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et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis

 


volume 13, number 1| fall 2000

BOOK REVIEW

The Past and Future Constitution
James E. Bond

Constitutional Construction: Divided Powers and Constitutional Meaning
Keith E. Whittington
Cambridge: Harvard University Press, 1999, 352 pp.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
Keith E. Whittington
Lawrence, Kansas: University Press of Kansas, 1999, 320 pp.

On the first day of class, I tell my constitutional law students that John Marshalls thundering injunction in McCulloch v. Maryland- "it is a constitution we are expounding"[1] - captures the enduring challenge of constitutional law. What is this "constitution"? Who are "we"? And how do "we" expound "it"? In two recently published books - Constitutional Interpretation[2] and Constitutional Construction[3] - Professor Keith Whittington sets out a theoretical answer to those questions that is comprehensive and sophisticated. Even those who ultimately reject it may find themselves echoing Robert Nozicks evaluation of John Rawls theory of justice, the weaknesses of which Nozick exposed in Anarchy, State, and Utopia: "[this] systematic vision [shows] how beautiful a whole theory can be."[4] Make no mistake, Whittingtons two books are a major theoretical contribution to the perennial debate on the three fundamental, recurrent questions in American constitutional law.

In "Whittingtons world" the Constitution is neither totem nor empty vessel. Janus-like, it derives its substance from both past and future. Rooted in a continually unfolding past that is discoverable, the Constitution nevertheless remains open to an ever-evolving future that demands change; the Courts task is thus to understand how the Constitution requires the people and their government to mediate between competing the claims of past and future. Though this view of the Constitution and the Court is by no means original, Professor Whittingtons description of the reciprocal, interactive roles of the text and its interpreters is unusually concise and clear.

Moreover, he tethers this view to a startlingly original theoretical conception of the Constitutions role in the American political regime. What I shall call "Whittingtons Theorem" states that the Constitution embodies the continuing sovereign will of the people and thus makes self-rule a practical reality in a world in which we no longer live in small Greek city-states. When he declares that "in the American context, the right to revolution was rationalized and structured in the right to make constitutions," [5] he foreshadows his "potential sovereign" who may emerge in moments of crisis to amend the Constitution. But in the American experience this "potential sovereign" has seldom awakened from its two-century slumber because its cousin, the "partial sovereign," never sleeps. According to Whittington, the political branches of the government act as a partial sovereign when- on the basis of their assessment and invocation of constitutional texts, history, and values- they "construct" answers to questions that the Court cannot answer on the basis of its necessarily legal interpretation of the Constitution.

In Constitutional Construction, Professor Whittington criticizes prevailing "constitutional theory [for failing] to take into account this elaboration of constitutional meaning outside the courts." [6] While acknowledging that judges play a key role in interpreting the Constitution, he argues that politicians necessarily "construct a Constitution of their own to structure future policy choices." [7] These constructions, he insists, "link the text [of the Constitution] to operative government"[8] and "add a denser web of values, institutions, procedures, and rights to the general framework established by [that text]."[9]

The preceding thesis is explained and elaborated through a richly documented and thoughtfully nuanced exploration of four political battles, the outcomes of which profoundly altered the American political order: the impeachments of Justice Samuel Chase and President Andrew Johnson; the nullification crisis of the 1830s; and the Congressional effort to reign in the "imperial Presidency," personified by Richard Nixon and dramatized in the Watergate scandals. Professor Whittingtons discussion of these political battles illuminates the many ways in which political actors use arguments, rooted in their reading and understanding of the Constitution, to shape political outcomes.

These "constructions" of the Constitution effectively change the meaning of the constitutional text. Though the process of political construction differs radically from the process of judicial interpretation, the results are nevertheless strikingly similar. Such constructions, though often perceived at the time of their creation as extraordinary, are seldom revolutionary. Their meaning is often ambiguous, and their vitality depends upon the continuing acquiescence of multiple parties. Thus, constructions, like judicial decisions, have an indeterminate shelf-life.


To some extent, Professor Whittington is pouring old wine into new bottles. He himself concedes that the Constitution establishes and empowers the political system through which the people and their representatives were expected to make public policy. From the beginning, constitutional argument has been a staple of political debate. Indeed, courts routinely deferred to legislature judgments in part because judges assumed that legislators had carefully considered the constitutionality of their actions. Moreover, the courts developed a number of doctrines that recognized the primacy of the political sphere, including the political question doctrine. The realization that political decisions affect judicial interpretation is captured, albeit crudely, in the old adage that courts follow the election returns. In short, there is nothing surprising in the assertion that the judicial and political branches co-exist in an often problematic but sometimes creative tension.


I would remind those who might therefore be tempted to dismiss Constitutional Construction as a two-hundred-page statement of the obvious, that Holmes insisted we needed more education in the obvious. Professor Whittington provides that education. He also makes a salutary point: the contemporary fixation on the protection of individual rights as the exclusive or even primary goal of republican government distorts our understanding of the political order ordained by the Constitution. The almost obsessive focus of contemporary constitutional theorists on "rights talk" and their unceasing attempts to reformulate the classic "who gets what when" questions of politics into "cases or controversies" suitable for judicial resolution has obscured the reality of how the constitutional order continues to work, whatever song the Supremes are currently singing.


"Whittingtons Theorem" also illuminates who the "we" are who must interpret it. The "we" includes (1) the Court; (2) the framers and ratifiers, to whose views Whittington insists the Court must be attentive; (3) those political actors who have resolved previous crises by constructing more or less enduring solutions, which then shape subsequent judicial and political decision-making; and (4) the current President and members of Congress, who must sometimes "resolve indetermincies [when addressing] constitutional subject matter." [10]


On the vexing question of how the Court should interpret the Constitution, Whittingtons preference is as clear as it will be controversial. At the beginning of Constitutional Interpretation, he declares in favor of "Miss Originalism" because she "best fulfills the requirements of constitutional interpretation." [11] She may not be a perfect "10," but she better "facilitates the realization of a political system grounded on popular sovereignty" than any of the other contestants. [12] This characterization of her charms will confound contemporary critics of originalism, who bemoan her "dead hand" and diss her either as a crazy aunt, who makes no sense, or an old maid, who has been repeatedly rejected by every reputable academic suitor.


Whittingtons response is two-fold. First, he carefully dresses Miss Originalism in a new gown. This is neither Raoul Bergers tight-fitting, plain-meaning strict construction nor Robert Borks demure, deferential passivity. And her escort is not always Mr. Conservative. Rather, Whittingtons "Miss Originalism" is dressed in functional black and white stripes because a constitutional system of separated powers and checks and balances requires an umpire who will keep political actors- whether the states or the national government, the Congress or the President- from committing fouls. Since the Constitution permits these political actors to do far more than it prohibits them from doing, the Court must usually let the political game go on; but when one of these political actors trespasses on the rights of another or violates the rights of the people, the Court must reject restraint and deference. Indeed, the Court has no choice but to act:

As the primary interpreter of constitutional law, the judiciarys role requires that it do neither more nor less than fully enforce that law. To fail to do so would in fact undermine the justifications for judicial review and for originalism itself just as surely as inappropriate interpretation and interventionism would. Uniform passivism in the face of violations of the interpretable Constitution would also destabilize the meaning of the text and contradict the expressed intent of the sovereign people. [13]

Whittington also insists that Miss Originalism is the only natural contestant, for her claims are rooted in the general nature of the American founding and the particular nature of a written constitution:

originalism is the method most consistent with the judicial effort to interpret the written constitutional text andan originalist jurisprudence facilitates the realization of a political system grounded on popular sovereignty. [14

For Whittington "[t]he existing Constitution is a placeholder for our own future expression of popular sovereignty." [15] It precludes the government from usurping "the constitutive role of the sovereign" and instead ensures that the government will "retain a democratic openness and the capacity to change constitutional forms in accordance with the popular world." [16] In summary, originalist "interpretation of the Constitution serves important interests in liberty and democracy."[17]


Whittington, who is apparently a student of linguistics, hermeneutics, and social choice theory, rejects the argument that discerning the original understanding is an impossible task. Indeed, his systematic deconstruction of various critiques of originalism, each grounded in one of the preceding theories, is a tour de force. He nevertheless concedes that the task of discerning the original understanding is a challenging one, "given the uncertain and fragmentary evidence, complicated constitutional commitments, and difficult contemporary application of discoverable principles." [18] In short, judicial interpretation of the Constitution is an art. [19]


Whittingtons second response is systematically to expose the flaws of all the other contenders. Once he strips Misses Democracy, Equality, and Good Society of the sophist gowns in which their supporters have dressed them, each appears as nothing more than a cosmetically enhanced stalking horse for the supporters preferred political agenda. All are "aspirationalists": Ely wants to make democracy work; [20] Dworkin would enforce equality; [21] Ackerman seeks the good society. [22] While these are all defensible public policy objectives, there is no reason to think that the founding generation expected the Supreme Court to identify, refine, and implement the policies needed to achieve them.


That is the business of the political branches, and theirs is the responsibility to answer- as their generation demands- the enduring "who gets what when" questions of politics. The genius of the Constitution is, as I tell my constitutional law students on the last day of class, that it both embodies a heritage, which must be respected, and establishes a process, by which heresy can triumph and in its turn become a new heritage. In this sense the Constitution is an intergenerational covenant whose foundational narratives invite often divergent interpretations, particularly as time passes and culture changes. Thus does the Constitution become a living document. But it is the sovereign people- not the Court or the Congress- who breathe new life into it through their ever-evolving customs and traditions. Or, as Whittington puts it, with characteristic grace and power, "[our] choice is between two forms of living constitutionalism: one imposed by the judiciary on the political branches, and one created and sustained by electoral politics." [23] Whatever the differences in perspective and values between the founding generation and our own, we, like they, must continue to believe that the people, rather than some set of Platonic Guardians, determine our collective fate.


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[1] McCullock v. Maryland, 17 U.S. (4 Wheaton) 316, 401 (1819).

[2] Keith Whittington, Constitutional Interpretation (Lawrence, Kansas: University of Kansas Press, 1999).

[3] Keith Whittington, Constitutional Construction (Cambridge: Harvard Press, 1999).

[4] Robert Nozick, Anarchy, State, Utopia (New York: Basic Books, 1974) 183.

[5] Whittington, "Interpretation," 154.

[6] Whittington, "Construction," 207.

[7] Whittington, "Construction," 208.

[8] Whittington, "Construction," 211.

[9] Whittington, "Construction," 208.

[10] Whittington, "Construction," 9.

[11] Whittington, "Construction," 3.

[12] Whittington, "Construction," 3.

[13] Whittington, "Construction," 168.

[14] Whittington, "Construction," 3.

[15] Whittington, "Construction," 133.

[16] Whittington, "Construction," 134.

[17] Whittington, "Construction," 4.

[18] Whittington, "Construction," 4.

[19] James Bond, The Art of Judging (New Brunswick and London: Transaction Books 1987).

[20] John Hart Ely, Democracy and District (Cambridge: Harvard University Press, 1980).

[21] Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978).

[22] Bruce Ackerman, We the People, 2 vols. (Cambridge: Harvard University Press, 1991).

[23] Whittington, "Interpretation," 205.