Constitutional Revolutions

Lipkin Robert Justin Lipkin

Description

In Constitutional Revolutions Robert Justin Lipkin radically rethinks modern constitutional jurisprudence, challenging the traditional view of constitutional change as solely an extension or transformation of prior law. He instead argues for the idea of "constitutional revolutions"-landmark decisions that are revolutionary because they are not generated from legal precedent and because they occur when the Constitution fails to provide effective procedures for accommodating a needed change. According to Lipkin, U.S. constitutional law is driven by these revolutionary judgments that translate political and cultural attitudes into formal judicial decisions.Drawing on ethical theory, philosophy of science, and constitutional theory, Lipkin provides a progressive, postmodern, and pragmatic theory of constitutional law that justifies the critical role played by the judiciary in American democracy. Judicial review, he claims, operates as a mechanism to allow "second thought," or principled reflection, on the values of the wider culture. Without this revolutionary function, American democracy would be left without an effective institutional means to formulate the community's considered judgments about good government and individual rights. Although judicial review is not the only forum for protecting this dimension of constitutional democracy, Lipkin maintains that we would be wise not to abandon judicial review unless a viable alternative emerges.Judges, lawyers, law professors, and constitutional scholars will find this book a valuable resource.

Sujets

• USA
• États-Unis

Informations

• Publié par: Duke University Press
• Date de parution: 17 mai 2000
• Nombre de lectures: 0
• EAN13: 9780822380511
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Constitutional Revolutions

Constitutional REVOLUTIONS Pragmatism and the Role of Judicial

ReviewinAmericanConstitutionalism

robert justin lipkin

Duke University Press

Durham and London 2000

∫2000 Duke University Press All rights reserved Printed in the United States of America on acid-free paper$ Designed by Rebecca Filene Broun Typeset in Carter and Cone Galliard by Keystone Typesetting, Inc. Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book.

To Sarah Lipkin, and to her grandparents, Herb Lipkin and the memory of Libby Lipkin, and Lila Dunphy and the memory of Freeman Dunphy

contents

preface

ix

introduction TheCrisisofAmericanConstitutionalism1 Constitutional Legitimacy and the Countermajoritarian Problem 7 Originalism and Constitutional Meaning 13 The Primacy of Constitutional Change 15 The Fallacy of Monist Constitutional Adjudication 16 Metaphysical Realism and Modern Constitutionalism 19 Constitutional Revolutions 21 The American Communitarian Republic 23

1

2

An Overview26

Constitutionalism and Dualist Politics 29 Ackerman’sDualismandPostmodernPragmatism

32

Dworkin’s Constitutional Coherentism 77 Law as Integrity and Constitutional Revolutions 77 Two Conceptions of the Relationship between Fit and Justification 93

PragmatismandLawasIntegrity108 RightAnswersinHardCases112

3

4

5

The Theory of Constitutional Revolutions

The Proper Role of Dualism in Constitutional Jurisprudence 119

118

Constitutional Paradigms 134 The Theory of Constitutional Revolutions 136 Background Theories of Constitutional Change 147 The Theory of Judicial Reasoning 150

The Historical Defense of the Theory 154 The Countermajoritarian Question and the History of Revolutionary Adjudication 160 The Formative Revolutions 162 Contemporary Revolutions 191

The Conceptual and Political Defenses of the Theory

The Conceptual Defense 206 ThePoliticalDefense228

conclusion

notes

241

bibliography

index

355

238

339

206

preface

This book examines the practice of judicial review and the jurispru- dential framework within which it operates. The book’s thesis is that Amer- ican constitutional law is driven by ‘‘constitutional revolutions,’’ constitu- tional judgments that translate political and cultural attitudes into formal judicial decisions, which themselves do not follow from—and may even contradict—previous decisions. The theory of constitutional revolutions includes a dualist structure of constitutional change that gives new meaning to the idea of a ‘‘living’’ constitution. The constitution ‘‘lives’’ when judges transmogrify ethical and cultural factors into the formal province of consti- tutional law through revolutionary adjudication. Without this theory we cannot explain how American constitutional law changes. The theory maintains that in order to justify judicial review, we must first describe andexplain constitutional change in conceptually and historically accurate terms. Only when such description and explanation are complete can we pose the normative question of justification. In my view the theory of constitutional revolutions isthetheory of American constitutional change because it correctly depicts American constitutional practice, and because without it American constitutional practice lacks a persuasive explanation. If such an explanation is available, it deserves our respect just because it isour practice, unless there exist compelling reasons to the contrary. Thus, the correct explanatory description of constitutional practice provides a prima facie justification of that practice. The cultural setting in which the practice resides provides a framework for criticizing and correcting any unacceptable features the practice exhibits. However, a deeper normative account of revolutionary judicial review is possible. According to this type of justifica- tion, revolutionary judicial review is warranted because it contributes to the just and e≈cient operation of American democracy. Consequently, two kinds of normative factors justify revolutionary adjudication. The first kind derives from the justificatory impact of an accurate description and explana-