Modalities, Anti-Modalities, and the Social Psychology of Persuasive Constitutional Argument

Constitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity.

The paper examines how these strategies can enhance arguments within accepted modalities and potentially address underlying concerns driving the appeal of anti-modalities. Connecting these approaches to Chief Justice Roberts’ emphasis on institutional legitimacy, the paper argues that attending to social psychological dynamics can help the Supreme Court maintain its authority while speaking to a pluralistic nation.