Keith E. Whittington

Bio: Keith E. Whittington is an academic researcher from Princeton University. The author has contributed to research in topics: Supreme court & Politics. The author has an hindex of 17, co-authored 120 publications receiving 1627 citations. Previous affiliations of Keith E. Whittington include University Press of Kansas & The Catholic University of America.

The Challenge of Originalism: On Pluralism within Originalism

Abstract: The existence of multiple modalities of constitutional argumentation in judicial and legal practice has fed skepticism about the viability of originalist theories of constitutional interpretation. Why should we convert a pluralistic social practice in which there are multiple available forms of constitutional argument into an exclusionary one, in which originalist arguments trump all others? This paper attempts to clarify the place of pluralism within originalism. Originalism need not imply the irrelevance or inappropriateness of other forms of constitutional argumentation, and the existence of a pluralistic discourse in constitutional interpretation does not by itself suggest that originalism is radically at odds with current practice. Originalists should, in principle, be open to the use of various forms of constitutional argumentation so long as such arguments are disciplined to the overarching goal of discovering and implementing the original meaning of the Constitution. What they must resist is the appeal to alternative modes of constitutional arguments as possible trumps to known constitutional meaning, but they can embrace a variety of forms of constitutional argumentation that can supplement and help illuminate original meaning.

The Supreme Court in Politics

Abstract: The U.S. Supreme Court is an important political institution. Nonetheless, general political histories of the United States give little attention to the Court and its justices. The appointment of justices and the decisions of courts are mere footnotes, at best, in the history of presidential administrations. Perhaps this reflects the relative insignificance of the judiciary and its actions on the broader political stage. The work of the Court pales in comparison with wars, elections and legislative struggles. The history of the Court has instead been relegated to more specialized accounts. Often those accounts were written from a primarily legal perspective or framed in terms of a history of constitutional law. The relationship between politics and the judiciary was pushed into the background. For many years, the classic one-volume history of the Court has been Robert G. McCloskey’s The American Supreme Court (4th ed., revised by Sanford Levinson, 2004). Originally published in 1960, The American Supreme Court situated the history of the Court within politics. McCloskey’s concern was to describe the Court as an “agency in the American governing process, an agency with a mind and a will and an influence of its own,” which used the law to achieve or try to achieve results (p. xv). The Harvard political scientist hoped to set aside the legalistic suggestion that the justices were primarily working out the logic of the law. The justices had agency in determining the course of public policy, and the Court was an agency within the structure of the government that made and implemented policy. The Court’s power was both real and fragile. The Court’s story, according to McCloskey, could “be broadly understood as an endless search for a position in American government that is appropriate” to the political era and the “subtle limits of judicial capability” (p. 15). A central lesson of his account, he concluded, was that the historical Court had been “fully alive to such realities as the drift of public opinion and the distribution of power in the American republic” (p. 246). The point was not that the justices “slavishly” adjusted themselves to public

Making a Mountain Out of a Molehill?: "Marbury" and the Construction of the Constitutional Canon

Abstract: How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.

Rights and liberties

Abstract: In this groundbreaking text, three highly acclaimed scholars provide historical context that puts the politics back into constitutional studies. Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization. FEATURES: * Covers all important debates in U.S. constitutionalism, organized by historical era * Incorporates readings from all of the prominent participants in those debates * Clearly lays out the political and legal contexts in chapter introductions * Integrates more documents and cases than any other text on the market, including decisions made by elected officials and state courts * Offers numerous pedagogical features, including topical sections within each historical chapter, bulleted lists of major developments, explanatory headnotes for the readings, questions on court cases, illustrations and political cartoons, tables, and suggested readings

The collected works

Abstract: This is a review of Collected Works of John Tate. Parts I, II, edited by Barry Mazur and Jean-Pierre Serre. American Mathematical Society, Providence, Rhode Island, 2016. For several decades it has been clear to the friends and colleagues of John Tate that a “Collected Works” was merited. The award of the Abel Prize to Tate in 2010 added impetus, and finally, in Tate’s ninety-second year we have these two magnificent volumes, edited by Barry Mazur and Jean-Pierre Serre. Beyond Tate’s published articles, they include five unpublished articles and a selection of his letters, most accompanied by Tate’s comments, and a collection of photographs of Tate. For an overview of Tate’s work, the editors refer the reader to [4]. Before discussing the volumes, I describe some of Tate’s work. 1. Hecke L-series and Tate’s thesis Like many budding number theorists, Tate’s favorite theorem when young was Gauss’s law of quadratic reciprocity. When he arrived at Princeton as a graduate student in 1946, he was fortunate to find there the person, Emil Artin, who had discovered the most general reciprocity law, so solving Hilbert’s ninth problem. By 1920, the German school of algebraic number theorists (Hilbert, Weber, . . .) together with its brilliant student Takagi had succeeded in classifying the abelian extensions of a number field K: to each group I of ideal classes in K, there is attached an extension L of K (the class field of I); the group I determines the arithmetic of the extension L/K, and the Galois group of L/K is isomorphic to I. Artin’s contribution was to prove (in 1927) that there is a natural isomorphism from I to the Galois group of L/K. When the base field contains an appropriate root of 1, Artin’s isomorphism gives a reciprocity law, and all possible reciprocity laws arise this way. In the 1930s, Chevalley reworked abelian class field theory. In particular, he replaced “ideals” with his “idèles” which greatly clarified the relation between the local and global aspects of the theory. For his thesis, Artin suggested that Tate do the same for Hecke L-series. When Hecke proved that the abelian L-functions of number fields (generalizations of Dirichlet’s L-functions) have an analytic continuation throughout the plane with a functional equation of the expected type, he saw that his methods applied even to a new kind of L-function, now named after him. Once Tate had developed his harmonic analysis of local fields and of the idèle group, he was able prove analytic continuation and functional equations for all the relevant L-series without Hecke’s complicated theta-formulas. Received by the editors September 5, 2016. 2010 Mathematics Subject Classification. Primary 01A75, 11-06, 14-06. c ©2017 American Mathematical Society

Law's Empire

Abstract: Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Abstract: New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.