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 x
... paradigm exclusively characterizes American constitutional practice . Instead , the theory demonstrates how these different jurisprudential mod- els are structured and integrated into a syncretic conception of systemati- cally different ...
... paradigm exclusively characterizes American constitutional practice . Instead , the theory demonstrates how these different jurisprudential mod- els are structured and integrated into a syncretic conception of systemati- cally different ...
Side 17
... paradigm through which to explain and justify constitutional change . Fur- thermore , the monistic fallacy occurs when a midlevel theoretical meth- odology such as textualism is regarded to be the sole explanation of consti- tutional ...
... paradigm through which to explain and justify constitutional change . Fur- thermore , the monistic fallacy occurs when a midlevel theoretical meth- odology such as textualism is regarded to be the sole explanation of consti- tutional ...
Side 22
... paradigm with another . Constitutional paradigms are judicial models - or sets of instructions - that govern unified areas of constitu- tional law . These instructions include definitions of types of cases , the ap- propriate standard ...
... paradigm with another . Constitutional paradigms are judicial models - or sets of instructions - that govern unified areas of constitu- tional law . These instructions include definitions of types of cases , the ap- propriate standard ...
Side 27
... paradigm . Revolutionary adjudication occurs when the Court integrates features of our politics and culture into a novel constitutional paradigm that instructs the courts on how to deal with cases in that area of constitutional law ...
... paradigm . Revolutionary adjudication occurs when the Court integrates features of our politics and culture into a novel constitutional paradigm that instructs the courts on how to deal with cases in that area of constitutional law ...
Side 28
... paradigm was derived through revolutionary adjudication . For example , a constitutional revolution such as Brown v . Board of Education becomes a reigning paradigm for the judicial review of statutes containing racial classifications ...
... paradigm was derived through revolutionary adjudication . For example , a constitutional revolution such as Brown v . Board of Education becomes a reigning paradigm for the judicial review of statutes containing racial classifications ...
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