Constitutional Interpretation (PB) [Paperback]

Keith E. Whittington (Author)

Book Description

ISBN-10: 070061141X | ISBN-13: 978-0700611416 | Publication Date: September 1, 1999

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks free of the stalemate and reinvigorates the debate over how the judiciary should interpret the Constitution. Keith Whittington reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders. Other originalists have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. Whittington explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a nondogmatic and readily understandable way, he explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. He also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint. This book carefully examines both the possibilities and the limitations of constitutional interpretation and judicial review. It shows us not only what the judiciary ought to do, but what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government. With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government.

Editorial Reviews

From Library Journal

Constitutional theory and judicial interpretation are major ways to understand the U.S. Constitution and the U.S. Supreme Court's role in American society. Whittington (politics, Princeton) offers an innovative constitutional theory based upon originalism, a revised normative defense of original intent. As a means of constitutional interpretation, originalism limits government actions within the constitutional framework and extends constitutional meaning to current disputes. Supreme Court interpretation and construction of the Constitution are analytically distinguished as ways to achieve constitutional meaning. Whittington demonstrates how the Court's legal and political foundations led to its judicial review authority over other governmental branches. This carefully constructed study of how "constitutional interpretation can fit into a larger theory of constitutional practice and authority" is highly recommended for legal scholars, academics, and individuals interested in the foundations of American government and the judiciary.ASteven Puro, St. Louis Univ.
Copyright 1999 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

From the Back Cover

"A remarkable achievement. . . . One of the most sophisticated and powerful defenses of original jurisprudence I have read."--Rogers M. Smith, author of Civic Ideals and Liberalism and American Constitutional Law

"A masterful job. I have never seen a book that better melds political theory, constitutional theory, and the Founding period. Whittington's work is so well argued and detailed that all serious scholars (including originalists and non-originalists) will have to pay attention to it. This will be an award winner."--Ronald Kahn, author of The Supreme Court and Constitutional Theory, 1953-1993

"A timely, important, meticulously researched, and well-written book that makes a valuable contribution to constitutional theory and is the best work on constitutional interpretation that I have read. It deserves attention from a wide audience."--Robert Lowry Clinton, author of God and Man in the Law --This text refers to an out of print or unavailable edition of this title.

See all Editorial Reviews

Product Details

• Paperback: 316 pages
• Publisher: University Press Of Kansas (September 1, 1999)
• Language: English
• ISBN-10: 070061141X
• ISBN-13: 978-0700611416
• Product Dimensions: 9.2 x 6.2 x 0.7 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 4.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #1,026,723 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

4.0 out of 5 stars Scalia is more convincing, March 8, 2011

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Enjolras (Washington, DC) - See all my reviews
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This review is from: Constitutional Interpretation (PB) (Paperback)

In Constitutional Interpretation (PB), Whittington makes a case for originalism. Unfortunately, by focusing so much on the American experience and making his arguments at such an abstract theoretical level, his arguments are less convincing. In the real world of judges, practical considerations and feasibility are important to determining a theory of interpretation. Moreover, some of Whittington's theoretical arguments can be easily dismissed. For example, he seems to argue that the text-based nature of the US constitution requires some form of originalism, but he ignores the fact that nearly every other country (except for the UK) has a written constitution, and none adopt an originalist perspective. Moreover, it's not clear that courts in those countries have been consistently less able to constrain the other branches of government to the text of the constitution (in many ways, the US constitution has proved elastic beyond belief). Overall, if you want a really convincing argument in favor of originalism, talk to Justice Scalia.