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.
Copyright 1999