Constitutional Construction: Divided Powers and Constitutional Meaning
Posted: 1 Mar 2000
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 of constitutional interpretation. The interpreted Constitution retains significant indeterminacies, however, and there are no compelling interpretive answers to a wide variety of important constitutional questions. The central concern of the book is to examine a second aspect of the Constitution. The Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. The book characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation.
Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation encourage political actors to construct their own constitutional understandings. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Important constitutional issues are routinely debated and resolved outside the judiciary and without reference to the standard conventions of constitutional law. The Constitution exists outside the courts. Moreover, constitutionalism outside the courts proceeds in a very different fashion than the examples of constitutional law and traditional constitutional theory would suggest.
The book develops this argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency. The book provides a substantive reinterpretation of these historical episodes, while using these cases to illustrate the importance of constitutional politics in elaborating and developing our inherited Constitution.
JEL Classification: K19, K40
Suggested Citation: Suggested Citation