an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Framework Model and Constitutional Interpretation
I've posted a draft of my latest essay, The Framework Model and Constitutional Interpretation, on SSRN. This essay was written for Philosophical Foundations of Constitutional Law (Oxford University Press forthcoming 2016), a collection edited by David Dyzenhaus and Malcom Thorburn. In this essay I offer a theory of constitutions as frameworks for politics, generalizing from the theory of framework originalism described in Living Originalism. Here is the abstract:
This essay explains the framework model of constitutions and its consequences for constitutional interpretation.
The framework model argues that a constitution is a basic framework for governance that enables future political development. As a framework, a constitution is always unfinished and must be filled out over time. Although the text of the constitution may not change without amendment, the constitution-in-practice is continually changing through constitutional construction—the building out of the constitutional system through doctrinal development, legislation, administration, institution-building, and the creation and elaboration of conventions.
In the framework model constituent power is not limited to special moments of official amendment or adoption of a constitution; it can be exercised through all of the modes and methods of politics and legal argument that result in constitutional constructions. In particular, social and political mobilizations may exercise constituent power to the extent that they influence constitutional constructions by the political branches or by the judiciary. For this reason, the framework model does not sharply distinguish between constitutional politics and ordinary politics. Constitutional construction is a dialectical process involving all branches of government as well as civil society, which together build out the constitution over time.
Judges must enforce the basic framework and they may not vary from it. Nevertheless, the constitutional framework is unfinished and inevitably requires further construction. The constitutional text, consisting of a combination of rules, standards, principles, and silences, creates an economy of delegation and constraint for the political branches and the judiciary. The basic framework will not be sufficient to decide many if not most constitutional controversies that arise over time. Hence good judging requires constitutional construction consistent with the terms of the basic framework. Because of the dialectical nature of constitutional construction, many paths of constitutional development are possible.
Consensus on a single correct interpretive methodology is not especially important in the framework model. Judges and lawyers will often disagree not only on the best interpretation, but also on the best interpretive methodology. And because, in an evolving state, judicial construction has a dialectical relationship to politics, the course of constitutional doctrine may have many complicated and path-dependent influences and effects. It will not correspond to any comprehensive theory of constitutional interpretation. Interpretive theory in and of itself may do relatively little to constrain judicial behavior. Nevertheless, judges are constrained; constraints come from social, cultural, political, and institutional features of the constitutional system.
At any point in time, some constitutional interpretations are simply not plausible. They are "off-the-wall." Nevertheless, the properties of being "off-the-wall" and "on-the-wall" are not permanently fixed. Constitutional common sense can be altered through sustained political and legal contestation. Mechanisms of social influence form important parts of a political system and help shape the constitution-in-practice over time. Shelley famously remarked that poets are the unacknowledged legislators of the world; he might have added that the members of society, in their various institutional configurations, are the unacknowledged interpreters of a constitution.