Showing papers by "Keith E. Whittington published in 2001"
TL;DR: For several years now, the Supreme Court has disquieted observers and commentators by reasserting the presence of constitutional limitations on national power resulting from the federal structure of the American political system as discussed by the authors.
Abstract: For several years now, the Supreme Court has disquieted observers and commentators by reasserting the presence of constitutional limitations on national power resulting from the federal structure of the American political system. Although not quite amounting to a revolution in American constitutional law, the recent federalism cases are nonetheless striking. They are, of course, most remarkable because they reverse over fifty years of nearly uninterrupted deference to the national government in matters relating to federalism and the structural limits on the powers of the central government. With the exception of an ill-fated attempt to identify such limits in 1976, under the guidance of then–Associate Justice William Rehnquist, the
36 citations
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TL;DR: In this paper, the authors examine three of the most prominent objections to extra-judicial constitutional interpretations and defend judicial supremacy, and suggest that such interpretations should be regarded as more authoritative and deserving of greater deference by the courts.
Abstract: Recent cases such as Boerne, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This paper critically examines three of the most prominent objections to extrajudicial constitutional interpretations, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. The paper offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretations should be regarded as more authoritative and deserving of greater deference by the courts. These arguments have implications not only for debates over judicial supremacy per se, but also for the related debate over the proper scope of judicial review.
34 citations
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TL;DR: The authors re-examine historical presidential challenges to judicial supremacy in constitutional interpretation and argue that such challenges are better understood as contextually specific efforts to reconsider the meaning and future of American constitutional traditions and efforts to shift the locus of constitutional debate into a more democratic arena.
Abstract: Political challenges to the judiciary are usually regarded as a threat to the Constitution and judicial independence broadly. This need not be the case, however, and such assumptions may misinterpret American political history and underestimate American constitutionalism. This article reexamines historical presidential challenges to judicial supremacy in constitutional interpretation. Rather than being unprincipled attacks on judicial independence or rejections of constitutional values, such challenges are better understood as contextually specific efforts to reconsider the meaning and future of American constitutional traditions and efforts to shift the locus of constitutional debate into a more democratic arena.
28 citations
TL;DR: In this article, the authors reexamine historical presidential challenges to the judicial authority to interpret constitutional meaning and argue that such challenges are best regarded as historically specific efforts to reconsider the meaning and future of American constitutional traditions in times of political crisis and constitutional uncertainty.
Abstract: Conflicts between the Supreme Court and the president are usually regarded as grave challenges to the Constitution and a threat to judicial independence. Such claims misrepresent the nature of these presidential challenges, however. In doing so, they paint an unflattering and inaccurate portrait of American politics and underestimate the strength of American constitutionalism. This article reexamines historical presidential challenges to the judicial authority to interpret constitutional meaning. It argues that rather than being unprincipled attacks on judicial independence, such challenges are best regarded as historically specific efforts to reconsider the meaning and future of American constitutional traditions in times of political crisis and constitutional uncertainty.
21 citations
TL;DR: The Supreme Court's decision in Dred Scott v. Sandford is widely regarded as among the worst decisions it has ever made as mentioned in this paper, which deeply wounded the Court's status and authority.
Abstract: The Supreme Court's decision in Dred Scott v. Sandford is widely regarded as among the worst decisions it has ever made. In addition to embracing reviled substantive values, the decision deeply wounded the Court's status and authority. By embracing a theory of judicial supremacy that held that the Court alone could resolve all important constitutional disputes, however, the Court had been gradually moving toward such a debacle. An important Jeffersonian tradition criticized the Court for encouraging political actors to forego their own constitutional responsibilities. The dissenting opinion of Justice Benjamin Curtis suggested a more appropriate course for the Court, one that carved out a clear place for the exercise of judicial review but that recognized an important sphere of constitutional politics outside the judiciary.
16 citations
TL;DR: Schier as discussed by the authors provides a sweeping analysis of the changes that have occurred in patterns of voting participation in the United States and of the causes of those changes, concluding that changes in laws or political party processes appear unlikely to occur or to overcome the changed environment within which American politics takes place; such changes are therefore likely to be unable to mitigate the effects of the exclusive invitation and narrowly targeted political activation.
Abstract: who value their freedom not to participate or who, like politicians, also fear the outcomes that might occur if previously unactivated citizens voted would also oppose compulsory voting. Another proposal supported by Schier is government registration of citizens to vote, such as occurs in Canada or Britain, rather than the current practice of citizen-initiated voter registration that exists in the United States. To summarize, this book provides a sweeping analysis of the changes that have occurred in patterns of voting participation in the United States and of the causes of those changes. Changes in laws or political party processes appear unlikely to occur or to overcome the changed environment within which American politics takes place; such changes are therefore likely to be unable to mitigate the effects of the “new” politics of exclusive invitation and narrowly targeted political activation.
10 citations
10 citations
TL;DR: In this article, Whittington argued that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding, which is a necessary part of the political process and a regular part of American history.
Abstract: This text argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation. Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of American history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials.
8 citations