Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American ConstitutionalismDuke University Press, 17. mai 2000 - 383 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 209
... normative force , for various reasons . First , a practice that has survived for over two hundred years has provided , by the fact of its existence alone , an adequate measure of stability and predictability that enable both ...
... normative force , for various reasons . First , a practice that has survived for over two hundred years has provided , by the fact of its existence alone , an adequate measure of stability and predictability that enable both ...
Side 211
... normative value that a complete description of the practice will contain within itself a signifi- cant normative justification . The issue of the relationship between descriptive and normative dis- course implicates a much broader issue ...
... normative value that a complete description of the practice will contain within itself a signifi- cant normative justification . The issue of the relationship between descriptive and normative dis- course implicates a much broader issue ...
Side 213
... normative dimension of practice . However , it is unclear why the normative should take precedence over the descriptive.14 Second , this criticism relies on metaphysical essen- tialism . It seeks to identify those features of a practice ...
... normative dimension of practice . However , it is unclear why the normative should take precedence over the descriptive.14 Second , this criticism relies on metaphysical essen- tialism . It seeks to identify those features of a practice ...
Innhold
Constitutionalism and Dualist Politics | 29 |
Dworkins Constitutional Coherentism | 77 |
The Theory of Constitutional Revolutions | 118 |
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abstract Ackerman 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 determine 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 jurisprudential justice law as integrity Law's Empire legitimacy Lipkin majoritarian Marbury Marshall Marshall's methodology monist normal adjudication normal politics normative perspective Plessy postmodern pragmatism pragmatist question racial reflective reflective equilibrium rejects relevant requires revolutionary adjudication revolutionary decisions Robert Bork role Ronald Dworkin segregation skepticism social stitutional structure substantive Supreme Court theory of constitutional tion tional tutional values