This article was published first in the August issue of Yanhuang Chunqiu.
Since a while, several articles criticizing constitutionalism have been published in newspapers and periodicals. This has not been seen often in the past one hundred years of history. Since the legal reform and constitutional establishment of the Late Qing, apart from the years of totalitarianism, a march towards constitutionalism has basically been the baseline consensus of the Chinese people.
As soon as the voices criticizing constitutionalism came out, they not only met with continuous and incessant repudiation, they also led to a dispute on various questions about constitutionalism in intellectual systems, and particularly do a debate between the “Socialist constitutionalist group” and the “universal constitutionalist group” (“pan-constitutionalist group”). This sort of debate on one hand gave prominence to the insufficiencies of the store of knowledge on constitutionalism in theoretical circles, and on the other hand revealed people’s different conceptions of realizing constitutionalism. In view of this, clearing up the true meaning of constitutionalism seems especially urgent in today’s China.
What does “constitutionalism” mean after all? Generally speaking, constitutionalism is a sort of institutional arrangement and ideological idea of limiting government power and protecting individuals’ fundamental rights and liberties. Constitutionalism also implies a sort of specific situation of governance, a situation in which a Constitution that limits power is effectively implemented – under this sort of situation, the power of government is effectively restrained, and the individual rights and liberties of individuals are protected well. The core of constitutionalism lies in limiting power, and hitherto, the most effective form of dividing power discovered in humanity is the separation of power, including horizontal separation of power and vertical separation of power. The former is also known as the “tripartite separation of powers”, meaning that the legislative power, executive power and judicial power are separate from each other and mutually balancing; the latter is also known as “federalism”, meaning that the national government and local governments are separate from each other and mutually balancing. There is no doubt that the separation of powers, checks and balances are the quintessence of constitutionalism. Their mechanistic role lies in the fact that they constrain power with power, or to use the words of the US “founding father” Madison, “use wild ambition to oppose wild ambition”. The arrangement of the separation of power, checks and balances ensures that no power is paramount, and ensures that all power is bounded, that it is restrained and opposed by other powers. Vertical separation of powers, checks and balances ensure that three powers that are different in nature mutually contain each other, vertical separation of power, checks and balances ensure that different governments mutually constrain each other. This sort of double separation of power, checks and balances can effectively restrain the exercise of power and prevent the abuse of power, providing a “double safety valve” (Madison’s words” for the protection of individual’ fundamental rights and liberties.
Constitutionalism opposes any form of dictatorship, that is to say, any form of dictatorship is intolerable to constitutionalism. The harm of dictatorship lies in the fact that it creates paramount and unrestrained power, regardless of whatever personalities or bodies exercise that power. Unrestrained power inevitably is arbitrary and subjective. Madison pointed out that all forms of concentrated power, regardless of whether it is concentrated in the hands of one person, some people or many people, regardless of whether it is hereditary, self-appointed or democratically elected, they can all appropriately be defined as authoritarianism. Tocqueville also once said: “unlimited power itself is bad and dangerous thing. […] In my view, when the power and means of command are entrusted with whatever force, regardless of whether this is called the people or a king, regardless of whether it is called an aristocratic system or a democratic system, regardless of whether it is called a monarchy or a republic, I will always say that this has sown the seeds of tyranny, furthermore, I will go and live elsewhere, and obey other laws.” It can be seen that even if a certain person or body has been produced by elections by the masses, it is not possible to entrust them with all power, and it is also not possible to let them concentrate all power into a single person.
Regardless of whether power is concentrated horizontally or vertically, there is always a tendency towards absolute and unrestrained power, constituting a grave threat to individual liberties and rights. Horizontal concentration of power means that the powers to formulate laws, implement laws and adjudicate cases is concentrated in the hands of one person or one body, not only is it impossible to correct the mistakes brought by any measure, but the establishment and use of norms are integrated with the tools of violence, this makes it hard to avoid that the exercise of power is reduced to tyranny, as Montesquieu feared. Vertical concentration of power means that all power in a community is concentrated in the hands of one government, and that there are no other forces that can prevent its abuse, local self-government declines, and local freedoms vanish.
The essential point of constitutionalism is limited government. This means that the power of government is bounded and its exercise is strictly limited, furthermore, it makes the protection of individuals’ fundamental rights and liberties into an objective. The power of this sort of government is not inborn or God-given, but it comes from the members of the community, it comes from every individual, and comes from being empowered by them. Therefore, its objective, even its only objective, is the protection of individual liberties and rights. Government does not have – and should not have – any interest that is independent from individuals, everything it does is no more than protecting individuals’ interests.
In broad terms, constitutionalism is a way of life. Constitutionalism guarantees people’s freedoms and peaceful coexistence, it guarantees that people can rationally discuss and interact, and it guarantees that people can constructively resolve disputes. Constitutionalism protects individuals’ fundamental rights and liberties to the broadest extent, and guarantees that people can reach a consensus about peaceful coexistence on this basis, in other words, constitutionalism respects individual values and choices to the broadest extent, and on this basis, it guarantees that they can build peaceful public lives. Constitutionalism appropriately integrates the individual with society, and appropriately blends freedoms and order together, it clearly separates the private sphere from the public sphere, and ensures that thousands of complicated ties and links are maintained. In a constitutional society, individuals are free, but live under the precondition that they do not harm others’ freedoms and rights, the “principle of no harm” that Mill put forward; at the same time, individual liberties are also not harmed by public power, and the exercise of public power must be based on protecting individual liberties and rights.
After clarifying the meaning of constitutionalism, it is not difficult to discover the basis for the anti-constitutionalists’ viewpoints, they believe that constitutionalism is capitalist, and China implements Socialism, therefore China should not do constitutionalism. Their logic is, the institutional elements of constitutionalism is the private ownership system, parliamentary democracy, the separation of powers, judicial independence, constitutional review, federalism, etc., and these are completely opposite to the public ownership system, people’s congress system, integration of legislative and executive power, a judiciary that is subject to the Party’s leadership, etc., as practiced in Socialism. Frankly speaking, the anti-constitutionalists’ views are not completely without merit, in fact, in terms of the comparison between both that they make, their views are largely valid, because a fundamental difference exists between Stalin-style Socialism and the basic ideas of constitutionalism, and an affinity actually exists between constitutionalism and capitalism. The mistake of the anti-constitutionalists is that they embrace Stalin-style Socialism and do not let it go, and refuse constitutionalism and capitalism. Their viewpoints can be described in one sentence: “We prefer the grass of Socialism, and do not want the seedlings of capitalism.”
Looking back at the basic propositions of Stalin-style Socialism, it is not difficult to find that its contradictions with constitutionalism seem irreconcilable. Staling-style socialism believes in publicly owned property rights (the public ownership system), the planned economy (the command economy), interference in contracts, etc., and these matters are all opposed to constitutionalism. Publicly owned property rights weaken and even destroy individual autonomy and liberty, because the material basis on which people rely to live and act in peace is destroyed; the planned economy means that individual free choice is gravely limited or even completely deprived, the government controls individuals’ fates through planning, making them become chess pieces that can be manipulated at will.
Some people say that Stalin’s model of Socialism was only a kind of economic structure, which absolutely could coexist with constitutionalism. This sort of view does not have a leg to stand on, even if Stalin’s model of Socialism is only seen as a kind of economic structure, its antagonistic relationship with constitutionalism is extremely clear. Socialism in the sense of economic structures was aimed at controlling people’s economic lives and controlling the production of products and wealth. But as the writer Hilaire Belloc said: “Controlling the production of wealth is controlling humanity’s lives themselves.” That is to say, controlling wealth or economic life is equal to controlling everything, and controlling every aspect of people’s lives. Hayek put it very clearly: “economic control is not only control over a part of human life – a part that can be separated from other parts; it is control over the means to realize all of our objectives. Whoever has the sole power of control over these means, inevitably decides which purposes they will serve, decide what kinds of values are put in front, and which values are put at the back, and decide what people should believe as well as why to fight.” The situation before China’s reform has proven the reliability of this argument. However, the thing reformed during China’s reform and opening up was Stalin-style Socialism, and one of the objectives of reform and opening up was that “The Party must act within the scope of the Constitution and the law”, this point is the basic proposition of constitutionalism. In a constitutionalist society, all political parties must really conduct their activities under the Constitution and the law.
（责任编辑 黄 钟）