Publications

2008
Whittington, Keith E. “Situating Judicial Review”. Extensions (2008): , 5-9. Print.Abstract

The normative literature in constitutional theory has long worked from the basic starting point that there is an inherent tension between constitutionalism and democracy. But the recent constitutional scholarship has taken an empirical turn. One strand focuses on constitutional interpretation and practices outside the courts. A second strand links the behavior of courts to the broader political process. Together, these literatures have tended to indicate a closer relationship between the courts and the electoral branches and the greater role for the elected branches in shaping the working constitution than is generally assumed within the normative literature.

Whittington, Keith E. “Constitutionalism”. The Oxford Handbook of Law and Politics. Cambridge, UK: Oxford University Press, 2008. Print.Abstract

Constitutionalism is the constraining of government in order to better effectuate the fundamental principles of the political regime. The great constitutional scholarship of an earlier generation were primarily works of intellectual history, but after a period of some pessimism the field has been reborn in remarkable diversity. Constitutional studies flourish in normative, conceptual, and empirical modes. Although these three branches of constitutional scholarship are often isolated from one another, there is substantial room for fruitful exchange and convergence across the full range of constitutional studies. This review essay examines this full range of constitutional scholarship, the progress that has been made, and the work still to be done.

Whittington, Keith E. “Industrial Saboteurs, Reputed Thieves, Communists, and the Freedom of Association”. Social Philosophy and Policy 25.2 (2008): , 25, 2, 76-91. Print.Abstract

This article examines the shifting contexts and applications for the notion of a constitutionally protected "freedom of association" in the American courts. Judges had long sought to protect individuals to freely associate to engage in lawful activities, but they had also emphasized the limits on those protections when it came to individuals or groups who were engaged in unlawful activities. When the New Deal Court conceptualized the freedom of association as an extension of freedom of speech, it created some jurisprudential tensions that the justices had to resolve in order to provide coverage to the range of activities and organizations that they wanted to protect. The implicit limitations built into the initial concept became more explicit when the Court encountered the anti-Communist cases of the postwar period.

freedom_of_association.pdf
The Oxford Handbook of Law and Politics
Whittington, Keith E, Daniel R Kelemen, and Gregory A Caldeira. The Oxford Handbook of Law and Politics. Cambridge, UK: Oxford University Press, 2008. Web. Publisher's VersionAbstract

The study of law and politics is one of the foundation stones of the discipline of political science, and it has been one of the productive areas of cross-fertilization between the various subfields of political science and between political science and other cognate disciplines. This Handbook provides a comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law-and-society to such re-emerging subjects as comparative judicial politics, international law, and democratization. Featuring 50 scholars and 45 chapters, The Oxford Handbook of Law and Politics gathers together leading scholars in the field to critical appraisals of the key issues shaping the discipline today and to help set the direction of research in the decade ahead.

2007
Whittington, Keith E. “Presidents, Senates, and Failed Supreme Court Nominations”. 2006 Supreme Court Review (2007): , 401-438. Print.Abstract

With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.

failed_nominations.pdf
Whittington, Keith E. “Constitutional Theory as Political Science”. Constitutional Theory: Arguments and Perspectives, Third Edition. Newark, NJ: LexisNexis, 2007. Print.Abstract

Constitutional theory as an academic enterprise should extend well beyond the effort to justify and guide Supreme Court decisions. Constitutional theory is better understood as a branch of political science than as a branch of legal advocacy. It raises an array of normative, conceptual and empirical questions about how constitutional systems can and should operate and what functions constitutions might serve within politics.

Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History
Whittington, Keith E. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press, 2007. Web. Publisher's VersionAbstract

The judicial authority to give definitive meaning to the Constitution has often been asserted by the U.S. Supreme Court, but making those assertions real has been a political project that has unfolded over the course of American history. Judicial supremacy over other political actors in the authoritative interpretation of the Constitution was not established at the time of the Founding but had to be won within American political development. These claims of judicial authority have often been contested, and the Court has been successful in advancing those claims to the extent that judicial supremacy has been useful to other powerful political officials, most notably the president. The Supreme Court has shared constitutional leadership over time with the president. The relative authority of the Court is dynamic, not fixed. To understand the judicial power of constitutional interpretation, we must understand the Court's place within American politics. Judicial supremacy rests on political foundations.

2006
Whittington, Keith E. “"Preserving the Dignity and Influence of the Court": Political Supports for Judicial Review in the United States”. Rethinking Political Institutions. New York: NYU Press, 2006. Print.Abstract

A central philosophical objection to judicial review and constitutional interpretation by courts rests on concerns for democracy. The regular judicial nullification of policies adopted by elected officials at least suggests problems of democratic legitimacy. The philosophical objection has been raised against a background of over a hundred years of populist political argument in the United States holding that active use of the judicial power of constitutional interpretation should give way to the judgments of electoral and legislative majorities. Nonetheless, judicial review in the United States has thrived. This paper explores the political supports for judicial review by the Supreme Court in American history. Although active judicial review may appear problematic from a democratic perspective, political leaders have often lent their support to the courts and sought to bolster the authority of the judiciary to give meaning to the Constitution.

Whittington, Keith E. “Resolved, the Presidential Impeachment Process is Basically Sound”. Debating the Presidency. Washington, D.C. CQ Press, 2006. Print.Abstract

Dissatisfaction with the Clinton impeachment has raised new questions about the constitutional structure for presidential impeachments and whether that structure is still appropriate to a partisan, media-saturated political system. Although the impeachment power does not operate in the modern context in the fashion that the Founders imagined when they included it within the constitutional scheme, it is still an important and viable check on presidential power and tool for the construction of presidential values.

Whittington, Keith E. “Recovering "From the State of Imbecility"”. Texas Law Review 84.6 (2006): , 84, 6, 1567-1586. Print.Abstract

A number of recent revisionist histories of the American founding have usefully emphasized the ways in which the U.S. Constitution was designed to create a powerful and effective national government. Calvin Johnson's Righteous Anger at the Wicked States adds to that number and ably highlights the importance to the founding generation of creating a national government capable of assessing and collecting taxes in order to secure national interests. As a complete explanation for the Constitution, however, Johnson's focus obscures other positive attributes of the constitutional project of 1787.

State_of_Imbecility.pdf
Whittington, Keith E. “Give the People What They Want”. Chicago-Kent Law Review 81.3 (2006): , 81, 3, 911-922. Print.Abstract

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that Kramer emphasizes. It then shows that these are relatively rare features of American politics. Under more common political conditions, party leaders have ample incentives to encourage the growth of judicial supremacy precisely in order to advance the substantive constitutional commitments to which those political leaders adhere.

Give_The_People.pdf
Whittington, Keith E, Neal Devins, and Hutch Hicken. “The Constitution and Congressional Committees, 1971-2000”. The Least Examined Branch: The Role of Legislatures in the Constitutional State. New York: Cambridge University Press, 2006. Print.Abstract

Looking at congressional hearings between 1971 and 2000, we examine why, when, and how Congress makes use of committees to assess constitutional questions. While individual issues and presidential administrations come and go, Congress maintains a fairly consistent and constant level of activity in discussing constitutional issues. While the Judiciary Committees dominate congressional discussion of the Constitution, they do not monopolize it and myriad committees encounter constitutional issues as they go about their business. Some congressional discussions of constitutional matters are driven by the actions of the courts or the executive branch, but most hearing activity reflects the legislative and political interests of the political parties and the legislators themselves.

2005
Whittington, Keith E. “Hearing about the Constitution in Congressional Committee”. Congress and the Constitution. Durham, NC: Duke University Press, 2005. Print.Abstract

This chapter sheds light on a number of features of constitutional deliberation in Congress. Drawing on a sample of committee hearings from the 1990s in which constitutional issues were discussed, it asks when such hearings were held, by whom, in what issue areas, and the extent to which they were driven by the action of the other branches of government. The timing of such hearings indicates the importance of elections in driving constitutional discussion in Congress. Though the Judiciary Committees are clearly an important site for constitutional deliberation in Congress, they do not monopolize such discussions. Congress considers a wide range of constitutional topics, giving as much attention to structural matters as to issues of individual rights. The courts may not be as important in spurring Congress into such discussions as might be thought, while the actions of the executive branch may be more important than is generally recognized.

Whittington, Keith E. “Congress Before the Lochner Court”. Boston University Law Review 85.3 (2005): , 85, 3, 821-858. Print.Abstract

This article examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919. In doing so, it situates this notorious Court within its political context and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period. The article demonstrates that the invalidation of federal statutes rarely, if ever, pitted the Court against a clear majority of elected national officials. This article also exposes the more routine work that the Court does in exercising the power of judicial review, and suggests the value of that work.

Congress_Lochner_Court.pdf
Whittington, Keith E. “James Madison Has Left the Building”. University of Chicago Law Review 72.3 (2005): , 72, 3, 1137-1158. Print.Abstract

Empirical work on judicial and legislative politics sheds valuable light on the importance of judicial review and the ways in which constitutional limitations are most effectively maintained. Mitchell Pickerill's examination of constitutional deliberation in Congress in the latter half of the twentieth century helps us understand the limited policy impact of the Supreme Court's constitutional rulings, which in turn begins to explain the political sustainability of the power of judicial review. It also suggests the ways in which the judiciary and the legislature can complement one another in recognizing, debating, and implementing constitutional values and commitments, while cautioning us against overly optimistic conclusions about the possibilities of "legislative constitutionalism."

Madison_Left_Building.pdf
Whittington, Keith E. “The Burger Court: Once More in Transition”. The Supreme Court of the United States: The Pursuit of Justice. New York: Houghton Mifflin, 2005. Print.Abstract

This chapter overviews the Burger Court and situates it in the political and legal context of the collapse of the New Deal-Great Society political coalition and ideological framework and the emergence of the new conservatism. The Burger Court marked a transition between the liberal activism of the Warren Court and the conservatism of the Rehnquist Court. Through accident of the appointment process and political and ideological proclivities of the major players, the Burger Court moved in a clearly conservative direction in very few areas, most notably criminal justice. In other areas of the law, the Burger Court either extended the activist legacy of the Warren Court or fractured into multiple competing visions of the constitutional future.

Whittington, Keith E. “Constitutional Theory and the Faces of Power”. The Judiciary in American Democracy: Alexander Bickel, the Counter-Majoritarian Difficulty, and Contemporary Constitutional Theory. Albany, NY: State University of New York Press, 2005. Print.Abstract

Constitutional theory has been decisively shaped by the image of the conflict between the Supreme Court and the political branches during the New Deal. Constitutional scholars have focused their attention on the ways in which the Constitution acts as a higher law constraining political actors and the pros and cons of a countermajoritarian Court armed with judicial veto. Like political scientists who studied the "first face of power," constitutional scholars have been most interested in explicit decisions that block others from exercising their political will. Constitutions shape political outcomes by other means, however, and constitutional scholars need to examine these other faces of constitutionalism. Notably, constitutions also help structure how political preferences are expressed and help constitute political preferences.

Whittington, Keith E. “Judicial Review and Interpretation: Have the Courts Become Sovereign When Interpreting the Constitution?”. Institutions of Democracy: The Judicial Branch. New York: Oxford University Press, 2005. Print.Abstract

In a sermon preached before King George I in 1717, Bishop Benjamin Hoadly warned, "[W]hoever has an absolute Authority to interpret any written, or spoken Laws; it is He, who is truly the Law-giver, to all Intents and Purposes; and not the Person who first wrote, or spoke them." In the twentieth century United States, Hoadly's warning against ecclesiastical authority has been taken to describe the system of constitutional interpretation and judicial review under the U.S. Constitution. Although the problem of reconciling democracy and constitutionalism is a persistent and complex one, in practice the courts have not "become sovereign" and displaced republican government.

Whittington, Keith E. “Commercial Speech in the Era of Late Capitalism”. The Good Society: A PEGS Journal 14.2 (2005): , 14, 2, 40-43. Print.Abstract

Commercial speech is often taken to be distant from the central, political concerns of the First Amendment, and therefore worthy of less protection from government control. In the era of late capitalism, however, commercial speech serves an important political role in providing the raw materials for the construction of political and social identities. Identity-formation is a critical part of politics, and the potential significance of speech primarily designed to serve commercial purposes to that identity-forming process should not be overlooked.

Commercial_Speech.pdf
Whittington, Keith E. “"Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by the United States Supreme Court”. American Political Science Review 99.4 (2005): , 99, 4, 583-596. Print.Abstract

The creation and maintenance of independent courts willing and able to actively use a power of constitutional review is commonly regarded as against the interest of current government officials. If active judicial review is to be sustained, it is thought, those officials must be tricked, bribed, or coerced into accepting it. The active use of judicial review may also have political value to current officeholders, however. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with important episodes of judicial review by the U.S. Supreme Court and in relation to obstructions created by federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

Interpose_Friendly_Hand.pdf
Whittington, Keith E. “Let's Call the Whole Thing Off?”. Constitutional Commentary 22.2 (2005): , 22, 2, 101-118. Print.Abstract

Dennis Goldford's The American Constitution and the Debates over Originalism provides a helpful overview of the originalism debates of the 1980s and uses those debates to investigate general problems in constitutional theory and with a goal of transcending the dichotomy between originalism and nonoriginalism. Although illuminating, Goldford fails to offer a persuasive alternative to originalist and nonoriginalist theories of constitutional interpretation because he does not grapple with the primary problem that those theories are designed to solve, the problem of constitutional and interpretive authority.

Goldford_review.pdf
Whittington, Keith E. “"Clothed with the Legitimate Authority of the People"”. Virginia Law Review 91.8 (2005): , 91, 8, 2023-2046. Print.Abstract

Akhil Amar's America's Constitution: A Biography succeeds in its aim of providing the general reader with an introduction to the constitutional text and the political concerns that led to that text. Readers will gain a new appreciation of the intricacy of the constitutional design and its value as an instrument of democratic politics. Constitutional realists will be left wondering, however, whether a biography that focuses so closely on the birth of the document misses too much of the real constitutional drama, its growth and development through later contestation, interpretation and practice.

Clothed_With_Legitimate_Authority.pdf
Congress and the Constitution
Whittington, Keith E, and Neal Devins. Congress and the Constitution. Durham, NC: Duke University Press, 2005. Web. Publisher's VersionAbstract

For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congress's capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice.

2004
Whittington, Keith E. “The Court as the Final Arbiter of the Constitution: Cooper v. Aaron (1958)”. Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court. Charlottesville, VA: University of Virginia Press, 2004. Print.Abstract

Cooper v. Aaron shows the interaction of judges (including lower court judges), lawyers, and political officials in creating constitutional change. The Supreme Court's own strong pronouncement on judicial supremacy in its Cooper decision came only after the Little Rock desegregation crisis had largely been resolved by other officials and after the president had made plain his own support for judicial supremacy in constitutional interpretation.

Whittington,. “Crossing Over: Citation of Public Law Faculty in Law Reviews”. Law and Courts 14.2 (2004): , 14, 2, 5-10. Print.Abstract

Public law faculty in political science are often uncertain as to their visibility and impact in legal academia. This article reports a ranking and analysis of public law faculty based on citations in law reviews. Relative to the most-cited law school faculty, political scientists have a relatively low profile in the law reviews. Public law faculty with a wide range of substantive and methodological interests penetrate the law review literature, but books are the most common vehicle by which political scientists win cites in law reviews.

Crossing_Over.pdf
Whittington,, and Webb. “Judicial Independence, the Power of the Purse, and Inherent Judicial Powers”. Judicature 88.1 (2004): , 88, 1, 12-19, 45. Print.Abstract

State courts have claimed an inherent judicial power to order state and local legislative bodies to pay for specified judicial expenses. The centralization of state court administration and budgeting has created a context in which the inherent judicial power could pit the highest state courts against the state legislatures in constitutional battles over the general judicial budget. In the early 1990s, the New York state court was notably unsuccessful in attempting to exercise these powers to lay claim to a larger share of the state budget. A decade later, however, the Kansas court was politically more successful by exercising such power to raise revenues on its own. The episode raises basic questions about judicial independence and the separation of powers, while also exposing a political dynamic by which new political powers can be created.

inherent_judicature.pdf
Whittington, Keith E. “The Casey Five versus the Federalism Five: Supreme Legislator or Prudent Umpire?”. That Eminent Tribunal: Judicial Supremacy and the Constitution. Princeton, NJ: Princeton University Press, 2004. Print.Abstract

The Rehnquist Court is often attacked as being especially antidemocratic and activist. Although Bush v. Gore added emotion to the charge, the primary evidence for this claim is usually drawn from the Court's federalism decisions, reflecting the Rehnquist Court's unusual willingness to invalidate federal legislation. This chapter argues that the charge of judicial supremacy is misplaced when aimed at the "Federalism Five," however. Such criticism would be more appropriately targeted at the different set of justices who formed the majority in cases such as Casey. The structure of the federalism decisions is such that political power is simply shifted by them from one legislature (Congress) to another (that of the states). By contrast, the structure of individual rights decisions such as Casey is such that political power is removed from the electoral arena entirely and lodged in the judiciary.

Whittington,. “The New Originalism”. Georgetown Journal of Law and Public Policy 22 (2004): , 2, 2, 599-613. Print.Abstract

New originalist theories of judicial review and constitutional interpretation that have emerged since the 1980s can be distinguished from an older set of theories that were predominant in the 1970s and 1980s. This article distinguishes these older and newer versions of originalism and places them within their intellectual and political contexts. Whereas the old originalism developed largely to serve as the basis for criticizing the constitutional doctrine developed by the Warren and early Burger Courts, the new originalism has developed with the Rehnquist Court in mind and is less concerned with criticizing judicial review than with guiding it.

new_originalism.pdf
2003
Whittington,. “The Separation of Powers at the Founding”. The Separation of Powers: Documents and Commentary. Washington, D.C. CQ Press, 2003. Print.Abstract

This paper examines the development of theories of separation of powers from seventeenth century Europe through the early nineteenth century United States. The idea of the separation of powers took on clear normative importance fairly quickly in theories of government, but the concept itself was always less clear and underwent substantial development over the course of this period as the result of theoretical refinement and practical experience. The early constitutional experience in the United States itself included substantial experimentation with constitutional structures. That experimentation and conceptual development was still in progress when the U.S. Constitution itself was drafted, and the constitutional framers left a great deal to be worked out by those who were to live under the Constitution.

Whittington,. “William H. Rehnqist: Nixon's Strict Constructionist, Reagan's Chief Justice”. Rehnquist Justice: Under the Court Dynamic. Lawrence, KS: University Press of Kansas, 2003. Print.Abstract

This chapter examines William Rehnquist and his constitutional arguments and jurisprudence in the context of the conservative critique of the Warren Court. Rehnquist's appointment to the Court by President Richard Nixon was, almost by accident, the one full realization of Nixon's goal of placing a "strict constructionist" on the bench, one who possessed both the intellectual capacity and jurisprudential ambition to rollback the work of the Warren Court. Similarly, Rehnquist's elevation to Chief Justice appropriately symbolized the Reagan administration's conservative constitutional ambitions, which Rehnquist had anticipated and shaped. Rehnquist's jurisprudence evidences a distrust of judicially enforced individual rights that do not have strong foundations in the constitutional text and its historical origins, while giving broader scope to the Court to act as an arbiter between the other branches of the national government and between the state and federal governments.

Whittington,. “Legislative Sanctions and the Strategic Environment of Judicial Review”. I-CON: The International Journal of Constitutional Law 13 (2003): , 1, 3, 446-474. Print.Abstract

This paper elaborates a model of the political decision to sanction courts for their exercise of the power of judicial review. The paper examines the logic for why elected officials might preserve, and when they might subvert, an independent judiciary armed with the power of constitutional review. The paper identifies several reasons why legislators might value independent judicial review, and identifies the circumstances in which the political costs of such review would outweigh its political benefits. The argument is illustrated in the historical experience of court-curbing activities in the U.S. Congress.

strategic_context.pdf
Whittington,, and Carpenter. “Executive Power in American Institutional Development”. Perspectives on Politics 13 (2003): , 1, 3, 495-513. Print.Abstract

Many scholars of American politics implicitly or explicitly assume a model of congressional dominance. This standard narrative has been made explicit in principal-agent models of interbranch relations, in which the executive serves as a mere agent of the legislative principal. There are important limitations to the applicability of principal-agent models in the political context, and the assumption of congressional dominance obscures many important features of American politics. Over the course of American history, institutional development has often been driven by either autonomous executive action or conflicts between Congress and the executive. The argument is illustrated by reference to three cases: the growth of the federal extension service, the rise of national security intelligence operations, and the growth of the presidential impoundment power.

POP_Executive.pdf
Whittington,. “Marbury v. Madison and the Politics of Judicial Supremacy”. Marbury v. Madison: 1803-2003 Deux Siecles de Censure Judicaire. Paris: Dalloz, 2003. Print.Abstract

Marbury v. Madison did not establish American judicial review as we imagine it today. A power of judicial review was already anticipated before the Marbury decision, and in the early nineteenth century Marbury added little to the Court's authority to interpret and apply the Constitution. Modern judicial review, in which the Court is the primary defender of constitutional requirements and an active force in the political arena, is a creation of the late nineteenth and early twentieth century, however, and was won through political battles in which conservative politicians joined forces with the federal courts to protect and extend judicial supervision of legislation. The power of judicial review was only secured when political progressives abandoned the effort to dismantle or weaken the power of judicial review and instead sought to turn it to their own ends.

2002
Whittngton, Keith E.Extrajudicial Constitutional Interpretation: Three Objections and Responses”. North Carolina Law Review 80.3 (2002): , 80, 3, 773-851. Web. Read OnlineAbstract

Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This paper critically examines three of the most prominent objections to extrajudicial constitutional interpretations, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. The paper offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretations should be regarded as more authoritative and deserving of greater deference by the courts.

Whittington, Keith E.Yet Another Constitutional Crisis?”. William and Mary Law Review 43.5 (2002): , 43, 5, 2093-2149. Web. Read OnlineAbstract

The recent presidential impeachment and post-election controversy led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This paper will use those events as a foil for examining the nature of constitutional crises. The paper will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of informal constitutional practices, reasonably good constitutional design, and relatively limited political disagreement.

Whittington,. “The Electoral College: A Modest Contribution”. The Longest Night: Polemics and Perspectives on Election 2000. Berkeley, CA: University of California Press, 2002. Print.Abstract

The Electoral College makes a modest contribution to the Constitution's structural scheme of creating an effective government that is constrained to act in a restrained manner. The Electoral College was designed to address a number of concerns that were of greater interest to the Founders attempting to constitute a new nation than they are to the present. Nonetheless, the Electoral College has proven remarkably adaptable in accommodating social and political change, while creating generally clear electoral results and orderly political transitions. It also represents a central constitutional principle that American government should be grounded in the support of broad, rather than narrow, popular majorities.

Whittington,. “The Death of the Legalized Constitution and the Specter of Judicial Review”. The Courts and the Culture Wars. Lexington, MA: Lexington Books, 2002. Print.Abstract

There are multiple constitutional strategies for constraining politics and limiting government. Judicial review is most directly implicated in only one of those strategies, the "legalization" of the Constitution. The legalized Constitution consists of a set of specific, known rules that have the status of supreme law. This legalistic Constitution provides particular authority to the judiciary to interpret and apply constitutional law and review the actions of the other branches of government for their consistency with the Constitution. In the twentieth century, however, the preconditions of the legalized Constitution have collapsed, leaving the Court without strong authority for exercising the power of judicial review. Judicial authority can no longer be assumed, and its theoretical foundation is increasingly difficult to demonstrate.

Whittington,. “"To Support This Constitution": Judicial Supremacy in the Twentieth Century”. Marbury v. Madison: Documents and Commentary. Washington, D.C. CQ Press, 2002. Print.Abstract

This paper examines the expanded role of the U.S. Supreme Court in interpreting the Constitution and striking down laws as unconstitutional in the twentieth century. It situates this transformation of the Court in the broader political environment within which the Court operates and argues that the Court's expanded role has been staunchly defended and encouraged by powerful political actors and that the Court has been careful to operate within the bounds of expected political support. In particular, the conservative wing of the Republican Party was instrumental in defending the Court and judicial review as essential institutions within American constitutionalism against progressive challenges in the early twentieth century, forcing progressives to abandon their initial hostility to judicial review as contrary to popular government in favor of a new emphasis on the ultimate consistency between democracy and an appropriately active Court. As Robert Dahl expected, the Supreme Court has not been actively countermajoritarian, but contrary to his expectations this has still been consistent with a constitutionally active Court.

Whittington, Keith E."An Indispensable Feature"? Constitutionalism and Judicial Review”. New York University Journal of Legislation and Public Policy 61 (2002): , 6, 1, 21-33. Web. Read OnlineAbstract

Jeremy Waldron has mounted a liberal defense of legislative supremacy and the rejection of a power of judicial review. Although many aspects of his argument are persuasive, his final conclusion that judicial review must be abandoned leaps beyond the arguments he has made about the requirements of liberal democracy. A form of judicial review is still sustainable within political world of the type Waldron describes. There are particular institutional features of democratic legislatures and liberal constitutions that would suggest the utility and appropriateness of an practice like judicial review even given Waldron's normative commitments.

Whittington, Keith E.It's Alive! The Persistence of the Constitution”. The Good Society: A PEGS Journal 11.2 (2002): , 11, 2, 8-12. Print.Abstract

I do not believe that it is fruitful in either descriptive or normative terms to regard the written Constitution as a form of "temporal imperialism" that allows its authors to "dictate, even when their bodies are silent in death." In this essay, I attempt to ameliorate the problem of the "living dead" Constitution by indicating how the Constitution has been regularly updated and supplemented over time, so that the governing constitutional practices and principles largely reflect contemporary mores. I nonetheless sketch a brief defense of the authority of the original text and intent of the Founders for judicial constitutional interpretation, but argue that the best justification for the authority of original intent lies in a theory of contemporary popular sovereignty not in any intrinsic authority of the dead.

its_alive.pdf
2001
Whittington,. “Presidential Challenges to Judicial Supremacy and the Politics of Constittuional Meaning”. Polity 33.3 (2001): , 33, 3, 365-395. Print.Abstract

Conflicts between the Supreme Court and the president are usually regarded as grave challenges to the Constitution and a threat to judicial independence. Such claims misrepresent the nature of these presidential challenges, however. In doing so, they paint an unflattering and inaccurate portrait of American politics and underestimate the strength of American constitutionalism. This paper reexamines historical presidential challenges to the judicial authority to interpret constitutional meaning. It argues that rather than being unprincipled attacks on judicial independence, such challenges are best regarded as historically specific efforts to reconsider the meaning and future of American constitutional traditions in times of political crisis and constitutional uncertainty.

Whittington,. “The Road not Taken: Dred Scott, Constitutional Law, and Political Questions”. Journal of Politics 63.2 (2001): , 63, 2, 365-391. Print.Abstract

The Supreme Court's decision in Dred Scott is widely regarded as among the worst decisions it has ever made. In addition to embracing reviled substantive values, the decision deeply wounded the Court's status and authority. By embracing a theory of judicial supremacy that held that the Court alone could resolve all important constitutional disputes, however, the Court had been gradually moving toward such a debacle, while encouraging political actors to forego their own constitutional responsibilities. The dissenting opinion of Justice Benjamin Curtis suggested a more appropriate course for the Court, one that carved out a clear place for the exercise of judicial review but that recognized an important sphere of constitutional politics outside the judiciary.

Whittington,. “The Political Foundations of Judicial Supremacy”. Constitutional Politics: Essays on Constitution Making, Maintenance, and Change. Princeton, NJ: Princeton University Press, 2001. Print.Abstract

Many have looked at the Court's formal powers and historical track record and concluded that the judiciary lacks the means to act independently. Such pessimistic conclusions need to be challenged on two fronts. First, we need to question the normative starting point, that judicial supremacy is really essential to the maintenance of constitutionalism. If other institutions and political actors in addition to judges take the Constitution seriously, then the constitutional order itself might not be threatened by periodic challenges to the judicial authority to interpret the Constitution. Second, we need to reconsider the political roots of judicial independence. In this chapter I consider some of the political incentives facing American presidents and how they often lead presidents to value judicial independence and seek to bolster, or at least refrain from undermining, judicial authority over constitutional meaning. The president has the formal tools to defeat the Court. The interesting question is whether he has the will or political support needed to successfully challenge the Court for constitutional leadership. Generally, he does not, creating a politically sustainable place for autonomous judicial action.

Whittington, Keith E.The Confirmation Process We Deserve”. Policy Review 107 (2001): , 107, 76-. Web. Read OnlineAbstract

In his study of the federal appointments process, Michael Gerhardt appeals to new institutionalist theories in political science as a necessary supplement to traditional constitutional analysis. The confirmation process is shaped not only by the procedures laid out in the Constitution for nominating and confirming judicial and executive officials, but also by historically developed norms and practices and current political interests. The confirmation process reflects the multiple and contradictory interests of a variety of actors, including the president, the Senate, interest groups and the media. The president has an intrinsic edge in the modern appointments process, but the fragmentation and ideological polarization of the Senate makes presidential success more difficult.

Whittington, Keith E.Taking What They Give Us: Explaining the Court's Federalism Offensive”. Duke Law Journal 51 (2001): , 51, 477-521. Web. Read OnlineAbstract

Over the past decade, the Supreme Court has been unusually active in striking down acts of Congress in the name of federalism. The Court's activism in this area is particularly striking since the judicial enforcement of federalism had largely been abandoned since the New Deal. The article offers a political explanation for the Court's federalism offensive. The federalism offensive can best be understood as a product of the Court taking advantage of a relatively favorable political environment to advance a constitutional agenda of particular concern to some individuals within the Court's conservative majority. The article elaborates each of these elements that have been supportive of the Court's actions, indicating the value of the new institutionalism to explaining judicial behavior and explaining why the Court's recent actions are distinct from the Court's actions leading up to the Court-packing plan and the judicial retreat of 1937.

2000
Whittington, Keith E.Bill Clinton was no Andrew Johnson: Comparing Two Impeachments”. University of Pennsylvania Journal of Constitutional Law 22 (2000): , 2, 2, 422-465. Web. Read OnlineAbstract

The impeachment of President Bill Clinton has called attention to the only other presidential impeachment in American history, that of Andrew Johnson in 1868. Parallels between the two cases have been drawn to suggest that both were unjustified attacks on the presidency by a partisan Congress. Such comparisons have also suggested that the Clinton impeachment will result in a weakened presidency, just as the Johnson impeachment ushered in an era of congressional government in the nineteenth century. This paper argues that such comparisons are misguided. Although both impeachments were organized along partisan lines, the Johnson impeachment, unlike the Clinton impeachment, was constitutionally substantive, constructive rather than mechanical in its constitutional application, and focused squarely on the presidency as an institution. Both the substantive content and the political context of the Johnson impeachment contributed to a weakening of the presidency. The Clinton impeachment, by contrast, is unlikely to have any significant, long-term institutional implications. A comparison of the two impeachments also counsels against formalistic efforts to further define "high crimes and misdemeanors."

Whittington, Keith E. “Dworkin's Originalism: The Role of Intentions in Constitutional Interpretation”. Review of Politics 62.2 (2000): , 62, 2, 5-37. Print.Abstract

Ronald Dworkin's effort to distinguish multiple layers of "intention" that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Dworkin has strongly argued that the constitutional text embodies abstract principles. These principles are understood to be both fundamental to the founders intentions and the primary focus of correct constitutional interpretation faithful to those intentions. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. Although there may be normative reasons for preferring that the judiciary always enforce broad constitutional principles, such a jurisprudence cannot be understood as either consistent with or required by an originalist interpretative method whose primary commitment is to fidelity to founding intent.

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Whittington, Keith E.Herbert Wechsler's Complaint and the Revival of Grand Constitutional Theory”. University of Richmond Law Review 34.2 (2000): , 34, 2, 509-543. Web. Read OnlineAbstract

Constitutional theory since the mid-1950s has been centrally concerned with justifying and guiding the practice of judicial review as it has been exercised since Brown v. Board of Education. Herbert Wechsler helped lay out this theoretical agenda with his complaint that the Court's opinion in Brown was not sufficiently concerned with adhering to traditional legal and judicial principles, and constitutional theory has been driven by the concern to provide legal justifications for such judicial actions. An alternative tradition in constitutional theory is represented by works such as Mark Tushnet's Taking the Constitution Away from the Courts. This alternative constitutional theory is less concerned with how the Court should interpret the Constitution than with how various political actors construct and implement the Constitution. Rather than assuming the perspective of a single political actor, the Court, this theoretical tradition probes more deeply into the normative and empirical puzzles associated with constitutional government.

Whittington, Keith E."High Crimes" After Clinton: Deciding What's Impeachable”. Policy Review 99 (2000): , 99, 27-40. Web. Read OnlineAbstract

It is more useful to consider the reasons for which an official can be impeached than to attempt to catalog a list of specific impeachable offenses. A reconsideration of the principles governing impeachments and the historical record of federal impeachments indicates that the impeachment of President Bill Clinton was consistent with the constitutional standard of "high crimes." Impeachments are justified in order to remove an immediate danger to the republic, or in order to educate citizens and officials of the appropriate standards of public conduct and to deter future bad conduct by government officials. Such bad conduct includes direct abuses of public office and basic inconsistencies between the actions of the officeholder and the expectations of the office.

Whittington, Keith E.In Defense of Legislatures”. Political Theory 28.5 (2000): , 28, 5, 690-702. Web. Read OnlineAbstract

In his recent works, Jeremy Waldron is concerned with developing a vision of liberal democracy separated from the legal constitutionalism of the American model. Waldron's liberalism is characterized by a legislative rather than judicial supremacy. Although Waldron valuably centers our attention on the inescapable nature of reasonable disagreement over fundamental political questions, including the content of rights and the structure of democracy, he pays insufficient attention to basic aspects of institutionalized politics. In particular, Waldron does not consider the ways in which institutional form might matter to political outcomes. As a consequence, he underestimates the ways in which legislative outcomes might diverge from the popular will and the ways in which courts and legislatures may be distinctive institutions for reaching different constitutional goals.

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