Keith Whittington makes the case for constitutional law
Mar 6, 2000, Vol. 5, No. 24 • By JEREMY RABKIN
Whether the Constitution is most properly interpreted by its "original intent" was a subject of intense controversy twenty years ago, when such conservative scholars as Robert Bork accused the Warren and Burger Courts of spinning new constitutional doctrines out of mere political fashion.
By now, however, the active participants in that debate have all moved on. It takes a young, energetic scholar to start over with a subject that has been exhausted for most others -- a scholar, in fact, like Keith Whittington, an assistant professor of politics at Princeton University, who has recently produced a pair of books: Constitutional Interpretation, which proposes a new argument for interpreting the Constitution according to its "original intent," and Constitutional Construction, which defends the ability of the Congress and president to define, independent of the courts, constitutional practice in at least some areas.
Both these volumes display the labored earnestness that marks authors too recently released from graduate school. Still, they offer renewed vigor to a tired field and should provoke some fresh thinking by constitutional scholars. Whittington seems to have forced himself to read everything written on this subject over the past twenty years. He pursues the argument from the slap-dash polemics of law reviews to the murky depths of French deconstructionist theories. His seventy-odd pages of endnotes in Constitutional Interpretation record his qualified approvals, nuanced points of difference, and firm rejoinders to every theorist, commentator, and scholar he has consulted.
In the body of his text as well, he maintains a relentlessly academic tone. He takes all the competing arguments at face value, almost never stopping to speculate about the partisan motives that prompted them. So he carefully dissects the claims of left-leaning critics from more than a decade ago, without noticing that a great many of them have turned to invoking originalist arguments: Today, it is the liberals who protest against activism when a conservative Supreme Court justice asserts a new doctrine of states' rights or limitation on racial preferences.
Whittington seems indifferent to the significance of such reversals. He doesn't discuss recent cases -- indeed, he discusses hardly any cases at all. The half dozen listed in the index are almost all famous milestones, mentioned as such in the text without much effort to explain how such cases would have turned out under an originalist reading of the Constitution. Constitutional Interpretation is instead preoccupied with a theory. If this makes Whittington unusual, it also provides a certain force to his argument. It allows him, for example, to devote considerable space to such figures as Thomas Hobbes and Jean Bodin (the French jurist who coined the term "sovereignty" nearly a century before Hobbes). No one much cares today about the partisan leanings Hobbes may have betrayed during the English Civil War or Bodin's sympathies in the battles between French Huguenots and Catholics.
The great contribution of Constitutional Interpretation is that it seeks a political theory to undergird the jurisprudence of original intent. The question that cuts most deeply against originalism is this: Even where we can determine what the Constitution meant in the eighteenth century, why should we feel bound by the views of a vastly different country in a time so distant?
The old answer (as we find it, for example, in Federalist 78) was that courts should enforce constitutional limits on legislatures because the Constitution is the ultimate expression of popular will. But why should the will of the people be "sovereign"? As Whittington reminds us, the original theorists of sovereignty assumed that a sovereign must have an active, continuous claim on power, which hardly describes "the people" in our system. If the citizenry is sovereign, shouldn't that mean that the people by referendum or opinion poll can override legislative judgments and judicial rulings -- and perhaps even the Constitution? But if the people are bound by judges, in what sense are they sovereign?