Modalities

Question 1

Con. Modalities

Answer 1

• TEXTUAL
• STRUCTURAL
• HISTORICAL
• PRECEDENTIAL / DOCTRINAL
• PRUDENTIAL
• ETHICAL

Question 2

Textual Modalities

Answer 2

• Arguments using the words and language of the
  text of the Constitution
• Text by itself is rarely used to resolve a
  Constitutional argument
• Most of the time will have to bring in other
  modalities to support arguments
• Examples
• “The judicial power of the United States shall be vested in one
  supreme Court…” (Article III, Sec. 1)
• “The judicial Power shall extend to all Cases…to Controversies
  which…” (Article III, Sec. 2)

Question 3

Structural Modalities

Answer 3

• Arguments using the organization and the ordering
  of the Constitution’s provisions (structure)
• What the text shows, does NOT say
• Subject to conflicting interpretations, requiring use
  of more modalities
• Examples
• Separation of Powers is nowhere explicitly mentioned in the
  Constitutional text BUT
• It is apparent in the organization of the Constitution
• Articles I, II and III separately establish, allocate and distribute
  powers to the three branches of government
• 14th A incorporation

Question 4

Historical Modalities

Answer 4

• Arguments from the legal, political, social, economic, and
  military history of the nation
• Can flow from:
• Original drafters’ intentions
• Events that produced the provision
• Understanding/meaning of provision at time of its adoption
• Nation’s ongoing traditions
• Too much reliance on history can prevent necessary
  reinterpretations as needs of society evolve.
• Examples
• President has power to remove officers from longstanding tradition
• The Judiciary has tradition of not giving advisory opinions to the other branches of
  government especially in matters of legal war advice
• Will learn later about shift toward historical approach in modern cases

Question 5

Precedential/ Doctrinal Modalities

Answer 5

• Arguments that refer to past precedential
  implications of the Supreme Court’s decisions
• Uses past decisions to determine the appropriate
  application of the Constitution in other contexts.
• May not always be precedent or Court may desire
  to overrule based on evolving needs of society.
• Example
• The Supreme Court precedent that a parent’s right to choose the
  method of their children’s upbringing is a fundamental right

Question 6

Prudential Modalities

Answer 6

• Arguments that balance the costs and benefits
  of different interpretations to weight their
  practical / pragmatic consequences
• Text by itself is rarely used to resolve a
  Constitutional argument
• Most of the time will have to bring in other
  modalities to support arguments
• Example
• An argument that allowing a particular individual to sue would
  open up the floodgate of similar suits is a prudential argument
  of standing

Question 7

Ethical Modalities

Answer 7

• Arguments that rely on moral and ethical
  commitments reflected in the Constitution.
• Emphasizes the moral (or amoral) consequences of
  an interpretation.
• Strongest ones are those that have ties to
  foundational American Values
• Most of the time Justices will have to bring in other
  modalities to support arguments
• Example
• The notion that “All men are created equal” to argue that there
  should no be segregated schools.