RJLipkin at aol.com
RJLipkin at aol.com
Sat Jan 31 15:29:09 PST 2004
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
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof