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.
AbstractThe 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.
AbstractA.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.
AbstractThe 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 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 VersionAbstractAn 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.