In Preparation

Whittington, Keith E. Constitutional Crises, Real and Imagined. Princeton: Princeton University Press. Print.
Whittington, Keith E. The Idea of Democracy in America, from the American Revolution to the Gilded Age. Norman: University of Oklahoma Press. Print.


Whittington, Keith E. “What Can Professors Say On Campus? Intramural Speech and the First Amendment.” Journal of Free Speech Law (2023): n. pag. Print.
Whittington, Keith E. “What Can Professors Say in Public? Extramural Speech and the First Amendment.” Case Western Reserve Law Review 73.3 n. pag. Print.


Whittington, Keith E. “Justice Alito’s Free Speech Jurisprudence.” Harvard Journal of Law and Public Policy (2023): n. pag.
Whittington, Keith E. “Professorial Speech, the First Amendment, and Legislative Restrictions on Classroom Discussions.” Wake Forest Law Review 58.2 (2023): 463–524. Print.


Whittington, Keith E. “Impeachment in a System of Checks and Balances.” Missouri Law Review 87.3 (2022): 1171–1197.
Whittington, Keith E. “Academic Freedom and the Mission of the University.” Houston Law Review 59.4 (2022): 821–841. Print.
Whittington, Keith E. “The Supreme Court As a Symbol in the Culture War.” Georgetown Journal of Law and Public Policy 19.2 (2022): 363–376. Print.


Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, Volume One: Structures of Government, Third Edition. New York: Oxford University Press, 2021.
Whittington, Keith E. “The Role of Norms in Our Constitutional Order.” Harvard Journal of Law and Public Policy 44.1 (2021): 17–28.


Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, Vol 2: Rights and Liberties, Third Edition. New York: Oxford University Press, 2020.
Whittington, Keith E. “The Vexing Problem of Faithless Electors.” Cato Supreme Court Review 2019-2020 (2020): 67–97.
Whittington, Keith E. “Practice-Based Constitutional Law in an Era of Polarized Politics.” Georgetown Journal of Law and Public Policy 18.2 (2020): 227–239. Print.
Whittington, Keith E. “Reconsidering the History of Judicial Review.” Constitutional Commentary 35.1 (2020): 1–12.
Whittington, Keith E. “Is Presidential Impeachment Like a Coup?.” Georgetown Journal of Law and Public Policy 18.S (2020): 669–692. Print.
Whittington, Keith E. “Presidential Impeachments Should Not Be Normalized.” Debating Reform: Conflicting Perspectives on How to Fix the American Political System. 5th . Washington, D.C.: CQ Press, 2020. Print.


Whittington, Keith E. “The Value of Pluralism in the Academy.” Society 56.6 (2019): 607–610. Print.
Whittington, Keith E. “Free Speech and the Diverse University.” Fordham Law Review 87.6 (2019): 2453–2477.
E., Keith Whittington. “Academic Freedom and the Scope of Protections for Extramural Speech.” Academe 105.1 (2019): n. pag.
Whittington, Keith E. Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. Lawrence: University Press of Kansas, 2019. Print.


Whittington, Keith E. “Rogers M. Smith: Stories We Tell Ourselves.” PS: Political Science and Politics 51.4 (2018): 895–899. Print.
Whittington, Keith E. “Partisanship, Norms, and Federal Judicial Appointments.” Georgetown Journal of Law and Public Policy 16.2 (2018): 521–536.
Whittington, Keith E. “The Bounded Independence of American Courts.” New York University Law Review Online 93 (2018): 70–74.
Whittington, Keith E. “Free Speech and Ideological Diversity on American College Campuses.” The Value and Limits of Academic Speech: Philosophical, Political, and Legal Perspectives. New York: Routledge, 2018. Print.
Whittington, Keith E., and Benjamin Johnson. “Why Does the Supreme Court Uphold So Many Laws?.” University of Illinois Law Review 2018.3 (2018): 1001–1048.
Whittington, Keith E. Speak Freely: Why Universities Must Defend Free Speech. Princeton: Princeton University Press, 2018. Print.
Whittington, Keith E. “The Supreme Court and Slavery.” The Political Thought of the Civil War. Lawrence: University Press of Kansas, 2018. Print.


Frost, Daniel, and Keith E. Whittington. “A Man For All Seasons: Historical Memory and John Marshall.” Polity 49.4 (2017): 575–602. Print.
Whittington, Keith E. “Originalism, Constitutional Construction, and the Problem of Faithless Electors.” Arizona Law Review 59.4 (2017): 903–945.
Whittington, Keith E. “The Place of Congress in the Constitutional Order.” Harvard Journal of Law and Public Policy 40.3 (2017): 573–601.
Iuliano, Jason, and Keith E. Whittington. “The Nondelegation Doctrine: Alive and Well.” Notre Dame Law Review 93.2 (2017): 619–646.
Whittington, Keith E. “Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court.” Constitutional Studies 2 (2017): 97–116.
Whittington, Keith E. “Much Ado About Nothing: Signing Statements, Vetoes, and Presidential Constitutional Interpretation.” William and Mary Law Review 58.5 (2017): 1751–1791.
Whittington, Keith E., and Jason Iuliano. “The Myth of the Nondelegation Doctrine.” University of Pennsylvania Law Review 165.2 (2017): 379–431.


Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, Vol. 2: Rights and Liberties, Second Edition. New York: Oxford University Press, 2016.
Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism, Volume One: Structures of Government, Second Edition. New York City: Oxford University Press, 2016.
Whittington, Keith E. “Law and the Courts in American Political Development.” Oxford Handbook of American Political Development. New York: Oxford University Press, 2016. Print.

The study of law and the courts in political science has a long but complicated relationship with historical studies in political science and the study of American political development (APD). Political scientists interested in the politics of law and courts have integrated developmental themes and historical approaches from the founding of the discipline, and historical sensibilities have been a persistent feature of legal scholarship in the discipline over time. As a consequence, many public law scholars were naturally interested in the rise of the American political development literature and the return of historical work to political science generally. Even so, historical studies within legal scholarship and the study of law and courts within the American political development literature proper have often followed distinct paths. Historically minded legal scholars and APD scholars have not always found themselves in common conversations. There is reason for optimism in thinking that the paths of those two bodies of scholarship might cross more often in the future, but regardless scholars working primarily in the law are likely to continue to make important contributions to the study of politics and history.


Whittington, Keith. “Some Dilemmas in Drawing the Public Private Distinction in New Deal Era State Constitutional Law.” Maryland Law Review 75.1 (2015): 383–391. Print.

State constitutional law and state constitutions are generally understudied, and the historical development of state constitutionalism is particularly understudied. In some ways, state constitutionalism mirrors developments at the national level, but in other ways states are distinctive. One of the distinctive features of state constitutions relates to the conceptual distinction between the public and the private. At the national level, the public/private distinction in the economic realm largely collapsed, and the vague provisions of the U.S. Constitution facilitated that collapse. At the state level, however, constitutional text often embodied features of the public/private distinction, putting more pressure on judges to try to understand and implement the distinction even in the midst of the crisis of the Great Depression and the political and constitutional struggles of the New Deal.

Against Very Entrenched Constitutions.” “.” Wisconsin Law Review Online 2015 (2015): 12–18.
Whittington, Keith. “State Constitutional Law in the New Deal Period.” Rutgers Law Journal 67.5 (2015): 1141–1168. Print.

The Great Depression and the advent of the New Deal stimulated one of the most important constitutional transformations in American history.  The "constitutional revolution" of 1937 remade federal constitutional law in areas ranging from federalism and separation of powers to individual rights and state police powers. Remarkably little work has bee done on the history of the development of state constitutional law and the politics of the exercise of judicial review in the states. This article examines the exercise of judicial review by high courts in a sample of states between 1925 and 1945. This was a period of remarkable conflict and change at the federal level, but state-level judicial review shows little evidence of the type of struggle that roiled national politics.  There was far more continuity and stability in state constitutional law, even as state governments also struggled to deal with economic crisis and liberal Democrats rose to power in state capitals. State courts were not simply deferential to the work of the state legislatures, but the judicial veto raised few insuperable obstacles to reform at the state level. The struggles surrounding the Hughes Court appear increasingly idiosyncratic when placed in a broader context.

Whittington, Keith. “The Power of Judicial Review.” Oxford Handbook of the United States Constitution. New York: Oxford University Press, 2015. Print.

The power of judicial review is one of the more distinctive features of the American constitutional system. The “fundamental law” quality of American constitutions and the possibility of judicial interpretation and enforcement of their provisions were often taken to be key features distinguishing the new constitutional system from the British inheritance. This chapter focuses on the contemporary exercise of judicial review. After delineating the scope of the institution, the chapter turns to conceptual and normative issues associated with the exercise of judicial review. It then reviews the literature on how judicial review is practiced in the American system.

Whittington, Keith. Judicial Review and Constitutional Politics. Washington, D.C.: American Historical Association, 2015. Print.

This monograph provides a concise, accessible overview of the history of the development and exercise of judicial review over the course of American history, with a particular focus on the U.S. Supreme Court. The development of constitutional law by the courts is also situated within the broader context of the engagement with the requirements of constitutional rules by political actors. American governance has been shaped by both judicial efforts to interpret and enforce the fundamental law and by developments outside the courts that have helped reshape regnant conceptions of constitutional requirements and deployed an array of mechanisms for enforce constitutional understandings.


Gillman, Howard, Mark Graber, and Keith Whittington. American Constitutionalism: Powers, Rights, and Liberties. New York: Oxford University Press, 2014.

An innovative new casebook for the teaching of constitutional law in political science, history and law. American Constitutionalism provides generous excerpts from landmark and recent U.S. Supreme Court decisions, while placing those materials in political and legal context and providing students with the analytical tools for examining those decisions. The casebook is distinctive in providing extensive materials from sources beyond the U.S. Supreme Court that are also essential to understanding the American constitutional tradition and in situating materials within a broader historical and political environment. The one-volume editions covers government structures and powers and rights and liberties. This volume offers an abridgement of the two volumes supported by an extensive web supplement of additional materials and tools for instructors and students.

Whittington, Keith. “The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review.” Notre Dame Law Review 89 (2014): 2219–2252. Print.

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship were driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. In order to illuminate the development of judicial review in the contemporary Court, the article examines a series of snapshots of recent constitutional decisionmaking by the U.S. Supreme Court, comparing illustrative two-year periods of judicial review decisions by the Burger Court, the early Rehnquist Court, the late Rehnquist Court, and the Roberts Court. The article also provides an in-depth examination of the coalition of justices that have characterized the Court's exercise of judicial review and the tendencies of the justices who have served on that Court. During that period, the Court has become less likely to strike down federal laws but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The evidence suggests that the return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberal justices to the Court.


Whittington, Keith. “‘Our Own Limited Role in Policing These Boundaries’: Taking Small Steps on Health Care.” Journal of Health Politics, Policy, and Law 38.2 (2013): 85–99. Print.

The Affordable Care Act (ACA) invoked political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the U.S. Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute, but also left the landscape of constitutional law much as he had found it. He did, however, suggest that the federal courts should take a more active role in monitoring how Congress uses its constitutional powers and should not shy away from making specific determinations of whether Congress had abused its power in particular cases.