Lofton case

[RJLipkin at aol.com]

        Let me preface my response to Sandy's remarks concerning my request 
for a mechanism to arbitrate between and among the various branches in a regime 
of interpretive equality in the following manner.  I ask the List's 
indulgence and patience for this autobiographical digression. 

        Even before entering law school, when I was the philosophy department 
at Northwestern University specialist in ethics, political philosophy, and 
the philosophy of law, I admired Sandy's work in constitutional theory.  Indeed, 
Sandy was one of a small group of legal theorists (Mark Tushnet, Frank 
Michelman, Michael Perry, and some others were also members of this group) whose 
work convinced me that philosophers were not the only academics or intellectuals 
who could write and think clearly, analytically, and creatively about 
fundamental questions of ethics and politics. (Of course, I apologize to everyone else 
on the List for not realizing this before reaching the age of thirty-seven.)  
 The reason for this autobiographical preface is to assure everyone that the 
following remarks are directed toward Sandy's remarks, not Sandy himself. And 
more important, I have the greatest admiration and respect for Sandy's work as 
well as for his intellectual and political sensibilities.

        That said, I think the remarks about dictatorships, pluralism, and 
Iraq simply avoid answering my question about interpretive equality. If each 
branch of government has the power (and or duty) to interpret the Constitution, 
some mechanism for deciding whose interpretation prevails in a given context is 
at least politically and constitutionally (if not logically) necessary for 
any constitutional democracy to operate at all (or at least to operate 
effectively in almost anyone's view of "effective").  

        Here are only some of the problems. In a regime of interpretive 
equality, does each branch have the prerogative (and obligation) to enforce its 
interpretation of the Constitution? How can Congress and the Court do this? Do 
Sandy's remarks commit him to a regime of interpretive equality which simply 
permits (requires) each branch to interpret the Constitution as it pleases, and 
then just wait and see how possible conflicts are resolved if they're resolved 
at all? Is there any empirical (or conceptual) support that in such a regime, 
politics might turn out to be anything other than nasty, brutish, and short? 

        I am no longer enamored with the Supreme Court as I was when I 
decided to go to law school. Indeed, Sandy and others have helped me to identify 
serious flaws in a system of judicial review/supremacy.  In fact,  I have 
participated in various threads on this List hoping to delineate some of the deep 
problems for any democratic or republican system embracing judicial supremacy. 
However, referring to dictatorships, pluralism, Iraq, and Truman simply 
camouflages, in my view, any serious attempt to address the question I raise about 
interpretive equality. 

        Let me try to me more specific about my question. In my view, 
finality (supremacy) exists in the short term and long term. I think short term 
finality is necessary for any government to operate.  Long term finality is another 
matter, and I will not address it here. Let's take a concrete example.

        Suppose after the Supreme Court decided the 2000 presidential 
election, the President declared the Court's decision to be constitutionally suspect, 
and as an equal member of a regime of interpretive equality, he deemed it his 
job to faithfully execute the laws by rejecting the Court's decision.  
(Indeed, the President might have gone on to warn that any attempt on George W. 
Bush's part to take the oath of office would be met with force.) Suppose the House 
of Representatives rejects the President's interpretation. And finally, 
suppose the Senate chimes in supporting the President's interpretation.  How does 
such a regime of interpretive equality, that Sandy and others seem to embrace, 
resolve this conflict? What process will legitimately (or even merely 
effectively) resolve the conflict and permit the 43rd President to take office. (In 
this scenario, irrespective of the facts and controversy surrounding the actual 
2000 presidential election, would George W. Bush even be the 43rd President?)
         
        Unless, I radically misunderstand the idea of interpretive equality 
in constitutional law--which I'd be the first to concede is entirely 
possible--proponents of interpretive equality must (should, it would be nice if they 
tried to) explain how interpretive equality deals with short-term constitutional 
conflicts.  I do not see how Sandy's remarks even begin such an explanation.

        For democrats embracing the values of the common good and civic 
virtue, as well as others, there is much about contemporary American 
constitutionalism that is suspect, perhaps, even immoral. For such "republican" democrats, 
the remedy is to identify alternative structures for constitutional government. 
Perhaps, some system of interpretive equality will be superior to our present 
system.  However, it is absolutely imperative for proponents of interpretive 
equality to recognize that they must articulate a method for resolving 
dissensus between and among the various branches of American government. Failure to 
do so is not in the interest of progressive constitutional change, nor does it 
allow anyone to take interpretive equality seriously. I'm afraid Sandy's 
response, in this instance, fails to contribute positively to exploring the pros 
and cons of interpretive equality.



Bobby





Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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