Reviewed by Sue Davis, Department of Political Science, University of Delaware
Keith E. Whittington published two books during 1999. Central to both his CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW and his CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (Reviewed in the LPBR, vol. 9 no. 10: 452-454, Oct. 1999) is the distinction between constitutional interpretation and constitutional construction. Constitutional interpretation is a process of discovering the meaning of the constitutional text. Constitutional construction is a more creative endeavor employing the "'imaginative vision' of politics rather than the 'discerning wit' of judicial judgment" (p. 5). Together interpretation and construction provide a tool for uniting the
Constitution as law with the document that constitutes a political order. Constitutional interpretation involves the unfolding of constitutional law, elaborated as a series of doctrines, formulas, or tests. As Whittington explains, interpretation is a search for meaning already in the text. Thus, it is a process of discovery always linked to the original text rather than a process of creation. There are parts of the Constitution, however, that have no discoverable meaning and thus require "an act of creativity beyond interpretation" (p. 7). Such a creative process is the essentially political endeavor of constitutional construction. Although the judiciary engages in
constitutional interpretation in deciding cases that come before it, the other branches fill gaps in the text when they act to enforce broader constitutional principles, for example, through legislation. Whittington summarizes the distinction between interpretation and construction and captures its importance in the following passage:
"The constitutional text itself serves as a nucleus of a set of constitutional requirements. Surrounding this and overlapping it to a greater of lesser extend, is constitutional law, which translates the text into formal rules for decision. Outside this, finally, but interpenetrating it and underlying it is constitutional construction,
which serves to extend the application of the text further by mediating between the text itself and an external environment of policy ideas and political principles. Neither interpretation nor construction changes the core nucleus of the text, but they do provide its extensions and points of contact with political practice. Interpretation flows immediately from the text and thus has a limited reach. Construction bears a more tenuous and alloyed connection with the text but as a result
can extend constitutional meaning even further before it to exhaust the possibilities of the existing text" (p. 10).
Although Whittington concedes that the boundaries between interpretation and
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construction are not exact he maintains that judges should limit themselves to constitutional interpretation while the other branches engage in construction. Is it possible for the Court to refrain from constructing as opposed to interpreting the Constitution? Can the Court bow out and leave matters to the elected branches when interpretation of the document fails to provide a resolution to a constitutional controversy? Whittington tells us that it can and, moreover, that it must. Nagging doubts about the practical viability of the distinction between construction and interpretation detract from the otherwise brilliant and original argument that Whittington has developed. Devoting the largest portion of his argument to a defense of originalism Whittington argues that all of the alternatives to such an interpretive method have been problematic. He notes that the basic thrust of originalism is that the Constitution should be interpreted according to the understandings made public at the time of its drafting and ratification. For the original Constitution the ratifying conventions provided a means for gathering public sentiment on the Constitution.
Therefore, evidence about the specific intent of the ratifiers should be relied on most heavily. Evidence may also be garnered from the drafting convention, popular debates surrounding ratification, and contemporary commentary. Further, the document should be taken to reflect genuinely public understandings not what the "best" minds of the time thought. Additionally, according to Whittington, originalism gives the presumption of constitutionality to acts of the nonjudicial branches but not, he is quick to note, to the point of judicial passivism. As he explains, the Constitution is knowable, and the Court must act vigorously to enforce the
limits it places on governmental action. (p. 36)
In a series of careful, logical steps, Whittington constructs the argument that originalism is required by the nature of a written constitution. He offers three propositions in support of such a claim. First, revolutionary Americans' experience demonstrated the need for a written constitution in contrast to the unwritten British constitution. Thus, they fixed constitutional principles in a written text in order to ensure political stability against temporary shifts in the public mood.
Second, only a fixed text can be fundamental law. In drafting a written constitution the framers fixed its terms and it became the fundamental law by the process of ratification. By ratifying the Constitution the sovereign people fixed their will in an unchanging text and implicated the judiciary in interpreting the limits set out in the document. The Constitution only limits the government, Whittington contends, if it has a fixed meaning and unchanging meaning. Third, it is in the very nature of writing, especially legal writing, that the writing carries the intent of the author. That is, legal writing is a means of transmitting intent and legal texts carry a
knowable, authoritative meaning. In short, for Whittington, originalism is the only interpretive method that is fully consistent with the existence of a written constitution and the only method that provides an adequate justification for judicial review.
Whittington endeavors to sever the links between an originalist jurisprudence and a conservative policy program. Indeed, in his hands, originalism aspires to transcend result-oriented approaches. His originalism does not necessarily entail "judicial passivism," or a form of judicial
restraint that constrains the judiciary's role in striking
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down laws or executive actions. As he explains, judicial passivism is "distinctly inappropriate when the constitutional law is available to be interpreted and applied" (p. 168). The judiciary's role after all, upon which the justification for judicial review and for originalism itself rests, is to enforce the Constitution.
The question of when judges should take a restrained position with regard to precedent when that precedent is not in accord with original intent is a troubling one that Whittington does not fully resolve. It stands to reason that if the Court were to adopt an originalist approach it would need to make a transition to correct interpretation and overrule precedents that are inconsistent with original intent. Whittington hesitates here, however, asserting that, "reconsideration and modification of existing precedent can take place over a series of cases over a period of years" (p. 169). What then will happen to rights that the Court has extended to individuals but that arguably are not consistent with original intent? Issues long settled, such as school desegregation, may not come before the Court and will thus
remain settled, he avers. But those that do appear before the justices will have to be revisited. Thus, the normative mandate of originalism seems to be that the Court will perhaps only gradually but nevertheless, inevitably, overrule the basic principle of ROE V WADE that women have a fundamental right to control their reproductive lives. Although Whittington does not address this scenario directly his originalism would, indeed, seem to point to such an outcome. A more important question for him, however, is whether the judiciary can be relied upon to protect such rights. Indeed, he looks away from courts to legislators and to popular sovereignty to engage in constitutional construction to resolve such matters.
Whittington also links popular sovereignty to originalism, contending that the latter "enforces the authoritative decision of the people acting as sovereign and . preserves the possibility of similar higher-order decision making by the present and future generations of citizenry" (p. 111). An originalist Court is "an instrument of the people in preserving the highest promise of democracy." (p. 111). He builds on the traditional originalist justification for judicial review, which is based on the notion that the authority of the judiciary to exercise its power to invalidate acts of other branches rests on its application of the principles - manifested in the
Constitution -- to which the people consented at the founding. If the judges depart from those original principles they impose their own value choices in ways that contravene principles of democracy. Whittington develops that basic theory further by asking such questions as, how the sovereign will can be embodied, how the sovereign will can be alienated from the sovereign, how the sovereign itself can endure over time, how we are part of the sovereignty that created the Constitution, and why the judiciary should be the special organ for enforcing the sovereign will against the other branches of government. Whittington's own theory of popular sovereignty emphasizes the potential of the people to act outside of government. Thus, for him a jurisprudence of originalism becomes a means of enforcing the popular will against the government.
CONSTITUTIONAL INTERPRETATION is an important book that builds on the wealth of earlier work in constitutional interpretation to resolve a number
of difficulties in constitutional theory. Keith Whittington does not fully resolve all the issues he raises, however. For example, his deliberate attempt to avoid
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taking sides on current constitutional controversies such as reproductive rights, gun control, the death penalty, attempts to deny rights based on sexual orientation, in his attempt to transcend a result-oriented approach weaken rather than strengthen his argument. Still, his conviction that the judiciary should not be entrusted to serve as the guardian of individual rights is consistent with a substantial body of current scholarship. Moreover, as suggested above, he does not succeed entirely in
his effort to rescue originalism from the conservatives. Additionally, to return to the distinction between constitutional interpretation and construction, assuming that such a thing is possible, it is difficult to imagine the current Supreme Court consistently refraining from engaging in constitutional construction. Such reservations notwithstanding, CONSTITUTIONAL INTERPRETATION presents a model for scholarship in constitutional theory and interpretation. Whittington is a younger scholar who promises to make a major contribution to the subfield of law and courts. We can look forward to more his work in the coming years.
Copyright 2000 by the author.