The Constitutional Canon As Argumentative Metonymy

It might be imagined that some propositions, of the form of empirical propositions, were hardened and functioned as channels for such empirical propositions as were not hardened but fluid; and that this relation altered with time, in that fluid propositions hardened, and hard ones became fluid. - Ludwig Wittgenstein1 In recent years, the constitutional canon has been a subject of growing interest and controversy among theorists as notable and diverse as Bruce Ackerman, Jack Balkin, Sanford Levinson, Philip Bobbitt, William Rich, Richard Primus, and Suzanna Sherry.2 The thought, crudely put, is that there are certain texts apart from the Constitution - some are directly derivative, others are not - which resound so powerfully in our constitutional ear that they have hardened, in incompletely defined ways, into part of the fundamental law itself.3 This idea, in all of its permutations, is profoundly important for constitutional lawyers, particularly as our constitutional culture continues to quake, erupt, and reform along unforeseen and unforeseeable technological and communicative fault lines. After all, it is largely through the ongoing construction and reconstruction of the canon - the reconfiguration of Wittgenstein's "fluid" and "hardened" propositions - that we accomplish modern constitutional reform; or something akin to the five-staged "constitutional moments" that Ackerman has so insightfully identified.4 And, as our discourse evolves to incorporate terms like "superprecedent"3 and "landmark statute,"6 it is critical that we continue to work towards a coherent theory ofthe canon and its function in constitutional practice. My admiration for Philip Bobbitt's modal theory ofthe Constitution - which posits six legitimate "modalities" of constitutional argument - is on record,7 and so it is perhaps unsurprising that I am drawn to his attempt at a modal catalogue of canonical texts.8 And although I conceive of this project as in keeping with Bobbitt's original Wittgensteinian insight,9 my approach to the relationship between the constitutional canon and the constitutional modalities is different than that which he has taken. While Bobbitt identifies particular canonical texts as exemplars ofthe different modalities of argument,10 my purpose here is to explore the ways that we use these texts to help make modal arguments and decisions within the practice of constitutional law. I thus take Bobbitt's opening insight - "[t]exts may speak, but they do not decide"1 1 - as the starting point of an account that sees many canonical texts employed as metonyms for larger constitutional principles or concepts. I borrow an idea from language theory, as does Bobbitt's modal account, because law, like language, is ^practice, an interactive communicative enterprise that legitimizes particular acts or utterances based on their usage and acceptance within a specific community and context.12 It is, in other words, impossible to say what McCuI loch v. Maryland,13 for example, "means" in absolute terms; rather, to understand that text's constitutional significance we must look to how it is used in the constitutional conversation. To this end, I hope that the concept of constitutional metonyms can help illuminate the ways that we both use and recreate the canon as we build constitutional arguments and make constitutional decisions. Accordingly, this paper does not attempt to justify a list of the most canonical texts in constitutional law, nor do I argue that we should treat certain cases or statutes as constitutional amendments accomplished outside of the Article V process. Rather, I explore the ways that we use canonical texts when we make the kinds of constitutional arguments that Bobbitt has identified. I have thus tried to choose texts that most lawyers would agree are either canonical or "anti-canonical" 14 - I contend here that the canon and the anti-canon serve the same metonymie function in our practice - in the hope that a few specific illustrations might provide a sufficient model from which to extrapolate the theory I propose. …