Original Dissent
RABKIN, JEREMY
Original Dissent Keith Whittington makes the case for constitutional law. BY JEREMY RABKIN Whether the Constitution is most properly interpreted by its "original intent" was a subject of intense...
...But it is not likely to satisfy those who disagree with its underlying, conservative assumptions...
...He doesn't discuss recent cases—indeed, he discusses hardly any cases at all...
...the harder it is for anyone to imagine that the people are the authority behind the Constitution and the easier it becomes to ignore the originalist doctrine on which popular sovereignty rests...
...It takes for granted that the authority of past generations can be attributed to the present, unless a super-majority of the current generation determines otherwise...
...If continuity and stability are virtues that recommend an originalist philosophy, why shouldn't they also provide support to long-established precedent...
...In four case studies, from different eras of American history, he demonstrates that politicians often stake major policies on what they see—or claim to see—as a logic dictated by the Constitution...
...Still, they offer renewed vigor to a tired field and should provoke some fresh thinking by constitutional scholars...
...Whittington seems indifferent to the significance of such reversals...
...Those who scoff at talk about "the people" are often quite comfortable talking about "this country" or "the United States," metaphors to which they attribute various aims and concerns...
...But Whit-tington rests his own argument on the doctrine of sovereignty—a doctrine which was designed precisely to avoid such conflicts...
...tionist 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...
...Thus, the theory puts a premium on continuity over change, deliberation over spontaneity, and commonality over diversity...
...But some constructions have established enduring and unchallenged constitutional norms...
...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...
...But why should the will of the people be "sovereign...
...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...
...Whittington takes up several other episodes of constitutional construction: the effort of Jefferson's followers to impeach a Federalist Supreme Court justice in 1804, the debate over Andrew Johnson's impeachment in 1868, and the debate over Richard Nixon's abuses in 1974...
...Whittington seems to have forced himself to read everything written on this subject over the past twenty years...
...As Whit-tington 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...
...This is a fairly compelling argument, after all...
...How many episodes of corruption or evasion would suffice to prove that the law has no meaning...
...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...
...If one accepts the notion of popular sovereignty embodied in a constitution, however, it does seem to follow that judges have no business going beyond what the people have already agreed to—which means that judges should stick to original intent as much as they can...
...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...
...But a few decades later, the doctrine was abandoned, once its political appeal as a device to avert sectional conflict had been mooted by the Civil War...
...He pursues the argument from the slapdash polemics of law reviews to the murky depths of French deconstrucJeremy Rabkin teaches constitutional law at Cornell University...
...But it's also unrealis-tic—or, more politely, it's what we call a metaphor, a term Whittington himself embraces...
...Judicial disdain for popular sovereignty has a self-fulfilling quality: The more judges feel free to improvise new constitutional doctrines, If continuity and stability recommend an originalist philosophy, why shouldn't they also provide support to long-established precedent...
...Most talk about "the law" has a similar quality...
...Both these volumes display the labored earnestness that marks authors too recently released from graduate school...
...He describes, for example, the crisis of the 1830s, when South Carolina claimed the authority to nullify improper federal laws...
...This notion of potential sovereignty does capture something of what the Founders understood by constitutionalism...
...There is a further difficulty, which is, ironically, highlighted by Whit-tington himself in his second book, Constitutional Construction...
...Here he looks at pivotal moments in which the Constitution has been given a certain interpretation by Congress and the president in settings where the courts played little role...
...It's not obvious why it should be of decisive importance that such precedents are not entirely in line with the Constitution's original intent...
...Whittington tries to make sense of these conundrums by positing a theory of "potential sovereignty": As a people, we have authorized the Constitution but retain the ultimate authority to change it—the ultimate authority to take back the power we initially exercised: "We the People...
...By now, however, the active participants in that debate have all moved on...
...When a construction has been accepted for many decades (or, as in this case, for most of American history), it is strange to regard it as having no more force than a recent partisan claim...
...The great contribution of Constitutional Int^-r^-retation is that it seeks a political theory to undergird the jurisprudence of original intent...
...Whit-tington's choice of cases stacks the deck in favor of his conclusion that constitutional construction must be merely provisional...
...For all its abstract force, the theory has (though Whittington does not acknowledge it) an inherently conservative slant...
...Are we really required to rake up old disputes in the name of a doctrine that was supposed to settle disputes...
...Is it still against the law to commit perjury, even if powerful people can use proven techniques to defy this law...
...These episodes certainly provoked a good deal of constitutional argument, but, compared with the antebellum tariff debate, they also yielded less clear-cut "constructions...
...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...
...He takes all the competing arguments at face value, almost never stopping to speculate about the partisan motives that prompted them...
...It is powerful and perhaps more compelling than the alternatives...
...While "nullification" was repudiated, most politicians acquiesced for a time in South Carolina's claim that tariffs could be used only to raise revenue and not to protect domestic industry...
...Yet, metaphors can be powerful vehicles for organizing our ideas...
...As a constitutional construction, this was plausible as well as politically convenient...
...Either we posit that the people may change the Constitution inadvertently by electing politicians who ignore it (in which case constitutionalism itself seems a farfetched notion), or we posit that the people must simply submit to wiser heads and not think about constitutional questions at all (in which case the notion of popular government looks like a thin metaphor for social control by elites...
...And Whittington gives it more force by drawing out its implications for the way we do—and don't— think about our system...
...Constitutional Interpretation is instead preoccupied with a theory...
...In the body of his text as well, he maintains a relentlessly academic tone...
...In the meantime, though, he has earned a respectful readership for any sequels he may offer in the coming years...
...One might deny that long established precedent should outweigh clear conclusions about original intent, and this seems to be Whittington's view in Constitutional Interpretation...
...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...
...Even in the debates over the Nixon presidency, for example, political advocates on all sides conceded that the president has certain broad powers as commander in chief, though some scholars have insisted the Constitution confers this title without any definite authority...
...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...
...But it is hard to see why long acquiescence in a particular interpretation does not indicate some sort of tacit consent...
...do ordain and establish this Constitution," as the preamble proclaims...
...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...
...If we say it is unrealistic to posit a people who are able to deliberate at peak moments on great issues, we are left with alternatives that are still more unattractive...
...Moralists may demand that unjust rules be corrected, no matter how old or seemingly settled in practice...
...But if the people are bound by judges, in what sense are they sovereign...
...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...
...The strongest arguments for Whit-tington's theory are those he directs against the alternatives...
...These objections do not refute Whit-tington's argument but they suggest that, for all his earnest efforts in these books, he has not exhausted his own case...
...If this makes Whittington unusual, it also provides a certain force to his argument...
...Law might indeed be described as a metaphor for a complex social reality...
Vol. 5 • March 2000 • No. 24
