Document Type


Publication Date



What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project.

When properly grounded, constitutional law and rhetoric reveals how proof and persuasion operate in constitutional argument. The rhetorical perspective recognizes that our deepest constitutional disputes turn on value argument. Acknowledging value argument as a legitimate part of constitutional discourse in turn promotes rational discussion of the hard choices inherent in the Court’s most vexing cases. A fully developed constitutional law and rhetoric framework thus helps us assess these vexing cases and confront what we really fight about when we fight about the Constitution.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.