Keith E. Whittington

William Nelson Cromwell Professor of Politics

Princeton University

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Research

Books

Articles and Book Chapters

Works in Progress

Books

American Constitutionalism, Volume II: Rights and Liberties, with Howard Gillman and Mark A. Graber (New York: Oxford University Press, 2012)

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"A major achievement – a gold-standard teaching tool." – Ken I. Kersch, Boston College

“A groundbreaking and valuable contribution to the teaching of constitutional law.” – Emily Zackin, Hunter College-CUNY

Winner of the Teaching and Mentoring Award for innovative instructional materials in Law and Courts

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions.  The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. Volume Two focuses on the limits of government power, including the philosophical and legal foundations of rights and liberties, individual rights of property and person, democratic rights of citizenship, speech and participation, the constitutional guarantees of equal treatment, and constitutional criminal due process.

American Constitutionalism, Volume I: Structures of Government, with Howard Gillman and Mark A. Graber (New York: Oxford University Press, 2012)

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"American Constitutionalism marks a new age in the teaching of constitutional law." – Julie Novkov, University of Albany

“A landmark contribution to the teaching and study of American constitutionalism.” – Rogers M. Smith, University of Pennsylvania

Winner of the Teaching and Mentoring Award for innovative instructional materials in Law and Courts

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions.  The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. Volume One focuses on the structures of government, including the organization of the judiciary and the power of judicial review, the powers and limits of the national government, the relationships among the states and their powers in our federal system of government, the powers and relationship between the executive and legislature, and the process of amending the Constitution.

Law and Politics: Critical Concepts in Political Science (London: Routledge Press, 2012)

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The scholarly study of law and politics is a growing and diverse field. The range of scholarship in the area reflects the wide scope of issues and questions that are relevant to the field of law and politics and that invite new and further study. The diversity of scholarly interest in law and politics also reflects the interdisciplinary conversation that the field invites. Law and Politics covers this ground as a new title in the Routledge series, Critical Concepts in Political Science. Along with a new introduction by the editor, the four-volume collection brings together the best of canonical and cutting-edge works in the field. It provides a comprehensive introduction to the field of law and politics and will stand as an essential research resource for scholars and students alike.

The Oxford Handbook of Law and Politics, edited with R. Daniel Kelemen and Gregory A. Caldeira (Oxford, UK: Oxford University Press, 2008)

Go to The Oxford Handbook of Law and Politics webpage

"A volume that defines an ambitious agenda for the study of law and politics for the next generation." -- John Ferejohn, NYU

The study of law and politics is one of the foundation stones of the discipline of political science, and it has been one of the productive areas of cross-fertilization between the various subfields of political science and between political science and other cognate disciplines. This Handbook provides a comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law-and-society to such re-emerging subjects as comparative judicial politics, international law, and democratization. Featuring 50 scholars and 45 chapters, The Oxford Handbook of Law and Politics gathers together leading scholars in the field to critical appraisals of the key issues shaping the discipline today and to help set the direction of research in the decade ahead.

Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007; paper 2009; Chinese translation 2010)

Go to Political Foundations of Judicial Supremacy webpage

"Historically comprehensive and analytically astute, Whittington's sweeping reformulation of the role of the Supreme Court alters our entire view of American government." -- Stephen Skowronek, Yale University

Winner of the C. Herman Pritchett Award for best book in Law and Courts

Winner of the J. David Greenstone Award for best book in Politics and History

The judicial authority to give definitive meaning to the Constitution has often been asserted by the U.S. Supreme Court, but making those assertions real has been a political project that has unfolded over the course of American history.  Judicial supremacy over other political actors in the authoritative interpretation of the Constitution was not established at the time of the Founding but had to be won within American political development.  These claims of judicial authority have often been contested, and the Court has been successful in advancing those claims to the extent that judicial supremacy has been useful to other powerful political officials, most notably the president.  The Supreme Court has shared constitutional leadership over time with the president.  The relative authority of the Court is dynamic, not fixed.  To understand the judicial power of constitutional interpretation, we must understand the Court's place within American politics.  Judicial supremacy rests on political foundations.

Congress and the Constitution, edited with Neal Devins (Durham, NC: Duke University Press, 2005)

Go to Congress and the Constitution webpage

"A timely and provocative book on whether, when, and how Congress thinks about the meaning of the Constitution." -- Elena Kagan, Dean of the Harvard Law School

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.

Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999; paper 2001)

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"A bolt of scholarly lightning." -- John Harrison, Constitutional Political Economy

The book 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 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. This process by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution is one of construction. The argument is developed through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999; paper 2001; China Renmin University Press translation, 2005)

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"One of the best and most sophisticated arguments for originalism ever presented." -- Gregory Bassham, Review of Politics

This book reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, the book examines what it means to interpret a written constitution and how the courts should go about that task. The book concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders. In pursuing this argument, the book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. The book demonstrates how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. The book also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint. Carefully examining both the possibilities and the limitations of constitutional interpretation and judicial review, the book shows not only what the judiciary ought to do but also what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government.

Articles and Book Chapters

“Originalism: A Critical Introduction,” Fordham Law Review (2013).

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court and the Reagan administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This essay assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and points to the primary points of continuing separation between originalists and their critics.

“The Status of Unwritten Constitutional Conventions in the United States,” University of Illinois Law Review (2013). Click here to view a copy.

A.V. Dicey popularized in the British constitutional tradition the idea of unwritten constitutional conventions, the political practices that regulate the exercise of sovereign power by government officials and defines public duties and obligations that supplement judicially enforceable constitutional law. The applicability of the idea in the American context, where a written constitutional text and extensive constitutional law are so prominent, has long been unclear. This paper argues that the United States likewise governs through unwritten constitutional conventions, that there is a “constitutional morality” that delimits acceptable political action and regulates the making of public policy. Nonetheless, conventions sit awkwardly in the American constitutional tradition and are under constant pressure. Precisely because conventions purport to constrain political discretion in ways that are not accounted for by the constitutional text, the interpretation of that text and the proliferation of constitutional law always threatens to erase those constraints.

“’Our Own Limited role in Policing These Boundaries’: Taking Small Steps on Health Care,” Journal of Health Politics, Policy, and Law 38:2 (April 2013): 273-282. Click here to view a copy.

The Affordable Care Act (ACA) invoked political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the U.S. Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute, but also left the landscape of constitutional law much as he had found it. He did, however, suggest that the federal courts should take a more active role in monitoring how Congress uses its constitutional powers and should not shy away from making specific determinations of whether Congress had abused its power in particular cases.

“The President’s Nominee: Robert Bork and the Modern Judicial Confirmation Process,” Baker Center Journal of Applied Public Policy 4:2 (Fall 2012): 85-99. Click here to view a copy.

The nomination of Judge Robert Bork to the U.S. Supreme Court is taken as a lens for examining the politics of judicial appointments. Robert Dahl contended that presidents are routinely able to shape the Supreme Court to their liking through the appointments process. The average frequency of vacancies on the Supreme Court, however, obscures the importance of variance, and the resulting uncertainty faced by individual presidents about their own opportunities to influence the direction of the Court. A presidential term of office is more likely to look like Jimmy Carter’s (who appointed no justices) than Andrew Jackson’s (who appointed six). Divided government further complicates the ability of president’s to significantly reshape the Court through appointments. In advancing the Bork nomination, the Reagan administration was caught between concerns for ideological commitment and confirmability. The opportunity costs of giving up on a vacancy too soon are substantial, but the presidential ability to fully take advantage of available vacancies depend on the strategic environment.

“Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon,” Hastings Constitutional Law Quarterly 39:4 (Summer 2012): 823-860. Click here to view a copy.

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.

“The Supreme Court in Politics,” (review essay on Lucas A. Powe, Jr.’s The Supreme Court and the American Elite, 1789-2008).  Reviews in American History 39 (December 2011): 631-636.  Click here to view a copy.

Lucas Powe’s book, The Supreme Court and the American Elite, is a worthy successor to McCloskey as the best one-volume history of the Supreme Court. Powe deftly builds on the recent literature to convey a concise narrative of the development of American constitutional law that shows how the U.S. Supreme Court operates within the mainstream of American politics in alliance with the political coalitions that occupy the elected branches to implement a common vision of the American constitutional project.

“On Pluralism within Originalism,” in The Challenge of Originalism: Theories of Constitutional Interpretation. Grant Huscroft and Bradley Miller, eds. New York: Cambridge University Press, 2011.

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. 

“Is Originalism too Conservative?” Harvard Journal of Law and Public Policy 34:1 (Winter 2011): 29-41.  Click here to view a copy.

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will. Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism.

“Constructing a New American Constitution,” Constitutional Commentary 27:1 (Fall 2010): 119-37. Click here to view a copy.

The distinction between constitutional interpretation and constitutional construction has been taken up in various places in constitutional and legal scholarship. In this article, I reintroduce the concept of constitutional construction and its potential uses, consider the extent to which courts might engage in constitutional construction, and examine whether the process of constitutional construction is avoidable or excludable with a sufficiently refined theory of constitutional interpretation.

“The State of the Union is a Presidential Pep Rally,” Inter Alia: Yale Law and Policy Review 28 (June 2010).  Click here to view a copy.

President Barack Obama has been criticized for questioning the Supreme Court's campaign finance decision in his State of the Union address, leading Chief Justice John Roberts to complain that the State of the Union had degenerated into a "political pep rally." This essay puts Obama's remarks into a broader context, and argues that the State of the Union has long been a political pep rally, that presidents often criticize the courts and judges, and that the particular venue in which they choose to do so is a matter of strategic calculation rather than decorum.

“Constitutional Constraints in Politics,” in The Supreme Court and the Idea of Constitutionalism.  Steven Kautz, Arthur Melzer, Jerry Weinberger, and M. Richard Zinman, eds. Philadelphia: University of Pennsylvania Press, 2009.

Constitutional constraints cannot be effectuated outside of politics. They must be interpreted and put into action within the political system, by political actors operating in political institutions. This raises a variety of possible threats to the efficacy of constitutional constraints. This chapter considers four distinct threats and their possible solutions: 1) constitutional resistance, 2) constitutional forgetfulness, 3) constitutional neglect, and 4) constitutional contestation.

“Judicial Checks on the Presidency,” in The Oxford Handbook of the American Presidency.  George C. Edwards III and William G. Howell, eds. Cambridge, UK: Oxford University Press, 2009.

The judicial check on the American presidency is a supplemental tool for limiting executive power. Even so, the courts do provide a potential mechanism for constraining the executive branch. This chapter reviews both the doctrinal framework and the empirical literature regarding how courts monitor and check the executive branch.

"Judicial Review of Congress before the Civil War," Georgetown Law Journal 97:5 (2009): 1257-1332.  Click here to view a copy.

There is a standard story about the exercise of the power of judicial review by the U.S. Supreme Court before the Civil War. In this story, judicial review of Congress was exceptional and idiosyncratic, with Marbury and Dred Scott and little else. The standard story is wrong. This paper shows that the U.S. Supreme Court was more active in exercising the power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized. In doing so, Court made itself available as a forum for resolving constitutional disputes and enforcing constitutional limits in low salience cases in the course of ordinary litigation, establishing judicial review of Congress as a regular if politically minor feature of the constitutional system. Uncovering this history not only corrects the historical records, but it contributes to our understanding of the politics of judicial review and the ways in which the Court often acts in partnership with political leaders.

“Industrial Saboteurs, Reputed Thieves, Communists, and the Freedom of Association,” Social Philosophy and Policy 25:2 (2008): 76-91. Click here to view a copy.

This article examines the shifting contexts and applications for the notion of a constitutionally protected "freedom of association" in the American courts.  Judges had long sought to protect individuals to freely associate to engage in lawful activities, but they had also emphasized the limits on those protections when it came to individuals or groups who were engaged in unlawful activities.  When the New Deal Court conceptualized the freedom of association as an extension of freedom of speech, it created some jurisprudential tensions that the justices had to resolve in order to provide coverage to the range of activities and organizations that they wanted to protect.  The implicit limitations built into the initial concept became more explicit when the Court encountered the anti-Communist cases of the postwar period.

“Constitutionalism,” in The Oxford Handbook of Law and Politics.  Keith E. Whittington, R. Daniel Kelemen and Gregory A. Caldeira, eds.  Cambridge, UK: Oxford University Press, 2008.

Constitutionalism is the constraining of government in order to better effectuate the fundamental principles of the political regime. The great constitutional scholarship of an earlier generation were primarily works of intellectual history, but after a period of some pessimism the field has been reborn in remarkable diversity. Constitutional studies flourish in normative, conceptual, and empirical modes. Although these three branches of constitutional scholarship are often isolated from one another, there is substantial room for fruitful exchange and convergence across the full range of constitutional studies. This review essay examines this full range of constitutional scholarship, the progress that has been made, and the work still to be done.

"Constitutional Theory as Political Science," in Constitutional Theory: Arguments and Perspectives, Third Edition.  Michael J. Gerhard, Stephen M. Griffin, Thomas D. Rowe, Jr., eds. Newark, NJ: LexisNexis, 2007.

Constitutional theory as an academic enterprise should extend well beyond the effort to justify and guide Supreme Court decisions.  Constitutional theory is better understood as a branch of political science than as a branch of legal advocacy.  It raises an array of normative, conceptual and empirical questions about how constitutional systems can and should operate and what functions constitutions might serve within politics.

"Presidents, Senates, and Failed Supreme Court Nominations," 2006 Supreme Court Review (2007): 401-438.  Click here to download a copy.

With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective.  Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president.  The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time.  In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies.  The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed).  The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.

"The Constitution and Congressional Committees: 1971-2000," with Neal Devins and Hutch Hicken, in The Least Examined Branch: The Role of Legislatures in the Constitutional State.  Richard W. Bauman and Tsvi Kahana, eds.  New York: Cambridge University Press, 2006.

Looking at congressional hearings between 1971 and 2000, we examine why, when, and how Congress makes use of committees to assess constitutional questions.  While individual issues and presidential administrations come and go, Congress maintains a fairly consistent and constant level of activity in discussing constitutional issues.  While the Judiciary Committees dominate congressional discussion of the Constitution, they do not monopolize it and myriad committees encounter constitutional issues as they go about their business.  Some congressional discussions of constitutional matters are driven by the actions of the courts or the executive branch, but most hearing activity reflects the legislative and political interests of the political parties and the legislators themselves.

"Give the People What They Want," Chicago-Kent Law Review 81:3 (2006): 911-922. Click here to download a copy.

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century.  He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy.  This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States.  The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that Kramer emphasizes.  It then shows that these are relatively rare features of American politics.  Under more common political conditions, party leaders have ample incentives to encourage the growth of judicial supremacy precisely in order to advance the substantive constitutional commitments to which those political leaders adhere.

"Recovering "From the State of Imbecility,'" Texas Law Review 84:6 (May 2006): 1567-1586. Click here to download a copy.

A number of recent revisionist histories of the American founding have usefully emphasized the ways in which the U.S. Constitution was designed to create a powerful and effective national government.  Calvin Johnson's Righteous Anger at the Wicked States adds to that number and ably highlights the importance to the founding generation of creating a national government capable of assessing and collecting taxes in order to secure national interests.  As a complete explanation for the Constitution, however, Johnson's focus obscures other positive attributes of the constitutional project of 1787.

"Resolved, the Presidential Impeachment Process is Basically Sound," in Debating the Presidency.  Richard J. Ellis and Michael Nelson, eds.  Washington, D.C.: CQ Press, 2006.

Dissatisfaction with the Clinton impeachment has raised new questions about the constitutional structure for presidential impeachments and whether that structure is still appropriate to a partisan, media-saturated political system.  Although the impeachment power does not operate in the modern context in the fashion that the Founders imagined when they included it within the constitutional scheme, it is still an important and viable check on presidential power and tool for the construction of presidential values.

"'Preserving the Dignity and Influence of the Court': Political Supports for Judicial Review in the United States," in Rethinking Political Institutions: The State of the Art.  Ian Shapiro and Stephen Skowronek, eds.  New York: NYU Press, 2006.

A central philosophical objection to judicial review and constitutional interpretation by courts rests on concerns for democracy. The regular judicial nullification of policies adopted by elected officials at least suggests problems of democratic legitimacy. The philosophical objection has been raised against a background of over a hundred years of populist political argument in the United States holding that active use of the judicial power of constitutional interpretation should give way to the judgments of electoral and legislative majorities. Nonetheless, judicial review in the United States has thrived. This paper explores the political supports for judicial review by the Supreme Court in American history. Although active judicial review may appear problematic from a democratic perspective, political leaders have often lent their support to the courts and sought to bolster the authority of the judiciary to give meaning to the Constitution.

"Clothed With the Legitimate Authority of the People," Virginia Law Review 91:8 (December 2005): 2023-2046. Click here to view online.

Akhil Amar's America's Constitution: A Biography succeeds in its aim of providing the general reader with an introduction to the constitutional text and the political concerns that led to that text. Readers will gain a new appreciation of the intricacy of the constitutional design and its value as an instrument of democratic politics. Constitutional realists will be left wondering, however, whether a biography that focuses so closely on the birth of the document misses too much of the real constitutional drama, its growth and development through later contestation, interpretation and practice.

"Let's Call the Whole Thing Off?," Constitutional Commentary 22:2 (2005): 101-118. Click here to download a copy.

Dennis Goldford's The American Constitution and the Debates over Originalism provides a helpful overview of the originalism debates of the 1980s and uses those debates to investigate general problems in constitutional theory and with a goal of transcending the dichotomy between originalism and nonoriginalism.  Although illuminating, Goldford fails to offer a persuasive alternative to originalist and nonoriginalist theories of constitutional interpretation because he does not grapple with the primary problem that those theories are designed to solve, the problem of constitutional and interpretive authority.

"'Interpose Your Friendly Hand:' Political Supports for the Exercise of Judicial Review by the United States Supreme Court," American Political Science Review 99:4 (November 2005): 583-596.  Click here to view online.

The creation and maintenance of independent courts willing and able to actively use a power of constitutional review is commonly regarded as against the interest of current government officials.  If active judicial review is to be sustained, it is thought, those officials must be tricked, bribed, or coerced into accepting it.  The active use of judicial review may also have political value to current officeholders, however.  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 important episodes of judicial review by the U.S. Supreme Court and in relation to obstructions created by federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

"Commercial Speech in the Era of Late Capitalism," The Good Society: A PEGS Journal 14:2 (2005): 40-43. Click here to download a copy.

Commercial speech is often taken to be distant from the central, political concerns of the First Amendment, and therefore worthy of less protection from government control.  In the era of late capitalism, however, commercial speech serves an important political role in providing the raw materials for the construction of political and social identities.  Identity-formation is a critical part of politics, and the potential significance of speech primarily designed to serve commercial purposes to that identity-forming process should not be overlooked.

"Judicial Review and Interpretation: Have the Courts Become Sovereign When Interpreting the Constitution?" in Institutions of Democracy: The Judicial Branch. Kermit L. Hall and Kevin T. McGuire, eds.  New York: Oxford University Press, 2005.

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.

“Constitutional Theory and the Faces of Power,” in The Judiciary in American Democracy: Alexander Bickel, the Counter-Majoritarian Difficulty, and Contemporary Constitutional Theory.  Kenneth Ward, ed.  Albany: State University of New York Press, 2005.

Constitutional theory has been decisively shaped by the image of the conflict between the Supreme Court and the political branches during the New Deal. Constitutional scholars have focused their attention on the ways in which the Constitution acts as a higher law constraining political actors and the pros and cons of a countermajoritarian Court armed with judicial veto. Like political scientists who studied the “first face of power,” constitutional scholars have been most interested in explicit decisions that block others from exercising their political will. Constitutions shape political outcomes by other means, however, and constitutional scholars need to examine these other faces of constitutionalism. Notably, constitutions also help structure how political preferences are expressed and help constitute political preferences.

“The Burger Court: Once More in Transition,” in The Supreme Court of the United States: The Pursuit of Justice.  Christopher Tomlins, ed.  New York: Houghton Mifflin, 2005.

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.

"James Madison Has Left the Building," University of Chicago Law Review 72:3 (Summer 2005): 1137-1158.

Empirical work on judicial and legislative politics sheds valuable light on the importance of judicial review and the ways in which constitutional limitations are most effectively maintained.  Mitchell Pickerill's examination of constitutional deliberation in Congress in the latter half of the twentieth century helps us understand the limited policy impact of the Supreme Court's constitutional rulings, which in turn begins to explain the political sustainability of the power of judicial review.  It also suggests the ways in which the judiciary and the legislature can complement one another in recognizing, debating, and implementing constitutional values and commitments, while cautioning us against overly optimistic conclusions about the possibilities of "legislative constitutionalism."

"Congress Before the Lochner Court," Boston University Law Review 85:3 (Summer 2005): 821-858.  Click here to view online.

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.

“Hearing about the Constitution in Congressional Committee,” in Congress and the Constitution.  Neal Devins and Keith E. Whittington, eds.  Durham, NC: Duke University Press, 2005.

This chapter sheds light on a number of features of constitutional deliberation in Congress.  Drawing on a sample of committee hearings from the 1990s in which constitutional issues were discussed, it asks when such hearings were held, by whom, in what issue areas, and the extent to which they were driven by the action of the other branches of government.  The timing of such hearings indicates the importance of elections in driving constitutional discussion in Congress.  Though the Judiciary Committees are clearly an important site for constitutional deliberation in Congress, they do not monopolize such discussions.  Congress considers a wide range of constitutional topics, giving as much attention to structural matters as to issues of individual rights.  The courts may not be as important in spurring Congress into such discussions as might be thought, while the actions of the executive branch may be more important than is generally recognized. 

“The New Originalism,” Georgetown Journal of Law and Public Policy 2:2 (Summer 2004): 599-613.  Click here to download a copy.

New originalist theories of judicial review and constitutional interpretation that have emerged since the 1980s can be distinguished from an older set of theories that were predominant in the 1970s and 1980s. This article distinguishes these older and newer versions of originalism and places them within their intellectual and political contexts. Whereas the old originalism developed largely to serve as the basis for criticizing the constitutional doctrine developed by the Warren and early Burger Courts, the new originalism has developed with the Rehnquist Court in mind and is less concerned with criticizing judicial review than with guiding it.

“The Casey Five versus the Federalism Five: Supreme Legislator or Prudent Umpire?,” in That Eminent Tribunal: Judicial Supremacy and the Constitution.  Christopher Wolfe, ed.  Princeton: Princeton University Press, 2004.

The Rehnquist Court is often attacked as being especially antidemocratic and activist. Although Bush v. Gore added emotion to the charge, the primary evidence for this claim is usually drawn from the Court’s federalism decisions, reflecting the Rehnquist Court’s unusual willingness to invalidate federal legislation. This chapter argues that the charge of judicial supremacy is misplaced when aimed at the “Federalism Five,” however. Such criticism would be more appropriately targeted at the different set of justices who formed the majority in cases such as Casey. The structure of the federalism decisions is such that political power is simply shifted by them from one legislature (Congress) to another (that of the states). By contrast, the structure of individual rights decisions such as Casey is such that political power is removed from the electoral arena entirely and lodged in the judiciary.

“Judicial Independence, the Power of the Purse, and Inherent Judicial Powers,” with G. Gregg Webb. Judicature 88:1 (July-August 2004): 12-19, 45.  Click here to download a copy.

State courts have claimed an inherent judicial power to order state and local legislative bodies to pay for specified judicial expenses. The centralization of state court administration and budgeting has created a context in which the inherent judicial power could pit the highest state courts against the state legislatures in constitutional battles over the general judicial budget. In the early 1990s, the New York state court was notably unsuccessful in attempting to exercise these powers to lay claim to a larger share of the state budget. A decade later, however, the Kansas court was politically more successful by exercising such power to raise revenues on its own. The episode raises basic questions about judicial independence and the separation of powers, while also exposing a political dynamic by which new political powers can be created.

"Crossing Over: Citation of Public Law Faculty in Law Reviews," Law and Courts 14:2 (Spring 2004): 5-10.  Click here to view online.

Public law faculty in political science are often uncertain as to their visibility and impact in legal academia.  This article reports a ranking and analysis of public law faculty based on citations in law reviews.  Relative to the most-cited law school faculty, political scientists have a relatively low profile in the law reviews.  Public law faculty with a wide range of substantive and methodological interests penetrate the law review literature, but books are the most common vehicle by which political scientists win cites in law reviews.

“The Court as the Final Arbiter of the Constitution: Cooper v. Aaron (1958)” in Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court, 9-21.  Gregg Ivers and Kevin McGuire, eds. Charlottesville: University of Virginia Press, 2004.

Cooper v. Aaron shows the interaction of judges (including lower court judges), lawyers, and political officials in creating constitutional change. The Supreme Court’s own strong pronouncement on judicial supremacy in its Cooper decision came only after the Little Rock desegregation crisis had largely been resolved by other officials and after the president had made plain his own support for judicial supremacy in constitutional interpretation.

“Marbury v. Madison and the Politics of Judicial Supremacy,” in Marbury v. Madison: 1803-2003 Deux Siecles de Censure Judiciaire, 169-185. Elisabeth Zoller, ed. Paris: Dalloz, 2003.

Marbury v. Madison did not establish American judicial review as we imagine it today. A power of judicial review was already anticipated before the Marbury decision, and in the early nineteenth century Marbury added little to the Court’s authority to interpret and apply the Constitution. Modern judicial review, in which the Court is the primary defender of constitutional requirements and an active force in the political arena, is a creation of the late nineteenth and early twentieth century, however, and was won through political battles in which conservative politicians joined forces with the federal courts to protect and extend judicial supervision of legislation. The power of judicial review was only secured when political progressives abandoned the effort to dismantle or weaken the power of judicial review and instead sought to turn it to their own ends.

"Executive Power in American Institutional Development," with Daniel P. Carpenter. Perspectives on Politics 1:3 (September 2003): 495-513. Click here to download a copy.

Many scholars of American politics implicitly or explicitly assume a model of congressional dominance. This standard narrative has been made explicit in principal-agent models of interbranch relations, in which the executive serves as a mere agent of the legislative principal. There are important limitations to the applicability of principal-agent models in the political context, and the assumption of congressional dominance obscures many important features of American politics. Over the course of American history, institutional development has often been driven by either autonomous executive action or conflicts between Congress and the executive. The argument is illustrated by reference to three cases: the growth of the federal extension service, the rise of national security intelligence operations, and the growth of the presidential impoundment power.

“Legislative Sanctions and the Strategic Environment of Judicial Review,” I-Con: The International Journal of Constitutional Law 1:3 (July 2003): 446-474. Click here to download a copy.

This paper elaborates a model of the political decision to sanction courts for their exercise of the power of judicial review. The paper examines the logic for why elected officials might preserve, and when they might subvert, an independent judiciary armed with the power of constitutional review. The paper identifies several reasons why legislators might value independent judicial review, and identifies the circumstances in which the political costs of such review would outweigh its political benefits. The argument is illustrated in the historical experience of court-curbing activities in the U.S. Congress.

“William H. Rehnquist: Nixon’s Strict Constructionist, Reagan’s Chief Justice,” in Rehnquist Justice: Understanding the Court Dynamic, 8-33. Earl Maltz, ed. Lawrence: University Press of Kansas, 2003.

This chapter examines William Rehnquist and his constitutional arguments and jurisprudence in the context of the conservative critique of the Warren Court. Rehnquist’s appointment to the Court by President Richard Nixon was, almost by accident, the one full realization of Nixon’s goal of placing a “strict constructionist” on the bench, one who possessed both the intellectual capacity and jurisprudential ambition to rollback the work of the Warren Court. Similarly, Rehnquist’s elevation to Chief Justice appropriately symbolized the Reagan administration’s conservative constitutional ambitions, which Rehnquist had anticipated and shaped. Rehnquist’s jurisprudence evidences a distrust of judicially enforced individual rights that do not have strong foundations in the constitutional text and its historical origins, while giving broader scope to the Court to act as an arbiter between the other branches of the national government and between the state and federal governments.

“The Separation of Powers at the Founding,” in The Separation of Powers: Documents and Commentary, 1-14. Katy J. Harriger and William Owen Roberts, eds. Washington: D.C.: CQ Press, 2003.

This paper examines the development of theories of separation of powers from seventeenth century Europe through the early nineteenth century United States. The idea of the separation of powers took on clear normative importance fairly quickly in theories of government, but the concept itself was always less clear and underwent substantial development over the course of this period as the result of theoretical refinement and practical experience. The early constitutional experience in the United States itself included substantial experimentation with constitutional structures. That experimentation and conceptual development was still in progress when the U.S. Constitution itself was drafted, and the constitutional framers left a great deal to be worked out by those who were to live under the Constitution.

“'An Indispensable Feature’? Constitutionalism and Judicial Review,” New York University Journal of Legislation and Public Policy 6:1 (Fall 2002): 21-33. Click here to view online.

Jeremy Waldron has mounted a liberal defense of legislative supremacy and the rejection of a power of judicial review. Although many aspects of his argument are persuasive, his final conclusion that judicial review must be abandoned leaps beyond the arguments he has made about the requirements of liberal democracy. A form of judicial review is still sustainable within political world of the type Waldron describes. There are particular institutional features of democratic legislatures and liberal constitutions that would suggest the utility and appropriateness of an practice like judicial review even given Waldron’s normative commitments.

"It's Alive! The Persistence of the Constitution," The Good Society: A PEGS Journal 11:2 (Spring 2002): 8-12. Click here to download a copy.

I do not believe that it is fruitful in either descriptive or normative terms to regard the written Constitution as a form of "temporal imperialism" that allows its authors to "dictate, even when their bodies are silent in death." In this essay, I attempt to ameliorate the problem of the "living dead" Constitution by indicating how the Constitution has been regularly updated and supplemented over time, so that the governing constitutional practices and principles largely reflect contemporary mores. I nonetheless sketch a brief defense of the authority of the original text and intent of the Founders for judicial constitutional interpretation, but argue that the best justification for the authority of original intent lies in a theory of contemporary popular sovereignty not in any intrinsic authority of the dead.

“To Support This Constitution’: Judicial Supremacy in the Twentieth Century,” in Marbury v. Madison: Documents and Commentary, 101-128. Mark A. Graber and Michael Perhac, eds. Washington, D.C.: CQ Press, 2002.

This paper examines the expanded role of the U.S. Supreme Court in interpreting the Constitution and striking down laws as unconstitutional in the twentieth century. It situates this transformation of the Court in the broader political environment within which the Court operates and argues that the Court’s expanded role has been staunchly defended and encouraged by powerful political actors and that the Court has been careful to operate within the bounds of expected political support. In particular, the conservative wing of the Republican Party was instrumental in defending the Court and judicial review as essential institutions within American constitutionalism against progressive challenges in the early twentieth century, forcing progressives to abandon their initial hostility to judicial review as contrary to popular government in favor of a new emphasis on the ultimate consistency between democracy and an appropriately active Court. As Robert Dahl expected, the Supreme Court has not been actively countermajoritarian, but contrary to his expectations this has still been consistent with a constitutionally active Court.

“The Death of the Legalized Constitution and the Specter of Judicial Review,” in The Courts and the Culture Wars, 27-42.  Bradley C. Watson and Gary M. Quinlivan, eds.. Lexington, MA: Lexington Books, 2002.

There are multiple constitutional strategies for constraining politics and limiting government. Judicial review is most directly implicated in only one of those strategies, the “legalization” of the Constitution. The legalized Constitution consists of a set of specific, known rules that have the status of supreme law. This legalistic Constitution provides particular authority to the judiciary to interpret and apply constitutional law and review the actions of the other branches of government for their consistency with the Constitution. In the twentieth century, however, the preconditions of the legalized Constitution have collapsed, leaving the Court without strong authority for exercising the power of judicial review. Judicial authority can no longer be assumed, and its theoretical foundation is increasingly difficult to demonstrate.

“The Electoral College: A Modest Contribution,” in The Longest Night: Polemics and Perspectives on Election 2000, 371-390. Arthur J. Jacobson and Michel Rosenfeld, eds. Berkeley: University of California Press, 2002.

The Electoral College makes a modest contribution to the Constitution’s structural scheme of creating an effective government that is constrained to act in a restrained manner. The Electoral College was designed to address a number of concerns that were of greater interest to the Founders attempting to constitute a new nation than they are to the present. Nonetheless, the Electoral College has proven remarkably adaptable in accommodating social and political change, while creating generally clear electoral results and orderly political transitions. It also represents a central constitutional principle that American government should be grounded in the support of broad, rather than narrow, popular majorities.

“Yet Another Constitutional Crisis?” William and Mary Law Review 43:5 (May 2002): 2093-2149. Click here to download a copy.

The recent presidential impeachment and post-election controversy led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This paper will use those events as a foil for examining the nature of constitutional crises. The paper will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of informal constitutional practices, reasonably good constitutional design, and relatively limited political disagreement.

"Extrajudicial Constitutional Interpretation: Three Objections and Responses," North Carolina Law Review 80:3 (March 2002): 773-851. Click here to download a copy.

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.

“Taking What They Give Us: Explaining the Court’s Federalism Offensive,” Duke Law Journal 51 (October 2001): 477-521. Click here to view online.

Over the past decade, the Supreme Court has been unusually active in striking down acts of Congress in the name of federalism. The Court’s activism in this area is particularly striking since the judicial enforcement of federalism had largely been abandoned since the New Deal. The article offers a political explanation for the Court’s federalism offensive. The federalism offensive can best be understood as a product of the Court taking advantage of a relatively favorable political environment to advance a constitutional agenda of particular concern to some individuals within the Court’s conservative majority. The article elaborates each of these elements that have been supportive of the Court’s actions, indicating the value of the new institutionalism to explaining judicial behavior and explaining why the Court’s recent actions are distinct from the Court’s actions leading up to the Court-packing plan and the judicial retreat of 1937.

"The Political Foundations of Judicial Supremacy," in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change, 261-297.  Sotirios A. Barber and Robert P. George, eds. Princeton: Princeton University Press, 2001.

Many have looked at the Court’s formal powers and historical track record and concluded that the judiciary lacks the means to act independently. Such pessimistic conclusions need to be challenged on two fronts. First, we need to question the normative starting point, that judicial supremacy is really essential to the maintenance of constitutionalism. If other institutions and political actors in addition to judges take the Constitution seriously, then the constitutional order itself might not be threatened by periodic challenges to the judicial authority to interpret the Constitution. Second, we need to reconsider the political roots of judicial independence. In this chapter I consider some of the political incentives facing American presidents and how they often lead presidents to value judicial independence and seek to bolster, or at least refrain from undermining, judicial authority over constitutional meaning. The president has the formal tools to defeat the Court. The interesting question is whether he has the will or political support needed to successfully challenge the Court for constitutional leadership. Generally, he does not, creating a politically sustainable place for autonomous judicial action.

“The Confirmation Process We Deserve,” Policy Review 107 (June-July 2001): 76. Click here to view online.

In his study of the federal appointments process, Michael Gerhardt appeals to new institutionalist theories in political science as a necessary supplement to traditional constitutional analysis. The confirmation process is shaped not only by the procedures laid out in the Constitution for nominating and confirming judicial and executive officials, but also by historically developed norms and practices and current political interests. The confirmation process reflects the multiple and contradictory interests of a variety of actors, including the president, the Senate, interest groups and the media. The president has an intrinsic edge in the modern appointments process, but the fragmentation and ideological polarization of the Senate makes presidential success more difficult.

"The Road not Taken: Dred Scott, Constitutional Law, and Political Questions," Journal of Politics 63:2 (May 2001): 365-391. Click here to view online.

The Supreme Court’s decision in Dred Scott 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, while 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.

"Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning," Polity 33:3 (Spring 2001): 365-395.

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 paper 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.

"In Defense of Legislatures," Political Theory 28:5 (October 2000): 690-702. Click here to view online.

In his recent works, Jeremy Waldron is concerned with developing a vision of liberal democracy separated from the legal constitutionalism of the American model. Waldron's liberalism is characterized by a legislative rather than judicial supremacy. Although Waldron valuably centers our attention on the inescapable nature of reasonable disagreement over fundamental political questions, including the content of rights and the structure of democracy, he pays insufficient attention to basic aspects of institutionalized politics. In particular, Waldron does not consider the ways in which institutional form might matter to political outcomes. As a consequence, he underestimates the ways in which legislative outcomes might diverge from the popular will and the ways in which courts and legislatures may be distinctive institutions for reaching different constitutional goals.

“The Politics of the Supreme Court,” Policy Review 102 (August-September 2000): 63-70. Click here to view online.

In his political history of the Warren Court, Lucas Powe integrates doctrinal analysis with an awareness of political context. Examining the Court as a political institution emphasizes that the Warren Court was not uniquely political. The Supreme Court must always operate within a political environment. Its decisions have political consequences, and broader political and social currents shape the justices’ thinking about constitutional issues. Reconsidering the politics of the Warren Court is particularly useful, however, because of the need to explain how a politically responsive Court may also be an activist Court and how the Warren Court’s aggressive use of the power of judicial review served the interests and beliefs of national political majorities.

"On the Need for a Theory of Constitutional Ethics," The Good Society: A PEGS Journal 9:3 (Spring 2000): 60-66.  Click here to download a copy.

For decades, constitutional theory has primarily focused on the judicial interpretation of rules. The Court alone would deliberate on constitutional values, and would then translate those values into judicially enforceable rules that elected officials were to follow. Within the boundaries of those constitutional rules, the unprincipled struggle of interests could reign. Such a model of the Constitution as a set of externally enforced rules is both normatively and empirically problematic. The judicial perspective on the Constitution is only a partial perspective, and it must be supplemented with an understanding of the constitutional practices of the other branches of government. In particular, the recent presidential impeachment raised a number of constitutional issues that cannot be adequately resolved within a model of the Constitution as external rules, including problems of constitutional fidelity, propriety, and discretion. Theories of judicial interpretation of the Constitution need to be supplemented with a theory of constitutional ethics.

"Once More Unto the Breach: Post-Behavioralist Approaches to Judicial Politics," Law and Social Inquiry 25:2 (Spring 2000): 601-634.  Click here to download a copy.

This essay introduces the two "new institutionalist" approaches to the study of law and the courts and examines some tensions between them and their combined value for enhancing our understanding of the legal matters. Behavioralism and its immediate legacies have dominated the study of the law and the courts in political science for the past four decades, and its lessons remain the starting point for any empirical examination of public law in the discipline. In different ways, the two new institutionalisms both react against this behavioralist legacy and points toward the importance of rules, norms and social practices in shaping individual behavior. The article pursues critical examination of the tensions between them and their respective limitations, as well as their potential contributions to the empirical study of the courts. The article also considers the implications of the new institutionalism for thinking about the law. Although an institutionalist perspective is useful for advancing our understanding of judicial decision-making, the real promise of this approach may be its ability to push political scientists beyond such questions. Just as behavioralism brought new subjects and questions to the field as well as new methods and assumptions, so the new institutionalism will come into its own if it succeeds in changing the research agenda and directing political scientists to look beyond the voting behavior of justices.

"Dworkin’s Originalism: The Role of Intentions in Constitutional Interpretation," Review of Politics 62:2 (Spring 2000): 5-37. Click here to download a copy.

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.

"Herbert Wechsler’s Complaint and the Revival of Grand Constitutional Theory," University of Richmond Law Review 34:2 (May 2000): 509-543. Click here to download a copy.

Constitutional theory since the mid-1950s has been centrally concerned with justifying and guiding the practice of judicial review as it has been exercised since Brown v. Board of Education. Herbert Wechsler helped lay out this theoretical agenda with his complaint that the Court's opinion in Brown was not sufficiently concerned with adhering to traditional legal and judicial principles, and constitutional theory has been driven by the concern to provide legal justifications for such judicial actions. An alternative tradition in constitutional theory is represented by works such as Mark Tushnet's Taking the Constitution Away from the Courts. This alternative constitutional theory is less concerned with how the Court should interpret the Constitution than with how various political actors construct and implement the Constitution. Rather than assuming the perspective of a single political actor, the Court, this theoretical tradition probes more deeply into the normative and empirical puzzles associated with constitutional government.

"Bill Clinton was no Andrew Johnson: Comparing Two Impeachments," University of Pennsylvania Journal of Constitutional Law 2:2 (May 2000): 422-465. Click here to view online.

The 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,” Policy Review 99 (February-March 2000): 27-40. Click here to view online.

It is more useful to consider the reasons for which an official can be impeached than to attempt to catalog a list of specific impeachable offenses. A reconsideration of the principles governing impeachments and the historical record of federal impeachments indicates that the impeachment of President Bill Clinton was consistent with the constitutional standard of “high crimes.” Impeachments are justified in order to remove an immediate danger to the republic, or in order to educate citizens and officials of the appropriate standards of public conduct and to deter future bad conduct by government officials. Such bad conduct includes direct abuses of public office and basic inconsistencies between the actions of the officeholder and the expectations of the office.

"From Democratic Dualism to Political Realism: Transforming the Constitution," Constitutional Political Economy 10:4 (November 1999): 405-414. Click here to download a copy.

In the latest volume of Bruce Ackerman’s We the People, he sets out to demonstrate that the Constitution has been legitimately amended by "unconventional" means, or by mechanisms other than the Article V amendment process. In making this argument, Ackerman offers a rich constitutional history of the Founding period, the Reconstruction era, and the New Deal. He successfully demonstrates that unconventional methods were used to alter accepted constitutional meaning and government practices during these periods. Unfortunately, Ackerman does not provide an adequate theory that can demonstrate the legal significance of these historical events for future constitutional practice. Moreover, his effort to legitimate the New Deal’s constitutional revolution undermines his own normative theory of "dualist democracy" and seems to embrace a standard Legal Realist analysis that the Constitution simply is whatever powerful government officials declare it to mean.

"What’s the Point of APD?" Clio 9:2 (Spring/Summer 1999): 5, 43-45. Click here to view online.

It is not clear that those who self-identify with APD still share a common conversation or even share an understanding of the meaning of the field. Rather than overcoming the divisions within the discipline, APD seems to have internalized them. Although part of the problem is undoubtedly caused by the persistence of the methodological dynamics that Almond observed, part of the problem may be the exhaustion of the original APD project itself. APD has often been sold to the rest of the discipline as "politics and history," but it may be time to emphasize that "history" is of secondary concern. APD seems uniquely concerned with how political events build on one another and not simply with how they change. More generally, APD can continue to make a useful contribution in demonstrating the ways in which the present is affected by the past, and how current decisions might affect the future. Similarly, APD, and interpretive methodologies, seems particularly sensitive to how political structures are layered on to one another. Notably, these lines of inquiry imply a deeply historical sensibility, but not necessarily a historical subject matter.

"Serving the President: When Must the President Obey a Subpoena?" Reason (November 1998): 54-56.  Click here to view online.

The Starr investigation of President Clinton raised a basic constitutional issue affecting the separation of powers, whether and when a president must obey a subpoena to testify in judicial proceedings.  Presidents might reasonably claim a constitutional immunity from being compelled to present themselves before a judge.  The congressional impeachment power is ultimately the best mechanism for evaluating the appropriateness of such a presidential claim and for enforcing compliance with a subpoena when presidential grounds for ignoring judicial orders are deemed inadequate.  The president should be most concerned with adhering to an appropriate vision of constitutional ethics, not with providing minimal compliance with legal technicalities.

"Impeachable Offenses and Political Checks," Law and Courts 8:4 (Fall 1998): 13-15.

Recent events suggest that in an important sense, whether the president is guilty of committing impeachable offenses is not the primary issue in an impeachment inquiry. The commission of an impeachable offense is only the necessary precondition for an impeachment, but it is certainly not a sufficient condition. Impeachments are prospective in their purpose even if they are retrospective in their need to establish guilt in some specifiable offense. Impeachments are the grand interpretive events of American politics. In them, Congress interprets the nature of our constitutional order and reconstructs that order in a more pristine form. In the present context, that requires more than showing what the president did and laying it beside a list of "impeachable offenses." It requires explaining what Clinton’s actions have meant and what an impeachment would mean for our system of government. In this crucial political task, Congress failed.

"A Reputational Ranking of Public Law Programs," Law and Courts 8:3 (Summer 1998): 4-5.

Ranking of graduate political science programs for doctoral study in public law based on a 1998 survey of a sample of members of the Law and Courts section of the American Political Science Association.

"Dismantling the Modern State? The Changing Structural Foundations of Federalism," Hastings Constitutional Law Quarterly 25:4 (Summer 1998): 483-527. Click here to download a copy.

Federalism, as a constitutional concept underlying the appropriate distribution of powers among levels of government, has responded in understandable ways to long-term trends in economics, political organization, and political values. Those factors have favored increasing centralization through most of the twentieth century, which is reflected in both judicial doctrine and governmental practice. However, changing conceptions of the political economy and the political regime have created a new structual dynamic that favors a less centralized version of federalism. The article examines the structural foundations of the movement toward centralization and the modern countertrends to that movement which have fostered a move toward decentralization. Such developments indicate that federalism not meaningless as a constitutional concept. Neither, however, is it static nor a function of legal doctrine. Federalism is instead a fluid concept operating within broad limits and is responsive to larger political and social changes.

"Revisiting Tocqueville’s America: Society, Politics and Association in the Nineteenth Century," American Behavioral Scientist 42:1 (September 1998): 21-32. (Reprinted in Beyond Tocqueville: Civil Society and Social Capital in Comparative Perspective, 21-31.  Bob Edwards, Michael W. Foley and Mario Diani, eds. Hanover: University Press of New England, 2001.)

The conception of social capital has revitalized the study of civil society. Alexis de Tocqueville’s examination of 19^th-century America is a major source of inspiration for much of this work. Tocqueville’s analysis has been used to help support the idea that a strong civil society is crucial to democratic success. A reconsideration of Tocqueville’s analysis, and, more important, of his American case, however, suggests that an active civil society is not an unalloyed good for democratic politics. A strong society can be not only a support but also a threat to democracy and liberal democratic ideals. One’s evaluation of the health of democratic politics must depend on a study of the effects of political institutions and constitutional structures, as well as of civil society.

"The Rhetorical Presidency, Presidential Authority, and President Clinton," Perspectives on Political Science 26:4 (Fall 1997): 199-207. (Reprinted in The Presidency, Then and Now, 201-217.  Phillip G. Henderson, ed. Lanham, MD: Rowman & Littlefield, 2000.).

The concept of the "rhetoric presidency" has become an important device for drawing a qualitative distinction between nineteenth-century and twentieth-century behavior. The twentieth-century version of the rhetorical presidency drew heavily from the contemporary example of the presidency of Ronald Reagan. Some have suggested that Bill Clinton has altered the form of the rhetorical presidency to avoid many of its difficulties. But Clinton’s particular deviations from the Reagan model have done less to transform the rhetorical presidency as previously understood than to bring it to fruition. Analysis of the rhetorical presidency is too often divorced from the broader institutional and political context of the office, with particular implications for understanding the Clinton presidency. The paper reexamines the rhetorical presidency and its link to the rise of the "modern presidency," and finds that the early Clinton administration underscores many of the original concerns of the rhetorical presidency literature.

"The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change" Publius: The Journal of Federalism 26:2 (Spring 1996): 1-24.

The requirements of the U.S. Constitution are often assumed to be either clear or defined by the judiciary through interpretation, or both. Examination of the nullification crisis of 1833 indicates that this view of the Constitution is misleading. The nullification crisis provoked three competing visions of the appropriate understanding of federalism in the context of textual ambiguity and judicial activity. The subsequent development of federalism was determined by that political conflict and compromise. The nullification controversy provides an important example of the openness of constitutional norms, the significance of political debate in the shaping of constitutional meaning, and the complexity of antebellum political thought.

"Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution," Studies in American Political Development 9:1 (Spring 1995): 55-116

The 1804 congressional impeachment of Supreme Court Justice Samuel Chase is both a critical moment in the development of American political institutions and mores and an important case exposing how the Constitution actually operates as a governing institution. The impeachment has traditionally been portrayed in absolutist, personal, and essentially legalistic terms, emphasizing the victory of separation of powers with the acquittal of Chase. A more specifically political analysis of the constitutional issues at stake, however, reveals a more complex set of alternatives and a more subtle outcome. The Senate trial did not result in a clear vindication of Chase's position, but rather established a particular vision of the role of an unelected judiciary in a republican form of government. This vision emphasized the qualified independence of the judiciary from popular control, a relatively adversarial and open courtroom, and the removal of judges from normal, partisan political disputes.

Works in Progress

Repugnant Laws: Judicial Nullification of Acts of Congress from the Founding to the Present, book under contract with University Press of Kansas

The historically unprecedented activism of the Rehnquist Court in striking down federal statutes has generated new interest in the foundations of the power of judicial review.  This book will provide some perspective on the Rehnquist Court's actions in the form of a political history of the judicial evaluation of the constitutionality of federal statutes.  This book will tell the story of the development of judicial review over time through a particular focus on the Court's willingness and ability to evaluate the handiwork of a coordinate branch of the federal government.  Judicial review of congressional acts also provides the clearest view of the so-called countermajoritarian difficulty, and the book will consider the extent to which the Court has been an obstacle to congressional policymaking.

American Constitutionalism, one volume teaching edition and multi-volume reference edition, with Howard Gillman and Mark A. Graber, books under contract with Oxford University Press

An innovative new casebook for the teaching of constitutional law in political science, history and law.  It provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions.  The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. The one-volume version combines powers and liberties into a single, abbreviated volume; perfect for a one-semester course. The multi-volume version combines the materials in the two volumes of the casebook with additional primary materials otherwise available on the supplemental website in order to provide a comprehensive overview of American constitutional development from the colonial period to the present; perfect for scholars and research libraries.

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Last Revised: 10/1/12