Review of Constitutional Interpretation:

Perspectives on Political Science 29:4 (Fall 2000): 242

Once, and for many years, there existed broad agreement on the necessity and manner of constitutional interpretation. Because the written U.S. Constitution was law, indeed the highest law of the land, that document was to be construed according to the commonly accepted way that all law was routinely interpreted. Although reasonable people might disagree regarding the applications of commonly accepted rules of interpretation expounded by authorities such as Blackstone and Story, the fundamental rules themselves were usually beyond disputation. Until recently, that is.

For three decades now, the scholarly world has enmeshed itself in a lively debate about the meaning and content of constitutional theory. At the root of that dispute is what, if any, interpretative justification should prevail and guide the judiciary regarding the Constitution's meaning. The inducements to wholesale revision of the way academics and judges viewed the Constitution's influence and meaning were several. The academy's endless fascination with epistemological theory and its persistent postmodern musings coincided with a continuing heated debate surrounding the Supreme Court's decision in Roe v. Wade, with the capital punishment-Eighth Amendment exchange between Justice Brennan and Attorney-General Meese on the extent to which Supreme Court jurisprudence was bound by the Founders' intent, and with the nomination to the Supreme Court of Robert Bork. Into this theoretical fray enters Keith Whittington, assistant professor of politics at Princeton. Whittington examines in detail the disputed issue of the necessity and rightness of constitutional interpretation, all in an effort to defend the proposition that "the Constitution is most appropriately interpreted in accord with the jurisprudence of original intent, which seeks to recover the textual intentions of the ratifiers in order to bring them to bear in settling current constitutional disputes."

Thus, in the terminology of the theoretical dispute that dominates contemporary academic writing, Whittington is an originalist. He writes in opposition to those who would decide cases by substituting a part of the Constitution for the whole of that document, or pay no attention to the document's clear meaning. John Hart Ely, Cass Sunstein, Ronald Dworkin, legal realists, critical legal studies advocates, and postmodern approaches to constitutional interpretation are all criticized. Whittington employs an elaborate argument to defend his formulation of originalism. In doing so, he makes clear and precise reference to the current literature and particularly focuses his attention on modern and contemporary philosophy as well as on prominent and influential legal writings.

Whittington's language is moderate, measured, and thoughtful. Far more often than not, his argument persuades; where it does not, one nonetheless respects its careful formulation and its straightforwardness. The author defines his terms carefully as he develops his comprehensive argument and defends it from potential criticism. For those fascinated by the intricacies of contemporary legal theory, and especially for those who read and publish in that area, Whittington's book should prove nearly indispensable.

-- Peter Schotten, Augusta College

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