Review of Constitutional Interpretation:

Gerard Casey, The Review of Metaphysics, 54:1 (September 2000): 179.

As its title suggests, this is a book about constitutional interpretation. More specifically it is an articulation and defense of that particular method of constitutional interpretation, known as originalism, which looks to the original intent of the constitution's framers as a benchmark against which interpretation is to be made. Professor Whittington believes "that originalism is the method most consistent with the judicial effort to interpret the written constitutional text and that an originalist jurisprudence facilitates the realization of a political system grounded on popular sovereignty" (p. 3). I think it is fair to say that in the current legal, political, and philosophical climate, originalist theories are pretty much on the defensive, which makes Whittington's book all the more timely and valuable. Whittington's strategy is straightforward. He gives a preliminary account of originalism, defends it against the most sophisticated criticisms that have been made of it, represents it in a form that escapes the limitations it possesses in some other presentations, and then situates and defends the reconstituted theory against all comers. The last substantial chapter in the book is largely a catechism of what originalism is not; it is not anthropomorphism, interpretivism, clause bound, necessarily conservative, judicially passive, extratextual, or self-refuting.

The core of Whittington's thesis is, first, that originalism is required by the very nature of a written constitution and second, that a jurisprudence of original intent best accommodates popular sovereignty. The first part of this thesis is easy enough to assert, as Whittington himself notes is often all that is done by originalist thinkers, but he develops a tripartite support for the thesis in his third chapter. The first element of support is broadly historical, the second derives from a conception of what the constitution has to be if it is to be law, and the third is a broadranging claim regarding the intent-carrying nature of all, but especially legal, writing. Whittington develops the popular sovereignty element of his thesis in his fifth chapter, noting that it is not sufficient for originalists simply to assert that originalism can rest on a foundation of consensual government. This claim, Whittington believes, is broadly correct but, as such, is underdeveloped. A properly articulated theory of popular sovereignty has to be able to answer the following questions: How can the sovereign will be embodied? How can it be alienated from the sovereign? How can the sovereign endure over time? How is the present generation part of the sovereign that created the constitution?

There is so much that is good in this informative, scholarly, well-argued, clearly written, and exciting book that it is difficult to single out any one particular aspect above others. While the positive reconstruction of originalism is largely convincing (to this reviewer, at least), of particular interest is Whittington's devastating critique of theories of textual indeterminacy, such as deconstruction, structuralism, poststructuralism, reader response theory, and hermeneutics, all of which are frequently taken to render any method of interpretation based on intent a nonstarter. The apparent fragility of the originalist position can then be seen to reside in an ungrounded fear of what are, in fact, indefensible philosophical positions. Once this fear is removed, originalism becomes once again a serious contender. Whittington's book will be of interest and significance to constitutional scholars, legal theorists, political scientists, and philosophers, not only in the United States, but in all countries that have a written constitution, and even in Britain, which has seen, and is seeing, constitutional changes of proportions not experienced since the end of the seventeenth century.

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