Suzanna Sherry (Vanderbilt University) has posted Antimodalities on SSRN. Here is the abstract:
In Desperately Seeking Certainty (co-authored with Dan Farber), I demonstrated the inherent futility of the search for grand unified theories of constitutional law. All of the unified theories, including those advanced by Bork, Scalia, Amar, Ackerman, and Dworkin, would lead to absurd outcomes if they were consistently applied to actual constitutional cases. In this essay, I extend this argument to the so-called "pluralist" or "multiple modality" theories advanced by Phillip Bobbit and others. The pluralist approach is based on the idea that law is a complex argumentative practice constituted by mutliple modalities of constitutional argument, including text, history, structure, ethos, and practicality. Although pluralism is an improvement over the pathologies of monistic grand unified theories, the insistence of pluralists that constitutional argument is limited by a closed list of modalites suffers from a similar defect. I demonstrate this failing by showing that each of the most important and beneficial decisions of the United States Supreme Court is an "antimodal" decision relying on arguments from outside the modalities. For example, Brown v. Board of Education was contrary to precedent, unsupported by the constitutional text, incapable of justification on the basis of constitutional structure, manifestly incapable of practical implementation, and contrary to the ethos of both the founding era and the time at which it was decided. The alternative to both grand unfied theories and pluralism is pure pragmatism, an approach to judging that eschews reliance on theoretical foundations of any kind. On the bench, the pragmatic approach counsels a practice of judging that focuses on facts and avoids the lure of reasons. In the academy, pragmatism counsels quietism, a turn away from constitutional law and theory and towards more productive pursuits.