Showing papers by "Keith E. Whittington published in 2005"

“Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court

Abstract: The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

Congress Before the Lochner Court

Abstract: This article examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919. In doing so, it situates this notorious Court within its political context and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period. The article demonstrates that the invalidation of federal statutes rarely, if ever, pitted the Court against a clear majority of elected national officials. This article also exposes the more routine work that the Court does in exercising the power of judicial review, and suggests the value of that work.

Congress and the Constitution

Abstract: "Congress and the Constitution," edited by Neal Devins and Keith E. Whittington (Duke University Press) extends the examination of the Constitution outside the courts to the federal legislature. For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congress's capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice.

Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court

Abstract: The exercise of constitutional review by an active and independent judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an overcoming obstructions account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

James Madison Has Left the Building

Abstract: Judicial review is often thought to be an absolute veto, killing legislation with no hope of resurrection. The adoption of judicial review, therefore, is understood to be a potentially severe qualification to democratic government. It was this understanding that once drove American progressives such as Theodore Roosevelt to endorse the "judicial recall" that would have allowed "the people to rule" by overriding judicial constitutional doctrine;' that led Canada to include the "notwithstanding" clause in its Charter, shielding legislation from judicial nullification;2 and that now spurs some to urge the remaining Westminster systems to resist pressures to curb parliamentary sovereignty with judicial review. But how warranted is this assumption? Creative and persistent legislators will try to reanimate these statutory corpses, and it is an open question whether judicial disapproval really lays the issue to rest. Congress is sometimes quick to try to resuscitate at the federal level what the Court strikes down at the state level. Often these legislative exertions are serious only as political theater. The Flag Protection Act of 19894 and the Partial-Birth Abortion Ban Act of 2003' come to

Congress and the Constitution

Abstract: For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congress’s capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice. Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakers’ attitudes toward Congress’s role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congress’s willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congress’s constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one another’s decisions, suggesting how the courts should evaluate Congress’s work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congress’s constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution. Contributors. David P. Currie, Neal Devins, William N. Eskridge Jr.. John Ferejohn, Louis Fisher, Elizabeth Garrett, Michael J. Gerhardt, Michael J. Klarman, Bruce G. Peabody, J. Mitchell Pickerill, Barbara Sinclair, Mark Tushnet, Adrian Vermeule, Keith E. Whittington, John C. Yoo

Judicial Review and Interpretation: Have the Courts Become Sovereign When Interpreting the Constitution?

Abstract: In a sermon preached before King George I in 1717, Bishop Benjamin Hoadly warned, "[W]hoever has an absolute Authority to interpret any written, or spoken Laws; it is He, who is truly the Law-giver, to all Intents and Purposes; and not the Person who first wrote, or spoke them." In the twentieth century United States, Hoadly's warning against ecclesiastical authority has been taken to describe the system of constitutional interpretation and judicial review under the U.S. Constitution. Although the problem of reconciling democracy and constitutionalism is a persistent and complex one, in practice the courts have not become sovereign and displaced republican government.

The Burger Court: Once More in Transition

Abstract: This chapter overviews the Burger Court and situates it in the political and legal context of the collapse of the New Deal-Great Society political coalition and ideological framework and the emergence of the new conservatism. The Burger Court marked a transition between the liberal activism of the Warren Court and the conservatism of the Rehnquist Court. Through accident of the appointment process and political and ideological proclivities of the major players, the Burger Court moved in a clearly conservative direction in very few areas, most notably criminal justice. In other areas of the law, the Burger Court either extended the activist legacy of the Warren Court or fractured into multiple competing visions of the constitutional future.

A Note on Commercial Speech in the Era of Late Capitalism

Abstract: It is not unreasonable to assume that the free speech clauses of the First Amendment are primarily concerned with political speech. As many have argued, free speech regarding politically relevant matters can be considered a prerequisite of a function ing democracy. The boundaries of political speech are less clear, however, and they have tended to expand over time as it was recognized that republican politics required more varied and wide-ranging speech than was previously thought. Although the contours of the appropriately protected speech were being estab lished in Britain before the American Revolution, the Sedition Act controversy demonstrated that constitutionally protected speech would have to be conceptualized more broadly than was once the case in order to have a viable system of competitive elections.1 Harsh and unruly criticism of government officials and political candidates would have to be incorporated into the free speech regime. The antebellum debate over slavery simi larly made clear that free-ranging debate over social institutions and practices that were potentially subject to government action and political inquiry would likewise need to be protected as political.2 The jurisprudential debates over seditious speech in the early twentieth century likewise indicated the scope of polit ical speech that would need to be protected if the Declaration's claim to a right to alter the form of government was to be taken seriously.3 The citizenry not only needed to hear whether the Adams administration was departing from republican principles, but also whether socialism was an attractive alternative to republican capitalism. Of course, there might well be social value in other types of speech, but that may not be reason enough to protect them under the free speech clauses. Free speech relating to reli gion, perhaps the origin of free speech rights, may be understood to be independently protected under the religion clauses of the First Amendment.4 We might well believe that other forms of speech are adequately protected by the structural features of American democracy. We might worry that a government empowered with the authority to regulate speech might use it to silence political dissent or criticism of the government itself or might act on behalf of religious majorities to similarly silence religious dissent or criticism. We might consider the value of artistic, scientific or commercial speech less fundamental, how ever, such that it is properly subject to a regulatory calculation, or we might think that the political salience of such speech is such that it is less prone to the temptations of abuse that beset political and religious speech and thus less in need of special co stitutional and judicial protection.5 Economic activity or comme cial speech would receive heightened protection only to the extent that it fed useful information into the political sphere. Thus, "peaceful" labor picketing may be constitutionally pro tected to the extent that, "[f]ree discussion concerning the condi tions in industry and the causes of labor disputes appears to us in spe sable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society. The issues raised by regulations, such as are challenged here, infringing upon the right of employees effectively to in orm the public of the facts of a labor dispute are part of this larger problem."6 On the other hand, since the point is to protect speech/activity relevant to policymaking rather than freedom of ac ion a such or activity relevant to the economic dispute or compe ition, other forms of labor action are left outside consti tu ional protections.7 The metaphor of the marketplace of ideas fits this functional ist understanding of free speech. With its economic referent, it suggests a group of producers and consumers with exogenous pr ferences. The producers of ideas pump out speech in the hopes of winning market share, and the consumers gobble up those ideas that happen to match up with their preexist ing preferences (the relevant prefer ences may not directly be for the idea itself but for something else that the idea might relate to we have a prefer ence for wealth and we are in the mar ket for a good idea as to how to pro duce it). The success of ideas in the marketplace depends on the i genuity of the producers and the distribution of preferences am ng consumers. Sellers of socialism may not get very far in the American marketplace, but Horatio Alger stories can be blockbusters. In the competition among ideas in the market place, the good ideas will hopefully over time squeeze out the bad ideas. From a constitutional perspective, the goal is to regu la e this marketplace so that it might be as free and as efficient as possible, for example by preventing artificial barriers to entry. The Court has been increasingly sympathetic to the protection of commercial speech beyond its utility in informing citizens on mat ers relating to public policy. The interests of consumers in Of course, there might well be social value in other types of speech, but that may not be reason enough to protect them under the free speech clauses.

You Say You'll Change the Constitution?

Abstract: Ten years from now, what kinds of issues of interest to politics will dominate the agenda of the United States Supreme Court? Will a dominant approach to constitutional interpretation emerge to guide the justices in their handling of these significant cases?Keith E. Whittington is professor of politics at Princeton University and visiting professor of law at the University of Texas, Austin (kwhittington@law.utexas.edu).