Publications

In Preparation
Whittington, Keith E. Why Free Speech is Central to the Mission of a University. Princeton: Princeton University Press, In Preparation. Print.
Whittington, Keith E. The Idea of Democracy in America: A Study in American Political Thought. Norman: University of Oklahoma Press, In Preparation. Print.
Whittington, Keith E. Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. Lawrence: University Press of Kansas, In Preparation. Print.
Submitted
Whittington, Keith E. “The Supreme Court and Slavery”. Political Thought of the Civil War. Submitted. Print.
Forthcoming
Whittington, Keith E.Originalism, Constitutional Construction, and the Problem of Faithless Electors”. Arizona Law Review (Forthcoming). Print.
Whittington, Keith E., and Benjamin Johnson. “Why Does the Supreme Court Uphold So Many Laws?”. University of Illinois Law Review (Forthcoming). Print.
Iuliano, Jason, and Keith E. Whittington. “The Nondelegation Doctrine: Alive and Well”. Notre Dame Law Review (Forthcoming). Print.
2017
Whittington, Keith E.The Place of Congress in the Constitutional Order”. Harvard Journal of Law and Public Policy 40.3 (2017): , 40, 3, 573-601. Web. Read Online
Whittington, Keith E.How Does Impeachment Work?”. The Atlantic 2017. Web. Read Online
Whittington, Keith E.Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court”. Constitutional Studies 2 (2017): , 2, 97-116. Web. Read Online
Whittington, Keith E.Much Ado About Nothing: Signing Statements, Vetoes, and Presidential Constitutional Interpretation”. William and Mary Law Review 58.5 (2017): , 58, 5, 1751-1791. Print.
Whittington, Keith E., and Jason Iuliano. “The Myth of the Nondelegation Doctrine”. University of Pennsylvania Law Review 165.2 (2017): , 165, 2, 379-431. Web. Read Online
Whittington, Keith E.What is the Impeachment Power For?”. Law and Liberty 2017. Web. Read Online
Whittington, Keith E.How to Get Out of Impeachment Territory”. Lawfare 2017. Web. Read Online
Whittington, Keith E.Will the 25th Amendment Save Us? Lessons from the Nation's First Impeachment”. 2017. Web. Read Online
Whittington, Keith E.An Impeachment Should Not Be a Partisan Affair”. Lawfare 2017. Web. Read Online
Whittington, Keith E.Is the Supreme Court a Court?”. Law and Liberty 2017. Web. Read Online
Whittington, Keith E.Constitutional Norms Matter”. Law and Liberty 2017. Web. Read Online
Whittington, Keith E.Departmentalism, Judicial Supremacy, and Trump”. Balkinization 2017. Web. Read Online
2016
Whittington, Keith E.Balancing Independence and Accountability in Impeachable Offenses”. National Constitution Center Interactive Constitution 2016. Web. Read Online
Whittington, Keith E., and Neil J. Kinkopf. “Interpretation of Impeachment Clause”. National Constitution Center Interactive Constitution 2016. Web. Read Online
American Constitutionalism, vol. 2: Rights and Liberties, Second Edition
Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, vol. 2: Rights and Liberties, Second Edition. New York: Oxford University Press, 2016. Print.
American Constitutionalism, Volume One: Structures of Government, Second Edition
Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, Volume One: Structures of Government, Second Edition. New York City: Oxford University Press, 2016. Print.
American Political Thought: Readings and Materials
Whittington, Keith E. American Political Thought: Readings and Materials. New York: Oxford University Press, 2016. Web. Publisher's VersionPDF icon table_of_contents_and_preface_apt_uncorrected.pdfPDF icon index_of_materials_-_companion_website.pdf
Whittington, Keith E.Law and the Courts in American Political Development”. Oxford Handbook of American Political Development. New York: Oxford University Press, 2016. Print.Abstract

The study of law and the courts in political science has a long but complicated relationship with historical studies in political science and the study of American political development (APD). Political scientists interested in the politics of law and courts have integrated developmental themes and historical approaches from the founding of the discipline, and historical sensibilities have been a persistent feature of legal scholarship in the discipline over time. As a consequence, many public law scholars were naturally interested in the rise of the American political development literature and the return of historical work to political science generally. Even so, historical studies within legal scholarship and the study of law and courts within the American political development literature proper have often followed distinct paths. Historically minded legal scholars and APD scholars have not always found themselves in common conversations. There is reason for optimism in thinking that the paths of those two bodies of scholarship might cross more often in the future, but regardless scholars working primarily in the law are likely to continue to make important contributions to the study of politics and history.

2015
Whittington, Keith E. “Some Dilemmas in Drawing the Public/Private Distinction in New Deal Era State Constitutional Law”. Maryland Law Review 75.1 (2015): , 75, 1, 383-391. Print.Abstract

State constitutional law and state constitutions are generally understudied, and the historical development of state constitutionalism is particularly understudied. In some ways, state constitutionalism mirrors developments at the national level, but in other ways states are distinctive. One of the distinctive features of state constitutions relates to the conceptual distinction between the public and the private. At the national level, the public/private distinction in the economic realm largely collapsed, and the vague provisions of the U.S. Constitution facilitated that collapse. At the state level, however, constitutional text often embodied features of the public/private distinction, putting more pressure on judges to try to understand and implement the distinction even in the midst of the crisis of the Great Depression and the political and constitutional struggles of the New Deal.

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Against Very Entrenched Constitutions”. Wisconsin Law Review Online 2015 (2015): , 2015, 12-18. Web. Publisher's VersionPDF icon against_very_entrenched_constitutions.pdf
Whittington, Keith E. “State Constitutional Law in the New Deal Period”. Rutgers Law Journal 67.5 (2015): , 67, 5, 1141-1168. Print.Abstract

The Great Depression and the advent of the New Deal stimulated one of the most important constitutional transformations in American history.  The "constitutional revolution" of 1937 remade federal constitutional law in areas ranging from federalism and separation of powers to individual rights and state police powers. Remarkably little work has bee done on the history of the development of state constitutional law and the politics of the exercise of judicial review in the states. This article examines the exercise of judicial review by high courts in a sample of states between 1925 and 1945. This was a period of remarkable conflict and change at the federal level, but state-level judicial review shows little evidence of the type of struggle that roiled national politics.  There was far more continuity and stability in state constitutional law, even as state governments also struggled to deal with economic crisis and liberal Democrats rose to power in state capitals. State courts were not simply deferential to the work of the state legislatures, but the judicial veto raised few insuperable obstacles to reform at the state level. The struggles surrounding the Hughes Court appear increasingly idiosyncratic when placed in a broader context.

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Judicial Review and Constitutional Politics
Whittington, Keith E. Judicial Review and Constitutional Politics. Washington, D.C.: American Historical Association, 2015. Print.Abstract

This monograph provides a concise, accessible overview of the history of the development and exercise of judicial review over the course of American history, with a particular focus on the U.S. Supreme Court. The development of constitutional law by the courts is also situated within the broader context of the engagement with the requirements of constitutional rules by political actors. American governance has been shaped by both judicial efforts to interpret and enforce the fundamental law and by developments outside the courts that have helped reshape regnant conceptions of constitutional requirements and deployed an array of mechanisms for enforce constitutional understandings.

Whittington, Keith E. “The Power of Judicial Review”. Oxford Handbook of the United States Constitution. New York: Oxford University Press, 2015. Print.Abstract

The power of judicial review is one of the more distinctive features of the American constitutional system. The “fundamental law” quality of American constitutions and the possibility of judicial interpretation and enforcement of their provisions were often taken to be key features distinguishing the new constitutional system from the British inheritance. This chapter focuses on the contemporary exercise of judicial review. After delineating the scope of the institution, the chapter turns to conceptual and normative issues associated with the exercise of judicial review. It then reviews the literature on how judicial review is practiced in the American system.

2014
Whittington, Keith E.Are Signing Statements a Bad Thing?”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.Constitutional Politics in the States”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.How I Learned to Stop Worrying and Love Substantive Due Process – Sort of”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.One of the ‘Most Activist Judges We Have Right Now’”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.Remembering Why Hayek Mattered”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.Is the Roberts Court the Least Activist in History?”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.Sowing the Seeds of an Originalist Future”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.What Did John Marshall Accomplish in Marbury v. Madison”. Law and Liberty 2014. Web. Read Online
Whittington, Keith E.What’s Wrong with Judicial Activism Anyway?”. Law and Liberty 2014. Web. Read Online
American Constitutionalism: Powers, Rights, and Liberties
Gillman, Howard, Mark A Graber, and Keith E Whittington. American Constitutionalism: Powers, Rights, and Liberties. New York: Oxford University Press, 2014. Web. Publisher's VersionAbstract

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions. The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. The one-volume editions covers government structures and powers and rights and liberties. This volume offers an abridgement of the two volumes supported by an extensive web supplement of additional materials and tools for instructors and students.

Whittington, Keith E. “The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review”. Notre Dame Law Review 89 (2014): , 89, 2219-2252. Print.Abstract

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship were driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. In order to illuminate the development of judicial review in the contemporary Court, the article examines a series of snapshots of recent constitutional decisionmaking by the U.S. Supreme Court, comparing illustrative two-year periods of judicial review decisions by the Burger Court, the early Rehnquist Court, the late Rehnquist Court, and the Roberts Court. The article also provides an in-depth examination of the coalition of justices that have characterized the Court's exercise of judicial review and the tendencies of the justices who have served on that Court. During that period, the Court has become less likely to strike down federal laws but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The evidence suggests that the return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberal justices to the Court.

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2013
Whittington, Keith E. “"Our Own Limited Role in Policing These Boundaries": Taking Small Steps on Health Care”. Journal of Health Politics, Policy, and Law 38.2 (2013): , 38, 2, 85-99. Print.Abstract

The Affordable Care Act (ACA) invoked political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the U.S. Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute, but also left the landscape of constitutional law much as he had found it. He did, however, suggest that the federal courts should take a more active role in monitoring how Congress uses its constitutional powers and should not shy away from making specific determinations of whether Congress had abused its power in particular cases.

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Whittington, Keith E. “The Status of Unwritten Constitutional Conventions in the United States”. University of Illinois Law Review 2013.5 (2013): , 2013, 5, 1847-1870. Print.Abstract

A.V. Dicey popularized in the British constitutional tradition the idea of unwritten constitutional conventions, the political practices that regulate the exercise of sovereign power by government officials and defines public duties and obligations that supplement judicially enforceable constitutional law. The applicability of the idea in the American context, where a written constitutional text and extensive constitutional law are so prominent, has long been unclear. This paper argues that the United States likewise governs through unwritten constitutional conventions, that there is a "constitutional morality" that delimits acceptable political action and regulates the making of public policy. Nonetheless, conventions sit awkwardly in the American constitutional tradition and are under constant pressure. Precisely because conventions purport to constrain political discretion in ways that are not accounted for by the constitutional text, the interpretation of that text and the proliferation of constitutional law always threatens to erase those constraints.

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Whittington, Keith E. “Originalism: A Critical Introduction”. Fordham Law Review 82.2 (2013): , 82, 2, 375-409. Print.Abstract

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court and the Reagan administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This essay assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and points to the primary points of continuing separation between originalists and their critics.

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American Constitutionalism, Volume II: Rights and Liberties
Gillman, Howard, Mark A Graber, and Keith E Whittington. American Constitutionalism, Volume II: Rights and Liberties. New York: Oxford University Press, 2013. Web. Publisher's VersionAbstract

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions. The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. Volume Two focuses on the limits of government power, including the philosophical and legal foundations of rights and liberties, individual rights of property and person, democratic rights of citizenship, speech and participation, the constitutional guarantees of equal treatment, and constitutional criminal due process.

2012
Whittington, Keith E.The Troublesome Case of Lochner”. Law and Liberty 2012: n. pag. Print.
Whittington, Keith E, and Amanda Rinderle. “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon”. Hastings Constitutional Law Quarterly 39.4 (2012): , 39, 4, 823-860. Print.Abstract

How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.

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Whittington, Keith E. “The President's Nominee: Robert Bork and the Modern Judicial Confirmation Process”. Baker Center Journal of Applied Public Policy 42 (2012): , 4, 2, 85-99. Print.Abstract

The nomination of Judge Robert Bork to the U.S. Supreme Court is taken as a lens for examining the politics of judicial appointments. Robert Dahl contended that presidents are routinely able to shape the Supreme Court to their liking through the appointments process. The average frequency of vacancies on the Supreme Court, however, obscures the importance of variance, and the resulting uncertainty faced by individual presidents about their own opportunities to influence the direction of the Court. A presidential term of office is more likely to look like Jimmy Carter's (who appointed no justices) than Andrew Jackson's (who appointed six). Divided government further complicates the ability of president's to significantly reshape the Court through appointments. In advancing the Bork nomination, the Reagan administration was caught between concerns for ideological commitment and confirmability. The opportunity costs of giving up on a vacancy too soon are substantial, but the presidential ability to fully take advantage of available vacancies depend on the strategic environment.

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Law and Politics: Critical Concepts in Political Science
Whittington, Keith E. Law and Politics: Critical Concepts in Political Science. London: Routledge Press, 2012. Web. Publisher's VersionAbstract

The scholarly study of law and politics is a growing and diverse field. The range of scholarship in the area reflects the wide scope of issues and questions that are relevant to the field of law and politics and that invite new and further study. The diversity of scholarly interest in law and politics also reflects the interdisciplinary conversation that the field invites. Law and Politics covers this ground as a new title in the Routledge series, Critical Concepts in Political Science. Along with a new introduction by the editor, the four-volume collection brings together the best of canonical and cutting-edge works in the field. It provides a comprehensive introduction to the field of law and politics and will stand as an essential research resource for scholars and students alike.

American Constitutionalism, Volume I: Structures of Government
Gillman, Howard, Mark A Graber, and Keith E Whittington. American Constitutionalism, Volume I: Structures of Government. New York: Oxford University Press, 2012. Web. Publisher's VersionAbstract

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions. The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. Volume Two focuses on the limits of government power, including the philosophical and legal foundations of rights and liberties, individual rights of property and person, democratic rights of citizenship, speech and participation, the constitutional guarantees of equal treatment, and constitutional criminal due process.

Pages