Prof. Philip Bobbitt taught different approaches for interpreting Constitutional Law. These modalities include Textualism, Originalism, Judicial Precedent, and Historical Analysis of the U.S. Constitution.

• Textualism – This modality determines word meaning in their immediate context. It is persuasive because the meaning of these words and their meaning are directly and immediately relevant to the court. But one weakness is this ignores other contextual clues.
• Originalism – This modality involves the meaning of words to the people who wrote them. Indeed, Justice Antonin Scalia championed this modality in his jurisprudence. But one inherent weakness with Originalism is the world of the Framers differs from modern society. Additionally, the Framers and succeeding generations relied heavily on Natural Law to interpret the Constitution. But this is not so for modern jurisprudence. Instead, Legal Positivism has replaced Natural Law.
• Judicial Precedent – This modality enables judges to base modern decisions on the reasoning of predecessors. Although judges strongly favor this modality, one weakness of reasoning by analogy is no two cases are completely identical.
• Historical Analysis of the U.S. Constitution – The historical modality gives meaning to the Constitution based on past events that relate to a given provision. Though compelling, this is the weakest of all modalities because the past events may have a tenuous relationship with the words the court must construe.

Illustrating The Bobbitt Modalities

The Second Amendment and Historical Analysis of the U.S. Constitution

The Second Amendment provides,
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

Many jurists and scholars have analyzed this provision. For one compelling historical approach please read David B. Kopel, Brothers In Arms: How civil rights flowed from a rifle barrel, Reason Online, Feb. 24, 2005, available at http://reason.com/archives/2005/02/24/brothers-in-arms (last visited Jan. 22, 2017).

It is compelling not only because of its historical relevance to gun ownership, but more importantly because it makes sense. The weakness of the historical modality compared to the others, however, is reliance on supposed circumstantial evidence.

New Jersey Trial Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations for all cases involving your rights under the U.S. Constitution and New Jersey Constitution. Call Now—(856) 812-0321.