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DISCIPLINED APPROACHES FOR CONSTRUCTING A RULE OF LAW ORDER: RECONSIDERATIONS REVISED: SOCIAL MOVEMENT AND CONSTITUTIONAL CHANGE: THE CASE OF THE UNITED STATES

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The major challenge that the theory of constitutional change in contemporary United States faced is social movement, and its core concern is to balance and maintain legal and political authorities of the Constitution through interpretation. At the descriptive level, the thoughts of liberal scholars of constitutional law who criticized the theory of originalism restored the true colors of social movement in acting on judicial interpretation of the Constitution in individual cases, thus summarized the rules of occurrence of such action, and put forward the theory of constitutional culture of the mechanism of action and that of the three-stages of action. At the prescriptive level, social movement is burdened with the “original sin” of political factions, and contrasted with the principle of republicanism in the constitutional era. During the Cold War period, pluralist theory linked social movement with the value of democracy, and began to accept its constitutional status. Moreover, given that the influence of social movement on judicial interpretation must be restricted in order to harmonize the conflict between political and legal authorities of the Constitution, both the pluralists and republicans put forward different schemes in response.

Affiliations: 1: Yale Law School; Postdoctoral Fellow, Peking University Law School philixyan@126.com

10.3868/s050-005-016-0037-1
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/content/journals/10.3868/s050-005-016-0037-1
2016-02-27
2017-11-20

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