Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

by Whittington, Keith E.

• ISBN13: 9780700609697
• ISBN10: 0700609695
• Format: Hardcover
• Copyright: 1999-09-01
• Publisher: Univ Pr of Kansas

Summary

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks out of those neat compartments and reinvigorates the debate over how the judiciary should interpret the Constitution.

Keith Whittington reconsiders the implications of fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.

Other "originalists" have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method. This book sympathetically examines the most sophisticated critiques

Table of Contents

PREFACE	xi
ONE. CONSTITUTIONAL INTERPRETATION	1	(16)
Originalism and Interpretation	2	(3)
Interpretation and Construction	5	(9)
Defining Interpretive Standards	14	(3)
TWO. THE DILEMMAS OF CONTEMPORARY CONSTITUTIONAL THEORY	17	(30)
Contemporary Constitutional Theory	18	(16)
The Nature and Purpose of Originalism	34	(13)
THREE. THE AUTHORITY OF ORIGINALISM AND THE NATURE OF THE WRITTEN CONSTITUTION	47	(30)
Originalism and the Written Constitution	50	(11)
The Non-originalist Text	61	(16)
FOUR. A DEFENSE OF ORIGINALISM AND THE WRITTEN CONSTITUTION	77	(33)
Accommodation, Politics, and Aspirations	77	(11)
Determinacy, History, and the Text	88	(22)
FIVE. POPULAR SOVEREIGNTY AND ORIGINALISM	110	(50)
The Idea of Sovereignty and the Active Sovereign	113	(14)
Rethinking Popular Sovereignty	127	(25)
Originalism and Its Relation to the People	152	(8)
SIX. THE NATURE AND LIMITS OF ORIGINALIST JURISPRUDENCE	160	(53)
Of What Is and What Should Never Be	160	(35)
The Limits of Originalism and Interpretation	195	(18)
CONCLUSION: INTERPRETATION AND THE CONSTITUTION AS LAW	213	(8)
NOTES	221	(74)
INDEX	295