Review of Constitutional Interpretation and Constitutional Construction:

Gary L. McDowell, "Blessings of Liberty," Times Literary Supplement (August 31, 2001): 26.

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Keith E. Whittington sensibly disagrees with [Joseph Lynch’s] view [that one need not bother with a search for founding intent], noting in Constitutional Interpretation that “political actors cannot be expected to refrain from using the constitutional text for their own momentary purposes, and they do not.” That fact in no way diminishes the claims of original intent in interpreting the Constitution. In Whittington’s view, originalism is the theory of interpretation that makes most sense in the American constitutional order, the essence of which is the written Constitution. The fact is, “all writing and especially legal writing carries the intent of the author,” and interpretation under a written document is “the effort to discover that intended meaning.” Not only is this a matter of common sense, but it essential to protect the foundation of popular sovereignty upon which the Constitution and the legitimacy of its institutions of government ultimately rest.

Even when there is clearly indeterminacy in the text, that is not reason to abandon the search for intention. “Intentions may be difficult to discover in practice, but they are not in principle separable from a given text.”

Yet this search is for intention of a certain kind. The proper quest is not to “imagine the subjective intent” of the founders as individuals, but to find “evidence of the objective intent that informs the meaning of the text.”

Originalism serves as a “bulwark against the seductive pressure to replace the will of the people with the will of their governors,” be they legislators or judges. The Constitution as a political text was meant to “address historically specific problems which not only guide[d] the writing of the text but also provide inescapable guidance to the reader.”

Although Whittington insists that “originalism best fulfills the requirements of constitutional interpretation,” he hedges his bets. Unwilling to be lumped together with the leading figures in the originalist camp like Judge Bork, Raoul Berger, and Lino Graglia, he also insists that the interpretive theory of originalism to date has been inadequately defined and defended, and what is needed is “a broader and more complete constitutional theory.” Originalism turns out to be merely a “prelude” to a more comprehensive approach, a prelude that must in turn be incorporated into this larger theory that Whittington seems to think is very original. The fact is, he is not as far removed from the likes of Bork and Berger and Graglia as he would like to think.

The “broader and more complete” theory of interpretation he promises is not interpretation but what he calls “constitutional constructios,” a topic he alludes to in Constitutional Interpretation but takes up in earnest in Constitutional Construction. Constitutional constructions turn out to be nothing more than the agreements reached in the political realm over the meaning of those parts of the Constitution that are largely indeterminate, having not been subjected to the binding decisions of the courts as a matter of interpretation. These constructions occur when there is a “political melding of the document with external interests and principles.”

To make this point, Whittington explores four case studies of famous constitutional constructions: the impeachment of Justice Samuel Chase; the “nullification” controversy; the impeachment of President Andrew Johnson; and the controversies that swirled about and finally overwhelmed President Richard Nixon. In the context of these case studies, Whittington argues, one sees that “the governing Constitution is a synthesis of legal doctrine, institutional practices, and political norms.” Together, these strands that come together as a constitutional construction show that constitutional meaning is “not simply the province of the courts.” This is interesting, and largely true, but it is hardly startling news. It has long been part of the confidence of originalists that the political realm is quite capable of making sound constitutional judgments on its own, not having to depend on the courts to settle constitutional meaning.

In the end, there is a fundamental weakness in Whittington’s elaborate effort to establish the legitimacy of originalism within the broader context of constitutional constructions. While he seems to know that the alternatives to originalism are largely intellectually fraudulent efforts to transform the original Constitution of fixed and enumerated powers into a morally more malleable notion of fundamental law in order to achieve certain political ends, he cannot bring himself to embrace originalism fully. Whenever he draws close, conceding its necessity, he ultimately shies away, arguing its insufficiency.

The core problem with both Constitutional Interpretation and Constitutional Construction is that Whittington believes “originalism cannot be justified by reference to the intent of the founders or by a purely historical argument.” In the end, he argues, originalism, like any other method of interpretation, can only be “justified by reference to our own best understandings of the constitutional project.” This view fails to recognize, as Felix Frankfurter once wrote, that “legal history has its own claims.” This is especially true when it comes to grounding originalism itself in the intentions of the founders.

The recurrence to original intention as the basis of constitutional meaning is not only rooted in the history of the Constitution but in the legal tradition upon which the founders themselves stood, and by which they understood the significance of their enterprise of creating a constitutional order from “reflection an choice,” as Alexander Hamilton put it. The written and ratified Constitution was the embodiment of the “intention of the people.” That was why Chief Justice John Marshall would insist that “intention is the most sacred rule of interpretation.” And that was why Justice Joseph Story, in his great Commentaries on the Constitution of the United States, would argue that “the Constitution . . . is to have a fixed, uniform, and permanent construction . . . the same yesterday, today, and forever.” Whittington’s failure to embrace this tradition weakens what should have been – and could have been – a far more substantial foundation for the idea of original intent as the only legitimate means of interpreting a written and ratified Constitution.

These books indicate that the great debate over originalism that began in earnest in the Reagan years has not subsided. The legacy of Bush v. Gore and the election of 2000 will in no small ay be the continuation of this debate in the political arena. As President Bush names his nominees to the federal courts, and as speculation grows that one or more of the justices of the Supreme Court may soon retire, there is little doubt that much of the fight will once again centre on how those picked to judge will actually do so. The most basic and politically volatile question they may well be asked is, whether they will respect the written Constitution, as did Chief Justice Marshall, as the “greatest improvement on political institutions,” and understand, as he did, that, in seeking to interpret it, intention is indeed “the most sacred rule” of interpretation? Sadly, those will not be easy questions for any nominee these days.

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