Professor Jim May’s Remarks; A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin
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.
- Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
- Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
- 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.]