Constitutional Construction: Divided Powers and Constitutional Meaning (review)

Constitutional Construction: Divided Powers and Constitutional Meaning. By Keith E. Whittington. Cambridge: Harvard University Press, 1999; pp. x + 303. $49.95.

Most scholarly attention paid to interpreting the Constitution is focused on court opinions or the occasional treatise on political philosophy. In contrast, Keith E. Whittington provides a refreshingly different perspective in his book Constitutional Construction. Whittington contends that beyond the presumably precise and determinative interpretation of the Constitution meted out by the judiciary is another important layer of constructed meaning derived from political and legislative debates. Such constructions are necessary to fill gaps in constitutional meaning on issues ranging from justifications for impeachment to the constitutionality of protective tariffs to the extent of presidential war powers. This central idea, that constitutional meaning is crafted through dialogue rather than awaiting objective extraction by learned legal authority, will appeal to rhetorical scholars.

After developing his theoretical perspective, Whittington offers four chapter-length case studies in support of his thesis. The first case, which addresses the 1805 impeachment of Supreme Court Justice Samuel Chase, is an intriguing look at the earliest disputes over the nature of the federal courts and judicial power and conduct. While Chase survived, the Republicans successfully constructed an impeachment power that applied to political abuses as well as criminal acts. Like all of the case studies, it is well researched and well written. I found the second study, which deals with the nullification crisis and issues of federalism during the Andrew Jackson era, the least compelling. The complexity of the issues, length of the debates, and changing allegiances of political actors such as Jackson, Calhoun, Clay, and Webster complicated Whittington's analysis, resulting in a mainly descriptive account of the dry proceedings. Ultimately the chapter seems less about constitutional construction than about deft political prowess, although these elements are certainly interrelated. Chapter four provides a compelling account of the struggle to construct the nature of the presidency during the impeachment of Andrew Johnson. Whittington's excellent analysis demonstrates how the final construction, a moderate position set between two more radical constructions, not only limited Johnson's power but also constrained future presidents. The final study addresses three crucial issues of presidential power during the Nixon era--budget reform, presidential war powers, and intelligence gathering. Again, the analysis is sharp and demonstrates how the new construction negotiated between the executive branch and Congress was able to rein in growing presidential power and reassert a stronger congressional role in national governance.

While claiming that his examples are "representative of the variety and nature of constructions as a class throughout our history," a minor weakness is that the case studies fail to cohere around a singular issue (16). Although this serves Whittington well in demonstrating that constitutional constructions have important implications across the constitutional landscape, it also robs him of a unity in his analysis and his construct. With two of the cases addressing grounds for impeachment, three implicating battles between the executive branch and Congress, and two investigating the limits of presidential power, it is difficult to find an umbrella encapsulating all four entries. Similarly, the historical gap created by basing three of the case studies in the nineteenth century and the fourth 100 years later is substantial. The inclusion of an additional case addressing a topic such as the New Deal might have lessened these concerns by bridging the gap between Andrew Johnson and Nixon and by providing more coherence through sustained focus on executive-legislative debate. A developed analysis of the New Deal also would supplement Whittington's brief explanation of the interim resurrection of executive power (159­60). The Clinton impeachment, which surely arose too late in the publication process to be included, further assists Whittington's argument by providing readers with an insightful perspective with which to reflect and consider this more recent executive-legislative dispute over the construction of the impeachment power.

A more serious concern for some scholars will be Whittington's treatment of...