Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

than taken seriously and that they might breed cynicism about the power of constitutional change in general. 84 Clearly, Ackerman has a lot more explaining to do before such a step is taken.


ROBERT LIPKIN AND THE IDEA OF CONSTITUTIONAL REVOLUTIONS

Yet another view of constitutional change--albeit one not yet presented in book form--has been offered by Robert Lipkin of the Widener University School of Law. 85 Lipkin's central model for constitutional change is the model applied to scientific revolutions by Thomas Kuhn. 86 Accordingly, Lipkin divides the processes of constitutional change and judicial decision making into two main classes--periods of revolutionary adjudication in which a new revolutionary paradigm is established and periods of more routine adjudication which follow. 87

From the perspective of this book, the most notable aspect and the most critical weakness of Lipkin's lengthy account is its complete silence about the processes of establishing and amending constitutions. Indeed, by contrast to Ackerman's more nuanced account, Lipkin also almost completely ignores the role of the people or the role of Congress and/or the president in establishing new constitutional understandings or revising existing ones.

Markman's analysis earlier in this chapter would certainly indicate that there are occasions where judicial interpretations appear to be at odds with the constitutional text, but Lipkin seems to interpret almost every important judicial decision as revolutionary, not simply if it was contrary to the text but if it was not absolutely dictated by it. Lipkin thus identifies Marbury v. Madison, 88 Martin v. Hunter's Lessee, 89 McCulloch v. Maryland, 90 Gibbons v. Ogden, 91 Barron v. Baltimore, 92 Brown v. Board of Education, 93 and Griswold v. Connecticut94 all as revolutionary decisions even though he acknowledges that many of these decisions are consistent with good readings of the constitutional text. Levinson's earlier four-fold classification, however, proves useful in indicating that not every constitutional interpretation is thereby a constitutional revolution. 95 Lipkin's analysis apparently proceeds from the assumption that the political elements are the most important aspect of constitutional adjudication. 96 Undoubtedly, such elements are present, but this does not mean that all constitutional claims are equally valid, 97 or that one should completely obliterate the distinction, which Markman emphasized and Levinson ultimately preserved, 98 between constitutional interpretation and constitutional amendment, whether initiated by the judiciary or through formal Article V mechanisms. Ultimately, then, Lipkin's explanation of constitutional change is even less satisfactory than Ackerman's.


NOTES
1.
5 U.S. 137 ( 1803).
2.
One of the theorists who has devoted the greatest attention to, and indeed

-88-

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