Why Constitutional Argument Matters

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis—the system of classifying constitutional arguments and requirements for their use—were only descriptive of what courts and presidents and columnists do, then their very clumsiness—and worse— would amount to a kind of permissible reform.