Constitutional Construction: Divided Powers and Constitutional Meaning

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Constitutional Construction: Divided Powers and Constitutional Meaning. By Keith E. Whittington. (Cambridge, Mass., and London: Harvard University Press, 1999. Pp. xii, 303. $49.95, ISBN 0-674-16541-1.)

Although Keith Whittington writes in the dense language of the social sciences, he makes a straightforward and important point in Constitutional Construction: he believes that constitutional theorists focus so myopically on jurisprudence that they largely ignore the many instances in which non-judicial actors engaged in significant constitutional deliberation. Whittington acknowledges that courts play the primary role in interpreting the Constitution, but he argues that history is replete with instances--he takes the Nullification Crisis, Andrew Johnson's impeachment, and Richard Nixon's resignation to be examples--in which political controversies changed the Constitution's meaning. Whittington asserts that the construction of the Constitution has often changed without any ruling from a court or textual amendment to the document. Although the Radical Republicans failed to remove Johnson from office in 1868, they did achieve their goal of checking the power of the executive. Whittington concludes that, through the impeachment proceedings, congressional Republicans reasserted the primacy of the legislative branch after both Abraham Lincoln and Johnson had expanded presidential powers. Johnson retained his office, but such bold assertions of executive power as his would not be replicated until the twentieth century. Congress therefore succeeded in reinterpreting the appropriate separation of powers and thus reshaped the Constitution without any ruling from the judiciary.

Whittington offers the Nullification Crisis of 1832 as another example of this phenomenon. Although Andrew Jackson forced South Carolina's retreat from its doctrine of nullification, John C. Calhoun and other nullifiers nevertheless forced the federal government to compromise on the issue of tariffs. This compromise resolved the contentious question of whether Congress had the constitutional authority to raise tariffs for the protection of American manufactures or for revenue purposes only. …

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