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

Abstract

This article builds on Philip Bobbitt's remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted "modalities" of argument. I attempt to supplement Bobbitt's theory - which has a static and exclusive quality to it - with an account of interpretive evolution based in Max Black's interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt's modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of constitutional practice: from constitutional theory I take Akhil Reed Amar's theory of "intratextualism"; from constitutional advocacy I select Louis Brandeis brief in Muller v. Oregon; and from constitutional judging I look to the Supreme Court's decision in Brown v. Board of Education. I conclude that the concept of modal metaphors offers practitioners a principled and grammatical way to create new constitutional meanings and resolve constitutional dilemmas.

Keywords: Constitutional Theory, Constitutional Law, Interpretation, Judicial Review, Bobbitt, Modalities, Legal Thoery, Max Black, Metaphor