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Full-Text Articles in Legal History

The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum Jan 2012

The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum

Ian C Bartrum

This piece is a contribution to Linda Edwards upcoming book Readings In Persuasion: Briefs That Changed the World (forthcoming Wolters Kluwer). In it I offer a short primer on the modalities of constitutional argument, as Philip Bobbitt has described them. As someone who teaches Constitutional Law with the primary goal of educating future practitioners, I have always brought Bobbitt’s very practical (while also very theoretical) work into my classroom discussions. I have regularly used the first chapter of Bobbitt’s Constitutional Interpretation as introductory text on the subject, but I have sometimes found the reading to be too long ...


Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum Jan 2012

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

Ian C Bartrum

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into ...


Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum Jan 2011

Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum

Ian C Bartrum

Iowa held its 2010 judicial retention elections in the shadow of Varnum v. Brien, the 2009 Supreme Court opinion recognizing same sex marriage. As the result of highly politicized campaign, three talented jurists lost their seats on the Court.

This commentary examines that election and offers a structural solution that might better protect constitutional rights against majoritarian intimidation.


Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum Jan 2010

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum Jan 2010

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...