Rationality, Generalizations, and Loyalty

[Robert Justin Lipkin]

       Sandy Levinson writes: "And, if one of our jobs as law professors is 
to try to predict/manipulate judicial doctrine, then there's little reason to 
believe that a reliance on persuading courts of the "irrationality" of 
discriminatory conduct is going to save us (or, more to the point, the 
victims of the conduct in question)."

       If we're looking for institutional solutions to protect against 
unresponsive courts, we might reconsider some of the proposals rejected 
during the Founding, particularly proposals for creating a final 
constitutional arbiter other than the Court, or at least we might consider 
contemporary reconstructions of these proposals. What I have in mind  has 
been recently championed by both conservative and progressive theorists 
though in very different ways, namely, returning to the people or their 
representatives the final say in interpreting the Constitution. This 
suggestion permits the Court to engage in its distinctive "judicial 
reasoning," if such exists, reasoning which will be final in most 
circumstances, while at the same time giving the ultimate final say over 
judgments of constitutionality, at least in certain kinds of cases, to the 
elected branches of government. This suggestion permits us to retain the best 
of two important worlds, namely, the world of political philosophy generated 
by the best of judicial decisions and the ultimate normative authority of the 
people or their representatives. 

       Now is not the time to flesh out proposals of this sort and I would 
agree with Sandy that relying exclusively on the courts  will not save 
victims of irrationality, nor will it provide a vehicle for redressing their 
grievances against the government. That has certainly been a failed 
experiment. 

Bobby Lipkin
Widener University School of Law
Delaware


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