Texas A&M Law Review

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Volume 13, Issue 3 (2026)Read More

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Essay
30 January 2026

Constitutional Interpretation as Problem Solving: How the Modalities Work

Jack Balkin
The standard forms of constitutional argument—the modalities—are central to one of the most important approaches to constitutional interpretation: constitutional pluralism. Both originalists and non-originalists use the modalities. This Essay explains how they work. The modalities of constitutional argument are shared cultural tools for thinking about the Constitution, analyzing legal problems, and formulating arguments to resolve them. Constitutional interpretation is a kind of problem solving, and the modalities are our legal culture’s toolkit for analyzing and solving constitutional problems. Our use of the modalities presumes that at any point in time, some arguments are better than others. This assumption is central to constitutional argument as a rhetorical practice of giving reasons. Many different kinds of history can help us make arguments with the modalities. There is no artificial limit on the kinds of history that can be relevant to constitutional interpretation. Although there is no general hierarchy of the modalities that applies in every case, not all of the modalities are equally relevant in a given case. In some cases, some modalities are more important than others. The modalities are also not incommensurable. First, their boundaries are not fixed, and some arguments may fit into more than one modality. Second, our views about the best argument within one modality may be shaped by our views about the best arguments in others. Lawyers and judges use the modalities with a defeasible assumption of coherence: that employing different ways of looking at a problem can help them converge on a single answer or a small set of answers. One should not fear that multiple modalities give judges too much leeway in constitutional interpretation. The primary constraints on judges arise from professional education, socialization, and internalization of the judicial role. At any point in time, these intersubjective constraints can keep interpretations of the Constitution within certain limits. But in highly polarized times like those we live in, lawyers and judges may increasingly disagree, not only about the best interpretation of the Constitution, but even about what kinds of legal arguments are off-the-wall and on-the-wall. When constitutional rot is ascendant, the problem that constitutional law faces is not too many modalities. Rather, the problem is the decay of norms of political forbearance, social trust, professional legal culture, and the judicial role.
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Remarks
30 January 2026

Why Constitutional Argument Matters

Philip Bobbitt
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.
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Current Articles

Arguendo (Online)7 February 2026

Regulating Reader(s): Book People v. Wong, Compelled Speech, and Sexually Explicit Library Materials in the Fifth Circuit

Gray Wood
This Note analyzes the Fifth Circuit Court of Appeals’ recent holding in Book People, Inc. v. Wong, which struck down Texas Education Code Chapter 35. Passed under the 88th Texas Legislature’s READER Act in 2023, Chapter 35 instituted a mandatory rating system that required Texas book vendors to review the books they sold to district schools and open-enrollment charter schools for sexually explicit material. Book vendors banded together to oppose the law, arguing that it constituted compelled speech, a legal doctrine that has come to the forefront of First Amendment fights since the Supreme Court’s 2023 decision in 303 Creative v. Elenis. Applying Elenis’s recent articulation of this doctrine, the Fifth Circuit found Chapter 35 to unconstitutionally compel these book vendors to articulate subjective opinions on a topic they would rather remain silent about. Due to the number of states, particularly those in the Fifth Circuit, implementing similar restrictions on library materials, this Note considers the holding in Book People to be a valuable source of current Fifth Circuit law and an important articulation of free speech rights, given that statutes mandating rating systems are likely to persist. The Note analyzes the history and outcome of the READER Act and Book People, its place in the history of compelled-speech doctrine jurisprudence, and what Book People means for other Fifth Circuit states’ recent legislation. Since the Texas Legislature has recently introduced a bill addressing constitutional errors in the original Chapter 35, this Note takes the rare opportunity to weigh whether the proposed bill will survive a second round with the Fifth Circuit.

Popular Articles

Article
27 December 2024

Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Mark Behrens, Andrew Trask
Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.
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Comment
1 January 2015

A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” as a Threat to the LGBT Community

Travis Gasper
The Supreme Court in its 2014 decision in Burwell v. Hobby Lobby broadly expanded so-called religious freedom protections in the Religious Freedom Restoration Act (“RFRA”) by striking down a provision of the Affordable Care Act requiring employers to provide health insurance coverage for certain methods of contraception. In doing so, the Court opened the floodgates for employers to claim an exemption based upon any “sincerely held” religious belief. Without inquiry into the sincerity of that belief, businesses and corporations are free to adopt or assert beliefs that could lead to increased discrimination against employees. This is especially troublesome for marginalized groups like the LGBT community, which is already on the receiving end of discrimination under the pretext of religious exemptions. To correct any future misuse of these exemptions, Congress should amend RFRA to permit courts to assess the belief being asserted and contrast it with the potential harm if an exemption is allowed. The purpose of RFRA is to ease the burden faced by people of faith forced to go against their religious beliefs if they obey a certain statute. Easing this burden should focus on heady moral dilemmas, not mere inconveniences. Amending RFRA can ensure it maintains its initial purpose of protecting religious freedom, while not being used as a tool to perpetuate discrimination.
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Article
1 January 2016

The Law and Politics of Firearms Regulation in Reconstruction Texas

Mark Frassetto
In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts. More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.
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Arguendo (Online)
10 January 2019

Whose Land Is It Anyway? Navigating Ghana's Complex Land System

Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood
This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.
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Comment
30 April 2021

The Growing Monopoly in the Corn Seed Industry: Is It Time for the Government to Interfere?

Bethany K Sumpter
How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry does not yet contain enough characteristics to warrant a government response. However, when a monopoly does form, the government should, and likely will, act.
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