Original Dissent

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.

By now, however, the active participants in that debate have all moved on. 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.

Both these volumes display the labored earnestness that marks authors too recently released from graduate school. Still, they offer renewed vigor to a tired field and should provoke some fresh thinking by constitutional scholars. Whittington seems to have forced himself to read everything written on this subject over the past twenty years. He pursues the argument from the slap-dash polemics of law reviews to the murky depths of French deconstructionist 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.

In the body of his text as well, he maintains a relentlessly academic tone. He takes all the competing arguments at face value, almost never stopping to speculate about the partisan motives that prompted them. 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.

Whittington seems indifferent to the significance of such reversals. He doesn’t discuss recent cases — indeed, he discusses hardly any cases at all. 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. Constitutional Interpretation is instead preoccupied with a theory. If this makes Whittington unusual, it also provides a certain force to his argument. 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). 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.

The great contribution of Constitutional Interpretation is that it seeks a political theory to undergird the jurisprudence of original intent. 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?

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. But why should the will of the people be “sovereign”? As Whittington 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. 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? But if the people are bound by judges, in what sense are they sovereign?

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 . . . do ordain and establish this Constitution,” as the preamble proclaims. This notion of potential sovereignty does capture something of what the Founders understood by constitutionalism. But it’s also unrealistic — or, more politely, it’s what we call a metaphor, a term Whittington himself embraces.

Yet, metaphors can be powerful vehicles for organizing our ideas. 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. Most talk about “the law” has a similar quality. Law might indeed be described as a metaphor for a complex social reality. Is it still against the law to commit perjury, even if powerful people can use proven techniques to defy this law? How many episodes of corruption or evasion would suffice to prove that the law has no meaning?

The strongest arguments for Whittington’s theory are those he directs against the alternatives. 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. 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).

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. This is a fairly compelling argument, after all. And Whittington gives it more force by drawing out its implications for the way we do — and don’t — think about our system. Judicial disdain for popular sovereignty has a self-fulfilling quality: The more judges feel free to improvise new constitutional doctrines, 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.

For all its abstract force, the theory has (though Whittington does not acknowledge it) an inherently conservative slant. 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. Thus, the theory puts a premium on continuity over change, deliberation over spontaneity, and commonality over diversity. It is powerful and perhaps more compelling than the alternatives. But it is not likely to satisfy those who disagree with its underlying, conservative assumptions.

There is a further difficulty, which is, ironically, highlighted by Whittington 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. 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. He describes, for example, the crisis of the 1830s, when South Carolina claimed the authority to nullify improper federal laws. 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. As a constitutional construction, this was plausible as well as politically convenient. 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.

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. These episodes certainly provoked a good deal of constitutional argument, but, compared with the antebellum tariff debate, they also yielded less clear-cut “constructions.” Whittington’s choice of cases stacks the deck in favor of his conclusion that constitutional construction must be merely provisional.

But some constructions have established enduring and unchallenged constitutional norms. 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. 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.

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. But it is hard to see why long acquiescence in a particular interpretation does not indicate some sort of tacit consent. If continuity and stability are virtues that recommend an originalist philosophy, why shouldn’t they also provide support to long-established precedent? 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.

Moralists may demand that unjust rules be corrected, no matter how old or seemingly settled in practice. But Whittington rests his own argument on the doctrine of sovereignty — a doctrine which was designed precisely to avoid such conflicts. Are we really required to rake up old disputes in the name of a doctrine that was supposed to settle disputes?

These objections do not refute Whittington’s argument but they suggest that, for all his earnest efforts in these books, he has not exhausted his own case. In the meantime, though, he has earned a respectful readership for any sequels he may offer in the coming years.

Jeremy Rabkin teaches constitutional law at Cornell University.