JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. This study examines the extent and ways in which two ideologically disparate justices of the U.S. Supreme Court rely upon the intent of the framers of the Constitution in their opinions on constitutional questions. A content analysis of the complete opinions written by Justices Brennan and
This study examines the extent and ways in which two ideologically dis parate justices of the U.S. Supreme Court rely upon the intent of the fram ers of the Constitution in their opinions on constitutional questions. A content analysis of the complete opinions written by Justices Brennan and Rehnquist over a ten-year period reveals that not only do they not differ in their relative use of intentionalism but they also very rarely use original intent as the controlling argument in their opinions. We examine as well the justices' historiography. Finally, a systematic examination of all opin ions shows that the two justices consistently use intentionalism in support of quite different ideological outcomes. We discuss the quantitative and interpretive findings in light of debates over constitutional interpretation and explanations of judicial decision making.
In writing the U.S. Constitution the framers anticipated that the use of American military force should require an extraordinary consensus between Congress and the President. The era of the Vietnam War led many to believe that Congress had become the junior partner to presidents who exercised an increasing degree of constitutional independence in use of force issues. The War Powers Resolution (WPR) of 1973 attempted to address that constitutional imbalance. Our analysis of the constitutional debates surrounding the adoption of the WPR reveals that members of Congress were unable to agree upon a coherent "institutional" vision for Congress; even those who supported the measure were unsure of its meaning. When Congress took up measures related to the commitment of American forces in Kosovo, the same constitutional divisions that existed 25 years previously reemerged and Congress was unable to perform as a full constitutional partner-not because of presidential bullying, but because it lacked its own institutional view of its constitutional responsibilities.
Known as the Father of His Country, George Washington is viewed as a demigod for what he was and did, not what he thought. In addition to being a popular icon for the forces of American nationalism, he served as commander-in-chief of the victorious Continental Army. That he played a key role in securing the adoption of the Constitution is well known, but few credit him with a political philosophy that actively shaped the constitutional tradition.In this revisionist study, Glenn Phelps argues that Washington's political thought influenced the principles informing the federal government then and now. Disinclined to enter the debates by which the framers hammered out a consensus, Washington instead sought to promote his way of thinking through private correspondence, and the example of his public life.From these sources Phelps draws out his political ideas and demonstrates that Washington developed a coherent and consistent view of a republican government on a continental scale long before Madison, Hamilton, and other nationalists-a view grounded in classically conservative republicanism and continentally-minded commercialism. That he was only partially successful in building the constitutional system that he intended does not undercut his theoretical contribution. Even his failures affected the way our constitutional tradition developed.Phelps examines Washington's political ideas not as they were perceived by his contemporaries but in his own words, that is, he shows what Washington believed, not what others thought he believed. He shows how Washington's political values remained consistent over time, regardless of who his counselors or "ghost writers" were. Using letters Washington wrote to friends and family—written free from the constraints of public politics—Phelps reveals "a man with a passionate commitment to a fully developed idea of a constitutional republic on a continental scale."In recent years scholarship about Washington has seemed to focus on mythmaking. For readers interested in the founding period, the framing of what Hamilton called the "frail fabric," and constitutionalism, Phelps explores the substance behind the myth.
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