Social movement and constitutional change: the case of the United States

• Author: YAN Tian
• Pages: 592-615

FRONTIERS OF LAW IN CHINA

VOL. 11 DECEMBER 2016 NO. 4

DOI 10.3868/s050-005-016-0037-1

FOCUS

DISCIPLINED APPROACHES FOR CONSTRUCTING A RULE OF LAW ORDER:

RECONSIDERATIONS REVISED

SOCIAL MOVEMENT AND CONSTITUTIONAL CHANGE:

THE CASE OF THE UNITED STATES

YAN Tian *

Abstract 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.

Keywords social movement, authority of the constitution, constitutional change, pluralist

theory, republicanism

INTRODUCTION .................................................................................................................... 593

I. DEBATES AT THE DESCRIPTIVE LEVEL: DID SOCIAL MOVEMENT AFFECT THE

CONSTITUTION IN THE UNITED STATES ?.................................................................. 595

A. Rise and Fall of Historical Views: The Classics and Romance of

Constitutional Theory........................................................................................ 595

B. Analysis of Individual Cases: The Original Intention and Real Facts in the Case

* (阎天) J.S.D., Yale Law School; Postdoctoral Fellow, Peking University Law School, Beijing 100871,

China. Contact: philixyan@126.com

The author would like to thank Professors Paul Gewirtz, Reva Siegel, and Amy Kapczynski for their

teaching.

2016] SOCIAL MOVEMENT AND CONSTITUTIONAL CHANGE 593

involving Gun Control....................................................................................... 598

C. Exploration of the Rules: Mechanism and Cycle of Social Movement..............600

II. DEBATES AT THE PRESCRIPTIVE LEVEL: SHOULD SOCIAL MOVEMENT INFLUENCE

THE CONSTITUTION?.............................................................................................. 604

A. Worries about Factions, Republicanism, and Exclusion of Social

Movement .......................................................................................................... 604

B. Crisis of Democracy, Pluralism, and Acceptance of Social Movements ...........606

C. Balance between Law and Politics, Constitutional Authority and Its

Restriction on Social Movement........................................................................ 608

CONCLUSION........................................................................................................................ 613

INTRODUCTION

“Both the life and the authority of the Constitution depend on its implementation.”1

This has become the consensus of various circles in China on the importance of

implementing the Constitution in order to establish and maintain constitutional authority.

However, it is more difficult to implement the Constitution if comparing it with law

enforcement. Law enforcement is of a non-political and pure nature at least in theory,

while the Constitution “just bears the brunt of the blade between law and politics.”2

Implementation of the Constitution should be based on the rule of law, while the

Constitution itself must maintain a high level of neutrality, stability, and predictability.

Otherwise, it is difficult for the Constitution to have legal authority. Furthermore,

implementation of the Constitution has to respond to political changes, absorb political

tensions, and integrate different political demands; otherwise, it is difficult for the

Constitution to have political authority. The rule of law needs stability while politics

requests change. Therefore, maintaining balance between the two authorities is not only a

challenging technique for the organs exercising the Constitution, but also the core

concern of the theory of constitutional change in the contemporary United States. As

Professor David Strauss argues, “we want to have a constitution that is both living,

adapting, and changing and, simultaneously, invincibly stable and impervious to human

manipulation. How can we escape this predicament?”3

Since the mid 20th Century, the dilemma of the theory of constitutional change has

come to a head. On the one hand, such significant social movements as the African-

American’s civil rights movement, women’s rights movement, and the gay rights

1 XI Jinping, Speech in the 30 Anniversary’s Assembly of Various Circles in the Capital to Memorize the

Promulgation of the Constitution, People’s Daily (Renmin Ribao), Dec. 5, 2012.

2 LIN Laifan, 从宪法规范到规范宪法 (From Constitutional to Normative Constitution), Law Press China

(Beijing), at 5 (2001).

3 David Strauss, The Living Constitution, BI Honghai trans. China University of Political Science and

Law Press (Beijing), at 2 (2012).