Showing papers by "Keith E. Whittington published in 2000"

Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics

Abstract: The field of "public law" in political science is somewhat ill defined. Its practitioners range from political theorists interested in the normative underpinnings of the law to statisticians interested in the correlates of judicial voting. The output of the Supreme Court, however, looms large on the landscape for many approaches to the field. In the first decades of the century, political scientists were unlikely to focus specifically on the explanations for the Court's decisions but were more likely to be interested in a broad range of issues related to the courts and the law. Since the "behavioral revolution" that swept the social sciences in the 1950s, however, judicial decision making has been at the core of the field. Over the past several decades, substantial progress has been made in identifying patterns of judicial voting behavior and the determinants of Court decisions. That progress, though real, has also been narrow. The scholarly focus has been on individual justices and how they cast their votes, leaving a great deal of the judicial process relatively unexplored.

Dworkin's 'Originalism': The Role of Intentions in Constitutional Interpretation

Abstract: Ronald Dworkin has criticized traditional theories of constitutional original intent by arguing that the constitutional text embodies multiple layers of intention. Abstract principles are among these layers of constitutional intent, and those principles should be the primary focus of a method of constitutional interpretation concerned with fidelity to the Constitution and the intentions of the Founders. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. It may be possible to construct a normative theory requiring that the judiciary always enforce abstract constitutional principles in accord with current substantive ideals. Such a theory, however, cannot be reconciled with or be required by an originalist interpretive method primarily committed to fidelity to founding intent.

Dworkin's “Originalism”: The Role of Intentions in Constitutional Interpretation

Abstract: Ronald Dworkin's effort to distinguish multiple layers of “intention” that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Dworkin has strongly argued that the constitutional text embodies abstract principles. These principles are understood to be both fundamental to the Founders' intentions and the primary focus of correct constitutional interpretation faithful to those intentions. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. Although there may be normative reasons for preferring that the judiciary always enforce broad constitutional principles, such a jurisprudence cannot be understood as either consistent with or required by an originalist interpretative method whose primary commitment is to fidelity to founding intent.

In Defense of Legislatures

Abstract: Presentation de deux ouvrages de J. Waldron consacres a la defense du corps legislatif : «La loi et le desaccord» (1992) et «La dignite de la legislation» (1999). Developpant une conception de la democratie liberale separee du modele constitutionnel americain, Waldron examine les fondements normatifs de la legislation comme forme du droit et inscrit celle-ci au sein d'une theorie generale de la politique et de la jurisprudence.

Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments

Abstract: The recent impeachment of President Bill Clinton has called attention to the only other presidential impeachment in American history, that of Andrew Johnson in 1868. Parallels between the two cases have been drawn to suggest that both were unjustified attacks on the presidency by a partisan Congress. Such comparisons have also suggested that the Clinton impeachment will result in a weakened presidency, just as the Johnson impeachment ushered in an era of congressional government in the nineteenth century. This paper argues that such comparisons are misguided. Although both impeachments were organized along partisan lines, the Johnson impeachment, unlike the Clinton impeachment, was constitutionally substantive, constructive rather than mechanical in its constitutional application, and focused squarely on the presidency as an institution. Both the substantive content and the political context of the Johnson impeachment contributed to a weakening of the presidency. The Clinton impeachment, by contrast, is unlikely to have any significant, long-term institutional implications. A comparison of the two impeachments also counsels against formalistic efforts to further define "high crimes and misdemeanors."

Bill Clinton was no Andrew Johnson: Comparing Two Impeachments

Abstract: The recent impeachment of President Bill Clinton has called attention to the only other presidential impeachment in American history, that of Andrew Johnson in 1868 Parallels between the two cases have been drawn to suggest that both were unjustified attacks on the presidency by a partisan Congress Such comparisons have also suggested that the Clinton impeachment will result in a weakened presidency, just as the Johnson impeachment ushered in an era of congressional government in the nineteenth century This paper argues that such comparisons are misguided Although both impeachments were organized along partisan lines, the Johnson impeachment, unlike the Clinton impeachment, was constitutionally substantive, constructive rather than mechanical in its constitutional application, and focused squarely on the presidency as an institution Both the substantive content and the political context of the Johnson impeachment contributed to a weakening of the presidency The Clinton impeachment, by contrast, is unlikely to have any significant, long-term institutional implications A comparison of the two impeachments also counsels against formalistic efforts to further define "high crimes and misdemeanors"

"High Crimes" after Clinton - Deciding What's Impeachable

Abstract: Keith E. Whittington is assistant professor of politics at Princeton University. NO ONE IS PARTICULARLY HAPPY with the impeachment of President Clinton. For many liberals, the impeachment was a dreadful mistake. The eventual acquittal of the president by the Senate could only partly compensate for the disquieting and dangerous actions of the House. For many conservatives, it is the outcome of the impeachment trial that is problematic. For them, the frustration that built as the Senate ground toward an acquittal was captured in William Bennett's famous question, "Where's the outrage?" The standard media narrative, reinforced by the allies of the White House, that cast the impeachment in terms of partisan electoral calculation further eroded faith in the process. In the long run, such varied disappointments are likely to fuel a reevaluation of the impeachment power itself. The impeachment has already produced some legislative fallout, notably the unlamented expiration of the independent counsel statute. The constitutional text is not so easily changed. But post-impeachment evaluations will be crucial in determining how future generations of politicians and citizens interpret the Constitution's vague standard of impeachable offenses. The outcome of the impeachment and trial had one immediate and clear consequence: Bill Clinton was able to retain the presidency. The longer-term consequences of the impeachment, however, will depend on what constitutional and political lessons are drawn from it. Unsettled constitutional law IMPEACHMENTS DO NOT FORM clear precedents, as court cases do. Congress does not respect the judicial doctrine of stare decisis. Congressmen and senators are not obliged to agree upon a single opinion elaborating the principles underlying the impeachment that might guide future impeachment inquiries. The outcome of the trial itself does not provide decisive evidence of the rules governing the decision. Was Clinton's acquittal evidence that the charges made by the House did not rise to the level of impeachable offenses, or does it merely mean that recognizable impeachable offenses were not adequately proven? The constitutional law of impeachment remains as unsettled after the Clinton episode as it was before. The constitutional and political implications of the impeachment are still up for grabs, however. The case of the only previous president to be impeached, Andrew Johnson, is instructive. Generations of scholars, journalists, and politicians have fought over the significance of the Johnson impeachment and acquittal, and these arguments were driven by contemporary concerns. How the Johnson impeachment was remembered was understood to have important implications for ongoing political debates. In the postbellum period, Northern elites were unapologetic about the impeachment of the Southern-sympathizing Johnson, and in the era of "congressional government" the impeachment threat was implicit. When "waving the bloody shirt" was a winning political strategy, Republicans had much to gain by portraying Johnson as a reactionary Southerner and the impeachment of 1868 as a success. At the end of the nineteenth century and in the early decades of the twentieth, as Jim Crow was being constructed and defended, a dominant group of historians took a dim view of Reconstruction and the Radical Republicans who supported it. In books with titles such as The Tragic Era, these historians led a scholarly and popular reevaluation of Andrew Johnson and his impeachment. They tended to portray Johnson as a lonely defender of the Constitution and social order and the impeachment as part of a revolutionary putsch by wild-eyed radicals. Beginning with the New Deal and the Roosevelt administration, scholars found a new reason to denounce the impeachment, as a threat to presidential power and the separation of powers. Louis Brownlow, the virtual architect of the post-New Deal modern presidency, denounced the Johnson impeachment as an effort to overthrow the executive branch and establish a parliamentary government. …