governance, we might wish to prefer using the term ‘‘constitution’’ to mean a
fundamental law as it is actually given life and meaning by the operation of all
relevant institutional actors, or we might allow ‘‘constitution’’ to refer to the formal
rules of the fundamental law, but acknowledge that the institutional impacts of
constitutions cannot be ascertained simply by reading them. In either case—and
they amount to much the same thing—the obvious starting point for appreciating
how a constitution actually plays its role in society is examining interpretation, and
most especially, the role of courts in interpreting constitutions and how that role
relates to other processes of constitutional change.
7 Modes of Argument
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When a legal dispute under the United States Constitution is properly presented
for resolution to an American court, the process of interpreting the Constitution is
a complex one. Judges face disagreement not only as to what various provisions of
the Constitution mean, but even as to the methods most legitimately employed,
both in general and in speciWc contexts, to discern such meaning. There are at least
six varieties of argument that regularly appear in the written decisions of American
courts interpreting the Constitution: historical arguments, textual arguments,
structural arguments, ethical arguments, doctrinal arguments, and prudential
arguments (Bobbitt 1984 ). In reviewing each category, the immediate point is not
that any one method is sound, the best, or even appropriate, but rather that it is
indisputably available to American courts. Thus, in facing a constitutional chal-
lenge to any executive or legislative act, an ordinary court of general jurisdiction is
acting in a manner consistent with conventional judicial practice in entertaining
arguments along any of these lines in resolving how the Constitution applies.
Historical arguments generally appeal to what the drafters of particular consti-
tutional provisions had in mind when they added relevant text to the Constitu-
tion—or, with perhaps more justiWcation, what those who ratiWed various
proposals believed they were ratifying. Arguments of this kind—championed
prominently by such scholars as Richard Kay ( 1988 ) and Michael Perry ( 1996 )—
are sometimes described as relying on ‘‘original intent.’’ In the American system,
the doctrine of judicial review is itself perhaps the most prominent example of this
approach. Although the text of the Constitution is at best ambiguous on the point,
there is little doubt that those who adopted the Constitution of 1787 expected that
federal courts would have the power to void legislation not in conformity with the
new document. It was not surprising that, in 1803 , the Supreme Court formally
analyzing constitutions 203