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Constitutional Interpretation: Textual Meaning, riginal Intent, and Judicial Review.(Review) / (book review)
Author/s: Judith A. Baer
Issue: March, 2001

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. By Keith E. Whittington. Lawrence: University Press of Kansas, 1999. 320p. $39.95.

With friends like Edwin Meese and Robert Bork, "jurisprudence of original intent" (p. 3) needs no enemies. These polemicists have so corrupted originalism by associating it with reactionary ideology and partisan politics that, in Keith Whittington's words, "the task now is to convince critics to take [it] seriously again" (p. xii). Constitutional Interpretation ably performs this task. Whittington's rescue of originalist jurisprudence from its strangest bedfellows in itself is a major contribution to the study of constitutional law. But, although originalism has found a genuine friend, the book's powerful argument against "dismissing originalism as an interpretive method" (p. 162) does not constitute an affirmative defense. Whittington's efforts to make this case are informative and provocative, but they fail. This failure is traceable to serious defects in both the structure and content of the book.

Whittington has made organizational choices that militate against clarity. He jumps from analysis and critique of arguments against originalism (chaps. 3 and 4), to his argument for originalism (chap. 5), and finally to a defense of originalism against still more critiques (chap. 6). This approach has the virtue of inviting the reader to join the author in a process of scholarly inquiry, and Whittington makes important points along the way. If his response to postmodern, hermeneutic, and literary "theories of language and interpretation" (pp. 12-3) does not quite rescue originalism from these new and powerful enemies, it fills a gap in constitutional jurisprudence. But the organization of the book has the defect of obscuring both theme and thesis. The author would have done better to make the positive case first and follow it with critique and rebuttal. Yet, this sequence would have made the argument clearer, not necessarily better.

Whittington reminds us that "originalists have not committed themselves to a conservative policy program and could, in principle, reach results that are actually antagonistic to that program" (pp. 167-8). Anyone familiar with Hugo Black's dissent in Adamson v. California or Michael Curtis's No State Shall Abridge (1986) will take the point. Whittington's effort to rescue originalism from its other familiar bedfellow--judicial self-restraint--is less successful. "Uniform passivism in the face of violations of the interpretable Constitution," he insists, "destabilize the meaning of the text and contradict the expressed intent of the sovereign people" (p. 168). Whittington avoids the common error of conflating democracy with majoritarianism: "The Court is not simply an antidemocratic feature of American politics but is an instrument of the people for preserving the highest promise of democracy" (p. 111). Yet, after making clear that his position is not dependent on a preference for restraint, he ends the book with this ringing statement: "The discipline of originalism promises to protect the Court from itself, and, in so doing, to protect us from the Court" (p. 219).

Why do we need this protection? Why not continue to muddle through as we always have, with our motley collection of interpretive strategies? An effective argument that choice among methods is necessary must specify decisions in which the judiciary exceeded its power and mount a persuasive argument that these rulings, taken together, represent a threat to the people. Every student of constitutional law has a personal list of specific examples of judicial usurpation. The usual suspects include Lochner v. New York, Roe v. Wade, INS v. Chadha, City of Boerne v. Flores, and, of course, the New Deal cases. But several of these decisions have been reversed or neutralized--indirectly, at least, through the democratic process they allegedly usurp--and not all these cases appear on everyone's list. Judgment on any actual case depends as much on personal politics as on constitutional theory. The challenge for the constitutionalist is to separate theory from politics by linking diverse cases into a coherent constitutional jurisprudence. Alexander Bickel's The Least Dangerous Branch (1962) is a model for such scholarship, whatever one thinks of its thesis. But the index to Constitutional Interpretation lists exactly eight cases.

Without establishing the existence of a problem for originalist jurisprudence to solve, Whittington has difficulty making a case for the method. Nevertheless, he makes a significant original contribution to the study of constitutional law. Whittington "seeks to ground the authority of originalist jurisprudence, and the Constitution itself, in a theory of popular sovereignty" (p. 111). As does Bruce Ackerman (We the People, 1991), Whittington asserts that "the people emerge at particular historical moments to deliberate on constitutional issues and to provide binding expressions of their will, which are to serve as fundamental law in the future when the sovereign is absent" (p. 135). "Democratic dualism" (pp. 135-42) distinguishes between the sovereign will, expressed in the constitutional text, and the will of government agents, who are bound by that text. Judges must adhere to original meaning because the Constitution contains binding expressions of the popular will.

Alexander Hamilton and John Marshall were right after all. Whittington argues that the founding moment was more democratic than the authors of Federalist 78 and Marbury v. Madison may have desired or realized: "Popular campaigning, pamphlet and newspaper commentary, and barroom discussions demonstrated the expansiveness of the deliberative process and the inclusiveness of the popular sovereign" (p. 152). Barrooms, yes, but what about sewing circles and quilting bees? The founding moment was inclusive and expansive only if one presumes that democracy is whatever exists in the United States at any given time. To confine judges to original intent in the name of popular sovereignty might frustrate rather than enhance democracy. And spurious inclusiveness is not the only problem with the "constitutional moment" thesis, which works only when the exercise of popular will results in constitutional (re)making. The founding period qualifies, of course, and so does Reconstruction. But what about the New Deal controversy? Where are judges to go for guidance about this constitutional moment? A more basic difficulty with Whittington's thesis is its reliance on duality and dichotomy: The sovereign will is present or absent; the people or their agents act. Yet, both constitutional interpretation and agent-principal colloquy go on continually; popular sovereignty may be more constant and less episodic than this book presumes.
Constitutional Interpretation is an ambitious project that does not quite accomplish all the goals the author sets. Yet, the book is well worth reading, both for its rehabilitation of originalist jurisprudence and its linkage of constitutionalism and democracy. Whittington has produced a book that demands the serious attention of scholars in constitutional law and American government.

Judith A. Baer, Texas A&M University