Essentially Contested America

Author: Professor Jim May [see photos from event] Bobby’s constitutional theories were cogent, unconventional and unsettling. Bobby was unafraid of toppling conventional wisdom and subverting dominant paradigms about constitutional evolution, interpretation, supremacy and review.  I’m here to discuss three ideas Bobby invoked in four articles collected in this special issue of the Widener Law Review.

1. Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
2. Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
3. While Judicial Review Nourishes Democracies, Judicial Supremacy is Antithetical to them.

His legal scholarship displays a courageous Cervantesarian devotion to tilting at doctrinaire constitutional theory. To Bobby, there is no unified field theory of constitutional interpretation. There is no such thing as constitutional truth. Judicial Supremacy should be replaced by judicial review with congressional override. At bottom, Bobby imagined constitutionalism as a beautiful shape-shifting constitutional democratic consciousness, a communitarian way to nourish a democracy and empower its people, forming a more perfect Union along the way.

Constitutional Law Evolves Through a Process of Constitutional Revolutions
Bobby sought to explain how constitutional legal theory evolves, not which theory is best. This is best exemplified by the first piece in this collection, The Anatomy of Constitutional Revolutions, (Nebraska – his alma mater — 1989). He explained:

[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: the living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile.

To Bobby, none of these are correct and all are beside the point. To Bobby, constitutional legal theory evolves and adapts with what anthropologist and humanist Stephen Jay Gould might have called “punctuated equilibrium,” that is, long periods of stasis upset by abrupt, transformative change. Bobby called such changes in constitutional legal theory “constitutional revolutions” (as in “revolt,” not “revolve”), wherein legal change inconsonant with existing constitutional theory is impelled by compelling extrinsic factors, which explains results in “hard cases,” say Slaughterhouse, Plessy, Brown and Lawrence.

Bobby’s own theory about which constitutional theory is best is ultimately to reject the lot of them – which he said “obscures” real constitutional discussion, in favor of a nihilistic indeterminacy cabined by belief, bias, cognitive pragmatism and relativism, majoritarianism, chaos and cultural influences. Which brings me to his second theory about the role of truth in constitutional theory.
Results are Not Explained by Constitutional Truth, but instead by Constitutional Indeterminacy.
Bobby questioned the meaning of “truth” in constitutionalism. He was unwilling to accept the premise that there is or ought to be settled constitutional truths is well in view in the second piece of this collection, Indeterminacy, Justification and Truth in Constitutional Theory (Fordham, 1992). Bobby could be an epistemic fundamentalist, questioning the meaning of truth in and about constitutional interpretation: “Thus, the question of constitutional indeterminacy is ultimately a question of epistemic indeterminacy. Without knowing the univocal meaning of a constitutional proposition, even if such meaning exists, constitutional practitioners cannot be constrained or significantly guided by the law of the case.”

In Indeterminacy, Bobby argued that because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy, epistemic indeterminacy (sub nom. “indeterminacy”) is therefore more relevant to constitutional legal theory. He wrote:

Once we rid ourselves of the unfortunate dichotomy between metaphysical and epistemic indeterminacy, we realize that constitutional provisions have a univocal meaning if, and only if, qualified constitutional practitioners agree on what the provision means, and on the type of reasoning appropriate for resolving controversies pursuant to that meaning. This agreement explains why so-called “easy” cases are easy.

Bobbby rejected the notion that there exists “correct” constitutional theory, in favor of a sort of Zen temporal interpretivism that rejects the concept of constitutional “truth” altogether, concluding: “Constitutional theorists should jettison the notion of constitutional truth,” and

that constitutional theorists, judges, and practitioners should abandon truth in favor of justification. [T]ruth does not have the explanatory force it is typically thought to have. Consequently, whether constitutional statements are true is irrelevant to the process of constitutional litigation and adjudication.

Rather than “Truth,” indeterminacy is “an appropriate vehicle to transport constitutional theory into the twenty-first century,” and “ultimately captures the imagination of the age” and best equips society to address the greatest issues of the day, say slavery, abortion, gay marriage, consensual homosexual sex, executive authority, and national security.
To Bobby, the search for constitutional truth misses the point. The real adventure is in the journey of discovery not for the what, but for the who: who gets the final word on constitutional meaning? Congress? The President? The Supreme Court? States? To Bobby, the answer is “none of the above.”
Against Judicial Supremacy; In Favor of Judicial Review
Bobby concluded that while constitutional review is a healthy instrument in a republican democracy, constitutional supremacy escheats to The People. This is exemplified by the eighth and ninth articles in this collection, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, (Cardozo, 2006) and What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? (Widener, 2008)
To Bobby, a politically unaccountable Supreme Court should not have the last word – like Lewis Carroll’s Humpty Dumpty – on the meaning of the words and phrases contained in the U.S. Constitution. In a republican democracy – especially with constitutionally enshrined bicameral lawmaking topped by a democratically elected chief executive – constitutional interpretation should be wielded by those most accountable to the electorate. In Which Constitution, Bobby challenged the very notion of judicial supremacy in constitutional interpretation:

It is an indispensable feature of our constitutional system, according to conventional wisdom, that the federal judiciary is supreme in the exposition of the law of the Constitution. The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. [I reject] judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate’s incapacity to give their consent to justices and judicial decisions through input-accountability, process-accountability, and output accountability renders judicial supremacy anathema to self-government.

Bobby questioned judicial supremacy on constitutional textual and political accountability ground. He wrote:

it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society’s future.

Bobby also questioned judicial supremacy as applied in America as representative: “The Court, a mostly white, mostly male, and mostly middle-class body, seems conspicuously unrepresentative.”

Rather than courts, Bobby maintained that the electorate ought to be the ultimate arbiter of constitutional meaning. Bobby argued that Congress should have the role of “penultimate constitutional interpreter, one step short of the ultimate interpreter: the electorate.”

Bobby believed that “a congressional override of Supreme Court decisions as the solution to the problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it.”

Bobby held that congressional overrides are a constitutionally and historically entrenched American tradition that would serve as a democratic lever against the “the Court, thoroughly intoxicated with the power judicial supremacy grants them,” onerously running roughshod over a republican democracy.

Bobby made clear that his call against judicial supremacy was not a call to abandon judicial review. As he explained in What’s Wrong: “The value of judicial review lies in its utility in establishing a practice for reflection and deliberative conversation designed to translate the constitutional values of the past into the constitutional reality of the present.” In sum, Bobby believed that republican democracies thrive with judicial review, but not judicial supremacy. While judicial review is laudatory, he reasoned, dispositive constitutional disquisition should devolve not to those who cast judicial votes, but to those who cast elective ballots:

After deliberative debate, the final judgment concerning constitutional and political values should be the electorate’s. Any alternative system gives a government branch the power to check the other branches without an appropriate check on it. If there are to be unchecked checkers in American democracy, they should be—after extensive deliberative debate—the people themselves.

Now let’s hear from some other people, themselves.

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister's Club.]

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

Words cannot do Bobby justice. He was smart, thoughtful, inquisitive, kind and gentle. His generosity knew no bounds. I will miss Bobby. The world is a bit worse off than it was just a few days ago.

I am not Bobby Lipkin. I am his friend  and colleague, Cassandra King.

[SEE ALSO: Robert L. Chamber's post about Bobby , Jim Chen's Remembering Bobby]

Below, I’ve pasted the announcement that appeared on the homepage of the Widener Law site:

Robert “Bobby” Justin Lipkin, Distinguished Professor of Constitutional Law on Widener Law’s Delaware Campus, passed away on Thursday, February 18th. The Widener Law community’s thoughts and prayers are with Professor Lipkin’s loved ones. We are shocked and saddened by his passing and share their grief. Bobby Lipkin was an exceptional individual, a good friend, and a respected professor. His passing is a substantial loss for the entire law school community. He will be missed by all of us privileged to have known and worked with him.

On a personal note, my intention as webmaster at the Law School and as someone who loved Bobby dearly, is to preserve this site as a tribute to Lipkin the thinker, Lipkin the philosopher, Lipkin the pundit, Lipkin the scholar.

I  admit: my heart is broken. I bawled like a child when I first heard the news.

I miss Bobby terribly.

I am in shock over his passing.

However, his spirit  lives on and his musings and writings will be preserved here for everyone to re-read or to discover anew.  It should be noted that Bobby touched many of us with his passion for teaching, his deep respect of his profession and his students, his enormous heart, his deep sensitivity, and his sharp sense of humor.

Bobby discovered his passion for blogging back in 2006. He had approached the subject very timidly and with a slight hint of techno-phobia. The fear of technology quickly vanished, as Bobby found himself blogging almost daily since October of 2006. He performed double-duty: not only posting to ECA daily, but contributing to Jim Chen’s Ratio Juris.

Bobby and I would meet formally in my office to discuss tweaks and fixes to his blog. As the consummate perfectionist, he had a very clear vision for what he wanted his blog to look like, read like and ‘feel’ like. Our formal meetings always (de)evolved into truly fun, informal exchanges of ideas, opinions, baseball, politics, jokes, sports, popular culture, Jews (him) and  and Puerto Ricans (me), atheists and religious zealots, kooks and geniuses, and everything in between. Both he and my dad were Brooklyn College alumni, and that shared history would sometimes open up to a stream of amusing tales from his college days.   He loved his wife and daughter, mentioning  them often in our talks. He loved his cat; in his post Is There a Legal Remedy for the loss of a cat? he mourned to loss of his Siamese cat to tainted cat food. He loved his baseball; in one of my favorite posts, he recounts being at the game where the Dodgers won the National League Pennant in 1956; in another post he recounts  the journey of Harlan and Joba Chamberlain.

I could go on and on, as Bobby was a man of so many passions and interests, so many ideas; it is   difficult to distill his person, his personality, his being in a few descriptive sentences here.

I consider myself blessed to have been in his circle of  friends and colleagues. Bobby was   a kind-hearted soul, a thoughtful person, a great professor, a loving husband and father.

I love you and I miss you, Bobby.

This week, I have ahad a taste of what it might be like not to have health insurance for members of my family. Fortunately, my experience did not involve uninsured children, but instead an uninsured dog. My puppy, Owen, just turned 6 months old and he does not have health insurance. Being a risk adverse person, I investigated the insurance options when we got Owen. However, I soon learned that health insurance for dogs is prohibitvely expensive. Even simple catastrophic coverage cost at least $30-40 per month (For those who don’t know, “catastrophic insurance” is insurance that covers only “catastrophically” expensive health care for illness or injury), and regular health insurance coverage for dogs is simply not cost effective.

Last week, Owen had surgery. Fortunately, the surgery was routine (OK, we took away his ability to father puppies) and surgery for dogs is a lot less expensive than surgery for humans. Still, I paid several hundred dollars for his care. I had to make some tough decisions, such as whether to pay extra for the less invasive, less painful laser surgery, and how much to spend on pain medication (not to mention our worries about breaking or chipping the cone on his head – an added expense). Furthermore, when Owen’s stitches started bleding on Saturday afternoon, we had to decide whether to take him to the Emergency Animal Care and pay another large sum, or wait until Monday to have him re-checked by his regular doctor for free. Since Owen is, after all, a non-human animal, and since he continued to romp happily (as much as he could with a cone on his head), we decided to wait until Monday.

This experience got me thinking. I have a friend who is pregnant who only has catastrophic health insurance. I have another friend who has children and no health insurance. I imagine how hard it must be to make health care decisions for them. Wait until the cheaper doctor on Monday or go to the ER? Purchase the highest quality, least pain method of surgery or opt for the cheaper and plan to do lots of handholding? These decisions can’t be easy – indeed, they must be agonizing for the millions of uninsured parents with uninsured children in this country. I am lucky. Only my dog is uninsured. But I sure do feel for the many others are not so lucky.

Last week, the Supreme Court heard the oral argument Citizens United v. FEC, which could become a landmark First Amendment case. At issue is the constitutionality of the FEC’s ban of anti-Hillary documentary sponsored by corporate funds. The Court could decide the issue narrowly, on the grounds that this particular commercial speech was clearly political and thus warrants the highest level of First Amendment scrutiny. However, comments by several justices at the oral argument hint that the Court may use this case as a vehicle for establishing a new rule – that commercial speech merits the same strict scrutiny as does political speech. Until now, the Court has applied a lower level of scrutiny to commercial speech. The reason for this practice is that because commercial speech is for profit, there is less of a danger of chilling that speech than there is for political speech. If the Court does use Citizens United v. FEC as a vehicle for establishing a new level of review for commercial speech, thousands of statutes that currently regulate business and commercial speech will fall under attack, and may be struck down. Monied interests, which are already far too powerful in our political system, would become even more powerful.

If the Court issues a broad ruling in Citizens United v. FEC, that would be consistent with a trend on the Court to protect the interests of property owners and businesses. The Court has established a new regulatory takings doctrine which makes it considerably more difficult for the government to regulate property in the public interest (though the Court’s ruling in Kelo was a step backwards in this line of cases). The Court has established new limits on punitive damages in tort cases brought against multi-national corporations like Exxon. If the Court, as expected, issues a broad ruling in favor of corporate commercial speech in Citizens United v. FEC, it will be just another Supreme Court ruling in favor of the “haves” at the expense of the “have nots.”

Someone mentioned that without a public option, the health care reform bill will be a bill protecting Heath Insurance Company’s profits. Just how will health care costs decrease without competition? Opponents of the public option never seem to provide a satisfactory answer to this question.

On Anderson Cooper’s CNN on healthcare yesterday, August 23rd, David Gergen insisted the American people would never embrace a single payer system. We’re too unlike Europeans and Canadians in simply not trusting government enough to run such a healthcare system.  We’re too rebelliousness and anti-authoritarian to tolerate such government control.  Maybe so.  But how then did Americans tolerate the virtual constitutional dictatorship of the Bush-Cheney administration in spying on Americans and in President Bush’s extraordinary use of signing statements turning that practice into a virtual line-item-veto.  Americans will never accept governmental control of healthcare, but will gladly embrace a soft dictatorship concerning governmental control of privacy. Something doesn’t compute here.

Jon Voigt has joined the Republican distillers of venom and vitriol absent facts, arguments, and reasoning. Consider: “Are we supposed to sitting and waiting, watching for the possibility of a new Holocaust? Who’s going to take the responsibility to keep America, I mean Israel, safe. I’ll tell you why this really scares the hell out of me. Everything Obama has recommended has turned out to be disastrous. . . .  It saddens me greatly to think we were the great powerful good in the world. We as Americans knew America to be strong. We were the liberators of the entire world. We are becoming a weak nation. . . . Obama really thinks he is a soft-spoken Julius Caesar. He think he’s going to conquer the world with his soft-spoken sweet talk and really think he’s going to bring all of the enemies of the world into a little playground, where they’ll swing each other back and forth. . . . We and we alone are the right frame of mind to free this nation from this Obama oppression. Let’s give thanks to [Republicans] for not giving up and staying the course to bring an end to this false prophet, Obama.” The utter lack of content in this diatribe and the fact that some people believe it serves as legitimate public dialogue is anathema to everything the Founders of this great nation hoped to achieve by “beginning the world anew.” Yet, Voigt and his cohorts steeped in this visceral American superiority have no idea what a deliberative democracy and its public discourse is supposed to be like. Obama, like any other American leader, should be subject to severe, reason, and insightful criticism. Voigt has got the severity right, but where’s the reason and insight? The inanity of much of what passes for Republican political discourse does a great disservice to republican democracy and the Constitution upon which it is based. I do not believe that thoughtful Republicans would take this even remotely seriously if responsible Republican political leaders and journalists spoke up against its poisonous effect on the future of the nation.

Check out John Nichols’ piece on the views of Representative Dennis Kucinich (D-OH) on the financial crisis and how to remedy it.