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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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The Framework Model and Constitutional Interpretation

The Framework Model and Constitutional Interpretation

Chapter:
(p.241) 12 The Framework Model and Constitutional Interpretation
Source:
Philosophical Foundations of Constitutional Law
Author(s):

Jack M. Balkin

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198754527.003.0013

The author argues that the constitution is in a way the product of interpretation—what it is is always in the process of being constructed. At most we have a framework for that construction, but the framework is itself vulnerable to reconstruction over time. While, as the author acknowledges, his framework model has some affinity with the interpretive approach to law recommended by Dworkin, he distinguishes his argument from Dworkin’s by emphasizing the role of politics and political movements in the construction process. In light of this role, the appearance of judicial supremacy in the US legal order is deceptive since judges are far more responsive to politics than is ordinarily appreciated, which makes political movements and the individuals in them as much interpreters of the constitution as the judiciary.

Keywords:   interpretation, change, constitution, framework model, political movements, Dworkin

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