Showing posts with label Bobbitt. Show all posts
Showing posts with label Bobbitt. Show all posts

Tuesday, December 2, 2008

Language, Literature, and Constitutional Theories

Ian C. Bartrum, Yale Law School & Vermont Law School, has published "Metaphors and Modalities: Meditations on Bobbitt's Theory of the Constitution," in 17 William & Mary Bill of Rights Journal (2008). Here is the 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.


Download the article from SSRN here.