Constitutional Interpretation - Week 1

What is a modality?

way of describing how something is true, degree of truth

What is an epistemic mode?

Describes truth based on knowledge (known, unknown, or known to be false)

What is a moral modality?

Describes truth based on ethics (obligatory, permitted, or forbidden)

What is a temporal modality?

Describe truth based on time (something was, is, or will be true)

What is logical modality?

Describe true based on what is logically possible (impossible, necessarily true, possible)

What are the differences between modalities based on?

Which criteria are used to determine truth (logic, knowledge, etc.)

What kind of mode is “p is true”?

Not using any modality

How to know the difference between a modal statement and an ordinary proposition

Ordinary proposition talks about concrete fact in the world/how the world actually is , modal statement requires investigation into the knowledge surrounding the situation

What are constitutional modalities?

Different ways of deciding that a constitutional claim is true

What are the six modalities of constitutional argument?

1. Historical

2. Textual

3. Structural

4. Doctrinal

5. Ethical

6. Prudential

Historical Modality

the intent of the original writers of Constitution

Textual Modality

Looking at strictly words

Structural Modality

Inferring meaning based on how Constitution is set up and relationships like federal v. state, branches

Doctrinal Modality uses

precedent, finding rules based on caselaw

Ethical Modality

Based on the “American ethos” in Constitution

What is the “american ethos”

Limited government, fit tradition of personal freedom

Prudential Modality

Looking at costs and benefits of rule, find balance

How Structural vs Ethical arguments infer rules differently

Structural infers from powers granted to government, ethical infers rules from powers denied to government

How Structural vs Ethical arguments are similar

Both infer based on arrangement of the Constitution, not from single clause

The big error in regards to ethical modality

Just because act is incompatible with ethos doesn’t mean it is unconstitutional, not enough to strike act down