Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism
383
Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism
383eBook
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Overview
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.
Product Details
| ISBN-13: | 9780822380511 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 05/17/2000 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 383 |
| Lexile: | 1470L (what's this?) |
| File size: | 393 KB |
About the Author
Robert Justin Lipkin is Professor of Law and H. Albert Young Fellow in Constitutional Law at Widener University in Wilmington, Delaware.
Read an Excerpt
Constitutional REVOLUTIONS
Pragmatism and the Role of Judicial Review in American ConstitutionalismBy ROBERT JUSTIN LIPKIN
Duke University Press
Copyright © 2000 Duke University PressAll right reserved.
ISBN: 978-0-8223-2429-4
Chapter One
Constitutionalism and Dualist Politics
If constitutional law is driven by constitutional revolutions, it is necessary to determine what kind of revolutions there are and how they find expression in law. According to the theory of constitutional revolutions, revolutionary judicial decisions exemplify American constitutional practice from its inception. Bruce Ackerman maintains, to the contrary, that constitutional revolutions are for the most part political, not judicial decisions at all. The Court's role is to ratify political revolutions already created by other actors. The central feature of Ackerman's theory is that American constitutional history reveals an informal method of amending the Constitution outside the Constitution's amending power set out in article 5. In itself this claim is unremarkable. Informal changes in the meaning of constitutional provisions occur frequently, caused by overt governmental acts and even newly developing cultural contexts. However, Ackerman's process of informal change creates a "structural amendment," which changes the meaning of constitutional text, and whose derivation is equally as authoritative and lawful as thosederiving from the formal method of amending the Constitution. If Ackerman is right, "structural amendments" and amendments based on article 5 exhaustively describe American constitutional change. Like conservative theorists, Ackerman excludes Court-derived changes as illegitimate unless they reflect the most recently created constitutional paradigm or regime, though sometimes in surprising ways. If Ackerman is right, then the theory of constitutional revolutions is erroneous.
Ackerman's dualism should be contrasted with the standard conception of constitutional development, which, according to Ackerman, regards constitutional law as a single process that follows, departs from, and then rediscovers the meaning of the United States Constitution. According to this account legitimate constitutional change comes about by following the Constitution's amending power set out in article 5. In this view American constitutional law began by creating a federal republic decidedly more centralized than the Articles of Confederation. In its early stage this centralization of power created the relations between the central government and the states. Later the Civil War amendments revised the original federal framework, further protecting individual rights from state interference. Subsequently, the courts retreated from centralization and returned power back to the states mostly through the Fourteenth Amendment's due process clause and the commerce clause. Finally, the New Deal judicial revolution rediscovered the nation's original conception of federalism, or more specifically, a new conception of federalism firmly anchored in the constitutional past. In this sketch there is one constitution, one constitutional means of amending it, and one institution, the courts, to interpret it.
Ackerman rejects this picture. Instead, he contends that we must distinguish between two kinds of political lawmaking: normal politics and constitutional politics. Normal politics leaves most decisions to the elected representatives of the people. Constitutional politics enables the citizenry to mobilize to bring forth new constitutional directions. According to Ackerman there are three constitutions, or three constitutional regimes, namely, the Founding, the Civil War, and the New Deal. He further contends that constitutional politics represent moments (revolutions) of higher lawmaking, which democratically legitimizes these informal changes without using the sanctioned methods in article 5. In Ackerman's dualism the Court's role is preservative, merely reflecting the wishes of a majority's deliberative mobilization for change. By contrast the theory of constitutional revolutions maintains the supremacy of the judicial role in constitutional change.
Ackerman takes seriously the countermajoritarian problem and implicitly seeks to resolve it. Courts, in a given constitutional regime, are entitled to define new rights or powers if such rights or powers follow from the present regime's paradigm, despite their being incompatible with the original constitution. The progressive development of the three regimes toward centralization and individual rights is due to democratic participation in certain crucial periods of American constitutional history. The progressive nature of Ackerman's theory is due to the fact that American majorities throughout history have become more and more progressive. Of course, this need not have been the case. Given the appropriate conditions, the Reagan revolution might be a democratic shift toward more conservative politics. Unsurprisingly, for Ackerman the Reagan "revolution" was a failed revolution.
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. Hence, his theory is designed to resolve, or perhaps to dissolve, the problems created by judicial scrutiny of the majoritarian branches of government without having to embrace any of the traditional methods of constitutional interpretation and adjudication. 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. How can a democratic polity permit the judiciary to trump the will of the majority? At first glance, at least, democratic legitimacy would seem to require showing the democratic credentials of each branch of government.
Ackerman's goal is to show also that liberal or progressive features of American constitutionalism and politics are the result of a mobilized and reflective majority of citizens, not the imperial decisions of judges. According to Ackerman's interpretive history, American constitutionalism rests on a unique form of dualistic politics that effectively dissolve the countermajoritarian problem. Once we appreciate how American dualist constitutionalism actually works, the countermajoritarian problem no longer threatens the legitimacy of judicial review. In short, Ackerman promises that American constitutional practice, once understood as the dualistic system it is, creates no greater countermajoritarian problem than democratic law does generally, and, therefore, is no less legitimate.
In this chapter I first suggest a characterization of Ackerman's theory as postmodernist and pragmatist. I do not suggest that Ackerman is self-consciously a postmodern pragmatist. My contention is that his theory can be characterized plausibly in postmodern, pragmatist terms. I further contend that the theory's persuasiveness might be greater in a postmodern, pragmatist framework than in a modern one. Before I launch into an examination of his theory, in the next section I redescribe Ackerman's theory as postmodern pragmatist for the purpose of making it more plausible in general, or at least more plausible to members of those camps.
I then examine in detail the salient features of Ackerman's theory. My ultimate conclusion is that Ackerman's theory is inadequate because he fails to identify correctly the role of judicial revolutions. Instead, in Ackerman's view the Court's role is merely to follow the new constitutional paradigm created by constitutional politics. In pressing this preservative judicial function, Ackerman stresses the democratic legitimacy of judicial review without giving sufficient attention to the problem of identifying the nature of judicial reasoning required to carry out this project. By doing so he overlooks the question of whether courts can follow a constitutional paradigm noncreatively or nonrevolutionarily, or, instead, whether the same problems of interpreting the Constitution reappear in Ackerman's regime conception of constitutional law.
My conclusion is that Ackerman's account fails in this important project, and thus he must engage the same jurisprudential troubles affecting the standard conception of constitutional change. This is the reason for insisting on the priority of the jurisprudential over the historical. Ackerman needs a theory of judicial interpretation, like the theory of constitutional revolutions, for his theory to explain how courts and judges interpret constitutional paradigms, whether the paradigm is a single Constitution or several related ones. Without such an account Ackerman's theory cannot ultimately succeed. Despite its shortcomings, Ackerman's theory surely deserves careful examination. It is a complex, interesting, and ingenious theory; we have much to learn from Ackerman's dualism even if it is unable to explain judicial revolutions. Specifically, Ackerman recognizes the importance of constitutional revolutions in generating American constitutional practice, as well as the importance of democratic theory to justify judicial review.
Ackerman's Dualism and Postmodern Pragmatism
Ackerman's theory can be interpreted as a postmodern constitutional theory. From the postmodernist perspective Ackerman's theory attempts to stretch the limits of our constitutional imagination, to reprogram not only our answers to constitutional questions, but the very questions and methods themselves. From this perspective Ackerman attempts to replace a traditional constitutional paradigm with a novel, more complex paradigm of American constitutional practice. Conceiving Ackerman's theory in postmodern terms generates an intriguing interpretive history of American constitutional change, one that emphasizes both the perspective of the political actors as well as the more detached perspective of observers and judges. Ackerman's theory exemplifies a postmodern concern for context, detail, and perspective. Understood in this fashion, Ackerman's theory rejects implicitly the existence of an Archimedean perspective for understanding American constitutional development. Instead, it can be characterized as committed to one of the salient tenets of postmodernism, namely, perspectivalism. In constitutional theory perspectivalism requires understanding constitutional development first from the point of view of the actual actors and circumstances of times past. It eschews embracing any a priori conception of constitutional change and does not attempt to combine different perspectives into one superperspective; in fact, to the contrary, Ackerman insists against attempting such a task. Perspectivalism countenances no overall combinations of historical or constitutional perspectives or singular grand theories of constitutional evolution.
Thus Ackerman's implicit turn toward postmodernity is discernible in his regime analysis of constitutional law. The division of constitutional regimes suggests a concern for complexity and multiplicity in understanding diverse phenomena. Further, a postmodern constitutional theorist seeks novel constitutional stories to explain our constitutional practice. Of course, with such innovation comes difficulty. For example, Ackerman recognizes only vaguely the problems of individuation and identity. How does one determine that American constitutional history consists of three regimes? Why not two? Or four? Additionally, if American constitutional practice consists of three different regimes, in what sense, then, are these regimes part of the same constitutional system? Would not the better view be that such practice includes three different constitutions? Indeed, these three regimes may be incommensurate. If not, how can we integrate the paradigms from these different regimes? Should we even try? Ackerman fails to explore these problems in sufficient detail. Problems of this sort, typically raised by modernist sensibilities, threaten to topple Ackerman's project ab initio.
To reject Ackerman's theory for these failures is to overlook the postmodern dimension of his theory. Before we trouble ourselves over these and other problems, we must learn a new constitutional language, the language of constitutional dualism and Ackerman's theory of constitutional moments. Once this language is learned, we should revisit these questions and answer them in terms of the new language, or perhaps the new language will render these questions otiose. Nevertheless, Ackerman's attraction to postmodernity is implicit only, given his reliance on such startling historically close calls. For example, the ultimate legitimizing factor in the New Deal was Justice Roberts's change of heart in deciding to support New Deal legislation. This "switch in time" becomes the ultimate basis for the New Deal's revision of article 5's amending power. One marvels at Ackerman's acumen in arguing for the legitimacy of a non-article 5 structural amendment on the basis of such sparse historical evidence. Had Justice Roberts stood firm, we might still be back in the Lochner period of constitutional adjudication. Moreover, for Ackerman's dualism to work, it must distinguish between the Court acting prudentially on the basis of popular mobilization and deliberation, on the one hand, and the Court's commitment to a reasoned reexamination of constitutional values. If the Court acts prudentially, it is not obvious that its action is legitimate. If it acts in a reasoned fashion, it is not clear why popular mobilization is required to trigger its decision. The Court might know the reasoned response to the New Deal prior to the 1936 election.
Similarly, Ackerman never publicly characterizes his constitutional theory as pragmatist, although he does call his political theoretic conception of neutral dialogue "the supreme pragmatic imperative" for settling political disagreement. Ackerman's pragmatism concentrates on the actual social practices upon which American constitutionalism depends. Interpreting these historical social practices depends on interpreting the concrete features of a particular historical period or periods; it rejects, as pragmatism should, descriptive or normative theories that have insufficient currency in the American experience. For the pragmatist the most plausible theories of constitutional moments and judicial reasoning are ones that reflect actual constitutional practice. For Ackerman the mechanism of "synthetic interpretation" is a pragmatic device for salvaging the remains of fallen regimes and integrating them with a contemporary one.
Ackerman, like constitutional pragmatists generally, eschews abstract theories of American constitutional transformation, though he is more tolerant of theories than some pragmatists. In this dispute I side with Ackerman against the pragmatists. The pragmatist rejection of theories is unfortunate because it fails to distinguish between two kinds of theories. The first type of theory, or "white collar" theory, is demonstrative and exclusive, rejecting the importance and relevance of other such theories. White collar theories promise to ground our judgments in unassailable foundations. Such theories may be deductive, algorithmic, or may in some other rigorous fashion provide a decision procedure for settling constitutional conflicts. If a white collar theory exists, it can be proved true, and hence it can be used to prove the truth of particular constitutional judgments. The second kind of theory, a blue collar theory, maintains that theory-talk is better understood as a social practice that must be evaluated pragmatically. Because pragmatists generally resist a firm commitment to understanding truth in terms of correspondence with reality, for them the sine qua non of pragmatic reliability is a theory's overall potential for generating illuminating explanations of the phenomena in question. Consequently, pragmatist theories generally embrace a plurality of theoretical factors in explaining and justifying particular judgments. Accordingly, if formalist or rationalist paradigms represent elements in the most useful account of constitutional change, then such elements can be combined in a blue collar theory of American constitutionalism.
Blue collar theories contain illuminating paradigms, pictures, and contexts within which the particular problem can be better understood. Blue collar theories guide the practitioner to ask the right (according to the theory) questions; they set the order to these questions and determine the relevance of various factors in resolving them. In doing this a blue collar theory often will forge a new lexicon, or at least create certain new terms that express the theory's paradigm(s) and determines the new way old problems are to be conceived. Blue collar theories are designed to specify the details of social and political change and attempt to recontextualize successful theories from other domains to the political and constitutional arenas. Ackerman's depiction of the tripartite division of the New Deal resting on the Reconstruction and Founding is such a recontextualization. Recontextualizations may suffer formalistic and rationalistic imperfections but provide instead a deeper, more illuminating account of constitutional change. In this regard Ackerman's intriguing interpretive history is a sophisticated blue collar theory of American constitutional law.
(Continues...)
Excerpted from Constitutional REVOLUTIONS by ROBERT JUSTIN LIPKIN Copyright © 2000 by Duke University Press. Excerpted by permission.
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