Keith Whittington

Keith Whittington
Princeton University | PU · Department of Politics

About

67
Publications
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Introduction
Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and currently director of graduate studies in the Department of Politics. He has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency. He is currently working on a political history of the judicial review of federal statutes and a volume of source materials in American political thought.

Publications

Publications (67)
Article
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Sustaining a climate that encourages free speech and free inquiry is a persistent challenge in the university setting, just as it is in society more broadly. Appropriate institutional protections and policies can help protect against the censorious suppression of unorthodox views, but the problem of self-censorship by faculty and students alike mig...
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The 1930s is generally understood to be a period of constitutional revolution in the United States, with a restrictive conservative U.S. Supreme Court giving way to a latitudinarian liberal Court. The politics of judicial review and the substance of constitutional law in the states has rarely been considered. This Article begins to integrate the st...
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Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chie...
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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...
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Unwritten constitutional conventions have long been understood to be integral to the operation of Westminster parliamentary systems. The British legal scholar A.V. Dicey emphasized that "constitutional morality" supplemented legal rules in regulating the exercise of political power and limiting the discretion of government officials. The presence o...
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The Patient Protection and Affordable Care Act invoked a political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the US Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he...
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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 exam...
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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 connect...
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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 conversatio...
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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 his...
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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 w...
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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...
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This article summarizes the judicial checks on the presidency from two perspectives. The first perspective describes the doctrinal framework within which the courts consider executive power. The second addresses the theoretical and empirical research on how these judicial checks operate in practice. The three legal doctrines that are relevant to th...
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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 possi...
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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 exercisin...
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Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to strike down legislation passed by its partisan and ideological opponents and uphold against constitutional challenge legislation passed by its allies. This article introduces an original dataset composed of all cases in which the Court substan...
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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 studi...
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The Oxford Handbook of Law and Politics (Oxford University Press), edited by Keith E. Whittington (Princeton University), R. Daniel Kelemen (Rutgers University) and Gregory A. Caldeira (Ohio State University), is part of the multi-volume Oxford Handbooks of Political Science. The study of law and politics is one of the foundation stones of the disc...
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The idea of a constitutional freedom of association was embraced by the U.S. Supreme Court in the mid-twentieth century as implicit in the First Amendment. Although initially endorsed by the Court as a fundamental freedom that was necessarily entwined with the freedom of speech when confronted with cases in the 1930s and 1940s of local government o...
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Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so - and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had...
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Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to uphold against constitutional challenge legislation passed by its partisan and ideological allies. This paper introduces an original dataset composed of all cases in which the Court substantively reviewed the constituitonality of federal statu...
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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 t...
Chapter
The United States Congress delegates a significant portion of its legislative work to its committees. Even though the power and independence of committees has varied over time, the observation of a young Woodrow Wilson in the late nineteenth century remains largely true today: “The House sits, not for serious discussion, but to sanction the conclus...
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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. Constitutiona...
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The exercise of constitutional review by an active and independent judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an overcoming obstructions account of why judicial review might be supported by existing power holders. Wh...
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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...
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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 arm...
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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 eccle...
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Ten years from now, what kinds of issues of interest to politics will dominate the agenda of the United States Supreme Court? Will a dominant approach to constitutional interpretation emerge to guide the justices in their handling of these significant cases. © 2005, American Political Science Association. All rights reserved.
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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...
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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 nationa...
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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 cha...
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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...
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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...
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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. Wh...
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The Tyranny of the Two-Party System. By Lisa Jane Disch. New York: Columbia University Press, 2002. 196p. $45.00 cloth, $19.50 paper - - Volume 1 Issue 2 - Keith E. Whittington
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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 legislator...
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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...
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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 poss...
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The Supreme Court's decision in Dred Scott v. Sandford 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 constitutio...
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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 cons...
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The Good Society 11.2 (2002) 8-12 I must admit to being a fan of the "living dead" movies and their various progeny. Within the subgenre, the corpses of the dead are reanimated through the influence of contagion, radiation, or scientific intervention. These zombies then ravenously stalk the living, often creating a new generation of zombies in the...
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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 of...
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Political challenges to the judiciary are usually regarded as a threat to the Constitution and judicial independence broadly. This need not be the case, however, and such assumptions may misinterpret American political history and underestimate American constitutionalism. This article reexamines historical presidential challenges to judicial suprem...
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Ronald Dworkin has criticized traditional theories of constitutional original intent by arguing that the constitutional text embodies multiple layers of intention. Abstract principles are among these layers of constitutional intent, and those principles should be the primary focus of a method of constitutional interpretation concerned with fidelity...
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The recent 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 Cl...
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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, it examines what it means to interpret a written constitution and how the courts should go about that task. It concludes that whe...
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This 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. The elaboration of this aspect of the Constitution is the process...
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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 N...
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The constitutional concept of federalism has often been tied to nineteenth century judicial doctrine. When those doctrines were abandoned by the Roosevelt Court, federalism effectively lost constitutional meaning. Theories of federalism focusing on questions of constitutional authority were replaced with theories of intergovernmental relations focu...
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The concept of social capital has revitalized the study of civil society. Alexis de Tocqueville's examination of 19th-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 a...
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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 U.S. Constitution is misleading. The nullification crisis provoked three competing visions of the appropriate understanding of fed...
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office hours: Tuesdays, 1:30-3:30 pm This course will examine the law as an independent force within a larger governmental and political system. It will explore questions of how the law is made, how it is made to respond to particular situations, how it is changed, and what difference it makes for social relations. One significant site of legal cre...
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Recent cases such as Boerne, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, ins...

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