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
... theory , philosophy of science , and constitutional theory , Lipkin provides a progressive , postmod- ern , and pragmatic theory of constitu- tional law that justifies the critical role played by the judiciary in American democracy ...
... theory , philosophy of science , and constitutional theory , Lipkin provides a progressive , postmod- ern , and pragmatic theory of constitu- tional law that justifies the critical role played by the judiciary in American democracy ...
Side ix
... theory we cannot explain how American constitutional law changes . The theory maintains that in order to justify judicial review , we must first describe and explain constitutional change in conceptually and historically accurate terms ...
... theory we cannot explain how American constitutional law changes . The theory maintains that in order to justify judicial review , we must first describe and explain constitutional change in conceptually and historically accurate terms ...
Side x
... constitutional law . The theory also rejects the standard jurisprudential paradigm , which maintains that constitutional change occurs only as extensions or transfor- mations of prior law . Although it is true that some forms of ...
... constitutional law . The theory also rejects the standard jurisprudential paradigm , which maintains that constitutional change occurs only as extensions or transfor- mations of prior law . Although it is true that some forms of ...
Side xi
... constitutional revolutions are by defini- tion external solutions to constitutional practice , they raise the question of ... theory of constitutional revolutions , the great shifts in constitutional law are extraconstitutional . Without ...
... constitutional revolutions are by defini- tion external solutions to constitutional practice , they raise the question of ... theory of constitutional revolutions , the great shifts in constitutional law are extraconstitutional . Without ...
Side 1
... constitutional govern- ment is at stake " overstates the problems in constitutional theory . After all , the future stability of American constitutionalism does not depend on the resolutions of conceptual controversies . In reply I ...
... constitutional govern- ment is at stake " overstates the problems in constitutional theory . After all , the future stability of American constitutionalism does not depend on the resolutions of conceptual controversies . In reply I ...
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