and economic circumstances surrounding the decision’’ (Bobbitt 1982 , 61 ). It is a
form of argument identiWed most strongly with the work of the late Alexander
Bickel ( 1962 ). Among the most notable examples of prudential arguments are
those, which may also be a variety of structural argument, that persuade the federal
courts that certain questions are beyond their purview. For example, albeit without
producing a majority opinion, the Supreme Court inGoldwater vs. Carter( 444 U.S.
996 , 1979 ) refused to rule whether the president was legally entitled, without either
express statutory authority or Senate advice and consent, to withdraw from the
Mutual Defense Treaty with the Republic of China (Taiwan), a necessary precursor
to awarding diplomatic recognition to the Chinese government in Beijing. Then-
Justice Rehnquist, writing for a plurality, determined that anxieties about the
potential real-world consequences should federal courts interfere with the elected
branches’ control of US foreign policy counseled for a determination that treaty
termination questions are beyond the courts’ jurisdiction.
8 Interpretation and Legitimacy
.........................................................................................................................................................................................
The anxieties of opponents of judicial review are, of course, only intensiWed by the
rich menu of interpretive possibilities that this analysis exposes. Champions of any
of these forms of argument willWnd ample precedent for their use in the records of
past constitutional decisions. It hardly requires hindsight to spot the inevitability
that a constitutional law germinated through such a broad spectrum of argu-
ments—especially arguments other than those based on ‘‘original intent’’ and
‘‘original meaning’’—is likely to induce substantial changes in constitutional
meaning over time. Because the United States Constitution, as do presumably all
Constitutions, explicitly speciWes processes for its amendment, the legitimacy of
constitutional change eVected through other means is open to question.
The various responses of constitutional theorists to this legitimacy challenge
have tended to fall within one of three types. First, the legitimacy challenge seems
to posit that the imposition of constitutional constraints are legitimate only if
envisioned by the drafters or ratiWers of the relevent text. Yet, there is also reason to
think that the original drafters or ratiWers imagined that change would occur along
the lines that the country has witnessed. That is, even though earlier generations
might not have speciWcally anticipated the results of particular challenges—for
example, that the ban on cruel and unusual punishments would invalidate the
death penalty for minors or that the equal protection clause would outlaw legally
mandated race segregation—the ways in which these changes have occurred,
analyzing constitutions 207