Publications

2001
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.

dworkins_originalism.pdf
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.

Whittington, Keith E.On the Need for a Theory of Constitutional Ethics”. The Good Society: A PEGS Journal 93 (2000): , 9, 3, 60-66. Web. Read OnlineAbstract

For decades, constitutional theory has primarily focused on the judicial interpretation of rules. The Court alone would deliberate on constitutional values, and would then translate those values into judicially enforceable rules that elected officials were to follow. Within the boundaries of those constitutional rules, the unprincipled struggle of interests could reign. Such a model of the Constitution as a set of externally enforced rules is both normatively and empirically problematic. The judicial perspective on the Constitution is only a partial perspective, and it must be supplemented with an understanding of the constitutional practices of the other branches of government. In particular, the recent presidential impeachment raised a number of constitutional issues that cannot be adequately resolved within a model of the Constitution as external rules, including problems of constitutional fidelity, propriety, and discretion. Theories of judicial interpretation of the Constitution need to be supplemented with a theory of constitutional ethics.

Whittington, Keith E.Not-So-Grand Inquests: Review of Richard A. Posner's An Affair of State”. Reason 200067-69. Web. Read Online
Whittington, Keith E.Once More Unto the Breach: Post-Behavioralist Approaches to Judicial Politics”. Law and Social Inquiry 25.2 (2000): , 25, 2, 601-634. Web. Read OnlineAbstract

This essay introduces the two "new institutionalist" approaches to the study of law and the courts and examines some tensions between them and their combined value for enhancing our understanding of the legal matters. Behavioralism and its immediate legacies have dominated the study of the law and the courts in political science for the past four decades, and its lessons remain the starting point for any empirical examination of public law in the discipline. In different ways, the two new institutionalisms both react against this behavioralist legacy and points toward the importance of rules, norms and social practices in shaping individual behavior. The article pursues critical examination of the tensions between them and their respective limitations, as well as their potential contributions to the empirical study of the courts. The article also considers the implications of the new institutionalism for thinking about the law. Although an institutionalist perspective is useful for advancing our understanding of judicial decision-making, the real promise of this approach may be its ability to push political scientists beyond such questions. Just as behavioralism brought new subjects and questions to the field as well as new methods and assumptions, so the new institutionalism will come into its own if it succeeds in changing the research agenda and directing political scientists to look beyond the voting behavior of justices.

Whittington, Keith E.The Politics of the Supreme Court”. Policy Review 102 (2000): , 102, 63-70. Web. Read OnlineAbstract

In his political history of the Warren Court, Lucas Powe integrates doctrinal analysis with an awareness of political context. Examining the Court as a political institution emphasizes that the Warren Court was not uniquely political. The Supreme Court must always operate within a political environment. Its decisions have political consequences, and broader political and social currents shape the justices' thinking about constitutional issues. Reconsidering the politics of the Warren Court is particularly useful, however, because of the need to explain how a politically responsive Court may also be an activist Court and how the Warren Court's aggressive use of the power of judicial review served the interests and beliefs of national political majorities.

1999
Whittington,. “What's the Point of APD?”. Clio 92 (1999): , 9, 2, 5, 43-45. Print.Abstract

It is not clear that those who self-identify with APD still share a common conversation or even share an understanding of the meaning of the field. Rather than overcoming the divisions within the discipline, APD seems to have internalized them. Although part of the problem is undoubtedly caused by the persistence of the methodological dynamics that Almond observed, part of the problem may be the exhaustion of the original APD project itself. APD has often been sold to the rest of the discipline as "politics and history," but it may be time to emphasize that "history" is of secondary concern. APD seems uniquely concerned with how political events build on one another and not simply with how they change. More generally, APD can continue to make a useful contribution in demonstrating the ways in which the present is affected by the past, and how current decisions might affect the future. Similarly, APD, and interpretive methodologies, seems particularly sensitive to how political structures are layered on to one another. Notably, these lines of inquiry imply a deeply historical sensibility, but not necessarily a historical subject matter.

Whittington, Keith E.From Democratic Dualism to Political Realism: Transforming the Constitution”. Constitutional Political Economy 10.4 (1999): , 10, 4, 405-414. Web. Read OnlineAbstract

In the latest volume of Bruce Ackerman's We the People, he sets out to demonstrate that the Constitution has been legitimately amended by "unconventional" means, or by mechanisms other than the Article V amendment process. In making this argument, Ackerman offers a rich constitutional history of the Founding period, the Reconstruction era, and the New Deal. He successfully demonstrates that unconventional methods were used to alter accepted constitutional meaning and government practices during these periods. Unfortunately, Ackerman does not provide an adequate theory that can demonstrate the legal significance of these historical events for future constitutional practice. Moreover, his effort to legitimate the New Deal's constitutional revolution undermines his own normative theory of "dualist democracy" and seems to embrace a standard Legal Realist analysis that the Constitution simply is whatever powerful government officials declare it to mean.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
Whittington,. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, KS: University Press of Kansas, 1999. Web. Publisher's VersionAbstract

This book reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, the book examines what it means to interpret a written constitution and how the courts should go about that task. The book concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders. In pursuing this argument, the book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. The book demonstrates how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. The book also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint. Carefully examining both the possibilities and the limitations of constitutional interpretation and judicial review, the book shows not only what the judiciary ought to do but also what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government.

Constitutional Construction: Divided Powers and Constitutional Meaning
Whittington,. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, MA: Harvard University Press, 1999. Web. Publisher's VersionAbstract

The book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. This process by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution is one of construction. The argument is developed through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.

1998
Whittington,. “A Reputational Ranking of Public Law Programs”. Law and Courts 83 (1998): , 8, 3, 4-5. Print.Abstract

Ranking of graduate political science programs for doctoral study in public law based on a 1998 survey of a sample of members of the Law and Courts section of the American Political Science Association.

Whittington,. “Impeachable Offenses and Political Checks”. Law and Courts 84 (1998): , 8, 4, 13-15. Print.Abstract

Recent events suggest that in an important sense, whether the president is guilty of committing impeachable offenses is not the primary issue in an impeachment inquiry. The commission of an impeachable offense is only the necessary precondition for an impeachment, but it is certainly not a sufficient condition. Impeachments are prospective in their purpose even if they are retrospective in their need to establish guilt in some specifiable offense. Impeachments are the grand interpretive events of American politics. In them, Congress interprets the nature of our constitutional order and reconstructs that order in a more pristine form. In the present context, that requires more than showing what the president did and laying it beside a list of "impeachable offenses." It requires explaining what Clinton's actions have meant and what an impeachment would mean for our system of government. In this crucial political task, Congress failed.

Whittington, Keith E.Dismantling the Modern State? The Changing Structural Foundations of Federalism”. Hastings Constitutional Law Quarterly 25.4 (1998): , 25, 4, 483-527. Print.Abstract

Federalism, as a constitutional concept underlying the appropriate distribution of powers among levels of government, has responded in understandable ways to long-term trends in economics, political organization, and political values. Those factors have favored increasing centralization through most of the twentieth century, which is reflected in both judicial doctrine and governmental practice. However, changing conceptions of the political economy and the political regime have created a new structual dynamic that favors a less centralized version of federalism. The article examines the structural foundations of the movement toward centralization and the modern countertrends to that movement which have fostered a move toward decentralization. Such developments indicate that federalism not meaningless as a constitutional concept. Neither, however, is it static nor a function of legal doctrine. Federalism is instead a fluid concept operating within broad limits and is responsive to larger political and social changes.

dismantling_the_modern_state.pdf
Whittington, Keith E.Revisiting Tocqueville's America: Society, Politics and Association in the Nineteenth Century”. American Behavioral Scientist 42.1 (1998): , 42, 1, 21-32. Web. Read OnlineAbstract

The conception of social capital has revitalized the study of civil society. Alexis de Tocqueville's examination of 19th-century America is a major source of inspiration for much of this work. Tocqueville's analysis has been used to help support the idea that a strong civil society is crucial to democratic success. A reconsideration of Tocqueville's analysis, and, more important, of his American case, however, suggests that an active civil society is not an unalloyed good for democratic politics. A strong society can be not only a support but also a threat to democracy and liberal democratic ideals. One's evaluation of the health of democratic politics must depend on a study of the effects of political institutions and constitutional structures, as well as of civil society.

Whittington, Keith E.Serving the President: When Must the President Obey a Subpoena?”. Reason 199854-56. Web. Read OnlineAbstract

The Starr investigation of President Clinton raised a basic constitutional issue affecting the separation of powers, whether and when a president must obey a subpoena to testify in judicial proceedings. Presidents might reasonably claim a constitutional immunity from being compelled to present themselves before a judge. The congressional impeachment power is ultimately the best mechanism for evaluating the appropriateness of such a presidential claim and for enforcing compliance with a subpoena when presidential grounds for ignoring judicial orders are deemed inadequate. The president should be most concerned with adhering to an appropriate vision of constitutional ethics, not with providing minimal compliance with legal technicalities.

1997
Whittington,. “The Rhetorical Presidency, Presidential Authority, and President Clinton”. Perspectives on Political Science 26.4 (1997): , 26, 4, 199-207. Print.Abstract

The concept of the "rhetoric presidency" has become an important device for drawing a qualitative distinction between nineteenth-century and twentieth-century behavior. The twentieth-century version of the rhetorical presidency drew heavily from the contemporary example of the presidency of Ronald Reagan. Some have suggested that Bill Clinton has altered the form of the rhetorical presidency to avoid many of its difficulties. But Clinton's particular deviations from the Reagan model have done less to transform the rhetorical presidency as previously understood than to bring it to fruition. Analysis of the rhetorical presidency is too often divorced from the broader institutional and political context of the office, with particular implications for understanding the Clinton presidency. The paper reexamines the rhetorical presidency and its link to the rise of the "modern presidency," and finds that the early Clinton administration underscores many of the original concerns of the rhetorical presidency literature.

1996
Whittington, Keith E.The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change”. Publius: The Journal of Federalism 26.2 (1996): , 26, 2, 1-24. Print.Abstract

The requirements of the U.S. Constitution are often assumed to be either clear or defined by the judiciary through interpretation, or both. Examination of the nullification crisis of 1833 indicates that this view of the Constitution is misleading. The nullification crisis provoked three competing visions of the appropriate understanding of federalism in the context of textual ambiguity and judicial activity. The subsequent development of federalism was determined by that political conflict and compromise. The nullification controversy provides an important example of the openness of constitutional norms, the significance of political debate in the shaping of constitutional meaning, and the complexity of antebellum political thought.

political_federalism.pdf
1995
Whittington,. “Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution”. Studies in American Political Development 91 (1995): , 9, 1, 55-116. Print.Abstract

The 1804 congressional impeachment of Supreme Court Justice Samuel Chase is both a critical moment in the development of American political institutions and mores and an important case exposing how the Constitution actually operates as a governing institution. The impeachment has traditionally been portrayed in absolutist, personal, and essentially legalistic terms, emphasizing the victory of separation of powers with the acquittal of Chase. A more specifically political analysis of the constitutional issues at stake, however, reveals a more complex set of alternatives and a more subtle outcome. The Senate trial did not result in a clear vindication of Chase's position, but rather established a particular vision of the role of an unelected judiciary in a republican form of government. This vision emphasized the qualified independence of the judiciary from popular control, a relatively adversarial and open courtroom, and the removal of judges from normal, partisan political disputes.

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