In Defense of Legislatures

Political Theory

Volumn 28, Issue 5, 2000, Pages 690-702

  Whittington, Keith E ^a  

^a PRINCETON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84997909624     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591700028005006     Document Type: Review

References (33)

1. As Alexander Bickel, who helped launch the current literature in constitutional theory, noted, “It is late for radical changes. … Judicial review is a present instrument of government. It represents a choice that men have made.” The task of constitutional theory is to justify that choice. Alexander Bickel, The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill, 1962), 14
2. But cf. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 1999).
3. Jeremy Waldron, Law and Disagreement (New York: Oxford University Press, 1999), 159.
4. See also John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
5. The broader approach to constitutional theory has been maintained in a variety of scholarly communities, although primarily outside of American law schools, from the British jurisprudential school that is of central importance to Waldron, to the “Princeton school” of constitutional studies nurtured by Walter Murphy, to the Political Economy for a Good Society group, to the “constitutional political economy” of public choice scholars. See also Sotirios A. Barber and Robert P. George, eds., Constitutional Theory and Constitutional Studies (forthcoming);
6. Stephen L. Elkin and Karol Edward Soltan, eds., A New Constitutionalism (Chicago: University of Chicago Press, 1993);
7. Charles K. Rowley, Constitutional Political Economy in a Public Choice Perspective (Boston: Kluwer Academic, 1997).
8. Jeremy Waldron, The Dignity of Legislation (Cambridge, UK: Cambridge University Press, 1999), 1.
9. Waldron, Law and Disagreement, 9.
10. Waldron, Dignity of legislation, 4.
11. Waldron, Law and Disagreement, 31, 32 (footnote omitted).
12. The oversight is particularly unfortunate since a number of theoretically driven, empirical studies along these lines have been done. For example, Donald Morgan, Congress and the Constitution (Cambridge, MA: Harvard University Press, 1966);
13. Susan R. Burgess, Contest for Constitutional Authority (Lawrence: University Press of Kansas, 1992);
14. Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996);
15. Bruce Ackerman, We the People, vol. 2 (Cambridge, MA: Harvard University Press, 1998);
16. John J. Dinan, Keeping the People's Liberties (Lawrence: University Press of Kansas, 1998);
17. Keith E. Whittington, Constitutional Construction (Cambridge, MA: Harvard University Press, 1999).
18. Waldron, Dignity of legislation, 5.
19. Waldron, Law and Disagreement, 102, 93.
20. It is a virtue of the legislative process that it “openly acknowledges and respects (rather than conceals) the inevitable differences of opinion and principle among” the members of the community. Waldron, Dignity of Legislation, 2.
21. “It looks as though it is disagreement all the way down, so far as constitutional choice is concerned.” Waldron, Law and Disagreement, 295, 222–23, 238, 85.
22. Waldron, Law and Disagreement, 109.
23. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), no. 55, 342;
24. Waldron, Law and Disagreement, 52.
25. Hamilton et al., Federalist Papers, no. 10, 83.
26. For example, James G. March and Johan P. Olsen, Rediscovering Institutions (New York: Free Press, 1989);
27. Howard Gillman, “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making,” in Supreme Court Decision-Making, ed. Cornell W. Clayton and Howard Gillman (Chicago: University of Chicago Press, 1999).
28. Waldron, Law and Disagreement, 13, 15.
29. This concern with limiting the legislature is central to many popular sovereignty accounts of constitutionalism. For example, Bruce Ackerman, We the People, vol. 1 (Cambridge, MA: Harvard University Press, 1991);
30. Keith E. Whittington, Constitutional Interpretation (Lawrence: University Press of Kansas, 1999), 110–59.
31. See especially, Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35.
32. E. E. Schattschneider, The Semi-Sovereign People (Hinsdale, IL: Dryden, 1960), 2.
33. Waldron, Law and Disagreement, 310.