I describe below fourteen different modalities of constitutional argument; some are a bit too obscure for most con law classes, and some are similar enough to others that many might want to treat them differently. Many people who use them might want to focus on only a few, such as textual argument, original meaning argument, structural argument, changed circumstances argument, pragmatic/moral argument, and argument from administrability.
"That's what the Constitution says."
Examples:
"The Second Amendment says `right of the people to keep and bear arms,´ so the people have a right to keep and bear arms."
"The Second Amendment says `A well regulated militia . . .,´ so the right is limited only to the militia."
Responses:
a. The text is better interpreted some other way.
b. Other text suggests the opposite.
c. We shouldn't be bound by the dead hand of the past, but should instead implement what makes moral and practical sense for society today.
d. Rather than looking just to the text, we should also (or instead) consider one of the other approaches (such as original meaning, moral, etc.) listed below. This type of argument can be a rebuttal to any of the approaches, e.g., "Yes, that might be the original meaning, but rather than looking just to the original meaning, we should also consider one of the other approaches." Rather than repeating this below, I'll use the line "[We should use another approach instead]" to refer to it.
"That's what the Constitutional clause meant to those who enacted it."
Examples:
"`Militia´ meant `armed adult male citizenry´ when the Amendment was enacted, so that's how we should interpret it today."
"`Arms' meant flintlocks and the like when the Amendment was enacted, so that's how we should interpret it today."
Responses:
a. The original meaning was actually something else.
b. The provision had several levels of original meaning, some more general than others -- for instance, "arms" may have meant either all arms generally, or flintlocks and the like in particular. We should look at some other level of generality (either more or less general, as the case may be).
c. The original meaning of other provisions suggests the opposite.
d. We should look to modern meaning, because the change in the meaning of the term reflects an important change in the world that should be included as part of the analysis.
e. We generally shouldn't be bound by the dead hand of the past, but should instead implement what makes moral and practical sense for society today.
f. The Framers didn't actually mean for us to always look back on their meaning.
g. Original meaning is generally too hard to figure out, so courts shouldn't look at it.
h. [We should use another approach instead.]
"If we asked the Framers today what they wanted, they'd tell us this was it." (This is related to original meaning argument, but different -- it focuses on what the Framers wanted to do, even if they didn't embody it in the text of the provision).
Examples:
"The Framers would have been shocked by the notion of the government taking away our handguns."
"The Framers would have been shocked by the notion of people being entitled to own guns in a society where guns cause so much death and violence."
Responses:
a. The original intent was actually something else.
b. The Framers had several levels of original intent, some more general than others -- for instance, they may have wanted to generally protect society from crime and foreign invasion, and at the same time wanted to protect society from crime and foreign invasion by means of maintaining an armed citizenry. We should look at some other level of generality (either more or less general, as the case may be).
c. The original intent of other provisions suggests the opposite.
d. We shouldn't care about what the Framers thought at all.
e. We shouldn't care about what the Framers thought except insofar as they embodied their thinking in the text.
f. Original intent is generally too hard to figure out, so courts shouldn't look at it.
g. The Framers didn't intend for us to feel bound by their original intent.
h. [We should use another approach instead.]
"That's the way Americans have done things for hundreds of years."
Examples:
"Throughout the 19th century and almost all of the 20th century, everyone was allowed to own handguns. Throughout the 19th and much of the 20th centuries, legal commentators have seen the Second Amendment as creating an individual right."
"Throughout the 19th and 20th centuries, state courts enforcing similar state guarantees have allowed reasonable regulations of firearms ownership."
Responses:
a. There's a better claim about what the tradition has been.
b. Traditions in this area can be described on several levels; for instance, there might be a broad tradition of allowing private firearms ownership generally coexisting with a tradition of allowing bans on ownership of particular firearms. We should look at some other level of generality (either more or less general, as the case may be).
c. There are other explanations for the seeming tradition -- for instance, the lack of firearms regulation might have stemmed from policy concerns rather than a judgment that such regulations are unconstitutional.
d. The tradition behind other provisions suggests the opposite.
e. What people have thought about the provision long after it was enacted is irrelevant; what matters is what it meant to those who ratified it.
f. We generally shouldn't be bound by the dead hand of the past, but should instead implement what makes moral and practical sense for society today.
g. Because there are so many often-conflicting traditions at so many different levels of generality, tradition-based arguments are too indeterminate to be useful.
h. [We should use another approach instead.]
"The precedents point in this direction."
Examples:
"The Court has held that the Second Amendment protects weapons that are part of ordinary military equipment, and handguns certainly qualify."
"The Court has held that the Second Amendment was meant to keep the Militia as an effective force, and they can be nicely effective just with rifles."
Responses:
a. The precedent doesn't actually point this way.
b. Other precedents point another way.
c. This precedent conflicts with the result reached under one of the other arguments, so the precedent should be overruled.
d. This precedent conflicts with the result reached under one of the other arguments, so the precedent shouldn't be expanded much beyond its original circumstances.
"The constitutional provision was meant to accomplish a particular goal, and we should interpret it this way because this way best suits that goal." (This differs from original meaning argument because it focuses less on what the specific words meant at the time, and more on the goal the drafters were trying to achieve.)
Examples:
"The purpose of the Amendment was to keep an armed citizenry as a bulwark against tyrannical government, so the government shouldn't be allowed to take away our handguns."
"The purpose of the Amendment was to provide a ready source of troops for the federal government should it need it for military purposes, so the government can forbid whatever firearms it thinks are unnecessary."
Responses:
a. The provision's purpose is actually something else.
b. The provision has several levels of purpose, some more general than others. We should look at some other level of generality (either more or less general, as the case may be).
c. The purpose of other provisions suggests the opposite.
d. The Constitution sets forth rules, not general commands to "do what you can to serve this purpose." Therefore courts shouldn't focus on the purpose of the text, but on the text itself and, perhaps, its original meaning.
e. Because each text can be seen as having so many different purposes at so many different levels of generality, purposive arguments are too indeterminate to be useful.
f. [We should use another approach instead.]
"The various constitutional provisions, put together, were meant to set up a particular governmental structure, so we should interpret them accordingly." (This is like a purposive argument, but it focuses on the supposed purposes of several constitutional provisions at once.)
Examples:
"The Militia Clauses of Article I, section 8 make it clear that the Militia is to be under the control of the federal government; reading the Second Amendment as a grant of power to states would be inconsistent with those Clauses."
"The Constitution sets up a government run by constitutional democratic processes, with various democratic checks and balances, such as federalism, elections, a free press, and so on; reading the Second Amendment as facilitating violent revolution is inconsistent with this structure."
Responses:
a. The Constitution was actually meant to set up a different structure.
b. The Constitution sets forth rules, not general commands to "do what's consistent with this structure." Therefore courts shouldn't focus on the structure, but on the text itself and, perhaps, its original meaning.
c. Because the structure can be seen as having so many different purposes at so many different levels of generality, structural arguments are too indeterminate to be useful.
d. [We should use another approach instead.]
"This is the morally right decision to make."
Examples:
"It's immoral to leave people defenseless against criminal predators."
"It's immoral to allow people to keep weapons that kill so many people."
Responses:
a. Another interpretation yields more moral results.
b. It's wrong for judges to impose their own moral judgment on the Constitution, because:
i. It violates the people's right to govern themselves.
ii. It's likely to lead the people to reject judicial review.
iii. It's likely to be unpredictable and unadministrable.
iv. Much as you might like the court to do what you think is moral here, in the long run courts that decide things on "moral" grounds might actually do more things that you think are immoral.
c. [We should use another approach instead.]
"It's the social consensus today that this is the morally right decision to make."
Examples:
"The great majority of Americans believe it's immoral to leave people defenseless against criminal predators."
"The great majority of Americans believe it's immoral to allow people to keep weapons that kill so many people."
Responses:
a. Another interpretation yields results more consistent with evolving standards of decency.
b. If society thinks this law is so immoral, it wouldn't have gotten passed or enforced, or it would have been repealed; therefore, society must not think the law is so immoral. The legislative process is much better than the judicial process at figuring out what society thinks.
c. It's not up to courts to modify the meaning of constitutional provisions in order to fit their notions of evolving standards of decency -- we have the amendment process for that.
d. Evolving standards of decency, especially in a large and diverse nation, are generally too hard to figure out, so courts shouldn't rely on them.
e. The standards of decency of one group of society (e.g., lawyers or judges or the educated classes or urban residents or Northeasterners) shouldn't be imposed on other groups, at least without a formal constitutional amendment.
f. [We should use another approach instead.]
"Even if the text or original meaning or structure suggest one result, circumstances have changed, and this interpretation is more consistent with today's reality."
Examples:
"The Second Amendment was primarily meant to prevent a standing army, and not to protect weapons used in self-defense against criminals, but that was because the Framers couldn't imagine the government trying to prevent armed self-defense against criminals. Now that circumstances have changed, we should read the Amendment as also protecting self-defense uses."
"The Second Amendment was primarily meant to prevent a standing army, but that's a lost cause now. Now that we have a standing army for good, the Amendment is obsolete."
Responses:
a. The circumstances haven't really changed in a relevant way.
b. Even if some circumstances have changed, others have changed to make the proposed reading less plausible.
c. It's not up to courts to modify the meaning of constitutional provisions in order to fit their notions of changed social needs -- we have the amendment process for that.
d. Courts aren't very good at judging which circumstances have changed and what this should mean, so this is a bad way to make constitutional decisions.
e. [We should use another approach instead.]
"This is the best reading, because if one accepts your alternative reading, it will dictate the following legal results that I'm sure you'll agree are silly."
Examples:
"The Second Amendment should be interpreted as protecting a personal right, not a state's right. If you interpret it as a right of the states to keep and bear arms, it would follow that the states would have the right to keep the sorts of arms that states keep -- tanks, fighter aircraft, and nuclear weapons -- a silly result."
"The Second Amendment should be interpreted as protecting a state's right, not a personal right. If you interpret it as a right of individuals to keep and bear arms, it would follow that individuals would have the right to keep rocket launchers, tanks, bombs, and the like -- a silly result."
Responses:
a. The alternate reading actually wouldn't have the described results.
b. You're misdescribing the alternate reading, or setting up a straw man; the real alternate reading wouldn't have the suggested results.
c. All readings have some silly results; the alternate one is still fine even though it has a few.
d. The proposed reading actually has more silly results than the alternate.
e. The alternate reading would indeed have the described results, but they're really not that silly.
f. The alternate reading is dictated by [text/original meaning/morality], and we've got to stick by it even if it leads to some silly results.
g. [We should use another approach instead.]
"This is the best reading, because your alternative reading is too vague and mushy to be administrable. It will lead to unpredictable results, lots of litigation, and likely injustice as different courts use the wiggle-room to interpret it in biased ways."
Examples:
"The Second Amendment should be interpreted as providing close to absolute protection, rather than allowing `reasonable´ regulations. Who knows what reasonable is? How can we tell whether the `reasonableness' will yield good results or bad? And how can we keep courts from using its vagueness to implement their own personal predilections?"
"The Second Amendment should be interpreted as protecting a state's right, not a personal right. If you interpret it as a personal right, you'll have to limit it to `reasonable´ weapons (or else everyone will be able to have their own tactical nuke.) Who knows what reasonable is? How can we tell whether the `reasonableness' will yield good results or bad? And how can we keep courts from using its vagueness to implement their own personal predilections?"
Responses:
a. The alternate reading actually wouldn't be that vague (especially when compared to other similar constitutional interpretations that we live with just fine).
b. You're misdescribing the alternate reading, or setting up a straw man; the real alternate reading would be much clearer.
c. All readings leave some things uncertain; the alternate one is still fine even though it does this in a few cases.
d. The proposed reading actually is less administrable than the alternate.
e. Sometimes vagueness is better than clarity, because it leaves more room for practical, fact-bound, commonsense judgments.
f. The alternate reading is dictated by [text/original meaning/morality], and we've got to stick by it even if it's a bit harder to administer.
g. [We should use another approach instead.]
"This is the best reading, because if one accepts your alternative reading, it will lead to the following real-world consequences that I'm sure you'll agree are bad."
Examples:
"The Second Amendment should be interpreted as protecting the right to own handguns for self-defense, because otherwise only criminals will have guns and crime will skyrocket."
"The Second Amendment should be interpreted as not protecting the right to own handguns for self-defense, because otherwise we'll never solve our crime problems."
Responses:
a. The alternate reading actually wouldn't have the suggested consequences.
b. You're misdescribing the alternate reading, or setting up a straw man; the real alternate reading wouldn't have the suggested consequences.
c. The proposed reading will actually lead to more bad consequences than the alternate.
d. The alternate reading would have the described consequences, but they're really not that bad.
e. Courts are bad at estimating these sorts of consequences, so this approach is a bad way of making constitutional decisions.
f. The alternate reading is dictated by [text/original meaning/morality], and we've got to stick by it even if it leads to bad pragmatic consequences. "Let Justice be done though the heavens fall."
g. [We should use another approach instead.]
"This interpretation is more consistent with the following grand theory of what the law should be."
Examples:
"The law should maximize individual liberty, so it's wrong to restrict firearms ownership." "The law should maximize individual liberty, so it's wrong for people to own weapons that can oppress others."
"The law should help the working class in the struggle against their exploiters, and firearms ownership by the proletariat is important in that struggle." "The law should help the working class in the struggle against their exploiters, and the gun violence distracts the working class from this struggle."
"The law should help dismantle the patriarchy, and private firearms ownership can empower women, who would otherwise be victims of men's greater physical power." "The law should help dismantle the patriarchy, and private firearms ownership is centered on (and abets the persistence of) a masculinist paradigm of violent conflict, a paradigm that tends to oppress women."
"The law should undo the effects of racism, and private firearms ownership is important to racial minorities who are often the victims of racist indifference by the police, or even of the police engaging in or abetting racist violence." "The law should undo the effects of racism, and private firearms ownership has created intolerable violence in minority communities."
The grand theoretical argument is usually some combination of moral and pragmatic arguments, and the rebuttals to those arguments can generally be turned into rebuttals to it.