as long as their good onesA to illuminate theory, which, again, is how I see my ownapplication o# Black"s theory to Bobbitt"s. 'ee note 1G sura and accompanying te%t.


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wol#/ is the fo$us. This much is not inconsistent with classical comparison theory, but +ichards

goes on to make a more pro&ocati&e claim MINn many o# the most important uses o# metaphor,

the co-presence o# the M#rameN and the M#ocusN results in a meaning ?to be clearly distinguished

#rom the #rameA whi$h is not attaina#le without their intera$tion./28

+ichards makes some e##ortto e%plain the creati&e #orce he attributes to metaphor as a product o# the reader"s ?or hearer"sA

reconstruction o# the interacting common characteristics/ o# the #rame and #ocus, 29 but he

lea&es a more detailed resolution o# this Kuestion as an in&itation to posterity, which 8a% Black

happily accepted in his 1@ book Models and Metahors.30

!hile Black is enamored o# +ichards"s ideas about interaction, he is dissatis#ied with

se&eral aspects o# the o&erall account. 8ost signi#icantly, he takes issue with +ichards"

contention that a metaphor"s reader must assimilate the $ommon characteristics/ o# the

presented ideas.31 (or Black, this seems a relapse into older comparison theories, which rely on

some set o# inherent similarities between the #rame and #ocus. +ather, Black thinks +ichards is

more insight#ul when he speaks o# the reader $onne$ting the two ideas In this Oconnection"

resides the secret and mystery o# metaphor. To speak o# the Ointeraction" o# two thoughts Oacti&e

together" emphasi)MesN the dynamic aspect o# a good reader"s response to a nontri&ial

metaphor./32 +ather than asking the reader to tease out the common characteristics/ that #rame

and #ocus share, Black suggests that the #ocus superimposes its own system o# associated

commonplaces/ o&er the commonplaces associated with the #rame.33 It is then the reader"s 'ob

to reconstruct these two sets o# associated commonplaces in a way that suppresses some details

MandN emphasi)es others./34 !hen such a metaphor is success#ully created and reconstructed, in

can e&oke a new kind o# meaning.35

F Id . at 1DD ?emphasis addedA.@ Id . at 11-D.>D

B$CH-G=.>1 Id . at >@.> Id .>> Id. at GD-G1.>G Id. at G1.>H Black recogni)es that any gi&en reader will bring her own set o# associated commonplaces/ with her to themetaphor. !e may all associate di##erent things with the word wol#,/ and thus there is the potential #or metaphorsto ha&e entirely indeterminate meanings. But Black suggests that the success#ul metaphor-reader does not look strictly to her own associations, but rather to the associations that are the common possession o# the speechcommunity./ Id . at GD. ikewise, a success#ul metaphor-maker must use terms that readily and #reely e&okeMN/certain associations in that community. Id. This issue will become important when I discuss su$$essful

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Black pro&ides se&eral illustrations o# his theory, a #ew o# which may be help#ul here.

(irst, he asks us to imagine ga)ing at the night sky through a piece o# opaKue glass with a

number o# transparent lines cut into it. !e only see the stars that we can success#ully maneu&er

into the lines on the glass, and the stars we do see are organi)ed by the lines" structure.36

Black suggests that we can think o# the glass as a metaphor, and o# the transparent lines as the

associated commonplaces rele&ant to both the #rame and #ocus. In this sense, the metaphor gi&es

us a new picture o# the night sky ?complete with new constellations, I supposeA. 7r, he imagines

trying to describe a great battle using only terms drawn #rom the &ocabulary o# chess

The en#orced choice o# the chess &ocabulary will lead some aspects o# the battleto be emphasi)ed, others to be neglected, and all to be organi)ed in a way thatwould cause much more strain in other modes o# description. The chess&ocabulary #ilters and trans#orms it not only selects, it brings #orward aspects o# the battle that might not be seen at all through another medium.37

In this metaphor, the battle is the #rame and the chess &ocabulary is the #ocus the interaction o#

the two systems o# associated commonplaces takes place in both the describer"s and the listener"s

minds. The result is an understanding o# the battle and its meaning that might not ha&e been

possible through literal description.>F

But Black also wants to pro&ide an account o# what it is to thin1 metaphorically,39 as he

sees the process o# recogni)ing and reconstructing a metaphoro# thinkMingN o# something ?$A

as something else ?BA/as critical to an understanding o# how a metaphor can create new kinds

o# meaning or semantic content.40 To illuminate this issue he uses a geometrical e%amplethe

4tar o# a&idwhich he suggests we can think about in se&eral ways ?1A two congruent

constitutional metaphors below.> Id . at G1.>= Id .>F

To use an illustration o# my own, I suggest thinking o# the way that playing more than one musical note at a timecan produce a $hord . In this e%ample, the o&erlapping notes create a new sound that cannot be understood simply interms o# its constituent parts.>@ In more recent years, se&eral theorists ha&e de&eloped more sophisticated accounts o# the relationship betweenmetaphor and thought. 7# particular interest is the work o# 8ichael +eddy, who has demonstrated that #or at leastone important class o# e%pressionsthe conduit metaphor/the source o# metaphor is in thought, not language.8ichael 0. +eddy, The &onduit Metahor! &ase of Frame &onfli$t in /ur Language #out Language , in89T$P67+ $2 T67:36T 1G-D1 ?$ndrew 7rtony, ed. 1@@>A. +eddy"s work suggests that metaphor is a ma'or

part o# the way we typically conceptuali)e and e%perience the world.GD This ne%t step in Black"s analysis is clearest in a later paper on the topic. 8a% Black, More #out Metahor , in89T$P67+ $2 T67:36T 1@, >1 ?$ndrew 7rtony ed. 1@@>A.

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eKuilateral triangles superimposed ?A a he%agon with congruent eKuilateral triangles on each

edge or ?>A three congruent parallelograms superimposed.41

?1A ?A ?>A

9ach o# these constructions o# the 4tar is a metaphor o# a &ery simplistic sort, in which the

metaphor-maker asks the metaphor-reader to &iew the 4tar as some other group o# shapes. The

reader is then #orced to reconstruct the image in a new way, which perhaps o##ers a new insight

or perspecti&e on the original 4tar. But, #or all its clarity, Black concedes that this e%ample is too

simplistic to e%plain the creation o# any kind o# new meaning. $#ter all, the reader only need

draw on shapes that she already knows to reconstruct the metaphor. There is no creati&ityor,

in Black"s words conceptual inno&ation/reKuired, and thus these metaphors are easily

reduced to literal statements ?in something like the way depicted abo&eA.42

It is only when the metaphor reKuires the reader to see something that the diagram cannot

Kuite depict that she must undertake an act o# meaning#ul metaphoric construction. $s an

e%ample, Black asks us to think o# a straight line as a collapsed triangle, with its &erte% on the

base./43 This richer ?and, Black suggests, more commonA kind o# metaphor reKuires the reader

to do some imaginati&e work to create a concept that might meet the metaphor-maker"s demand.

The metaphoric enterprise is thus a two-party endea&or it is a communicati&e act within a larger

linguistic practice that reKuires both parties to know the rules, limitations, and #le%ibilities o# a

shared language. It remains a #air Kuestion whether this communicati&e act can really create

some new kind o# meaningsome theorists are not con&inced44 but Black belie&es this is the

G1 Id . at >1->. I ha&e omitted two #urther suggestions #or constructing the 4tar.G Id . at >.G> Id .GG 'ee, e.g., 6aig H->= ?1@FA ?Kuestioning whether re$ognition o# new similarity or meaning entails $reation o# new meaningA also a&idson sura note D, at G1H.

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case. 6e suggests thinking about the problem by considering the #ollowing Kuestion id the

slow-motion &iew o# a galloping horse e%ist be#ore the in&ention o# cinematographyQ/ 45 6e

argues that the &iew/ in Kuestion only arises #rom a man-made instrument, but that what is

seen in a slow-motion #ilm becomes part o# the world once it is seen./46

Black contends thatgood metaphors #unction like the camera, as Ocogniti&e instruments," indispensable #or

percei&ing connections that, once percei&ed, are then truly resent ./47 Thus, the metaphoric

instrument can bring into being a new kind o# meaning.

There is a #urther Kuestion, o# course, about why we accept and use metaphors as part o#

our linguistic practice. 7ne possible answernot without its proponentsis that we do it

simply because we can that the use o# metaphor is part entertainment, part &anity, and part

curiosity. $ more compelling answer, howe&er, is that we do it because we need to. There are

thoughts, senses, and insights we simply cannot e%press in literal terms, but which we may be

able to capture in an apt metaphor. 9&en i# we are condemnedas !ittgenstein saysto

running against the walls o# our MlanguageN cage,/ perhaps a strong, &ital metaphor can bend the

bars a little.48 It is this #unction, the impro&isational ability to #ill in the gaps in our e%pressi&e

capacities, which I belie&e is metaphor"s central contribution to our linguistic practice.49 $nd it

is in this capacity that Black"s theory o# metaphor is help#ul to Bobbitt"s theory o# constitutional

modalities, where, as discussed below, modal metaphors/ can help #ill in the e%pressi&e gaps in

our constitutional discourse.

The #inal Kuestion, which becomes critically important as we superimpose Black"s theory

onto constitutional practice, is whether or how we can know when we ha&e constructed a good/

or strong/ metaphor. 7n its #ace, this Kuestion seems to beg #or a #oundational kind o# answer

one that pro&ides clear constructi&e pre#erences o# some kindbut I do not think such an

answer is possible. Because a metaphor is a communicati&e act that reKuires both $reation and

GH Black, More #out Metahor , sura note GD, at >=. The slow-motion #ilm o# a galloping horse #amously resol&edthe Kuestion as to whether all #our #eet are actually o## o# the ground at the same timethey are.G Id .G= Id . ?emphasis addedA.GF udwig !ittgenstein, $ ecture 7n 9thics/ ?1@@A rerinted in =G P6I747P6IC$ + 9I9! >, 1 [email protected]@ Black calls these gap #illing metaphors a species o# $ata$hresis,/ which he de#ines as the use o# a word in somenew sense in order to remedy a gap in the &ocabulary . . . . MIN# a catachresis ser&es a genuine need, the new senseintroduced will Kuickly become part o# the literal sense./ B$C->>.

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re$onstru$tion, the metaphor-maker can ne&er know in ad&ance whether her e##ort will succeed

in con&eying a new or &aluable kind o# meaning to the metaphor-reader. This does not mean that

there are no rules by which the metaphor-maker must abide. Certainly, she must speak the

shared languageshe cannot utter nonsense words or wholly ignore the appropriate grammar and synta%i# she hopes to e&en engage the metaphor-reader in the communicati&e enterprise.

But she cannot know the ultimate &alue o# her metaphor as a new cogniti&e instrument/ until

she sees how it is reconstructed and assimilated into the e%isting linguistic practice. Thus, the

greatest end #or an e%pressi&e-gap-#illing metaphor is to become what we call a dead

metaphor/ one that has been so well accepted o&er time that it has lost its metaphoric sense and

taken on a &ery literal meaning ?table leg,/ #or e%ampleA. 50 ead metaphors, to again borrow

Carlyle"s image, help to make up the osseous #i%turesthe skeletono# our language body, but

we must keep constructing new and &ital metaphors to keep that body ali&e and growing. 51

4uch, I contend, is also the nature o# our constitutional discourse we ha&e built a sturdy

analytical skeleton capable o# resol&ing most issues, but, at the li&ing edge, we still rely on

strong metaphors to #ill in the emerging gaps in our practice.

II. 87$ 89T$P67+4

The idea that Black"s theory o# metaphor might contribute something use#ul to Bobbitt"s

theory o# the Constitution is, as I ha&e said, itsel# a metaphoric kind o# thought. $#ter all,

Bobbitt"s theory describes constitutional practice in terms o# modalities, not words, and it seems

di##icult to credibly assert that interacting modalities are literally eKui&alent to interacting words.

2onetheless, I think there is something #igurati&e and important to be gained in thinking about

the e&olution o# constitutional discourse in terms o# modal metaphors I suggest that

HD 'ee note GF sura.H1 4helley put the idea in perhaps more accessible terms than did Carlyle

MThe poet"sN language is &itally metaphorical that is, it marks the be#ore unapprehended relation o# things and perpetuates their apprehension, until the words that represent them become, through time,signs #or portions or classes o# thought instead o# pictures o# integral thought and then, i# no new poetsshould arise to create a#resh the associations which ha&e thus been disorgani)ed, language will be dead toall the nobler purposes o# human intercourse.

P9+C5 B54469 46995, $ 9(92C9 7( P79T+5 1=-1F ?Bobbs-8errill, ed., 1@DGA.

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conceptuali)ing o&erlapping modalities as interacting systems o# associated commonplaces

might ser&e as the kind o# cogniti&e instrument that can re&eal new constitutional meanings. To

create a modal metaphor consists in taking one o# Bobbitt"s modalities as a Blackian frame, and

then positing another modality as the metaphoric fo$us.52

The metaphor-reader ?the theorist the 'udge the lawyerA then reconstructs the interacting commonplaces conceptually, and whate&er

meaning the metaphor produces then becomes a part o# constitutional discourse. !e can only

assess the ultimate &alue o# the modal metaphor as part o# constitutional practice o&er time, as

we gauge its use#ulness and assimilation into the literal grammar.

This section presents se&eral e%amples o# modal metaphors at work in our constitutional

discourse, attempts to analy)e their construction and method, and e&aluates their contribution to

constitutional law. In an e##ort to co&er three paradigmatic spheres o# constitutional practice, I

ha&e chosen an e%ample #rom theory, one #rom ad&ocacy, and one #rom 'udging. I analy)e each

e%ample within the basic terms o# Black"s interaction theory I posit one modality as the frame

and another as the fo$us, and then reconstruct the resulting modal metaphor. I then assess the

contribution that each metaphor has made to the Constitution in terms o# its acceptance into the

practice, and the e%pressi&e gaps it may ha&e #illed in our discourse. The #irst e%ample,

intrate%tualism,/ is somewhat problematic as an e%ample o# constitutional e&olution in that the

method seems to ha&e been part o# the practice #rom &ery early in our constitutional history. It

is, howe&er, an e%cellent e%ample o# a modal metaphor, whene&er it originally came into being,

and so I ha&e chosen to present it #irst as a clear illustration o# the mechanics o# the metaphoric

process. The #ollowing two e%amplesthe Brandeis Brie# and Brown v. Board of 0du$ation

represent more clearly de#ined moments o# constitutional creati&ity or e&olution in our history.

. 1hil *eed mar! Intrate"tualism

In an in#luential article published in the 6ar&ard aw +e&iew, $khil $mar identi#ies an

interpreti&e methodology he calls intrate%tualism,/ and presents se&eral compelling e%amples o#

H It is critical here to note that the modal metaphor must be constructed in terms o# the pree%isting modalities o# constitutional discourse. To do otherwise is analogous to constructing a linguistic metaphor with nonsense words there is little, i# any, chance o# success in such an endea&or. But see, ewis Carroll, 2a##erwo$1y, in T6+7:36 T6977


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the method at work in canonical cases and commentaries.53 6e describes the approach as an

e##ort to read a contested word or phrase that appears in the Constitution in light o# another

passage in the Constitution #eaturing the same ?or a &ery similarA word or phrase./54 In a

simplistic sense, the intrate%tualist uses the Constitution as its own dictionary/55

but, in adeeper sense, the method departs #rom typical clause-bound te%tualism and demands a holistic

interpretation o# the document in its entirety. In this way, intrate%tualism is a paradigmatic

e%ample o# the modal metaphor, as $mar sel#-consciously suggests a measured, incremental

blending o# Bobbitt"s grammatical structures. Indeed, #rom the opening paragraph, $mar bows

to Bobbitt"s work, and indicates his intent to o##er his own contribution to the le%icon

Interpreters sKuee)e meaning #rom the Constitution through a &ariety o#

techniKuesby parsing the te%t o# a gi&en clause, by mining the Constitution"shistory, by deducing entailments o# the institutional structure it outlines, byweighing the practical penalties o# proposed readings o# it, by appealing to 'udicial cases decided under it, and by in&oking the $merican ideals it embraces. .. . MIntrate%tualism isN yet another rich techniKue o# constitutional interpretation.56

!hile Bobbitt might suggest that this techniKue is simply a subspecies o# his te%tualist modality,

$mar makes a compelling case #or intrate%tualism"s independence.57 It is certainly distinct #rom

the speci#ic brand o# te%tualism Bobbitt describes, which de#ines words as they would be

interpreted by the a&erage contemporary Oman on the street."/

58

The importance o# thisdistinction becomes clear in the e%amples $mar pro&ides, and it is use#ul to recount a #ew o# his

illustrations here.

To a&oid stacking the deck,/ $mar draws his e%amples directly #rom the central te%ts o#

the constitutional canon, and the #irst opinion he e%plores is 0ohn 8arshall"s in M$&ullo$h v.

H> $mar, sura note 1H, at =GF-F. $s I noted abo&e, Pro#essor $mar does not claim to ha&e in&ented this approach only to ha&e identi#ied itbut he persuasi&ely demonstrates that it is an independent modality o# interpretation,

outside o# Bobbitt"s original si%. Id . at =FF-@1. It is this independence, this methodological distincti&eness, which iso# interest to me here, as I hope to show that intrate%tualism is a paradigmatic e%ample o# a modal metaphor, in thatit combines two o# the original modalities. $nd, whate&er its origins, Pro#essor $mar"s recognition and e%plicationo# the techniKue has introduced a new interpreti&e tool into the constitutional workplace. It is this growth or e&olution in the practicei# it has occurredthat I want to e%plain through the processes o# Black"s interactiontheory.HG Id . at =GF.HH Id . at =H.H Id . at =GF.H= Id . at [email protected] I 2T9+P+9T$TI72, sura note G, at 1>.

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Maryland .59 8arshall"s argument supporting Congress" power to establish a national bank is rich

in the &arious modalities and te%tures o# constitutional argument, and $mar begins by identi#ying

passages grounded in te%t, history, structure, prudence, ethos, and e&en doctrine ?though

M$&ullo$h cites no case by nameA.60

$mar mo&es on, howe&er, to re&eal a no&el #orm o# argumentintrate%tualismat work in 8arshall"s analysis o# the 2ecessary and Proper

Clause.61 Care#ul readers recall that 8arshall did not rely on this clause as a source o# enlarged

#ederal powers, but addressed it only to counter 8aryland"s contention that the words act to limit

Congressional authority.62 The state argued #or a restricti&e, mathematical reading o# the word

necessary,/ which would #oreclose #ederal authority o&er any matter not ineluctably related to

an e%pressly enumerated power .63 $s 8arshall put it, 8aryland asked the Court to read the

clause as limiting the right to pass laws #or the e%ecution o# the granted powers, to such as are

indispensable, and without which the power would be nugatory./64 It is in support o# his own

broader reading o# the word necessary/one that imports no more than that one thing is

con&enient. . . to another/65 that 8arshall took the intriguing methodological turn/ to which

$mar draws our attention.66

$mar obser&es that, instead o# looking to a common dictionary or some other

etymological source #or guidance, 8arshall turned to another passage o# the Constitution itsel#,

in e##ect using the Constitution as its own dictionary./67 Indeed, 8arshall #ound the word

necessary/ employed &ery nearby in $rticle 1, 4ection 1D, which prohibits a state #rom

imposing duties on imports or e%ports, e%cept what may be a#solutely ne$essary #or e%ecuting

its inspection laws./68 In 8arshall"s &iew, the pre#i% absolutely/ would be super#luous i# the

dra#ters had not understood the word necessary/ to ha&e a broader meaning than the strict

H@

$mar , sura note 1H, at [email protected] Id . at =HD-HH. It is interesting, in this sense, that 8arshall perhaps helped establish, or at least rati#ied, the basicmodalities o# constitutional argument in this canonical opinion.1 Id . at =HH-H. 8cCulloch &. 8aryland, 1= :.4. ?G !heat.A >1, G1 ?1F1@A.> Id . at G1>.G Id .H Id . $mar, sura note 1H, at =H.= Id .F M$&ullo$h, 1= :.4. at G1G ?emphasis alteredA.

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mathematical one that 8aryland urged.69 8arshall then dro&e the intrate%tual point home by

eKuating the word necessary/ to need#ul,/ and obser&ing that

The M$rticle I, 4ection >N power to make all needful rules and regulationsrespecting the territory or other property belonging to the :nited 4tates,/ is notmore comprehensi&e, than the power to make all laws which shall be necessaryand proper #or carrying into e%ecution/ the powers o# the go&ernment. 5et alladmit the constitutionality o# a territorial go&ernment, which Mlike a national bankN is a corporate body.70

$mar points out that 8arshall might also ha&e looked to other constitutional uses o# the word

necessary/ as e&idence In $rticle , #or e%ample, Congress is empowered, Owhene&er two-

thirds o# both 6ouses shall deem it ne$essary," to propose constitutional amendments. Conte%t

here seems to make abundantly clear that the test is practical not logical./71 But the point is

made $mar has demonstrated that 8arshall employed an independent interpreti&e techniKue

neither strictly te%tual, nor Kuite structuralin support o# his claim about the constitutional

meaning o# the word necessary./

7ne more o# $mar"s e%amplesthis one taken #rom constitutional scholarshiphelps to

#ully illustrate the power o# this modal metaphor. In keeping with his canonical approach, $mar

e%amines 0ohn 6art 9ly"s twentieth-century classic, +emo$ra$y and +istrust .72 $#ter

summari)ing 9ly"s generally holistic approach to te%tual interpretation, $mar suggests that 9ly"sspeci#ic approach makes at least si% intrate%tual mo&es./73 !ithout getting into each o# these

mo&es, it is enlightening to #ocus on his discussion o# 9ly"s reading o# the (ourteenth

$mendment"s Pri&ileges and Immunities Clause. This clause is o# particular interest and

importance here because, while leading scholars agree that it pro&ides the best te"tual basis #or

incorporating the Bill o# +ights against the states,74 4upreme Court do$trine has all but read the

@

Id . at G1G-1H.=D Id. at G ?emphasis addedA.=1 $mar, sura note 1H, at =H= ?emphasis addedA.= 0762 6$+T 95, 987C+$C5 $2 I4T+:4T $ T697+5 7( 0:ICI$ + 9I9! ?1@FDA.=> $mar, sura note 1H, at =FD.=G 'ee, e.g., $ ?1@@=A ?(rom the perspecti&e o# te%t and history, the Pri&ileges or Immunities Clause o# the (ourteenth$mendment would appear to be a more plausible basis #or the protection o# substanti&e rights ?whether incorporated#rom the Bill o# +ights or based on other sourcesA than the ue Process Clause./A.

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words out o# e%istence.75 (aced with such a direct modal con#lict, $mar suggests that 9ly turned

to a hybrid ?I would say metaphoric/A interpreti&e mode intrate%tualism.

$mar obser&es that 9ly placed the phrase pri&ileges and immunities/ alongside the

identical passage #rom $rticle I a mo&e that enabled him to contrast the substanti&e rightslanguage o# the (ourteenth $mendment"s Pri&ileges and Immunities Clause with the eKual rights

language o# its 9Kual Protection Clause./76 This comparison makes it clear that the (ourteenth

$mendment means to apply a set o# su#stantive rights to all citi)ens e3ually. !ith this

interpreti&e #ramework in place, $mar suggests that 9ly could ha&e gone #urther to establish the

content o# these substanti&e rights by e%ploring the historical understanding o# $rticle I"s #irst

section.77 $mar brie#ly suggests that such an e%ploration re&eals that the Pri&ileges and

Immunities Clause promises all citi)ens eKual en'oyment o# the ci&il rights ?speech and religion

inter aliaAbut not the political rights ?&oting and 'ury ser&ice inter aliaAthat the Constitution

pro&ides.78 Thus, 9ly and $mar"s intrate%tual approach pro&ides a persuasi&e interpreti&e

modality through which to understand the (ourteenth $mendment. Their instructi&e

commentary cannot, o# course, dissol&e the doctrinal block that the 'laughter-4ouse &ases

imposethat is the pri&ileged prerogati&e o# the 4upreme Court in our constitutional practice

but it does allow us to percei&e the Constitution and its meaning in a new and illuminating way.

$nd that, a#ter all, is the purpose o# a modal metaphor.

6a&ing demonstrated, I hope, what it is that $mar means by intrate%tualism,/ we can

now analy)e the metaphoric structure o# this method using the terms o# 8a% Black"s interaction

theory. +ecall that Black sees a metaphor as the deliberate interaction o# two ideas or conte%ts,

which causes an o&erlap o# associated commonplaces/ that the reader must reconstruct. Black

labels these two interacting ideas the frame and the fo$us the #ormer being the primary conte%t,

upon which the latter hopes to shed new light.79

Black"s choice o# terms is meant to e&oke theimage o# a painting, in which the frame holds the entire #ield o# e%pression, while the fo$us

=H 4laughter-6ouse Cases, F> :.4. ?1 !allA >, ==-=F ?1F=>A.= $mar, sura note 1H, at =FD.== Id.=F Id . at =FD-F1. Pro#essor $mar undertakes a &ery thorough and enlightening e%ploration o# this issue in his book on the Bill o# +ights. $8$+ , BI 7( +I36T4, sura note =G, at 1-1G.=@ 'ee notes >D->1 sura and accompanying discussion.

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directs the &iewer"s attention to a spot o# the artist"s choosing. Intrate%tualismas a modal

metaphortakes the te"tualist modality as its #rame, and then posits the stru$tural modality as

its #ocus. To better understand this insight#ul mo&e, it is help#ul to re&iew Bobbitt"s description

o# the two original modalities.Te%tualism, Bobbitt tells us, is argument drawn #rom a consideration o# the present sense

o# the words o# Ma constitutionalN pro&ision./80 In response to a suggestion that the !arren Court

had unduly restricted police interrogations, 6ugo BlackBobbitt"s te%tual protagonist

e%pressed the ideal this way The Constitution says absolutely, and in words that nobody can

deny. . . Ono person shall be compelled in a criminal case, to be a witness against himsel#." $nd

so, when MyouN say the Court did it, that"s 'ust a little wrong. The Constitution did it./81 6ere

Black e%empli#ies Bobbitt"s characteri)ation o# the te%tualist 'udge as a non-decider . . . a mere

conduit #or the prohibitions o# the Constitution/ an agent en#orcing the higher law on a basis

readily apprehendable by the people at large, namely, gi&ing the common-language meanings to

constitutional pro&isions./82 e#ined in this way, te%tualism does not Kuite ha&e room #or the

intrate%tualist, who would gi&e more documentarian meanings to constitutional words and

phrases. $nd yet intrate%tualism does not seem wholly outside o# the accepted constitutional

grammar, and so #rom where does this new modality ariseQ It is undoubtedly grounded #irmly in

the te%tualist"s insistence on the primacy o# the wordsas 6ugo Black put it, 5ou see, you ha&e

laws written out. That"s the ob'ect in law, to ha&e it written out/83 but it bends in its #ocus

towards a di##erent, more holistic approach to constitutional interpretation structuralism.

Bobbitt"s structuralist modality draws in#erences #rom the e%istence o# constitutional

structures and the relationships which the Constitution ordains among these structures./84 But it

is something slightly more than that, as he e%plains 4tructuralist arguments are largely #actless

and depend on simple logical mo&es #rom the entire Constitutional te%t, rather than #rom one o# its parts./85 Charles Black, whom Bobbitt holds up as the paradigmatic structuralist, e%plains the

FD B7BBITT, ($T9, sura note >, at =.F1CB4 2ews 4pecial ?ec. >, 1@FA trans$ri#ed in, 2usti$e Bla$1 and the Bill of *ights, @ 4!. . + 9. @>=, @G=?1@==A.F B7BBITT, ($T9, sura note >, at >1.F> 2usti$e Bla$1 , sura note F1, at @GD.FG B7BBITT, ($T9, sura note >, at =G.FH Id .

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methodology this way M0Nudgment is reached not #undamentally on that MnarrowN kind o#

te%tual e%egesis which we tend to regard as normal, but on the basis o# reasoning #rom the total

structure which the te%t has created./86 6ere, then, is the fo$us modality o# the intrate%tual

metaphor that particular spot in the te%tualist #ield to which intrate%tualism draws our eye. Themethodology thus arises out o# the reorgani)ed and now coe%isting commonplaces associated

with te%tualism and structuralism. $n attempt to reconstruct the modal metaphor might

emphasi)e the neutral #ocal point that the words pro&ide, but then stress an interpreti&e approach

that eschews contemporary man on the street/ de#initions in #a&or o# understandings that are

common to the larger constitutional te%t and structure. In this wayas a modal metaphor

intrate%tualism may allow us to percei&e constitutional meanings o# which we were not yet

aware.

!e can assess the acceptance and &alue o# intrate%tualism as a part o# the constitutional

discourse in two di##erent ways. The #irst is by looking through the history o# constitutional

practice to see i# the techniKue en'oys widespread use. Pro#essor $mar has already done an

admirable 'ob o# this, and he has ably demonstrated that intrate%tualist arguments appear in the

most canonical o# our constitutional cases and commentaries. $s I suggested abo&e, it seems

that the intrate%tualist metaphor has been with us #rom &ery early onperhaps it should e&en

count as one o# the original modalities o# interpretationbut, whene&er it #irst made an

appearance, I suggest that it represents a metaphoric kind o# a thought about te%tual

interpretation. Its early acceptance and widespread use in the practice are in this way e&idence

that the metaphor is a good and use#ul one, and that it hardened into part o# our literal practice at

an early stage.

The second kind o# assessment may be uniKue to the theoretical sphere o# constitutional

discourse. I suggest that we can e&aluate whether intrate%tualism/$mar"s speci#ic modallabelhas gained acceptance in the practice, and has in#luenced practitioners mo&ing #orward.

!hile the #irst kind o# assessment is perhaps more signi#icant to constitutional law as a whole,

the second has &alue as a measure o# the academy"s impact on the constitutional con&ersation. $

Kuick search re&eals that, although the 4upreme Court has not in&oked intrate%tualism by name

F C6$+94 . B$C


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since 1@@@, the methodology has made an appearance in se&eral amicus brie#s.87 8ore

signi#icantly, the Circuit Courts ha&e re#erenced the techniKue in at least three cases, albeit in

opinions authored by particularly academic-minded 'udges.88 $nd, not surprisingly, $mar"s

approach has had its greatest impact in the academic community, where, at last check, more thanD scholarly articles had speci#ically addressed intrate%tualism since $mar coined the term.

In less than a decade, then, the intrate%tualist metaphor has gained widespread acceptance

in the theoretical sphere, and it is slowly but surely seeping into the realms o# ad&ocacy and

'udging. 7n these terms, I think we can Kuali#y intrate%tualism ?by nameA as a success#ul or

strong modal metaphor. 8oreo&er, i# we look back through the history o# constitutional

practice, as $mar has done, we can see that intrate%tualism ?perhaps by other namesA has long

been an accepted mode o# constitutional discourse. Thus, I suggest that intrate%tualism is a

singularly straight#orward and compelling e%ample o# an interacti&e modal metaphor.

B. Louis Brandeis! The Brandeis Brief

In (ebruary o# 1@D>, the 4tate o# 7regon passed a law limiting the number o# hours a day

women could spend working at certain trades.89 Two years later, Curt 8uller, owner o# the

3rand aundry in Portland, challenged the state statute as a &iolation o# his (ourteenth

$mendment liberty to contract with his workers, and the case would e&entually #ind its way to

the 4upreme Court.90 In 1@D=, two 2ational Consumer eague lawyers(lorence


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researchers mined the Columbia :ni&ersity and 2ew 5ork Public ibraries #or data on the

detrimental e##ects o# e%tended work hours on women MTNhe research team unearthed reports o#

the 9nglish #actory commissions and medical commissions translated sources #rom western

9urope and amassed in#ormation #rom states with women"s hours laws. In each source, theysought statements about the dangers o# long hours and the bene#its o# shorter ones./93 The result

was an unprecedented 11>-page brie#, which relies hea&ily on the testimony o# a range o#

non'udicial authorities#rom doctors to sanitary inspectorsto persuade the 'ustices that the

challenged statute was a reasonable e%ercise o# 7regon"s police power to protect women"s

health.94 The 4tate won a unanimous decision, and the phenomenon known as the Brandeis

Brie# was born.95

It is perhaps now con&entional to think o# Brandeis" Muller brie# as a clear-cut e%ercise in

prudential argument one intended to con&ince the Court that the social bene#its o# the 7regon

law simply outweighed the costs as a matter o# sound constitutional policy. But that is not Kuite

the whole story. $#ter all, Muller was decided at a particularly interesting moment in our legal

history 'ust two years a#ter the now-in#amous Lo$hner decision, in which the Court summarily

re'ected the constitutional importance o# men"s health in striking down ma%imum hour

legislation in 2ew 5ork.96 Thus, Brandeis had to tailor his #actual arguments Kuite narrowly to

#it within the e%isting doctrinal #ramework, and #or this reason modern critics o#ten attack the

brie# #or its ?necessaryA reliance on gender di##erences and &ulnerabilities.97 In this way,

Brandeis"s approach is not strictly prudential in nature rather it #ocuses on particular kinds o#

social #acts that are directly rele&ant to #airly speci#ic aspects o# the constitutional doctrine. It is

certainly something more than the broad kind o# prudential argument that Bobbitt describes,

which need not treat the merits o# the particular contro&ersy, . . . MbutN instead ad&ancMesN

particular doctrines according to the practical wisdom o# using the courts in a particular way./98

@> Id .@G Id . at @.@H Muller , DF :.4. at G>.@ ochner &. 2ew 5ork, 1@F :.4. GH, H= ?1@DHA.@= 'ee, e.g., B$+B$+$ B$BC7CD ?1@=HA 4:4$2 96+9+ ,7+I3I24 7( P+7T9CTI9 $B7+ 93I4$TI72 (7+ !7892, 1@DH-1@H HG-H ?1@F=A.@F B7BBITT, ($T9, sura note >, at =. Think, #or e%ample, o# the kind o# prudential argument we #ind in 8arshall"s

M$&ullo$h opinion. This argument is directed at the simple political e##iciencies o# ha&ing a national bank #romwhich to salary the troops during wartime. M$&ullo$h, 1= :.4. at GDF-D@. It is plainly not the kind o# doctrinally

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I suggest that the Muller brie# is a modal metaphorone that combines doctrine and prudence

and i# we now &iew it as a literal act o# prudentialism, then that is a testament to the strength and

success o# Brandeis"s insight it has become a dead metaphor.

It is worth brie#ly re&isiting Brandeis"s approach in Muller , particularly the structure o# the o&erall argument, to deconstruct the modal metaphor. It is sometimes #orgotten that Brandeis

actually submitted two brie#s in the case the #irst, prepared by the 7regon $ttorney 3eneral,

#ocuses strictly on the doctrinal issues.99 The second and more #amous brie# summari)es the

doctrine concisely, and then e%plores the social data described abo&e.100 It is instructi&e that

Brandeis belie&ed he needed both brie#s to make his argument. 6e needed to establish the

doctrinal frame within which to posit his prudential fo$us. It is not worth recounting in detail

the doctrinal brie#, which e%plores se&en state decisions and si% #ederal decisions, but a Kuick

look at Brandeis"s concise summation o# the case law is help#ul. 6e cites Lo$hner #or the

proposition that the (ourteenth $mendment protects the liberty/ o# contract, sub'ect to

reasonable 4tate impositions o# police power to pro&ide #or public health, sa#ety, morals, and

general wel#are./101 6e then acknowledges that 2a$o#son v. Massa$husetts stipulates that a &alid

e%ercise o# this police power must ha&e a real or substantial relation to the protection o# the

public health and the public sa#ety./102 (inally, he returns to Lo$hner and recasts the rele&ant

language to establish the doctrinal ground rules by which he intends to play

The &alidity o# the 7regon statute must there#ore be sustained unless the Courtcan #ind that there is no #air ground, reasonable in and o# itsel#, to say that thereis material danger to the public health ?or sa#etyA or to the health ?or sa#etyA o# theemployees ?or to the general wel#areA, i# the hours o# labor are not curtailed./ 103

Through a skill#ul bit o# doctrinalism, then, Brandeis has set the stage #or an in-depth analysis o#

both the social data regarding the particular dangers women may #ace by remaining too long in

the workplace, and the reasonableness o# the speci#ic state regulation.#ocused prudentialism that Brandeis employs in Muller.@@ $.8. Craw#ord, Brie# #or the 4tate o# 7regon in Muller , DF :.4. at G1, rerinted in 1 $28$+= ?Philip B. 1 ?1@DHAA ?internal Kuotations omittedA.1D> Id . at 1D ?Kuoting Lo$hner , 1@F :.4. at 1A.

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!hile #ar #rom a seamless narrati&e, the e%egesis that #ollows is not Kuite the

hodgepodge/ that 7wen (iss has described.104 +ather, the body o# the brie# is e%plicitly

organi)ed around the two basic doctrinal elements ?1A whether 7regon"s law is reasonable/

and ?A whether e%tended hours present a material danger/ to women"s health and sa#ety. Thus,nearly the #irst twenty pages o# the argumentcomprising the Part (irst/are de&oted to an

e%tensi&e sur&ey o# e%isting state and #oreign105 laws regulating women"s workdays.106 This

#irst section is plainly an e##ort to show the relati&e reasonableness/ o# 7regon"s legislation.

The remaining ninety-#i&e pagesthe Part 4econd/are broken into a number o# subsections

e%ploring both The angers o# ong 6ours/ and the 3eneral Bene#its/ and 9conomic

$spects/ o# shorter hours.107 $gain, this is a transparent e##ort to tailor the sociological data to

the doctrinal touchstones. $s I ha&e suggested abo&e, this is not simply an out-and-out utilitarian

brand o# prudentialism it is species o# prudentialism e&ol&ed to suit a speci#ic doctrinal

landscape. The Brandeis Brie#, then, is a power#ul modal metaphor that takes doctrinalism as its

#rame and prudentialism as its #ocus.

$n e##ort to reconstruct the o&erlapping systems o# doctrinal and prudential

commonplaces might begin by recogni)ing the &alues o# neutral principle, reliance, and custom

that characteri)e doctrinal argument then cast these &alues in terms o# the e&ol&ing empirical

understandings and changing social &alues that prudential argument emphasi)es. :nderstood in

this way, Brandeis"s metaphorlet us call it doctrinal-prudentialism/allows us to apply

neutral 'udicial doctrines to modern problems in inno&ati&e and e##icient ways. It enables the

ad&ocate or 'udge to introduce cutting-edge, non'udicial in#ormation into longstanding legal

rubrics and &enerable doctrinal tests, thereby permitting the rule o# law/ to account #or current

social realities. 3i&en the interpreti&e #le%ibility this modal metaphor makes possible, it is #airly

easy, I think, to understand the acceptance and &alue o# doctrinal-prudentialism within the practice o# constitutional law. In historian 2ancy !oloch"s words, The era a#ter Muller became

a golden age o# Brandeis brie#s, which mushroomed in si)e as the data mounted. The goals o#

1DG 7!92 (I44, T+7:B9 B93I22I234 7( T69 879+2 4T$T9, 1FFF-1@1D 1=H ?1@@>A.1DH This appeal to #oreign law has #ascinating echoes in more recent 'urisprudence, notably Lawren$e v. Te"as, H>@:.4. HHF, H=-== ?DD>A.1D Brandeis, sura note 1DD, at -F.1D= Id. at F>, 1, 1>D.


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the brie#s e%panded, too, to include ma%imum hours #or men in industry and the minimum wage

#or women./108

In this way, the Brandeis Brie# represents a particularly discreet moment o# constitutional

e&olutionan act o# constitutional creati&ityo# the sort I was not able, and did not attempt, toidenti#y with precision in the case o# intrate%tualism. !hile a care#ul e%amination might re&eal

historical antecedents o# doctrinal-prudential arguments that predate ouis Brandeis, I suggest

that it is Brandeis"s particular metaphor that captured the attention o# constitutional practitioners

and allowed it to harden into a widely accepted interpreti&e mode. Indeed, ouis Brandeis was

appointed and con#irmed to a seat on the 4upreme Court within a decade, and by 1@>= the

Constitution came to embrace what Bruce $ckerman has called the acti&ist wel#are state./ 109

$nd, while Brandeis Brie#s may not be as en &ogue as they once were, I think it is sa#e to say

that doctrinal-prudentialism is now a well-established mode o# constitutional argument.110

&. Brown v. Board of 0du$ation! *esolving Modal &onfli$t

The 4upreme Court"s decision in Brown v. Board of 0du$ation is undoubtedly among the

most important moments in our twentieth-century constitutional con&ersation.111 In some minds

it signaled the beginning o# a pro#ound constitutional re&olution that resulted in the landmark

Ci&il +ights statutes o# the [email protected] I# not a re&olution, it was, at the &ery least, a moment o#

deep constitutional creati&ity, in which the Court con#ronted a direct and entrenched modal

con#lict, and ultimately resol&ed it by means o# a power#ul modal metaphor. The Court #aced a

number o# contradicting modal arguments the te"t plainly promised eKual protection,/ but the

do$trine permitted separate but eKual/ treatment history suggested that the (ourteenth

1DF !77C6, sura note F@, at G1.1D@ Bruce $ckerman, The Living &onstitution, 1D 6$+. . + 9. 1=>F, 1=1 ?DDA. Pro#essor $ckerman hasreminded me that the growth o# the acti&ist state, or what he calls go&ernment by numbers,/ was the product o# amuch broader socio-political mo&ement in the early decades o# the twentieth century. I certainly do not mean tosuggest that the Brandeis Brie# is the sole, or e&en primary, engine o# that wider change I merely suggest thatBrandeis"s modal metaphor is the conduit through which this larger change entered constitutional practice.11D octrinal prudentialist arguments are #reKuently made in support o# the rational basis/ a state may ha&e had #or legislation challenged pursuant to the ue Process or 9Kual Protection Clauses.111 Brown &. Board o# 9ducation, >G= :.4. F [email protected] $ckerman, sura note 1D@, at 1=-H.

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$mendment did not reach segregated schooling,113 but the constitutional stru$ture hardly seemed

to #a&or barriers to con&ersation and association among citi)ens.114 I contend that the ad&ocates

and the Court o&ercame these con#licts by creating a modal metaphor that takes ethical argument

as its frame and posits prudentialism as its fo$us. In an e##ort to #ully illustrate both thecon#licting modalities and the Court"s metaphor, I will brie#ly sketch the social, political, and

legal conte%t in which Brown was decided, and then re&isit some o# the less publici)ed aspects o#

the argument and decision-making process.

$#ter the cataclysm o# the Ci&il !ar, the (ourteenth $mendment promised all $mericans

the eKual protection o# the laws./115 This promise was speci#ically intended to ensure legal

eKuality between the races, and a new Ci&il +ights $ct soon #ollowed that entitled blacks to the

#ull and eKual en'oyment o# the accommodations, ad&antages, #acilities, and pri&ileges o# inns,

public con&eyances on land or water, theaters, and other places o# public amusement./ 116 7&er

the ne%t twenty years, howe&er, the promise o# racial eKuality seemed to wither on the &ine, and

in 1F@ the 4upreme Court ga&e its blessing to 0im Crow era racial segregation by embracing

separate but eKual/ as constitutional doctrine.117 Thus, #or the #irst hal# o# the twentieth-century

the te%tual promise o# eKual protection/ had little #orce when brought into con#lict with a

doctrinal position that, in #act, allowed #or superior and in#erior classes o# citi)enship. But as

$merican blacks returned #rom !orld !ar IIwhere they had #ought &aliantly against the #orces

o# racial supremacythey began to demand racial eKuality at home.118 In 1@G, President 6arry

Truman appointed a Committee 7n Ci&il +ights to study the issue, and in 1@GF he issued

9%ecuti&e 7rder @@F1, which guaranteed eKuality o# treatment and opportunity #or all persons

in the armed ser&ices without regard to race, color, religion or national origin./119 $t the same

11> 'ee + IC6$+ D ?1@[email protected] :.4. C724T. amend. EI, 1.11 Ci&il +ights $ct o# 1F=H, 1F 4tat. >>H, 1 ?1F=HA.11= Plessy &. (erguson, 1> :.4. H>= [email protected] I should note that the 2$$CP legal team was working tirelessly against segregation be#ore the war e&en began.'ee, e.g., 8issouri e" rel. 3aines &. Canada, >DH :.4. >>= ?1@>FA?#inding separate but eKual/ not satis#ied when astate pays to send black students out o# stateA.11@ 6arry Truman, 9%ecuti&e 7rder @@F1, 0uly , 1@G=.

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time, Thurgood 8arshall, Charles 6ouston, and other 2$$CP lawyers began to bring the

desegregation #ight to the courts.120 In 1@GF, the 4upreme Court in&alidated racially restricti&e

property co&enants in 'helley v. 8ramer , and re&i&ed a seemingly #orgotten ethos o# $merican

democracyan ethic grounded in eKuality and basic #airnesswhich began, slowly, to moti&atethe Court"s 'urisprudence.121

Phil 9lman, #ormer law clerk and longtime #riend o# (eli% (rank#urter, wrote a historic

brie# #or the 4olicitor 3eneral"s o##ice in 'helley one which, #or the #irst time in many years, put

the :nited 4tates go&ernment #irmly on the side o# racial eKuality.122 6e later recalled that brie#

as being largely an ethical kind o# argument It was not an ordinary brie#. It was a statement o#

national policy. !e were showing the #lag we were e%pressing an authoritati&e, #orthright

position that all go&ernment o##icials would be bound by./123 9&en one o# the most recalcitrant

members o# the Court, Chie# 0ustice (red inson, would note that 9lman"s brie# certainly had

heart appeal/ as it played to the most elemental o# $merican &alues.124 $nd during oral

argument, 9lman recalls the words o# an elderly black lawyer that captured the Court"s attention

It was a dull argument until he came to the &ery end. MButN he concluded hisargument by saying . . . 2ow I"&e #inished my legal argument, but I want to saythis be#ore I sit down. In this Court, this house o# law, the 2egro today standsoutside, and he knocks on the door, o&er and o&er again, he knocks on the door and he cries out, Oet me in, let me in, #or I too ha&e helped build this house."/$ll o# a sudden there was drama in the courtroom, a sense o# what the case wasreally all about rather than the technical legal arguments. The 2egro helped buildthis house, and he wanted to be let in the door. !ell, I"&e ne&er #orgotten thisman whose name I don"t remember, who in a #ew sentences made the mostmo&ing plea to the Court I"&e e&er heard.125

$ttorney 3eneral Tom Clarkwho would sit as a member o# the Court #or Brown published

9lman"s brie# as a book,126 and a growing number o# ci&il rights litigants rode a renewed wa&e o#

1D

, at H1.11 4helley &. >G :.4. 1 [email protected] Brie# #or the :nited 4tates as $micus Curiae in 4helley &. >G :.4. 1 ?1@GFA rerinted in G $28$+ ?Philip Philip 9lman J 2orman 4ilber, The 'oli$itor General9s /ffi$e! 2usti$e Fran1furter, and &ivil *ights Litigation,:! n /ral 4istory, 1DD 6$+. . + 9. F1=, F1@ ?1@F=A.1G , at H>.1H 9lman, sura note 1>, at FD.1 : 2IT9 4T$T94 9P$+T892T 7( 0:4TIC9, P+90:IC9 $2 P+7P9+T5, $2 6I4T7+IC B+I9( $3$I24T +$CI$C7292$2T4, 4:B8ITT9 T7 T69 4:P+989 C7:+T B5 T78 C. C$+


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$merican egalitarianism into Court.127 In deciding these cases, the Court seemed to be

redisco&ering, or at least re&itali)ing, some #undamental tenets o# the $merican ethos. It was

rein#orcing an ethical #oundation upon which to build the di##icult decisions to come.

$mong the most notable o# these cases 'weatt v. )ainter came out o# Te%as, wherethe :ni&ersity o# Te%as aw 4chool systematically denied admission to black students. 128 The

state had set up separate law schools #or blacks, and argued that these institutions met with

)lessy9s separate but eKual/ reKuirement.129 The 2$$CP argued that the separate law schools

were not, in #act, eKual, but were in#erior and did not carry the same prestige as the :ni&ersity o#

Te%as.130 The Court agreed, #inding that the :ni&ersity o# Te%as aw 4chool possesses to a #ar

greater degree those Kualities which are incapable o# ob'ecti&e measurement but which make #or

greatness in a law school,/ and accordingly en'oined the school"s e%clusi&e admissions policy.131

But, while re#lecti&e o# the emerging ci&il rights ethic, the opinion did not sKuarely address the

central constitutional con#lict whether )lessy and separate but eKual/ truly was the nation"s

higher law. $#ter all, 'weatt ?and M$Laurin, decided the same dayA simply concluded that the

particular acts o# segregation did not satis#y the )lessy doctrine not that such segregation was

per se unconstitutional.132 This #act did not go unnoticed in the 4outh, where, in anticipation o#

#uture suits, the go&ernors o# 4outh Carolina and irginia both made considerable #inancial

e##orts to eKuali)e ?materiallyA the e%isting black schools.133 The 2$$CP and others, o# course,

belie&ed that any racial separation was inherently uneKual, but it would be another two years

be#ore their epic challenge to segregated public elementary schools would raise this issue

directly and inescapably.

1= 'ee e.g., 4ipuel &. :ni&. o# 7klahoma, >> :.4. >1 ?1@GFA?reKuiring states to pro&ide a black law schoolA

Takashi &. (ish and 3ame Comm"n, >>G :.4. G1D ?1@GFA?in&alidating racial restrictions on commercial #ishinglicensesA 6enderson &. :nited 4tates, >>@ :.4. F1 ?1@HDA?in&alidating racial segregation practiced under theInterstate Commerce $ctA 8caurin &. 7klahoma 4tate +egents #or 6igher 9ducation, >>@ :.4. >= ?1@HDA?in&alidating classroom segregation in graduate schoolsA.1F 4weatt &. Painter, >>@ :.4. @ [email protected]@ Id. at >.1>D Brie# o# the Petitioner in 4weatt &. Painter, >>@ :.4. @ ?1@HDA rerinted in P+90:IC9 $2 P+7P9+T5 suranote 1G.1>1 'weatt , >>@ :.4. at >G, >.1> 'weatt , >>@ :.4. at > M$Laurin, >>@ :.4. at G.1>> 9lman, sura note 1>, at F>.


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In late 1@H, 2$$CP lawyers brought a Kuartet o# grade school segregation cases be#ore

the 4upreme Court Brown v. Board of 0du$ation out o#


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0ustice 6arold Burton, a conser&ati&e 8idwesterner, slowly came around to the position that,

e&en i# )lessy was correct when decided, it was no longer &iable doctrine Today I doubt that

it can be said in any state . . . that compulsory Oseparation" o# the races, e&en with eKual #acilities,

$an amount to an OeKual" protection./140

0ustice 4herman 8inton e&entually came to shareBurton"s opinion, though his position was initially unclear, and many thought he might &ote to

a##irm.141

Chie# 0ustice (red inson and Tom Clark both thought the issue would be better settled in

the state legislatures, and sought to delay a decision as long as possible. 142 0ustice 4tanley +eed,

#or his part, was #latly opposed to o&erruling )lessy as a matter o# stare decisis.143 (rank#urter,

the master strategist, thought )lessy was wrong but counseled patience in o&erturning it, as he

belie&ed the Court was not well positioned at that time to initiate such a momentous social

change. 6e later con#ided in 0udge earned 6and, I will tell you that i# the 3reat ibertarians

MBlack and ouglasN had their way we would ha&e been in the soup./144 +ecogni)ing the

looming impasse, (rank#urter began to look #or a historical argument to break the modal

deadlock. 6e assigned his law clerk $le%ander Bickel a yearlong research pro'ect on the #raming

o# the (ourteenth $mendment, but the resulting memorandum was largely inconclusi&e

regarding public education.145 $nd so, while mosti# not allo# the 'ustices agreed that the

ethical arguments weighed in #a&or o# o&erturning )lessy,146 some belie&ed that other modalities

pointed persuasi&ely in di##erent directions. It was not until (red inson"s death in 1@H>, and

9arl !arren"s subseKuent appointment, that the Court was ready to embrace an ethical-prudential

solution.

Two kinds o# prudential arguments, both ad&anced in the brie#s submitted in 1@H,

became the #ocal point o# the e&ol&ing modal metaphor as the Court heard reargument on the

11, at D n.*. 1GD , at 11.1G1 Id . at 1> see 9lman, sura note 1D, at RR.1G Id. at 11-1> a$$ord 9lman, sura note 1D, at FF.1G> .1GG Id . at D>.1GH 'ee note 11> sura and accompanying discussion.1G Phil 9lman recalls the shock in the courtroom when 8ilton


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cases in 1@HG. The #irst kind o# prudential argument, which appeared e%plicitly in the 2$$CP

brie#, looked to a wealth o# social psychological material suggesting that segregation had a

negati&e impact on black children"s sel# esteem.147 $n appendi% attached to the brie# entitled

The 9##ects o# 4egregation and the ConseKuences o# esegregation $ 4ocial 4cience4tatement/ &i&idly recalled the doctrinal-prudentialism o# the Brandeis Brie#, but with a slightly

di##erent #ocus.148 6ere, the petitioners relied on the social science dataincluding the testimony

o# the #amous doll man,/ G= :.4. GF> ?1@HGA rerinted in G@ $28$+, >H ?Philip .1H1 , at HHH. The negati&e e##ect Clark demonstrated on children"s sel# esteem was 'ust as

pronounced among children who did not attend segregated schools, which undercut the studies" #orce in court1H Brown, >G= :.4. at @1, @ n.11. This, instructi&ely, is actually an act o# Brandeisian doctrinal-prudentialism./1H> 9lman, sura note 1>, at F= ?emphasis addedA.

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way to decide the case.154 The Court would incorporate this approach into its unanimous opinion

by e%pressly reser&ing 'udgment on appropriate relie#/ until another reargument could pro&ide

the #ull assistance o# the parties in #ormulating decrees./155 $nd, o# course, it was in the second

Brown opinion that Chie# 0ustice !arren borrowed 0ustice 6olmes" now #amous phrase, whichreKuired the district courts to en#orce desegregation with all deliberate speed./ 156

I# the Brown Court really resol&ed an entrenched con#lict between established modalities

by means o# an ethical-prudential metaphor, how might we reconstruct this new mode o#

argumentQ I suggest that ethical-prudentialism takes the basic, elemental principles o# the

$merican ethos as its principal and de#ining conte%t it looks #irst to those democratic,

egalitarian, and libertarian &alues that de#ine who we areor who we want to beas a nation.

But the metaphor then tempers ethical idealism by #ocusing prudentially on the social and

political realities o# go&erning a large and di&erse population. It recogni)es that, o&er time,

institutions and interests accrete around social and legal practices that may not re#lect our best

national sel#, and there#ore constitutional remedies sometimes reKuire time and deliberation.

Thus caution and delay, while sometimes distaste#ul, are a necessary part o# constitutional

growth. In the case o# Brown, at least, this measured, metaphoric approach helped the Court

surmount a modal impasse. $gain, in Phil 9lman"s words,

M8Nany people think that with all deliberate speed/ was a disaster. MButN it brokethe log'am. It was the #ormula the Court needed in order to bring all the 0usticestogether to decide the constitutional issue on the merits correctly. !ithout alldeliberate speed/ in the remedy, the Court could ne&er ha&e decided the issue inthe strong, #orthright, unanimous way that it did and it was essential #or the Courtto do so i# its decision was to be accepted and #ollowed throughout the Country.157

In e&aluating the acceptance o# the ethical-prudential metaphor within the practice today,

we must recogni)e that Brown while not immediately embraced158 now holds an

1HG Id .1HH Brown, >G= :.4. at @.1H Brown &. Board o# 9ducation ?Brown IIA, >G@ :.4. @G, >D1 ?1@HHA. The contro&ersial phrase is taken #rom6irginia v. (est 6irginia, :.4. 1=, D ?1@1FA, but some ha&e suggested that 6olmes himsel# borrowed it #rom(rancis Thompson"s poem The 6ound o# 6ea&en./ 'ee (+$2CI4 T678P472, T69 67:2 7( 69$92 > ?1@DFA?But with unhurrying chase, $nd unperturbed pace, eliberate 4peed, 8a'estic Instancy./A.1H= 9lman , sura note 1>, at F>D.1HF 'ee 6erbert !echsler, Towards 5eutral )rin$iles of &onstitutional Law, => 6$+. . + 9. 1, -F ?1@H@A?calling Brown the hardest test o# my belie# in principled ad'udication/A.

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imperturbable place in the constitutional canon. awrence essig writes, 2o one Kuestions

Brown9s result ?anymoreA. Indeed, so completely has the legal system reoriented itsel# a#ter the

decision that it may not e&en be possible to #ind the legal material to mount a serious challenge

to its conclusion./159

ikewise, Bruce $ckerman has suggested that in contemporary politics no4upreme Court nominee could be con#irmed i# he re#used to embrace Brown,/160 and Bobbitt

attributes +obert Bork"s #ailure in this regard at least partly to his &iews on the desegregation

cases.161 But 'ust because our modern practice uni&ersally accepts Brown does not mean that we

wholeheartedly accept ethical-prudentialism, which may seem at once too idealist and too

political #or principled decision-making. In #act, many $mericans seem to &enerate Brown #or its

ethical #oundation desite its prudentialist compromise. It may be that that the ethical-prudential

metaphor was a one-trick pony, that it was speci#ically tailored to meet a particularly acute

constitutional crisis, and that it was ne&er destined to become a regular or common modality o#

constitutional discourse.162 Be that as it may, howe&er, I contend that it was the Court"s

grammatical creati&ityits willingness to reen&ision and realign the accepted modalities at a

critical moment in the nation"s historythat enabled it to o&ercome a two-year 'udicial stando##

and render the most important constitutional decision o# the last century.

III. C72C:4I724The most pro#ound theoretical ad&ances in any #ield are those that open up entirely new

areas o# inKuiry insights so #undamental that they e%pose completely new kinds o# Kuestions

e%actly the right kinds o# Kuestions#or those that #ollow to con#ront. I suggest that Philip

Bobbitt"s practice-based account o# constitutional law is this type o# ad&ance, and, like other

such insights, it re&eals important Kuestions that beg our attention. (irst among those Kuestions,

#or me, is the problem o# growth or e&olution in the practice o# constitutional law. Because

Bobbitt wants to legitimate constitutional arguments internallyby looking to the practice o#

law, and not to e%ternal #oundational 'usti#icationshe seems to present a static and e%clusi&e

1H@ awrence essig, Fidelity in Translation, =1 T9E. . + 9. 11H, 1G ?1@@>A.1D $ckerman, sura note 1D=, at 1=H.11 B7BBITT, I 2T9+P+9T$TI72, sura note G, at RRR.1 But see, Baker &. 4tate, =GG $.d FG, F= ?t. 1@@@A ?concluding that the ermont Constitution guaranteeshomose%ual couples the common bene#its o# heterose%ual marriage, but lea&ing it to the state legislature to #ashionan appropriate remedyA.

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set o# argumentati&e modalities. (or the same reasons, he struggles to account #or the resolution

o# modal con#licts those cases where eKually legitimate constitutional arguments may point to

di&ergent outcomes or meanings. Bobbitt concludes that this #inal problem is a matter o# 'udicial

conscience/ and thus a part o# the practical act o# decision-making. !hile I agree conceptuallywith this solution, I suggest here that this conscience/ is something closer to 'udicial artistry.

The great practitioners o# constitutional law are able to construct modal metaphors out o# the

e%isting #orms o# argument, thus growing the practice internally to encompass changing social,

political, and legal circumstances. The best o# these metaphors, I suggest, harden and become a

literal and legitimate part o# the practice mo&ing #orward, while the others are re'ected or #all

away Kuietly.

It is my deep admiration #or Bobbitt"s work that inspired this piece, and in it I ha&e only

tried to make a small contribution to Bobbitt"s larger and humbling theoretical edi#ice. 8y

intention here has simply been to pro&ide a plausible account o# the e&olution o# constitutional

practice in terms that are consistent with Bobbitt"s larger thesis, and I contend that a theory o#

growth through modal metaphor accomplishes this goal. The goal itsel# is only worthwhile,

howe&er, i# it pro&ides some real theoretical or practical bene#it to the practice o# constitutional

law, and so I want to close by o##ering an honest appraisal o# the strengths and weaknesses o# the

modal metaphor as an addition to the practitioner"s interpreti&e toolbo%. et me begin with the

weaknesses.

In the limited space o# this paper, I ha&e not been able to adeKuately address the Kuestion

o# how the original modalities came into being, or the order in which they may ha&e arisen. I

ha&e suggested abo&e that a satis#ying answer to this Kuestion might ultimately need to resort to

a #oundational kind o# e%planationperhaps something analogous to 4aul


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?I suspect it is te%tualismA and then track the e&olution o# constitutional practice in metaphoric

terms. This might help the practitioner to gauge which modalities are best suited to combine

metaphorically, and which kinds o# metaphors best sol&e particular kinds o# problems.

:n#ortunately, I am not prepared to pro&ide a detailed history o# modal e&olution here thoughthat is certainly an area I hope to e%plore in #uture work.

$ second and related Kuestion is whether or not the e%amples I pro&ide really represent

the emergence o# entirely new modalities o# constitutional argumentwhether these are truly

e%amples o# constitutional e&olutionor whether they are simply instances when constitutional

practitioners ha&e redisco&ered or reimplemented modalities o# argument that already e%isted at

other points in our constitutional con&ersation. This problem is most clearly present in the

discussion o# Pro#essor $mar"s intrate%tualism, which method has been around since near the

beginning o# our interpreti&e practice. In response to the speci#ic Kuestion about intrate%tualism,

I suggest that it is not particularly important #or my purposes when this techniKue #irst arose,

only that it pro&ides a clear illustration o# the mechanics o# a modal metaphor in action. In this

sense, I am not concerned that $mar has only labeled and re&itali)ed a pree%isting metaphorit

is the clarity o# the interacti&e mechanics at work that I hope to demonstrate. In response to the

more general ob'ection about e&olution as opposed to redisco&ery, I would suggest thatwhile a

diligent scholar might #ind historical antecedents o# doctrinal-prudential

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Metaphors and Modalities Meditations on Bobbitts

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