ANTI-MODALITIES.

• Author: Pozen, David E.

Constitutional argument runs on the rails of "modalities." These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters--the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the "anti-modalities" of constitutional law and to investigate their implications.

The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning--from general moral theory to emotional judgment to many cost-benefit calculations--the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law's "resonance gap. " Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm.

Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.

INTRODUCTION I. METHODS AND MODALITIES A. Method Exclusivity B. Modalities, Non-Modalities, and Anti-Modalities II. CONSTITUTIONAL ANTI-MODALITIES A. Caveats and Complications B. A Typology 1. Policy Arguments 2. Fundamentalist Arguments 3. Partisan Arguments 4. Emotional Arguments 5. Popularity Arguments 6. Logrolling Arguments C. Summary Observations III. POSITIVE IMPLICATIONS A. The Resonance Gap B. The Return of the Repressed: Modalization, Modification, Marginalization IV. NORMATIVE IMPLICATIONS A. Status Quo Advantages B. Status Quo Syndromes V. CONFRONTING THE ANTI-MODALITIES A. Narrowing the Gap B. Narrowing Constitutional Law CONCLUSION INTRODUCTION

All constitutional lawyers are familiar with the modalities of constitutional argument, whether or not by that name. These are the forms of argument that are considered legitimate within the legal profession for establishing propositions of constitutional law. They include appeals to the text of the canonical document, appeals to the understandings and intentions of its Framers and ratifiers, appeals to judicial precedent, and so on. In Philip Bobbitt's influential account, the modalities dictate "the way we decide constitutional questions in the American legal culture." (1) They make up "a legal grammar that we all share and that we have all mastered." (2)

Yet investigations into the acceptable forms of argument tell only half the story. For even as this "legal grammar" legitimates various analytical and rhetorical moves, it repudiates others. A fuller account needs to consider the anti-modalities of constitutional law--the categories of reasoning that are employed in nonconstitutional debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. (3) What can we learn by attending to constitutional argument's outcasts?

This Article introduces and develops the idea of constitutional anti-modalities. Because no reputable constitutional decisionmaker wishes to be associated with the anti-modalities, they tend to appear most explicitly in denials and accusations, in which the speaker insists that she is not advancing a certain kind of argument or that an opponent is. (4) Examining constitutional discourse with an eye toward such claims, we find that the anti-modalities include: (1) policy arguments that are formulated as openly instrumentalist inquiries into welfare effects; (2) fundamentalist arguments that depend on deep philosophical premises or comprehensive normative commitments; (3) partisan arguments that prefer a social or political group not said to be singled out for special treatment by the canonical document; (4) emotional arguments that invoke feelings without an articulable logical structure; (5) popularity arguments that look to the preferences of the general public; and (6) logrolling arguments that propose an exchange of favors, or a splitting of differences, between competing parties or positions in the interest of compromise. (5) Other legal fields exclude many of these types of argument as well, just as versions of the modalities can be found outside constitutional law. But the centrality and supremacy of the Constitution in our legal culture, along with its role in structuring government, lend these exclusions special significance in the constitutional context.

After identifying the anti-modalities, the Article begins to work through their implications. The most important implication is so obvious that it is easy to overlook: the anti-modalities shut out of constitutional law virtually all the arguments that drive most citizens' views on most matters of public concern. The considerations that people tend to prioritize in making normative and prescriptive judgments are banished to the realm of the political, to the subconstitutional subaltern. We call this gap, between the accepted inputs into constitutional reasoning and the standard inputs into nonconstitutional reasoning on similar subjects, constitutional law's resonance gap. (6)

This gap is under constant pressure to close. Precisely because the anti-modalities are so enticing, these lines of argument are unlikely to disappear when contentious debates take a constitutional turn. For many lawyers in many situations, the temptation to smuggle in one or more anti-modalities will prove irresistible, and the conventions of constitutional grammar can only imperfectly limit such boundary crossing. (7) Fundamentalist arguments, for example, surface in the area of substantive due process and in appeals to what Bobbitt calls the ethical modality, (8) while policy arguments surface in numerous lines of doctrine and in the modality of prudentialism. (9) To be seen as legitimate inputs into constitutional decisionmaking, however, these arguments must be shorn of their anti-modal aspects. Thus, substantive due process analyses and ethical arguments typically claim a grounding in tradition, while prudential arguments typically abstract away from first-order welfare effects and emphasize second-order considerations of judicial ad ministrability, manageability, or the like. As these examples suggest, thinking in terms of anti-modalities helps clarify the contours of the modalities, illuminating ways in which they seek to fence off certain categories of reasoning even as they privilege adjacent categories. Constitutional law takes shape in the dialectical tension between modality and anti-modality.

Parts of our analysis should feel familiar. Our catalog of anti-modalities had better ring true to most competent constitutional lawyers once we articulate it, or else we will have failed to capture conventional practice. In addition, our account of how forbidden forms of reasoning may infiltrate constitutional argument, albeit incompletely, connects with a long line of scholarship by legal realists, legal pragmatists, and branches of the critical legal studies and empirical legal studies movements. Like these scholars, we doubt that there has been a deep or stable divide between constitutional decisionmaking and all-things-considered decisionmaking in some significant fraction of hard-fought disputes--and therefore that there has been a deep or stable divide between law and politics. (10) Unlike many of these scholars, however, we spotlight the resilience of our constitutional culture's prohibitions on the overt use of otherwise valued modes of reasoning. And we contend that these prohibitions have a meaningful impact on constitutional jurisprudence. What goes unsaid matters.

Some of the implications, we further contend, should trouble Americans of nearly every ideological stripe. Efforts to exclude the anti-modalities from interpretive debates can be defended on grounds of pluralism, public reason, and the rule of law, among others. (11) A constitutional order without any such argumentative constraints is all but unthinkable. Nevertheless, screening out the anti-modalities breeds a host of pathologies, (12) from pushing constitutional decisionmakers to obscure the real bases of their support for certain outcomes to inviting excessive attention to perceived inconsistencies and hypocrisies of opponents. Worse still, in many scenarios the anti-modalities' taboo status conduces to analytic carelessness. For instance, even when a modality like prudentialism is in play, constitutional law does not avail itself of--indeed does not allow--rigorous consequentialist inquiry of any sort. Rigorous consequential inquiry would expose a constitutional decisionmaker to charges of making an illegitimate policy argument. To avoid such charges, decisionmakers are instead pushed to deploy tendentious analogies, slippery-slope claims, and other highly speculative or ad hoc assertions. In place of social science, constitutional law often trades on pseudoscience. (13)

What to do about these downsides is a difficult question. The situation might be best understood as a series of...