Constitutional Revolutions

Pragmatism and the Role of Judicial Review in American Constitutionalism

Constitutional Revolutions

Book Pages: 384 Illustrations: Published: May 2000

Subjects
Law > Legal Theory, Politics > Political Theory

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.

Praise

“[T]hose interested in constitutional change would do well to consider [Lipkin’s] arguments carefully.” — Keith E. Whittington , Law and Politics Book Review

“Lipkin . . . persuasively challenges the conventional wisdom propounded by many scholars. . . . Lipkin’s argument includes an especially lucid and well-organized criticism of Ackerman’s We the People. Moreover, the endnotes. . . are replete with unexpected treasures, as Lipkin elaborates with fresh insight on many of the points introduced within. . . . Recommended. . . .” — D. Yalof , Choice

“Lipkin does an excellent job of identifying the problem with contemporary thinking about judicial role. There is much in Lipkin’s book which is accurate and valuable.” — Stephen E. Gottlieb , Bimonthly Review of Law Books

"[An] important and provocative book. . . . Lipkin thus substantially raises the traditional stakes, for his account requires that what must be justified is not merely the power of judicial review but its revolutionary exercise. . . . One of the many merits of the book is that Lipkin builds his constitutional theory from the ground up. . . ." — Stephen Gardbaum , Ethics

“An uncommonly sophisticated account of the process of constitutional change. Lipkin combines the best insights of analytic and post-analytic philosophy with a deep historical understanding of American constitutional law to produce a book that explains both the ordinary and the extraordinary in constitutional adjudication. Although the book is totally accessible to the non-philosopher, it brings cutting-edge philosophy to bear on the issues in a way that makes it essential reading for scholars and students of American constitutional adjudication.” — Frederick Schauer, Harvard University

“Lipkin accurately identifies the central problematic for constitutional jurisprudence at the end of the twentieth century. Namely, how should constitutionalism be conceptualized or reconceptualized in a postmodern world?” — Stephen M. Feldman, University of Tulsa College of Law

“Lipkin develops a provocative account of revolutionary adjudication as a common practice in U.S. constitutional history. His critiques of Ackerman for lacking a theory of interpretation and of Dworkin for lacking an account of revolutionary transformation are astute. One need not agree with his argument as a whole to appreciate the importance of the concepts and arguments he introduces to constitutional theory.” — Mark Tushnet, Georgetown University Law Center

“Lipkin offers an explanation of constitutional law that bridges the gap between traditional and postmodern constitutional thought. Scholars and students alike cannot ignore this book if they are seriously engaged in an effort to understand constitutional adjudication in the contemporary era.” — Rodney K. Smith, University of Arkansas at Little Rock School of Law

“Lipkin’s creative theory of constitutional revolutions is the best and most sophisticated in the literature. His criticisms of Ackerman and Dworkin are devastating. Every constitutional scholar should have this book in his or her library.” — Ken Kress, University of Iowa Law School

“Robert Lipkin does more than provide a provocative and important account of constitutional change. He brings to his work the rigor of an analytic philosopher, the energy and joy of a renaissance reader, and the rare treat of a pragmatic postmodernist who writes with both clarity and flair. Anyone who seeks to understand our Constitution will want to read this book.” — Steven Shiffrin, Cornell University

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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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Cloth ISBN: 978-0-8223-2429-4
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