A Fine Romance: Keith Whittington's Originalism and the Drama of U.S. Constitutional Theory

Abstract

Keith Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge: Harvard University Press, 1999. ix + 303 pages. Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University Press of Kansas, 1999. xi + 299 pages. Introduction Political Scientist Keith Whittington offers his theory of the U.S. Constitution in two volumes, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Constitutional Construction: Divided Powers and Constitutional Meaning. In Constitutional Interpretation (CI) Whittington presents an originalist constitutional theory with a focus on the power of judicial review, including an energetic and often biting critique of selected cases, such as Griswold v. Connecticut. In Constitutional Construction (CC) Whittington offers four detailed. case studies of constitutional readings originating from congressional, executive, and state sources, supported by a briefer theoretical grounding for nonjudicial constitutional readings. Taking a cue from scholars who have argued that various (meta) narratives shape the literatures of their disciplines, I suggest that Whittington's constitutional theory is best understood as a romantic narrative-complete with all the possibilities and problems that romance entails (see, e.g., White 1973, 1987; Schafer 1970). Romantic narratives are typically characterized by a grand and often mystical quest that harkens back to an original and idealized Golden Age. The hero of this story often feels alienated from his true self and must battle several formidable adversaries who would prevent him from attaining the ultimate goal, a return to the Edenic natural state, which allows for ample self-expression. Several tensions characterize romantic work. Although the hero seeks ultimately to defeat his adversaries, he also needs them to maintain the narrative and his centrality in it. The objective status of the Edenic period is in tension with the desire for subjective self-expression in a contemporary context, as reason competes with imagination. In this sense, the grand quest can be understood as a desire for true but imaginative selfexpression, perhaps as a kind of emancipation from the particularity of history and the conflict of politics. I argue that Whittington's theory follows the romantic form in several ways. His work is strongly nostalgic regarding the founding. He identifies his central adversary as the overreaching judiciary, arguing that the judiciary preempts popular constitutional expression in contemporary politics by failing to follow the founders. Whittington's goal is to offer a constitutional theory that reins in judicial power, thus clearing the way for the people (through their agents in the popular branches) to follow the founders' example of regular constitutional expression. This leads to a tension in Whittington's work between the objective status he accords to the founding and the subjective expression that characterizes popular constitutional construction. I conclude the essay by discussing the promises and pitfalls of the romantic narrative, suggesting that it may be enriched by the addition of tragic, ironic, and comic voices, which can be found in critical race theory and queer theory. A Summary of Whittington's Work: Objective and Subjective Constitutional Expression Whittington's constitutional theory is structured around a tension between a desire to remain true to the founders' objective constitutional expression and a desire to foster subjective expression in popular constitutional construction. In Whittington's view, judicial interpretation should be strictly limited by framers' intent, which takes on an objective status in his work, while constitutional construction in the popular branches is the appropriate venue for subjective constitutional expression unlimited by framers' intent. …