Publications

In Preparation
Whittington, Keith E. Constitutional Crises, Real and Imagined. Princeton: Princeton University Press, In Preparation. Print.
Whittington, Keith E. The Idea of Democracy in America, from the American Revolution to the Gilded Age. Norman: University of Oklahoma Press, In Preparation. Print.
Forthcoming
Whittington, Keith E.A Formidable Weapon of Faction? The Law and Politics of Impeachment”. Wake Forest Law Review, 55:2 (Forthcoming). Web. Read a Draft Online
Whittington, Keith E.Presidential Impeachments Should Not be Normalized”. Debating the Presidency. 5th ed. Washington, D.C. CQ Press, Forthcoming. Print.
2019
Judical Review of Congress Database
Whittington, Keith E.Judical Review of Congress Database”. 2019: n. pag. Print. judicial_review_of_congress_dataset_description_of_variables.pdf identifying_cases_of_judicial_review.pdf judicial_review_of_congress_database_1789-2018.xlsx
Whittington, Keith E.Free Speech and the Diverse University”. Fordham Law Review 87.6 (2019): , 87, 6, 2453-2477. Web. Read Online
Whittington, Keith. “Academic Freedom and the Scope of Protections for Extramural Speech”. Academe 105.1 (2019). Web. Read Online
Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present
Whittington, Keith E. Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. Lawrence: University Press of Kansas, 2019. Print.
2018
Whittington, Keith E.Rogers M. Smith: Stories We Tell Ourselves”. PS: Political Science and Politics 51.4 (2018): , 51, 4, 895-899. Print. rogers_m_smith_stories_we_tell_ourselves.pdf
Whittington, Keith E.Partisanship, Norms, and Federal Judicial Appointments”. Georgetown Journal of Law and Public Policy 16.2 (2018): , 16, 2, 521-536. Web. Read Online
Whittington, Keith E.The Bounded Independence of American Courts”. New York University Law Review Online 93 (2018): , 93, 70-74. Web. Read Online
Whittington, Keith E.Free Speech and Ideological Diversity on American College Campuses”. The Value and Limits of Academic Speech: Philosophical, Political, and Legal Perspectives. New York: Routledge, 2018. Print.
Speak Freely: Why Universities Must Defend Free Speech
Whittington, Keith E. Speak Freely: Why Universities Must Defend Free Speech. Princeton: Princeton University Press, 2018. Print. speak_freely_table_of_contents.pdf
Whittington, Keith E., and Benjamin Johnson. “Why Does the Supreme Court Uphold So Many Laws?”. University of Illinois Law Review 2018.3 (2018): , 2018, 3, 1001-1048. Web. Read Online
Whittington, Keith E.The Supreme Court and Slavery”. The Political Thought of the Civil War. Lawrence: University Press of Kansas, 2018. Print.
2017
Frost, Daniel, and Keith E. Whittington. “A Man For All Seasons: Historical Memory and John Marshall”. Polity 49.4 (2017): , 49, 4, 575-602. Print. john_marshalls_reputation.pdf
Whittington, Keith E.Originalism, Constitutional Construction, and the Problem of Faithless Electors”. Arizona Law Review 59.4 (2017): , 59, 4, 903-945. Web. Read Online
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
Iuliano, Jason, and Keith E. Whittington. “The Nondelegation Doctrine: Alive and Well”. Notre Dame Law Review 93.2 (2017): , 93, 2, 619-646. 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. Web. Read Online
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
2016
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. Web. Publisher's Version index_of_materials_for_volume_ii.pdf
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. Web. Publisher's Version index_of_materials_for_volume_i.pdf
American Political Thought: Readings and Materials
Whittington, Keith E. American Political Thought: Readings and Materials. New York: Oxford University Press, 2016. Web. Publisher's Version table_of_contents_and_preface_apt_uncorrected.pdf index_of_materials_-_apt_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.

some_dilemmas_in_public-private_distinction.pdf
Against Very Entrenched Constitutions”. Wisconsin Law Review Online 2015 (2015): , 2015, 12-18. Web. Publisher's Version 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.

state_constitutional_law_in_the_new_deal_period.pdf
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
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.

least_activist_supreme_court.pdf
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.

Our_Own_Limited_Role.pdf
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.

Constitutional_Conventions.pdf
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.

Originalism_A_Critical_Introduction.pdf
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, 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.

Marbury_Molehill.pdf
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.

Bork_Nomination.pdf
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.

2011
Whittington, Keith E. “On Pluralism Within Originalism”. The Challenges of Originalism: Theories of Constitutional Interpretation. New York: Cambridge University Press, 2011. Web. Publisher's VersionAbstract

The existence of multiple modalities of constitutional argumentation in judicial and legal practice has fed skepticism about the viability of originalist theories of constitutional interpretation. Why should we convert a pluralistic social practice in which there are multiple available forms of constitutional argument into an exclusionary one, in which originalist arguments trump all others? This paper attempts to clarify the place of pluralism within originalism. Originalism need not imply the irrelevance or inappropriateness of other forms of constitutional argumentation, and the existence of a pluralistic discourse in constitutional interpretation does not by itself suggest that originalism is radically at odds with current practice. Originalists should, in principle, be open to the use of various forms of constitutional argumentation so long as such arguments are disciplined to the overarching goal of discovering and implementing the original meaning of the Constitution. What they must resist is the appeal to alternative modes of constitutional arguments as possible trumps to known constitutional meaning, but they can embrace a variety of forms of constitutional argumentation that can supplement and help illuminate original meaning.

Whittington, Keith E. “Is Originalism too Conservative?”. Harvard Journal of Law and Public Policy 34.1 (2011): , 34, 1, 29-41. Print.Abstract

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will. Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism.

Originalism_Conservative.pdf
Whittington, Keith E. “The Supreme Court in Politics (review essay on Lucas A. Powe, Jr.'s The Supreme Court and the American Elite, 1789-2008)”. Reviews in American History 39 (2011): , 39, 631-636. Print.Abstract

Lucas Powe's book, The Supreme Court and the American Elite, is a worthy successor to McCloskey as the best one-volume history of the Supreme Court. Powe deftly builds on the recent literature to convey a concise narrative of the development of American constitutional law that shows how the U.S. Supreme Court operates within the mainstream of American politics in alliance with the political coalitions that occupy the elected branches to implement a common vision of the American constitutional project.

Powe_RAH.pdf
2010
Whittington, Keith E. “The Conquering Bureaucracy: Review of Daniel Carpenter's Regulation and Power”. Reason 2010: , 62-65. Print.
Whittington, Keith E. “The State of the Union is a Presidential Pep Rally”. Inter Alia 2010. Web. Publisher's VersionAbstract

President Barack Obama has been criticized for questioning the Supreme Court's campaign finance decision in his State of the Union address, leading Chief Justice John Roberts to complain that the State of the Union had degenerated into a "political pep rally." This essay puts Obama's remarks into a broader context, and argues that the State of the Union has long been a political pep rally, that presidents often criticize the courts and judges, and that the particular venue in which they choose to do so is a matter of strategic calculation rather than decorum.

Pep_Rally.pdf
Whittington, Keith E. “Constructing a New American Constitution”. Constitutional Commentary 27.1 (2010): , 27, 1, 119-137. Print.Abstract

The distinction between constitutional interpretation and constitutional construction has been taken up in various places in constitutional and legal scholarship. In this article, I reintroduce the concept of constitutional construction and its potential uses, consider the extent to which courts might engage in constitutional construction, and examine whether the process of constitutional construction is avoidable or excludable with a sufficiently refined theory of constitutional interpretation.

Constructing_New_Constitution.pdf
2009
Whittington, Keith E. “Judicial Checks on the Presidency”. The Oxford Handbook of the American Presidency. Cambridge, UK: Oxford University Press, 2009. Print.Abstract

The judicial check on the American presidency is a supplemental tool for limiting executive power. Even so, the courts do provide a potential mechanism for constraining the executive branch. This chapter reviews both the doctrinal framework and the empirical literature regarding how courts monitor and check the executive branch.

Whittington, Keith E. “Constitutional Constraints in Politics”. The Supreme Court and the Idea of Constitutionalism. Philadelphia: University of Pennsylvania Press, 2009. Print.Abstract

Constitutional constraints cannot be effectuated outside of politics. They must be interpreted and put into action within the political system, by political actors operating in political institutions. This raises a variety of possible threats to the efficacy of constitutional constraints. This chapter considers four distinct threats and their possible solutions: 1) constitutional resistance, 2) constitutional forgetfulness, 3) constitutional neglect, and 4) constitutional contestation.

Whittington, Keith E. “Judicial Review of Congress before the Civil War”. Georgetown Law Journal 97.5 (2009): , 97, 5, 1257-1332. Print.Abstract

There is a standard story about the exercise of the power of judicial review by the U.S. Supreme Court before the Civil War. In this story, judicial review of Congress was exceptional and idiosyncratic, with Marbury and Dred Scott and little else. The standard story is wrong. This paper shows that the U.S. Supreme Court was more active in exercising the power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized. In doing so, Court made itself available as a forum for resolving constitutional disputes and enforcing constitutional limits in low salience cases in the course of ordinary litigation, establishing judicial review of Congress as a regular if politically minor feature of the constitutional system. Uncovering this history not only corrects the historical records, but it contributes to our understanding of the politics of judicial review and the ways in which the Court often acts in partnership with political leaders.

Judicial_Review_Civil_War.pdf

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