ABSTRACT
This chapter focuses on the work of Keith Whittington, arguably the strongest contemporary advocate of legitimating judicial restraint by embracing the authority of the founding fathers, uniting the past and present in contemporary constitutional discourse. Legitimacy stems ultimately from popular sovereignty, that is, the will of the people, generated through constitutional ratification. Conceding that the story of popular sovereignty isn't "literally true", Whittington argues that it is "true enough that we can adopt it as our regulative ideal" and as a justification for the political system, "as long as the separation between the idea and the reality does not become too great". This includes the minority, who, according to Whittington, is "embraced within the sovereign through the deliberative quality of the constitutional decision. Although scholars have offered various groundings, Whittington correctly notes that each has been met with "general dissatisfaction", and has yet to result in a theory of judicial review that is "fully persuasive".
