Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American ConstitutionalismDuke University Press, 17. mai 2000 - 366 sider 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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Side xiii
... federal judges . Because few believe that this would be desirable , the real problem may be something entirely different from the countermajoritarian character of judicial review.2 Instead , critics of judicial review might reject the ...
... federal judges . Because few believe that this would be desirable , the real problem may be something entirely different from the countermajoritarian character of judicial review.2 Instead , critics of judicial review might reject the ...
Side 1
... federal governments as well as the general question of the govern- ment's role in solving the nation's social and economic problems . Because the very idea of constitutional government is at stake , we must determine whether this crisis ...
... federal governments as well as the general question of the govern- ment's role in solving the nation's social and economic problems . Because the very idea of constitutional government is at stake , we must determine whether this crisis ...
Side 8
... federal judges , and federal judges can be impeached . Moreover , the people can reverse a Su- preme Court decision by amending the Constitution . Accordingly , several majoritarian or democratic factors exist to nullify the untoward ...
... federal judges , and federal judges can be impeached . Moreover , the people can reverse a Su- preme Court decision by amending the Constitution . Accordingly , several majoritarian or democratic factors exist to nullify the untoward ...
Side 12
... federal judiciary as a viable institution in our constitutional democracy . Without the inclination to make such choices , that coequal branch must atrophy . Just as stagnating capitalist enterprises do not survive , so too vital , demo ...
... federal judiciary as a viable institution in our constitutional democracy . Without the inclination to make such choices , that coequal branch must atrophy . Just as stagnating capitalist enterprises do not survive , so too vital , demo ...
Side 22
... federal- ism , due process , and equal protection throughout the legal system . These shifts in meaning create rights or prerogatives that could not be asserted prior to the revolutionary decision without raising the contentious ques ...
... federal- ism , due process , and equal protection throughout the legal system . These shifts in meaning create rights or prerogatives that could not be asserted prior to the revolutionary decision without raising the contentious ques ...
Innhold
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 |
339 | |
355 | |
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abstract Ackerman Ackerman's dualism Ackerman's theory Amendment American constitutional law American constitutional practice American constitutionalism argue argument 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 provision 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 Ibid insists intentions judges judicial decisions judicial reasoning judicial review jurisprudence jurisprudential justice justificatory law as integrity Law's Empire legitimacy 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