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

William & Mary Bill of Rights, Vol. 17, No. 1, 2008

Yale Law School Faculty Scholarship Series Paper No. 16

35 Pages Posted: 6 Jun 2008 Last revised: 24 Sep 2012

See all articles by Ian C. Bartrum

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2008

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

Suggested Citation

Bartrum, Ian C., Metaphors and Modalities: Meditations on Bobbitt's Theory of the Constitution (2008). William & Mary Bill of Rights, Vol. 17, No. 1, 2008; Yale Law School Faculty Scholarship Series Paper No. 16. Available at SSRN: https://ssrn.com/abstract=1141277

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

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