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Why People Disagree About the Meaning of the Constitution: The Five Types of Legal Argument

by Professor Will Huhn on September 9, 2008

in Constitutional Law,Government,Wilson Huhn

     I have been practicing and teaching law for over thirty years, but even as I studied law so long ago I remember being perplexed by a commonplace phenomenon. Lawyers and judges disagree about what the law is. In practice and in teaching, as I carefully read and reread the conflicting decisions in the various fields of law I had responsibility for, and as I examined the majority and dissenting opinions within each case, I was puzzled.  "How could it be," I wondered. "How is it possible that people can legitimately disagree as to what the law is?"  I can understand how people can argue about what the facts of a case are. People lie or are mistaken. But law is different, I thought. I thought that the law is something absolute and pure, and that people who are well-informed , intellectually honest, and fiercely dedicated to the rule of law should all come to the same conclusion as to what the law is?

     Why, for example, do people of good faith – loyal Americans, who are devoted to the Constitution and to the rule of law – differ so greatly on questions of constitutional interpretation? How is it possible that citizens and lawyers and judges disagree about the constitutionality of abortion laws or gay rights or flag burning or the power of the President to combat terrorism through detention and wiretapping? Why do people even disagree about a basic question such as precisely what our fundamental rights are? After all, you would think that if our Constitution is a law, surely someone is right and someone is wrong about the meaning of the Constitution – one side is being faithful to the Constitution and the other is being unfaithful.

     However, the idea of "the law" as a single, unitary concept is in part an illusion. The reason that intelligent people of good faith may legitimately disagree about the meaning of the Constitution (or the meaning of any law) is that law arises from multiple sources, and different people consider different sources of the law to be more or less authoritative. Law is not a single, pure, unadulterated system of rules. It is analogous to a river that has many tributaries – it is derived from many sources – and to understand the multiple potential meanings of the law it is necessary to trace each and every legal argument back to its source.

     Here is what legal scholars have discovered. Hard cases exist because there are different types of legal arguments. Legal arguments may be based upon text, intent, precedent, tradition, or policy. When every form of legal argument gives you the same answer as to what the law is, it is an easy case. When different legal arguments give you different answers as to what the law is, by definition that is a hard case, because it is not altogether clear what the law is.

     In the subsequent essays in this series I will explain what the different types of legal arguments are, what their characteristic strong points and weak points are, and give examples of the different types of arguments that different Supreme Court justices tend to rely on. But the most important goal that I wish to accomplish with this series of essays is to encourage you to ask yourself this question: "Which type of legal argument do I find to be most persuasive? And why do I find one source of law to be more authoritative than the others?"

Wilson Huhn is a Professor of Law at the University of Akron School of Law, and is the author of the legal text The Five Types of Legal Argument (Carolina Academic Press 2008). This is the first in a series of essays explaining how people can legitimately disagree about the meaning of the Constitution.


Alice September 9, 2008 at 5:14 pm

Hooray…..this is the type of blog of have been waiting for.

Thank you, thank you, thank you.

I am looking forward to your next essay!!!!!


Dan S. September 9, 2008 at 8:54 pm

RE:"But the most important goal that I wish to accomplish with this series of essays is to encourage you to ask yourself this question: "Which type of legal argument do I find to be most persuasive? And why do I find one source of law to be more authoritative than the others?""

Is there an underlying purpose to asking myself this question? If it is to determine my political "leaning", will there be clear differences between the (in alphabetical order) Conservative, Liberal, or Moderate answers to those five questions? I enjoy activities that help me better understand myself, but not at the cost of putting a political label on my preferred style(s) of argumentation.

Partial Shade September 10, 2008 at 12:01 am

Prof. Huhn I look forward to your series; however, I wish to encourage you in your essays to answer what you think the answer is to these questions: 1. Why does the "Roosevelt" SCOTUS find one source of law to be more authoritative than the others? 2. Which of the five legal arguments has it favored? 3. Which legal arguments do Scalia and Thompson find more authoritative? What are the strengths and weaknesses between the arguments favored by each? and finally, why is SCOTUS compelled to hear and rule rather than exercise restraint?

Partial Shade September 11, 2008 at 1:02 am

Uh, duh, My apologies to J. Thomas.

As long as I have posted to make a correction, let me say that none of this really matters. The Court is not going to change in the next four years. John McCain is a liberal/moderate in Republican clothing. All we/I are arguing is a line in the sand. I'm sure if I live long enough I may see a "Scalia" court and I'll be blogging about how it has crossed the line in the sand. After all, why should I expect SCOTUS to show anymore restraint than have the other two branches?

The real question is why do we we concern ourselves with this red herring?

Rather than play roulette within the political system, true change should be pursued in the repeal of the 16th, and 17th amendments, and a clarification of section 8 of article 1 that the federal government shall impose no tax, so authorized by that section, except for the purposes of defense against foreign threat, without the consent of the people by popular vote. Then academia and arm chair philosophers can have it for infinitude.

Jon Roland September 13, 2008 at 4:10 pm

While I look forward to the remaining entries in the series, I am concerned about where they seem to be going. There are divergent sources of law, but at least in the United States our constitutional and legislative process is fairly effective at arriving at consensus on the public meaning of laws, even if not on whether they should be adopted. We also have a tradition of common law rules of construction that can resolve most ambiguities. That is why I recommend persons approach constitutional construction as they would the study of a foreign language.

Part the problem arises from the adversarial structure of our process, which tends to seek divergent constructions for the benefit of contending parties, and in that process can distort the discovery of valid principles that might come from disinterested scholars trained in history and linguistics, and with the influence of stare decisis, which, like the children's game of telephone, can propagate and magnify errors from one case to the next until original meaning is lost. See

My own analysis finds seven main kinds of judicial decisionmaking. See

Jon Roland September 13, 2008 at 4:33 pm

I recommend people read The Blind Men and the Elephant, by John Godfrey Saxe (1816-1887), available at .

U.N. Owen September 13, 2008 at 6:36 pm

Although this introductory essay seems to be reasonable, it is really legal hogwash. The law consists of words, and words have meanings that are seldom actually obscure. The obscuration occurs when clever individuals attempt to garner more power for themselves or their clique by distorting the meaning of these words. For example, "Congress shall make no law…" seems very clear to me — and the meaning of these words is most certainly not based on their source — it means NO law. That's not SOME law. And yet, Congress routinely makes laws restricting the things mentioned in the first amendment, with the approval of the SCOTUS. Do you really believe this is justified by ANY clever legal argument?

Tony Beery September 22, 2008 at 11:03 am

To U.N. Owen above. Despite calling Prof. Huhn's essay hogwash, you actually prove his point. You are making a strong textual argument. In other words, the language says X, and the language is clear, and there can thus be no other legitimate way to read/interpret it.

However, there are other ways to interpret the Constitution (or statutes for that matter), especially in cases where the language isn't clear cut. For example, what did Congress intend? What traditionally has been done in a situation? What general policies do we need to enforce?

Of course, if you feel that a literal textual interpretation is the only valid way to read the Constitution, you will disagree with anyone who sees any gray areas. Or, for that matter, someone else who wants to read the Constitution literally but still manages to arrive at a different conclusion than you do.

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