Vol. 10 No. 6 (June 2000) pp. 358-361.

CONSTITUTIONAL REVOLUTIONS: PRAGMATISM AND THE ROLE OF JUDICIAL REVIEW IN AMERICAN CONSTITUTIONALISM by Robert Justin Lipkin. Durham: Duke University Press, 2000. 320 pp.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University.

This book is an interesting, if not fully persuasive, effort to address one of the more fundamental problems in constitutional theory, the problem of constitutional change. Constitutional change poses an intrinsic difficulty given the American effort to constrain a fluid politics and society with a fixed constitutional text. Politics is always threatening to outrun the Constitution, and the Constitution is always in danger of seeming either outdated or the pawn of ordinary political struggles. As a theoretical problem, constitutional change has sometimes taken center stage - as with the celebration of a progressive "living Constitution" and the related rejection
of the Constitution of original intent as burdened with the dead hand of the past. For a while debates over the legitimacy of activist judicial review and the requirements of constitutional interpretation pushed the problem of constitutional change into the background. However, a diverse group of scholars, including Bruce Ackerman, Sanford Levinson, David Strauss and Lawrence Lessig, has recently been active in pushing the problem of change to a more prominent place on the agenda.

Robert Justin Lipkin contributes to that effort with this theory of "constitutional revolutions." Actually Lipkin wants not merely to reemphasize the problem of constitutional change but to displace the countermajoritarian difficulty entirely. Along with others, Lipkin has doubts about the analytical utility of the countermajoritarian difficulty framework given that the American constitutional system is not designed to be a majoritarian democracy anyway. More radically, however, Lipkin wants to challenge the entire "modernist" concern with the legitimacy of judicial review. That whole "metanarrative" of neutral principles, objective
constitutional interpretation, and constitutional legitimacy should be regarded as dead and buried. Lipkin declares himself to be a "postmodern pragmatist," who seeks the "elevation of description to prescription" and rejects "the monistic fallacy" of valorizing a single jurisprudential approach over others.

The theory of constitutional revolutions attempts to apply Thomas Kuhn's theory of scientific revolutions to constitutional adjudication. Constitutional cases can be categorized as either "revolutionary adjudication" or "normal adjudication." Revolutionary cases, such as MARBURY, BROWN and GRISWOLD, mark radical breaks from the past, could not have been decided using only conventional legal materials, and established new frameworks for deciding subsequent, normal cases. Such cases cannot be evaluated as legally correct or incorrect. They are simply more or less useful, and more or less accepted, as ways of resolving a "crisis" within the existing

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constitutional system and establishing a new paradigm for future decisions. Although such cases are already widely recognized as landmark precedents within the constitutional case law, Lipkin is particularly insistent that we recognize their revolutionary character in that they decisively broke from the past and could not have been justified within the terms of the prior jurisprudence.

After the introduction, the first two chapters of the book are critical analyses of Bruce Ackerman's theory of constitutional change and Ronald Dworkin's interpretive theory. These critiques are extremely compelling and provide the strongest chapters of the book. Lipkin is specifically interested in Ackerman and Dworkin for their "theories of constitutional adjudication" and finds that neither provides the kind of determinate guidance that judges would need to decide specific cases. Lipkin's critique of Ackerman is sweeping, but he is particularly strong on two counts. First, Ackerman has yet to provide an adequate account of the significance of his
historical episodes of unconventional constitutional change. Even in his most recent volume focusing on his theory of unconventional amendments, Ackerman does not provide an adequate response to the skeptic who believes that "nothing should follow" from the "atypical manner" of the Fourteenth Amendment's ratification in the extraordinary circumstances of Civil War and Reconstruction. Second, Ackerman has not provided a theory of constitutional interpretation that resolves any of the issues in the existing jurisprudential debate let alone addresses all of the new problems that his own approach introduces (e.g., how are judges to recognize the existence of informal constitutional amendments? How are they to determine the meaning of such social texts? How are they to "synthesize" these constitutional moments with the old Constitution?). Rather than looking for moments of popular higher lawmaking, Lipkin suggests that we should simply recognize that judges
periodically revise constitutional meaning in accord with their own best judgments. Similarly, Dworkinian law as integrity could be better conceptualized in pragmatic terms. Lipkin persuasively argues that Dworkin never resolves the tension between his dual requirements of fit and goodness or demonstrates that there are practically recognizable right answers in hard constitutional cases. By contrast, Lipkin argues that constitutional revolutions are made in the hard cases, when pragmatic considerations of substantive goodness trump considerations of fit with existing constitutional practice or conventional legal reasoning. After the revolution, BROWN is recognized as a good and authoritative decision. But BROWN cannot be reconciled with "the Constitution" as it existed prior to 1954, and it is a
mistake to try.

The next three chapters provide an account and defense of the theory of constitutional revolutions. Lipkin's goal is first to provide a descriptive account of how constitutional cases are decided and how constitutional meaning is changed and stabilized over time. He then offers both an internal and external defense of revolutions as a normative theory of constitutional adjudication. The internal defense is coextensive with the descriptive account - the current constitutional practice is legitimate, therefore whatever theory best accounts for that practice is legitimate and normatively desirable. This "historical defense" is the burden of Chapter Four, which argues by way of illustration that

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various "landmark decisions (of the Marshall and Warren Courts) are based on constitutionally extrinsic factors." The "conceptual and political defenses" of Chapter Five are less well developed, but essentially argue that revolutionary adjudication contributes to the creation of a "communitarian democracy" that values "equality, liberty, fairness, self-reliance, independence, and progress." The Court expresses "the community's reflective, second-order judgments or principles."

There is much that is intuitively plausible about the idea of constitutional revolutions and the pragmatic approach to constitutional adjudication. There are landmark decisions and subsequent decisions that flow out of them. There are important constitutional cases that are indeterminate from the perspective of conventional interpretive materials, in which decisions are made (I would say "constructed") using extrinsic considerations. American constitutional development is punctuated and not simply gradual. Existing constitutional and adjudicative practices have prima facie legitimacy and normative constitutional theories, "monist" or otherwise, require some justification to alter the status quo.

Nonetheless, it is hard to know what to make of Lipkin's particular theory. As developed here, it offers little critical purchase or explanatory leverage. One general complaint is that beyond the sustained treatment of Ackerman and Dworkin in the opening chapters, the book does not seriously grapple with other relevant works. The most cited author is Lipkin himself. Lipkin does not explore the relationship between his pragmatic approach and that of other well-known jurisprudential pragmatists such as Richard Posner. Other explorations of "pluralist" methods of constitutional interpretation, such as the work of Philip Bobbitt, Richard Fallon, or Stephen Griffin, are unmentioned. There is little sustained or persuasive criticism of alternative normative constitutional theories or descriptive theories of
constitutional adjudication. Even as he praises the normative significance of historical judicial practice, Lipkin does not examine the actual normative commitments of American constitutionalism.

The theory itself is not very extensively developed. Lipkin spends a chapter discussing "revolutionary adjudication," but he gives no systematic attention to "normal adjudication." His discussion of a handful of Marshall Court revolutionary cases and a couple from the Warren Court is primarily oriented toward demonstrating that their results were not "logically necessitated" by such conventional interpretive material as text, intent, history and precedent. Although some or all of these cases may be unjustifiable in purely interpretive terms, Lipkin's brief analysis is unlikely to persuade the skeptical. Lipkin does not examine the manner in which such cases were in fact discussed and resolved, nor does he examine the transition between normal and revolutionary adjudication or vice versa. In criticizing Ackerman's effort to fold BROWN into the New Deal regime, Lipkin jettisons Ackerman's important insights into the connections between the judiciary and the broader political system. Lipkin's judiciary is highly idealized and abstracted from any particular context. As a descriptive theory, Lipkin occupies an uncertain middle ground between political and legal models of judicial decision-making and appears innocent of empirical research (and debates) on judicial politics and decision-making. As a
prescriptive theory of adjudication, Lipkin's postmodern pragmatism seems to offer no more

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guidance to judges than does Ackerman's regime analysis or Dworkin's law as integrity (and perhaps quite a bit less than most monist theories). As a normative theory of constitutionalism and judicial review, "postmodern pragmatism" and "communitarian democracy" are never given enough substance to have much critical bite or enough rigor to overcome alternatives, and few are likely to join in his indiscriminate embrace of description as prescription.

Lipkin is at his best in exposing the gap between normative theories of constitutional law and the requirements and history of adjudicative practice and in emphasizing the fact that some important constitutional decisions cannot be fully justified within any conventional theory of legal interpretation. Although one may disagree with Lipkin's particular analysis of constitutional revolutions, he importantly points to the need for a "dualist" theory that can distinguish between such great constitutional
settlements as the establishment of judicial review and the rejection of Jim Crow and more conventional legal decisions involving the Constitution. Likewise, his emphasis on the need for normative theories of constitutional interpretation to account for constitutional change is well taken, and those interested in constitutional change would do well to consider his arguments carefully.