Vol. 9 No. 10 (October 1999) pp. 452-454.
CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING by Keith E. Whittington. Cambridge, MA: Harvard University Press, 1999. 295pp. $49.50 Cloth. ISBN 0-674-16541-1.
Reviewed by Craig R. Ducat, Department of Political Science, Northern Illinois University
In LAW AND POLITICS IN THE SUPREME COURT, published three decades and a half ago, Martin Shapiro cautioned against seeing the Supreme Court only through the lens of constitutional interpretation because it made both too little and too much of the Court-too little because it ignored the Court's role as policymaker in construing federal statutes and too much because, by placing the Court at the center of the constitutional universe, it magnified the Court's importance in the political system out of all proportion. In this volume-a kindred spirit to Shapiro's classic in many respects-Keith Whittington looks at the elected branches of the federal government as their political acts resolve ambiguities in the meaning of constitutional principles.
Few political disputes can be settled by recourse to the specific text of the Constitution, so forms of constitutional elaboration are necessary. Constitutional interpretation, the customary mode of elaboration we think of as supplying such additional meaning, is the province of courts. Working in the interstices of the Constitution, judges flesh out rules that both resolve the dispute at hand and presumably guide the disposition of similar controversies in the future. By contrast, constitutional construction, according to Whittington, is the province of legislative and executive action. Constitutional interpretation is what courts do; constitutional construction is what the elected branches do. The results of constitutional interpretation are immediately justified in terms that are internal to the Constitution, even if the text is illuminated by precedent, history, and constitutional structure. By contrast, the results of constitutional construction are not made to appear as if determined within the four corners of the document but are readily acknowledged as properly influenced by external factors such as political principle, social interests, or partisan considerations. Arguments about constitutional interpretation are presented within the adversary process and later decided by a judicial opinion announced in a courtroom. The elements of a constitutional construction, although bargained over elsewhere (increasingly in committee rooms), are invariably settled on the floor of one or both Houses of Congress. Rather than addressing the scope of personal rights - the usual focus of the rules in constitutional interpretation-constitutional construction is concerned with achieving an understanding about the relations among the branches of government. The focus of constitutional construction is institutionalist, not individualist.
Whittington's book presents four case studies that examine the political debates that were constitutive of constitutional
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principles at four different points in American history: the impeachment of Justice Samuel Chase, the nullification crisis, the impeachment of President Andrew Johnson, and the political struggle between President Richard Nixon and the Democratic Congress in the salad days of Watergate. The volume concludes with an extraordinarily good chapter that, despite some unique aspects of these confrontations, compares and contrasts features drawn from the four case studies to develop a model of constitutional construction.
The constitutional construction that emerged from the Chase impeachment established that federal judges could be removed for more than criminal conduct but not for simple political disagreement with Congress. It established standards of what behavior by a federal judge was to be regarded as abusive and inappropriate. Several constitutional constructions developed from the nullification crisis with regard to the role of the states, the scope of government, and the principle of free trade. The construction that developed from the impeachment of Andrew Johnson kept the stewardship conception of the Presidency under wraps until the turn of the century, provoked the conditions that led Woodrow Wilson to inveigh against Congressional Government, and unwittingly encouraged civil service reform. Finally, congressional confrontations with the Imperial Presidency of Nixon during the early 1970s over budgeting, waging war, and intelligence gathering provoked legislation that brought about greater congressional influence and control but not an outright reversal of the constitutional balance that continued to favor the President.
As could be readily inferred from its title, Shapiro's classic was Court- centered; Whittington's volume clearly is not. Indeed, this book could just as accurately have been subtitled "Constitutional Politics Outside the Supreme Court." But there is much the two books have in common. Both structure their examination in terms of the roles played by the contending branches of government. Both are fine examples of institutional analysis, particularly in their astute and rich portrayal of policy formation. Both display a fine feel for political nuance and sensitivity to institutional subtlety. Neither is a work of quantitative political science, but both show that it is possible to do exceptional political analysis without it becoming legalistic scholarship. And last, but certainly by no means least, both are exceptionally well written.
Whittington's book demonstrates-as if a demonstration was necessary- that political science profits handsomely from history. Political science without history usually isn't very good political science. And history without political science often amounts to little more than storytelling. The quality of this book's history is every bit as good as the quality of its political science. However, sometimes-in the first chapter, particularly-I think eloquence gets in the way of understanding. The chapter-length case studies and the fine concluding chapter do much to burn off some of the initial fog. To say that this volume produces a model of constitutional construction is perhaps to convey an expectation of too much precision. There are qualifications aplenty and not a little ambiguity. Whittington gives us a model of constitutional construction in the sense, I suppose, that Richard Neustadt gave us a model of presidential power, although Whittington provides a lot more support. I first read LAW AND POLITICS IN THE SUPREME COURT early on in my days as a graduate student. It made quite an
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impression, and it substantially altered the way I thought about both the Constitution and the Supreme Court. That's something else Whittington's book has in common with Shapiro's.