Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism

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Duke University Press, May 17, 2000 - Law - 366 pages
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.
 

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Contents

Constitutionalism and Dualist Politics
29
Ackermans Dualism and Postmodern Pragmatism
32
Dworkins Constitutional Coherentism
77
Two Conceptions of the Relationship between Fit and Justification
93
Pragmatism and Law as Integrity
108
Right Answers in Hard Cases
112
The Theory of Constitutional Revolutions
118
The Proper Role of Dualism in Constitutional Jurisprudence
119
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
206
The Political Defense
228
CONCLUSION
238
NOTES
241

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

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About the author (2000)

Robert Justin Lipkin is Professor of Law and H. Albert Young Fellow in Constitutional Law at Widener University in Wilmington, Delaware.

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