Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American ConstitutionalismIn 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. |
Contents
| 1 | |
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 |
2 Dworkins Constitutional Coherentism | 77 |
3 The Theory of Constitutional Revolutions | 118 |
4 The Historical Defense of the Theory | 154 |
5 The Conceptual and Political Defenses of the Theory | 206 |
The Political Defense | 228 |
Conclusion | 238 |
Notes | 241 |
Bibliography | 339 |
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abstract Ackerman Ackerman's theory Amendment American constitutional law American constitutional practice American constitutionalism argue argument Articles of Confederation Bork Brown Bruce Ackerman coherentism communitarian conception concerning conflict consti constitutional adjudication constitutional change constitutional decisions constitutional interpretation constitutional law constitutional meaning constitutional moments constitutional paradigm constitutional politics constitutional revolutions constitutional theory context conventionalist deliberative democratic distinction dualism Dworkin embrace equal protection clause exists explain extrinsic factors federal foundationalism Framers Griswold higher lawmaking homosexual Ibid insists intentions judges judicial decisions judicial reasoning judicial review jurisprudence jurisprudential justice justificatory law as integrity legitimacy Lipkin majoritarian Marbury Marshall Marshall's methodology monist normal adjudication normal politics normative perspective Plessy postmodern pragmatism pragmatist principle question racial reflective reflective equilibrium rejects relevant requires revolutionary adjudication revolutionary decisions Robert Bork role Ronald Dworkin skepticism social stitutional structure substantive Supreme Court theory of constitutional tion tional tutional values