What is the constitution? As I see it, the constitution is the understanding and depiction of the Dao, or the natural law, by human beings who are essentially limited in reasoning and greedy in nature. The Dao, or natural law, is the ideal social order and code of conduct for the human society. That being side, the constitution is not the Dao itself, but the culmination of human efforts to understand and approach the Dao. Such efforts requires more than one individual, or a mere generation, but generations and generations. Taking a look at the constitutions of other countries in the world, most of them find their foundations in profound cultural conventions. These conventions include those of Judaism, Hinduism, Christianity, Buddhism, Islamism, and the Chinese cultural traditions. Other conventions are also included, such as the tradition of the British common law. Most of these conventions find their roots in the Axis Age, around 500 BC, when approximately a thousand years’ civilization came to existence along side the emergence of cultural heros, such as Moses, Confucius, Buddha, and Jesus Christ. And they summarized such conventions into classics of civilizations. These classics consists of moral values, rules for conducts, and cultural principles. And these classics are the constitution without the name.
The first constitutional country on the planet, Britain, does not have a written constitution. And the British constitution is the basic principles of the common law. These principles do not require to be written into a constitution, because they come from the people with deep roots in the civil society and the culture. Why so? The reason is the common law is from the civil society. Back in the 12th century when the dependents of William the Conqueror had not consolidated their rule, Henry II were resolved to strip the feudal lords of their jurisdiction. In order to do this, he dispatched the circuit courts whose judges did not have much clue about the law. These judges, therefore, relied heavily on the neighbors of the plaintiffs’ and defendants’ to judge the cases, and these neighbors became the earliest jury. The jury did not only inform the judges of the relevant information regarding the cases, but also of the conventions of handling similar cases. In this manner, the judges managed to judge the cases in line with old traditions. Every year, the circuit court judges returned to Westminster and exchanges their observation of the conventions from different localities. As time went by, these exchanges brought forth a whole set of common law. One can conclude that the common law is, in the first place, the common sense from the people. Therefore, there is no need for a written constitution.
The precedent of a written constitution was set by America. The Protestants who fled England found it necessary to reconfirm their principles in the new continent. In addition, after the American people got their independence, the imminent task of founding a republican country required a written constitution. However, this constitution did not come into existence without the cultural foundation of the Founding Fathers. These Fathers brought the common law tradition to America, applied it in their daily life, and undertook contracts and self-governance. Hannah Arendt claimed that the spirit of contract and the tradition of self-governance constituted the foundation of the American constitution, and the American was nothing short of a bottom-up compilation of codes of conduct from the village level. She said that “Madison’s proposals for the U.S. Constitution that the U.S. Constitution should absorb its ‘general authority’ from its ‘secondary authority’ are merely a repetition of what colonies themselves did in building state governments on a national scale.”(On Revolution, Yilin Publishing House, 2011, P. 149)
On the other hand, the principles of the common law has become the core concepts of the American Constitution. For example, the principle of “king being under the law” has been the source of tradition for checks on the power in the American Constitution. In a republican state, this principle evolved into a check on the legislative, executive and administrative branches, a mechanism of checks and balances among them. The “law” in the American context is common law. Since law is above man and the entities of man, therefore, when the man and the entities of man deviate from the law, the law will make the judgement and correction if need be. There comes the judicial review, which is a judiciary system that calls whether an act or administrative order is a violation of the constitution. This is a demonstration of another common law tradition. In England, the people who are most familiar with the common law are the judges of the general courts, and therefore, they are the interpreter of the common law. Early in the 16th and 17th century, Edward Kirk proposed that “the common law checks the acts of the parliament, and sometimes invalidate them.”(Quoted from Stoner, Theory of Common Law and Liberalism, Peking University Press, P. 23)
Let’s not forget that most of the American Founding Fathers were Protestants. Although many of them would rather not reveal their religious beliefs, but they were followers of Deism. The Protestant tradition not only provided sources for the content of the American Constitution, but also constituted its basic spirit, that is men are limited and petty creatures with flaws. Therefore, men need to be kept in checks. This also explains why the American Constitution emphasizes the limits of power. In the meantime, this religious spirit directed people’s actions, and instructed them to lay the foundation for a written constitution not only with words, but also with actions. After the American Revolution, George Washington suppressed a mutiny of the Continental Congress and returned the Army to the Congress. He was the American President for two terms and he stepped down after the second term without seeking another tenure. His attitude towards power determined what history remembered him for, that is, the power of the state comes from a duty given by god to man. And without the consent of god, even on occasions men obtained such power, they should not take advantage of it.
The American Constitution created a precedent for written constitutions. There are merits and demerits. The merit is a written constitution offers a clearer account of the basic rights and code of conducts for a society; and the demerit is it gives a misconception that the rules set out in a constitution are created by the constitution, which goes against the spirit of common law. Thinkers from Kirk to Hayek have all emphasized that parliaments cannot make law, but only pass laws when they coincide with the principles of the common law and the spontaneous order. Only laws passed in this fashion have value. The making and later amendments of the American Constitution all follow this rule of anonymous consent, which to some extent guarantees that the written constitution does not deviate much from the natural law people get to know in the common law. Therefore, the amendment of the American Constitution requires a two thirds majority in the Congress and the Senate, and ratification of over three fourth in state Senates. The amendments of the American Constitution have been through years of voting processes. And it took 202 years for the pass of Amendment 27. The constitutional economics later proves that the principle of unanimous consent is the best procedure for the creation and amending of a constitution. Unanimous consent means nobody’s interest is hurt.
The American precedent is followed by many other countries. Some countries has been very successful, while others not. The worst scenario is when people start to think that the constitution is a creation of those who draft it and by the power of an entity called “parliament”. Thanks to the success of the American Constitution, people begin to worship the constitution and believe that the text of a constitution is close to the Dao or the natural law. In fact, human beings created words that brought about strengths and weaknesses at the same time, that is, the symbols we come to know as words could be used to recreate a thing or a set of principles, but in doing so, false and distorted accounts can be made as well. Hence there come texts with the name “constitution” that does not reflect the Dao or the natural law. Such texts are not law or constitution according to Hayek. For instance, China’s Constitution of 1975 was such a false law. Compared to the Provisional Constitution of the Republic of China(1912), there was a lack of civil rights, such as “the freedom for property and business”, “freedom of letters and secrets”, “freedom to move”, and “freedom to appeal to the parliament”, etc.. Is it that people did not have such freedoms if the Constitution of 1975 missed them out? Of course not.
On the other hand, there are some constitutions that include things that should not be included in the constitution. For instance, an account of history. In fact, the main use of a written constitution is to accurately describe the basic rights and basic codes of conducts of the citizens, the basic powers, basic codes of conducts and the due process of decision-making for the state organs. Just like a screenplay or the manual for a game, they should dictate who the actors and players are, how they perform, instead of obtaining an account of the plot and the rules. If a screen play or a manual of the game does that, it contradicts the function. These screenplays and manual of the games are being used by countless actors and players for generations. To look at it in another way, a screenplay or a manual that are tailored for specific actors or players won’t last long. Similarly, a constitution is not supposed to endure just for a few years or even decades; or it should not be designed for use less than a hundred years. A constitution should not be tailored for designated actors, and it should be designed to last.
This requires that legislators design the constitution not from the existent calculation. James Buchanan wrote in The Economics and the Ethics of Constitutional Order, that the legislators should have “constitutional citizen identity ethics”, and “those who follow such ethics act in such a way that their impact on the final choice exceeds the impact of calculation in general.”(Commercial Press, 2008, p203). To put it in plain words, that is to say the consideration for the long-term interest of the whole society outweighs the interest of individuals. Following this rationale, those who propose to draft or amend a constitution should not include anything related directly to themselves, otherwise, it would jeopardize the rational calculation of self-interest, i.e., a deviation from the constitutional citizen identity ethics. Buchanan applied this theory to illustrate how the American Founding Fathers created a seminal constitution. Despite the Founding Fathers’ achievements, the preamble of the American Constitution was short in length and spared little on their achievements, because it had nothing to do with the long-lasting influence and effect of the constitution on America. We might say, it is because the Founding Fathers didn’t mention themselves in the Constitution that their names carry weight in history.
Of course, this in no way Indicates that history fails to judge them. It’s only that such judgements are done without a written constitution. Besides, it takes time to judge a political figure, long after his death so that historians get to investigate and examine carefully and thoroughly. The Twenty-Five Histories are thought to be the official history of China, and most of them were compiled by the dynasty that succeeded the former one. Ever since the Spring and Autumn, a tradition of archiving and recording of the history by individuals came into existence. Great history records such as the Historical Records, The Later Han Dynasty, and The Three Kingdoms are all private works. This tradition was maintained even in Ming and Qing Dynasties. “History outlives men”, and history means to put human life in the perspective of time. Nobody can dictate how they are viewed by later generations. That’s why those who draft or amend the constitution should put themselves out of it and leave the comments of themselves to later historians. What they can do, though, is to write history with what they do, instead of what they say or write in the constitution.
In China, those who wrote the law following the Dao are remembered by later generations, such as Duke of Zhou, and Confucius. Duke of Zhou was the brother of King Wu of Zhou. When the kind passed away, his son was too young to govern. Duke of Zhou temporarily became the regent for 7 years before he returned the power to govern to the King’s son. During his regency, Duke of Zhou examined the lessons of the fall of Shang. He concluded that “my life is not destined by fate”, and “the heaven has no favors, it assists only those who are moral”. He, hence, transformed the Shang tradition of respecting the spirit and gods and valuing killing to an institution of Li(礼) that “respects the heaven and protects the people” and “values morality and cautious about killing”. Zhou was not only the longest dynasty in China’s history, but it also commenced the civilized era. Confucius held public offices for some time, but for the most time of his life, he was a commoner. However, he “traced back and recorded the histories of Yao and Shun, and drafted the rules of culture and warfare.” He also summarized the cultural traditions of Xia, Shang, and Zhou Dynasties and made them into classics which laid the foundation for the prosperity of Han, Tang, and Song Dynasties. He was the creator of a paradigm where the Dao shaped politics, as famous scholar Yu Yingshi stated.(Shi and the Chinese Culture, Shanghai People’s Press, 2003, p93)
Another example is Deng Xiaoping. History remembers him not as the chairman of the Central Military Committee, or the Vice Premier of the State Council, but as a leader who transformed the empty ideological craze to an emphasis on the concrete interest of the people. He single-handedly transformed the Chinese society from an authoritarian planned economy into a society with basic rule of law and a market economy, in a peaceful manner. The biggest written legacy of his is the Resolutions on Several Historical Problems of the Party since the Founding of the People’s Republic of China passed in 1981, and the Constitution 1982. The former reflected upon the lessons of the Great Cultural Revolution, recognizing that it was due to “the excessive concentration of the Party’s power into one man’s hand, and the arbitrariness and cult of personality of the leader”. It also proposed to “remove all kinds of cults of personality”. Whereas the Constitution 1982 made these lessons standing institutions which constituted the basic principles of the Chinese society and the ruling party. In practice, the principle stipulates that the tenure of the President should not exceed two terms.
A critical historical contribution of Deng Xiaoping is that he followed the principles he set forward, especially when it comes to “power should not be overly concentrated in one man”. In 1981, he resigned the Secretary General of the Central Committee of the Party; even though the Constitution 1982 did not restrict the terms of the Chairman of the Central Military Committee, Deng Xiaoping held that position for no more than eight years, from 1981 to 1989. “Deng Xiaoping Theory” was not enshrined into the constitution until two years after he passed away, which might not have been his wish at all. The constitution reflects the Dao that is important. What’s more important is that the legislators set an example with their act so that the words of the constitution is preserved and activated as the basic rules that direct actions. Even when Deng Xiaoping had resigned all positions with and without the Party, when he saw the deviation of the ongoing reform, as a common Party member, he published the famous “South Tour Speeches of 1992”, his last act to push forward China’s market economy reforms.
To sum it up, multiple institutions and methods need to be put in place so that a written constitution that reflects the Dao does not become something that goes against the Dao in practice. Firstly, those who propose to draft and amend the constitution should brighten their mind, that is to say, they should have the constitutional citizen identity ethics. By ethics, people gain. Ethics, in my opinion, is to follow the Dao and suppress self-interest. The American Founding Fathers created a constitution that stands highly on guard against power, the power, first and foremost, of themselves. They did so because once there’s self-interest involved in the constitution, it cannot be guaranteed that the constitution would be in line with the natural law. If the content of the constitution happens to be related to the one particular person, then in practice, this person should be excluded. For example, when President Clinton signed a bill that raise the salary of the members of the congress and the president, it takes George W. Bush to be the first president to benefit from this bill.
Secondly, the drafting and amending of the constitution should make the best of the counsel of jurists and scholars. What the constitution strives to reflect is the cultural values and code of conducts that accumulated for thousands of years. These values and codes come from different sources and only get into being as a result of certain historical events, even accidents. Without the input from jurists and historians, a proposal might not only lack the basic legal backing, but it might also have flaws in the legal procedures, rules, or techniques. For example, the Constitution 1982 was proposed by a group of experts, including Hu Sheng, Gong Yuzhi, Zhang Youyu, Xiao Weiyun, Wang Shuwen, Li Buyun, Xu Chongde, and Lian Xisheng, etc. Their expertise guaranteed the success of the Constitution. It was subsequently amended four times later after many expert meetings being held. It is fair to say that the content of the constitution might have deviated from the natural law without the input of the experts.
Thirdly, as the constitution mirrors the Dao, the Book of Documents claims that “the heaven hears through the ears of the people, and the heaven sees through the eyes of the people”. It is, therefore, important to be aware of what the people think, i.e., a wide discussion among the people. This should be implied in the drafting or amending of the constitution. However, there was almost none civil discussion of the constitution in the past amendments, especially during the Great Cultural Revolution. This is also one of the reasons why several earlier version of the Chinese Constitution are not good. Constitution 1982 is the best version since 1949. According to Xu Chongde, a wide discussion of the constitution that involved hundreds of millions of people were witnessed. There were over 2286 discussions of the amendment in Guizhou Province. (Xie Wenying, “Famous Constitutional Scholars on the Birth of Constitution 1982”) Gu Angran recalled that some a hundred changes were made to the draft of the constitution as a result of these discussions. On the other hand, the success of the Constitution 1982 lies in the input from the people.
Fourthly, as unanimous consent is the best procedure for the legislation of the constitution, the legitimacy and validity depends strictly on whether it is passed with a majority following the unanimous consent principle. Hobbs said “words are only credible symbols when their meanings are agreed upon”. The best consensual procedure should be a referendum. However, a referendum is more practical in a country with a small population. In China’s case, representation is more plausible, i.e., the people delegate the congressmen to vote for them. However, can these congressmen really represent the people? In China, the election of congressmen still lacks strict norms, which makes it not strictly a democratic election. Many congressmen are appointed instead of elected. The people are not informed of the congressmen who are representing them, while these congressmen are required to vote yes in most cases that they lack the incentive to inquire their constituents. In addition, about 35% of the congressmen are also government or party officials, which means objectivity is hindered and they incline to approve content that decreases the restriction on administrative powers. Their “consent” is not the real consent in the sense of constitutional economics or political sciences.
Fifthly, there are still room for improvement in a flawed institution of congress. On the one hand, we might consider changing the procedures for amending the constitution, which is only decided by the National People’s Congress. The American experience can be taken as an example, and the amendment could further be approved by the provincial congresses. On the other hand, there should be more time for debate on amending the constitution. A major change of articles in the constitution, without extensive discussion and debate, or with discussion and debate being forbidden, may demonstrate flaws. Such changes will make it harder for amending the constitution. It is because of the difficulty that amending the constitution is necessary. As Professor Ronald Coase stated, institutions should allow changes, but not easy changes. On the contrary, if it is easy to change the constitution, then it is easy to revoke the changes of the constitution. That is the case of the Constitution 1975.
Sixth, even under the current institution, authenticity of the votes should be guaranteed by technical details. There should be a secret ballot institution. The reason is, the effective consent should be made with scrutiny and in an independent manner. The herd mentality would kick in and the external political pressure may also influence the voters when they can’t vote confidentially. Today, a secret ballot is an absolute right that’s universally recognized.(from Shi Weimin, Direct Election: Institution and Procedures, China Social Science Press, 1999, p229) China has also adopted this principle, e.g., the Organic Law of the Villagers’ Committees of the People’s Republic of China stipulates that a “secret ballot” should be set up. On the other hand, when there are multiple articles in an amendment proposal, each and every one of these articles should be voted separately because they are different. Voters should not vote for an article just because it is attached to some article that they vote for. Madison proposed the Bill of Rights to the Congress in 1789 that consists of 12 amendments. 10 of these 12 amendments were passed while two of them were dropped. (Wang Xi, Principles and Compromises, Peking University Press, 2014, pp 123-124)
Laozi wrote, “Man models the Way of earth; Earth models the Way of heaven; Heaven models the Way of Dao; Tao models the Way of nature.” The drafting or the amending of constitutions is the human efforts to model the Dao. Even though human beings may never get a thorough understanding of the Dao, we still aspire it. Fortunately, we have accumulated for thousands of years, and with the hundreds of years of institutional experience of the development of constitutionalism, we could base our judgement of the amending of the constitution according to the Date. The key points are as follows:
The amendment proposals should not involve the one that propose them;
If the amendment proposals do involve the one that propose them, then the principal of conflict of interest applies;
The jurists and other scholars should be fully consulted;
A wide public discussion should be held;
There should be sufficient time for discussion when the Congress discuss the amendment proposals;
A secret ballot is a must;
The articles of the amendment should be voted on separately instead of collectively.
The content of the amendment proposals do not matter as much as if it follows the due process for amending the constitution. The 7 key points above would sever measure whether the process is followed, and whether the constitution will converge with the Dao or the natural law; The less they are followed, the more the constitution deviates from the Dao or the natural law. If we hear that the amendments were passed “unanimously”, then the constitution must have deviated away from the Dao. Apparently, following the Dao will make the Chinese Constitution closer to the natural order, which will guarantee the happiness of the people and benefit them in the long term. However, what if the constitution deviates from the Dao? Other than undermining the authority of the constitution, people tend not to look at the Constitution as a text that reflects the Dao. In fact, Dao is the most majestic thing in people’s heart. When the constitution reflects the Dao, people call the Constitution the Dao; otherwise, when people talk about the Constitution, they talk about the Dao in their heart, instead of a text that has nothing to do with the Dao.
(First published in FT Chinese and China-review.com on March 9, 2018)