Origins of the Bill of Rights, and: Constitutional Construction: Divided Powers and Constitutional Meaning (review)

Origins of the Bill of Rights. By Leonard W. Levy (New Haven, Yale University Press, 1999) 306 pp. $30.00

Constitutional Construction: Divided Powers and Constitutional Meaning. By Keith E. Whittington (Cambridge, Mass., Harvard University Press, 1999) 303 pp. $49.95

Levy draws mainly on his previously published work to provide a crisp summary of the background of some provisions in the Bill of Rights. Occasionally repetitious, Levy's book is a semipopular guide to certain aspects of the history of civil liberties. It offers an overview of such topics as the general idea of limited government and bills of rights, the framers' vision of free expression, their ideas about religious establishments, and the problems of criminal procedure to which they were responding in writing the Fourth and Fifth Amendments, as well as the habeas corpus and bill of attainder clauses of the original Constitution.

Levy defends the so-called individual rights view of the Second Amendment, arguing that it was designed to give individuals a right to bear arms and that it refers to the "well-regulated militia" only as a way of explaining the background against which the provision was written. As in his earlier work on the establishment clause, Levy concludes that the framers were concerned to bar Congress from passing laws "about" religion, without recognizing fully the distinction between laws about religion in the sense that they take religion as their subject matter, and laws about religion in the sense that they deal with subjects with which religious institutions are also engaged. Despite this flaw, the book as a whole, though it breaks no new ground, will be helpful to educated general readers.

Whittington's book is among the most important recently published about constitutional theory and history. Whittington distinguishes between constitutional interpretation--tied closely to a reasonably determinate text and typically provided by courts--and constitutional construction--a process in which nonjudicial actors develop reasonably long-lived understandings about fundamental features of political organization that the Constitution's text does not fully specify. He uses a series of case studies to illustrate the process of constitutional construction. The impeachment of Justice Samuel Chase, for example, shows how Congress developed a theory restricting courts to law announcing narrowly defined. On Whittington's account, President Andrew Johnson's impeachment set in place a regime in which the executive was largely subordinate to Congress. Notably, both impeachments failed as legal maneuvers, since neither Chase nor Johnson was removed from office, though both impeachments succeeded in entrenching institutional relationships as much as any constitutional interpretations did.

Whittington effectively distinguishes between constitutional constructions and ordinary policymaking, although his chapter on the nullification crisis is less persuasive in demonstrating the force of that distinction than his others. An important component of Whittington's account is his emphasis on how such ordinary political devices as coalition building, heightened rhetoric, and the creation of new institutions of governance (emphasized in his chapter on the conflict between Congress and President Nixon) contribute to effective constitutional construction. Whittington believes that the prevalence of constitutional constructions undermines arguments that characterize American political history as a succession of regimes. In Whittington's view, a number of constructions have persisted across traditionally defined regimes. Yet, Whittington's approach may actually reinforce a regime-centered account of American political history, by directing attention to constitutionally fundamental arrangements, characteristic of constitutional regimes, that have developed essentially without judicial participation.

Mark Tushnet
Georgetown University Law Center

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