Download Constitutional Revolutions: Pragmatism and the Role of by Robert Justin Lipkin PDF
By Robert Justin Lipkin
Drawing on moral concept, philosophy of technology, and constitutional thought, Lipkin presents a revolutionary, postmodern, and pragmatic idea of constitutional legislations that justifies the serious function performed by means of the judiciary in American democracy. Judicial evaluate, he claims, operates as a mechanism to permit “second thought,” or principled mirrored image, at the values of the broader tradition. with out this progressive functionality, American democracy will be left with out a good institutional capability to formulate the community’s thought of judgments approximately sturdy executive and person rights. even supposing judicial evaluation isn't the basically discussion board for safeguarding this measurement of constitutional democracy, Lipkin keeps that we might be clever to not abandon judicial evaluation except a manageable substitute emerges.
Judges, legal professionals, legislations professors, and constitutional students will locate this e-book a precious resource.
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Extra info for Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism
Sample text
One commits the monistic fallacy when one maintains that either conventionalism, pragmatism, naturalism, or coherentism alone is the sole paradigm through which to explain and justify constitutional change. Furthermore, the monistic fallacy occurs when a midlevel theoretical methodology such as textualism is regarded to be the sole explanation of constitutional meaning. The reason for rejecting this view is that it fails to explain constitutional practice. If constitutional practice embodies textualism as the sole explanatory factor, then too many constitutional decisions must be rejected as mistakes.
However, I am more concerned with what factors may be taken into account in constitutional adjudication, and less in whether they are extrinsic or intrinsic to constitutional practice. Moreover, I do not believe that factors that make the law morally better are eo ipso intrinsic to the law. Whether this means that these factors are already included in the governing law or should be included is an important question only to those who have a distorted view of both legitimacy and democracy. I am perfectly content to characterize such great constitutional revolutions as Marbury, McCulloch, and Brown as based on factors extrinsic to the law and still insist that they are legitimate decisions if they have pragmatic benefits concerning the implementation and viability of the most plausible conception of democracy, which, of course, will be contestable.
Unsurprisingly, for Ackerman the Reagan ‘‘revolution’’ was a failed revolution. Constitutionalism and Dualist Politics 31 Ackerman’s implicit motivation in fashioning his interpretive history is to reconcile democracy and judicial review. Like modernists generally, Ackerman is concerned with the legitimacy of judicial review. ≤ Ackerman seeks a detour around the contemporary debates in constitutional theory purporting to establish one method of interpretation as binding on judges. Instead, Ackerman’s interpretive history attempts to explain how judicial review is possible in a democracy.