"Constitutional View" in Constitutional Law Class
Epilogue to The Prologue to the Past: Institutional Unfolding of the Chinese Constitution
□ Lei Tian, East China Normal University
Following the past as a prologue: the institutional unfolding of the Chinese Constitution
University Asks Yali China Series
Tian Lei/hh
Guangxi Normal University Press, December 2021
one
In recent years, in undergraduate constitutional law classes, I have always thrown out a question at the beginning: If you were to give an analogy to the constitution, then what would you like to compare the constitution to, please fill in the blanks and then answer. Although young students' thinking is inevitably naïve, fortunately, their imagination is not bound by dogma, and I can often get some wonderful ideas when I assign my homework, and sometimes I am very inspired. In the first half of this year, because of the new crown pneumonia epidemic, the constitutional law class was changed to the Internet, and before the midterm, I received 25 assignments and read their 25 metaphors about the constitution, as if I was in the classroom again, discussing the issue face-to-face with them.
Just now, I turned over the homework of the last semester, 25 assignments, 25 answers, a variety of ideas, I roughly divided into the following three categories:
The first category: foundations, foundations, stars, axles, lighthouses, a flag, gravity, international prototype kilograms.
Category II: trees (twice), water, living water, flames, seeds, clocks, non-Newtonian fluids.
The third category: dictionaries, compasses, oxygen, contracts, military powers, old grandfather clocks, sugar gourds, uncrowned kings, short story anthologies.
The reason why I formed the tradition of assigning this assignment in the constitutional law class is that I hope that the students who have just entered law school will open their imaginations and face the "Constitution" directly, including the text that enters the current Constitution of our country, when their minds are not yet full of concepts, and express the "Constitution" as he understands it more graphically – in your eyes, what is the most prominent feature of the Constitution? And therefore, what does it look like? The above answers are divided into three categories, the first of which is "foundation", "star" and "wheel", which express the characteristics of the Constitution as the foundation of the country. The constitution teacher will set the tone as soon as he starts, the constitution is the mother law, the fundamental law, and the cornerstone of the legal system. For example, a classmate compared the "Constitution" to "gravity", and he wrote in his homework:
In any case, the Constitution is of great significance to humanity, and although its effects are as imperceptible as gravity, once the Constitution is lost (including the invisible Constitution), we will face moral weightlessness, disorderly social functioning, and ethical vacuum.
I think the meaning of this sentence is that if it is summed up in one point, that is, if you lose the constitution, you will lose everything, because the constitution is the foundation of the foundation, and if there is no written or unwritten constitution, then a political community will enter the black hole of order - lawlessness. The Constitution, as the fundamental law, as I have always argued in this book, requires that constitutional norms be able to remain unchanged over time and have stability that does not change due to changes in conventional politics.
And the second category, such as "living water", "flame" and "seed", it seems to me that the respondent captures the other side of the Constitution. The other side of this is that while maintaining stability, the Constitution must have the ability to keep pace with the times, and only in this way can the Constitution "live". In an assignment titled "The Constitution Is Like Living Water", a classmate vividly described the "life" of the Constitution:
Even if the procedure for amending the Constitution is complicated or the revision of the Constitution lags behind the development of society, it is still changing and progressing. The Constitution is like a very slow stream, no matter how the scenery on the shore changes, the water still flows slowly forward, even if it is blocked by the waist, it is forced to stay in place, and the water surface is also wavering.
Returning to the students' homework, whether the answer is "living water" or "flame", water and fire are exactly compatible in portraying the Constitution, and they overlap on the proposition that the Constitution must have a dynamic vitality. In other words, if a constitution does not have an endogenous mechanism for change, sooner or later such a constitution will be abandoned by history. We can also see that in the history of constitutional law, successful framers often know how to leave blank, they believe that time will solve some problems that seem insoluble at the moment, and they believe in the courage, wisdom and luck of future generations.
Thus, the answers of the first and second categories, as metaphors, are one-sided but profound. One type of thinking emphasizes that the constitution is a "compass" or "banner", as long as the constitution does not change, then political activities must be carried out in accordance with the established rules, and the flag cannot be changed; the other type of thinking compares the constitution to a "seed" or a "clock", as long as society is changing, the constitution must also make textual adjustments when necessary, and cannot be closed and rigid. That is to say, the logically opposite characteristics, put back into the practice of history and reality, are mutually exclusive. The reason why modern countries have a written constitution and write down the constituent norms of the country's fundamental system and political life lies in the fact that the constitution should be regarded as the general charter for governing the country, and the key to constitutional politics lies in whether it can achieve a dynamic balance between "unchanged" and "change".
On this issue, each long-standing political order has explored its own methods and techniques in the course of history, and the different ways of constitutionalism in ancient and modern China and abroad, on the one hand, are beautiful in their own beauty, and on the other hand, they are beautiful and co-existing, which constitute a topic for constitutional scholars to observe and think about.
two
As for the answers of the third category, after establishing the dimension from "unchanged" to "changing", it becomes the remaining category, and it is difficult to find a key word to summarize the idea. But that's not to say that the assignments were bad, on the contrary, if you look at my grades from a few months ago, this category that can't be classified has several high scores, probably because this group of students is not satisfied with abstraction in a single dimension, but tries to try to express the complexity of the "constitution" in their eyes. From the "compass", "sugar gourd" to the "old grandfather clock", you can see the hollow thinking.
A classmate told me that the Constitution is like a compass, "the compass is composed of different parts, when we discuss the compass, it must refer to the complete compass, not the individual parts in it; the constitution is composed of a piece of law, it is also a whole." From this simple and unpretentious sentence, we can deduce an unbreakable rule of interpretation - as I will emphasize repeatedly in class, the first rule of constitutional interpretation is to regard the constitution as a whole, taking China's current "Eighty-Two Constitution" as an example, under the shroud of the historical narrative constructed by the opening preamble, from the general outline to the last three chapters of the "sub-rules", the various provisions are intertwined with each other, forming a coherent meaning system, so the most simple method of constitutional interpretation is the mutual interpretation between the articles.
In another assignment that I also scored high, the author of "Sugar Gourd" told me, "This string of 'sugar gourds' of the Constitution is based on the will of the people, the preface is sugar-coated, and the content of the four chapters is hawthorn", in short, the Constitution is not "flat", but an organic, façade complex. From the "compass" theory, we can enter the interior of a constitution, the interpreter does parallel series between different articles, summarizes the meaning of the constitutional text, and the "sugar gourd" theory is more like standing outside the constitution, like a curious child to observe it and describe it, standing at the starting point of the legal education ladder, freshmen still have brain holes to open, because their minds have not been filled too much at this time, some specious doctrines, such as the preamble of the constitution is not a norm, the general outline is full of policy declarations, The principle of proportionality is good, it has not yet become a golden rule, and they can still curiously face the Constitution itself directly, like a Rubik's Cube to explore it, and the effect of "looking horizontally into a peak on the side of the mountain" will also come out. That's why I was able to read such a grotesque but wonderful answer as "non-Newtonian fluids," and according to my understanding of this assignment, one of the characteristics of the Constitution is that it is "inaccurate" and therefore resistant to metaphor.
At this moment, if a student asks me in turn, teacher, how do you answer this question, what do you want to compare the Constitution to? Probably the more books are read, the more rigid it becomes, and the so-called learning thinklike alawyer, which in turn is the process of letting many rules and regulations shape the mindset. In recent years, I have given students questions, and I have demonstrated how to answer them myself, but I think about it.
The answer that came to my mind was not a tree, from its roots and trunk to its branches and leaves, both rooted deep in the dirt and growing into the sky; just like a ship, every time it passes through a port, it has to make supplies and necessary repairs, so that when the end point returns to the starting point, the ship returns, and it completes its voyage in continuous self-repair. Because when understanding a constitution and the political order it unfolds, my mindset is to discuss constitutional issues in the dimensions of "invariance" and "change", which is where my current awareness of the most fundamental issue lies.
However, even in my own "reserved tracks", I can still learn a lot from the homework of freshmen, and the imagination and expression ability of individual students have surprised me, and I will share the thoughts in three more assignments here. The first job compares the Constitution to the "axle", in his words, "I think the Constitution is like the axle of the car, and the state is the whole car", the constitution axle is irreplaceable, and the state car is running at high speed, so how to deal with the conflict, there is a passage in the operation that is very well written:
The axles needed to be lubricated, and the Constitution should be interpreted in a new way. Frequent revision of the Constitution is as impossible as changing the axle frequently, and we have to lubricate it from the friction with the times. The interpretation of the Constitution is to lubricate and repair it without harming the fundamentals.
Isn't a good "lubrication of its friction with the times" the key issue that a country's constitution must solve and that constitutional scholars must ponder? In this regard, the answer given by this student is "constitutional interpretation". The second assignment compares the Constitution to an "anthology of short stories," and I suspect that this student is likely a literary enthusiast who has mistakenly entered law school, and the description of the constitutional amendment is appropriate:
The Constitution, like an anthology of classic short stories, will be reprinted every few years, perhaps because the market needs to add or subtract two articles, or perhaps because of political reasons to delete or modify a sentence. The original author may be long gone, the constitutional revision is like the editorial staff of the publishing house, after layers of screening, layer by layer of resolutions, there may be readers to write, or consult the suggestions of cultural celebrities, through the layers of procedures, but also strive to maintain stability, the classic articles should be retained, the classic sentences can not be changed without change.
The last homework I want to share begins with the statement, "The Constitution is like an old grandfather clock in the ancient city", but the old clock in the ancient city encountered new problems, and the user's expression was that after the age, the old timetable was not adapted, "bringing trouble to the new people in the ancient city", if you borrow the "wheel axle", this is the friction between the Constitution and the times, so the people of the ancient city must repair the old clock of the Constitution, see what the student said:
Due to the complexity of the internal structure of the old grandfather clock, it must be prepared by a professionally trained and skilled teacher. To this end, the management of the ancient city selected some respected teachers to participate in the discussion, the overall framework of the bell body can only accept polishing, polishing and other minor changes, and a part of the re-fiddling or even abandoning the reconstruction needs to be carefully hammered, repeatedly deliberated, a little careless will bring about the consequences of daily maintenance throughout the city, life continues to be more and more difficult. Teachers and masters come from different families, different regions, and even have different repair skills, and have different views on the re-presumption of the old clock time, which requires the teachers to vote.
The final result, "After several months of repairs, the old grandfather clock re-opened the hour, and the melodious bell once again spread throughout the streets of the ancient city." The staff of 34 streets corrected the clock at the intersection, and the people of the ancient city invariably corrected their watches..." To add a little more, it also comes from the "notes" after the main text of the homework, why 34 streets, because "the Constitution affects the lives of 34 provincial-level administrative regions and ordinary people in the country."
Well written and well written, right?
All the text quoted above comes from my second assignment in the constitution class in the spring semester of 2020, and the students are basically 2019 undergraduates of the Law School of East China Normal University, because it is an online class, so far, I have not seen the classmates in the class. I didn't make any other text changes or polishes except to fix typos in my assignment.
Inspired by them, I added another metaphor of my own, especially the recent reading of some historical documents and materials of the "1982 Constitution", which made me feel this way. I would like to compare the current Constitution of my country to a scroll, a large scroll. I don't have any artistic cells, and the scroll in my imagination is a scene that happened 12 years ago - at the opening ceremony of the 2008 Beijing Olympic Games, Li Ning flew through the sky before lighting the flame, and as a background, it was a large scroll that slowly unfolded before our eyes. As the scroll unfolds, for Li Ning, the wanderer, the past stretches into the present and the present extends into the future, while for us observers, we see the future transitioning continuously to the present, and the present condenses into the past—past, present, and future— on the scroll, constituting a "non-Newtonian fluid."
Isn't this just like our "1982 Constitution"? As the birth of China's current constitution, it was born out of a "great historical turning point", the Third Plenary Session of the Eleventh Central Committee corrected the chaos, the "Eighty-Two Constitution" was based on reform and opening up as the beginning of a historical stage of the republic, the new road was opened after the historical resolution was made, and the "Eighty-Two Constitution" became China's "new constitution". Subsequently, it grew slowly by a new constitution, and on the scroll of the Fundamental Law, reform and opening up were also rolled in its unfolding, as if we saw that in the three-minute flying walk, Li Ning held up the sacred flame, and his pace once exceeded the area illuminated by the scroll, and walked in the "dark" area in front of him by two or three steps ahead, running to the front of history, but soon the scroll brought Li Ning back into the picture. I think that the "1982 Constitution" has slowly stretched out along the historical journey of reform and opening up, and when it comes to the relationship between this Constitution and reform and opening up, the "friction" between them is also generally the same.
For constitutional scholars, the methodological problem of studying the current constitution of the country is to capture a "living" thing, which is opening like a scroll - in the case of sharp changes, it is late, then fast, and it is only a moment to press the shutter, but when you get the photo, the scenery above may also be in the past. It is precisely because of this concern that I pointed out at the end of the preface that when studying the current "1982 Constitution", the forty-year history of reform and opening up constitutes the "land of the motherland" that constitutional scholars can take root in. Here, I would also like to add that even if we study the "history" of the current constitution, we must consciously realize that this constitutional history can only be solidified within the historical paradigm of the linear view of time, and for a legal scholar, he always has to face some kind of amendment to the past by the "future" of the current constitution, and as long as the current constitution is still unfolding like a scroll, then its past is also living history. The "brain-burning" of the study of the "1982 Constitution" is here from a legal point of view.
This brings us back to the title of the book, in the chronology of a constitution, where all the past is the prologue.
three
Those who are parents know the grace of their parents. Similarly, only after becoming a teacher and looking back on the past can I truly understand the teacher's portrayal of myself, not only academically, but also in life. I have been teaching for a full decade, and "The Prologue to the Past" is my first book. To be the author of a book, no matter what, is lucky. At this moment, for me, this book, as a "prologue" to a new start, also has its long academic past.
I would like to thank Professor Zhang Qianfan, Professor Wang Shaoguang and Professor Bruce Ackerman, when I was a student, I met three mentors at different stages of my studies, which was my luck in life. Without the slightest exaggeration, their teachings and words have shaped me today, making me a teacher, a useful person, a person who is happy most of the time. As a scholar, in this book on constitutional issues, I would like to thank Professor Gan Yang, Professor Feng Xiang, Professor Su Li, Professor Wang Xi, Professor Qiang Shigong, and Professor Akhil Amar for their guidance in every move of studying constitutional law, benefiting from their lectures, personal training, or just reading their books and articles, "discussing" with them, and their writings have constructed a "field" immersed in me as a later generation of scholars. As the author of a book, I would like to thank Professor Huang Zongzhi, Professor Wang Hui, Professor Wang Shaoguang, and Professor Su Li, when this book was just a self-compiled collection of papers in pdf format, they were willing to recommend this book that was still to be polished, they were thinkers I respected from the bottom of my heart, they were far-sighted, but they did not want to bother more, and I took their affirmation of this book as a kind encouragement and encouragement.
At different stages of my study and teaching, Professor Zhao Juan, Professor Yu Xingzhong, Professor Li Lianjiang, Professor Benjamin Liebman, Professor Qiang Shigong and Professor Zheng Ge have all helped at critical times, their help is selfless, and they have established in my heart the appearance of a good teacher. The main part of this book was written during my work at the Institute of Advanced Studies of Chongqing University and the Law School of East China Normal University. I would like to thank Vice President Yang Dan, Director Cai Zhenhong, Secretary zeng Zuoling of the Academy of Advanced Studies, Dean Zhang Xudong, Vice President Yao Fei, and Teacher Gan Yang of Chongqing University for their trust in me and their understanding of my choice, and for the love of many academic members of the Academy of Advanced Studies for me to this day - the fate that I can unite with ideals can unite an academic community, and the fate between them is something I have never forgotten. I would also like to pay special thanks to Professor Tong Shijun of East China Normal University, Dean Zhang Zhiming of the Law School, Secretary Zhang Huihong, and the big family of the Law School, who can live and work in Shanghai in peace and contentment, without their support and help, as well as the project funding provided by the Law School, which makes the publication of this book less difficult.
In this era of social media, scholars can have no groups, but they can't have no friends, and they can have fewer polite likes or copy-and-paste congratulations, but more sincere care and concern. Speaking of this, I would like to thank Liu Cheng, Liu Han, Ou Shujun, Qiao Shitong, Yan Tian, Yu Ming, Zhang Yongle, Zuo Yilu, and many friends I can't list here, it is you who have never let the word "friendship" take off the texture of life. Professor Zhao Xiaoli's recent "angry rebuke" also made me wake up to the fact that it is pitiful to run a circle of friends as a successful way for the university, and I hope that every generation of students can form their "invisible college". I would also like to thank the many teachers and friends who have selflessly helped me in the legal circles: Professor Li Xiuqing, Professor Nie Xin, Professor Sang Benqian, Professor Chen Baifeng, Professor Liu Zhong, Professor Wu Zeyong, Professor Song Hualin, Professor Zhi Zhenfeng, Professor Jiang Feng, Professor Li Zhongxia, Professor Chen Yi, Teacher Wei Leijie, Teacher Yuan Fang, Professor Li Jie, Professor Cen E, and Teacher Wang Meishu. There are also Chang An, Li Zhen, You Chenjun, Li Sheng, Xiao Wu, Wang Weihua and many other friends, you often shout at me in the circle of friends, please continue - kai shabu, is a courtesy.
Special thanks to Editor Liu Longjin and Editor Wang Jiarui – this book can be published, and it is unimaginable without their efforts and invisible efforts. As always, I would like to thank Editor Liu Haiguang and Editor Zhang Yang for their efforts for this book.
Thanks to my family, I dedicate this book, which has actually been late for a long time.
October 1, 2020