Perspectives, Vol. 1, No. 6
my last essay, I discussed the meaning of rule of law. Starting
from this essay, I will describe the institutional arrangements
that make rule of law possible. Particularly, in this essay,
I will discuss an important concept for the study of rule
of law, namely, liberal constitutionalism. In the next essay
(to be published in the August issue of "Perspectives"),
I will analyze the relationship between constitutionalism
and rule of law.
is liberal constitutionalism? In order to answer this question,
we first have to answer a more preliminary question: what
is a constitution? A constitution is "[a] charter of
government deriving its whole authority from the governed"
(Black's Law Dictionary). The constitution sets out the form
of the government. It specifies the purpose of the government,
the power of each department of the government, the state-society
relationship, the relationship between various governmental
institutions, and the limits of the government. The classic
liberalism posits that the state and society can be viewed
as a big social contract. If so, in a liberal democratic country,
the constitution is the fundamental part of the social contract;
it is a fundamental contract between the state and the civil
can also view the constitution as a job description. In a
liberal democratic state, the people as a whole hire some
officials to administer the government for public good, and
the constitution is the employment contract and job description.
To be sure, many other laws are also job descriptions for
the government, but the constitution is the highest. The constitution
is a guide for legislation and for the interpretation of legislation.
a liberal constitutional system, there is another important
difference between the constitution and ordinary laws. While
ordinary laws can be modified or repealed by the national
legislature, or be declared illegal or unconstitutional by
the judiciary, the national legislature usually has no unilateral
power to modify or repeal the constitution, and the judiciary
has no power to declare the constitution illegal. For example,
in the United States, the Constitution can only be modified
after the legislatures of three fourths of the states approve,
or after constitutional conventions in three fourths of the
states approve. The federal legislature alone cannot amend
the American Constitution. In other constitutional systems,
national referenda are sometimes required for amending the
way to view the constitution is that it is a commitment device.
In a liberal democratic state, the constitution binds not
only the government, but also the people. Through the constitution,
the people collectively commit to certain institutional procedure
for managing public affairs and resolving social conflicts.
The constitution not only limits the arbitrary power of the
government, it also prevents public administration from being
poisoned by people's short-term temper and passions. Through
the constitution, the people collectively commit to certain
checks against those capricious public sentiments.
is something special about the democratic process of making
the constitution. During a constitution-making process, it
is hard to differentiate between a majority and a minority
because people act with "a veil of ignorance" (although
not completely so) when they make the constitution. When a
constitution is being made, every citizen faces the possibility
of belonging to certain minority group on some future issue,
and at the time of making the constitution, it is impossible
to predict when and how someone will become a minority with
respect to a host of future issues. As such, the danger of
"tyranny of majority" is substantially reduced in
the constitution-making process. This is one reason why the
democratic constitution-making process presents a special,
and higher, form of democracy. (cf. Bruce Ackerman's theory
of "higher lawmaking.")
can now return to the task of defining constitutionalism.
Like liberty or democracy, "constitutionalism" is
also a fuzzy word, and different people have different ideas
about what constitutionalism means. Giovanni Sartori defines
liberal constitutionalism as constituting the following elements:
(1) there is a higher law, either written or unwritten, called
constitution; (2) there is judicial review; (3) there is an
independent judiciary comprised of independent judges dedicated
to legal reasoning; (4) possibly, there is due process of
law; and, most basically, (5) there is a binding procedure
establishing the method of law-making which remains an effective
brake on the bare-will conception of law (Sartori, 1987, p.
309). Sartori's definition emphasizes the "rule of law"
side of liberal constitutionalism.
our purpose, constitutionalism (as a descriptive concept)
means a system of political arrangements in which there is
a supreme law (generally called "constitution"),
in which all (particularly the entire system of government)
is governed by the supreme law, in which only the people's
will (as defined through some pre-specified institutional
procedure, usually through a super-majority voting mechanism)
can supersede and change the supreme law, in which changes
can only be made infrequently due to the difficulty of garnering
the requisite popular support, and in which there are separation
of power, checks and balances and an independent judiciary
dedicated to legal reasoning to safeguard the supremacy of
the constitution. Some writers, thinking that there are more
than one kind of constitutionalism and defining constitutionalism
loosely as any political system with a constitution (of any
kind), would call our description of constitutionalism as
"liberal constitutionalism." In this essay, I will
use "constitutionalism" and "liberal constitutionalism"
interchangeably, because "[c]onstitutional systems, both
past and present, are . . . in fact liberal systems"
(Sartori, 1987, p. 309).
can draw several implications from the above definition of
constitutionalism. First, constitutionalism is an institutional
realization of liberalism. By constraining and regulating
the government's power through a supreme constitution, and
by preserving the sovereignty of people, constitutionalism
ensures that the government is limited. Second, constitutionalism
does not recognize the sovereignty of the legislature. Instead,
it only recognizes the sovereignty of people. Under liberal
constitutionalism, no legislature is supremer than the constitution.
The legislature is a creature of the constitution and is governed
by the constitution. Third, liberal constitutionalism is based
on a particular view of liberalism towards human nature, which
is universal self-interest. One basic premise of liberal constitutionalism,
as Stephen Holmes puts it, is the fact that "[a]s ordinary
men, rulers too need to be ruled" (Holmes, 1995, p. 5).
That is, self-interest is universal, and rulers are no exception.
Because rulers, like ordinary people, are self-interested,
rulers also need to be disciplined and constrained by the
rule of law.
addition, the following quote from Holmes' unconventional
book on liberalism is helpful in understanding the concept
of liberal constitutionalism:
agency that wields enough power to protect me against the
depredations of my neighbor, wields enough power to destroy
or enslave me. This paradox lies at the root of modern state-of-nature
theory. How can we exit from anarchy without falling into
tyranny? How can we assign the rulers enough power to control
the ruled, while also preventing this accumulated power from
being abused? . . . The liberal-democratic solution to this
problem is constitutionalism. Today, there are still a handful
of liberal-democratic regimes [such as England] that operate
without a written and legally entrenched basic law. But they,
too, organize government in a broadly constitutional way,
subordinating citizens to the authority of government while
simultaneously subordinating government to the authority of
citizens. Liberal government is a remarkable innovation for
this reason, because it is meant to solve the problem of anarchy
and the problem of tyranny within the single and coherent
system of rules" (Holmes, 1995, pp. 270-71).
caveats are in order. First, a country with a written constitution
does not necessarily practice constitutionalism. A constitutional
government is a limited government, whereas most socialist
constitutions, although written, do not place limits on what
the government can do. Second, a country without a written
constitution, on the other hand, may actually operate under
constitutionalism. The United Kingdom does not have a written
document called "The Royal Constitution," but no
one doubts that the British government is a constitutional
government. Although Britain does not have a single written
constitution, it has a number of documents that have constitutional
force. These documents include Magna Carta (1215), the Bill
of Rights (1689), the Act of Settlement (1701), and certain
special acts of the British Parliament. These written documents,
together with the British political and legal traditions,
form the basis of a constitutional government. In contrast,
the United States has a single written document called Constitution.
The written American Constitution, together with subsequent
judicial interpretations and expansions, form the basis of
a constitutional government. The following quote from Gregory
Mahler's Comparative Politics is illuminating:
we discuss constitutional governments, then, we are really
not talking about whether there exists a single, specific
document; rather, we are interested in a kind of political
behavior, political culture, political tradition, or political
history.... The forms may vary, but the behavioral results
are the same: Limits are imposed upon what governments may
do" (Mahler, 2000, p. 28).
is about the supremacy of the constitution. How to ensure
the supremacy of the constitution? We have seen that the supremacy
of the American Constitution is partially sustained by the
constitutional mandate that the federal legislature (or any
other department of the federal government), as a creature
of the federal Constitution, has no unilateral power to amend
the Constitution (although the federal legislature can propose
amendments). That is, the constitutional constraints on various
departments of the government cannot be unilaterally changed
by the departments themselves. Otherwise, the constitution
cannot be supreme.
constraints in the constitution, however, are not constraining
by themselves. Tyrants will not become benevolent rulers simply
because the constitution tells them to. In order to guard
against violations against the letter and spirit of the constitution,
there needs to be a set of institutional arrangements. Louis
Henkin defines constitutionalism as constituting the following
elements: (1) government according to the constitution; (2)
separation of power; (3) sovereignty of the people and democratic
government; (4) constitutional review; (5) independent judiciary;
(6) limited government subject to a bill of individual rights;
(7) controlling the police; (8) civilian control of the military;
and (9) no state power, or very limited and strictly circumscribed
state power, to suspend the operation of some parts of, or
the entire, constitution. (See, Henkin, 2000.)
speaking, Henkin's nine elements of constitutionalism can
be divided into two groups, which correspond to two basic
functions of a liberal constitution: one concerns power construction
and power lodging; and the other deals with rights protection.
These two groups of institutional arrangements work together
to ensure the supremacy of the constitution, the existence
of limited yet strong government, and the protection of basic
first function of a liberal constitution is power construction
and power lodging. Under liberal constitutionalism, the entire
system of government is created by the constitution. The constitution
defines, allocates and regulates government power. In a constitutional
system, there are frequent elections in order to preserve
popular sovereignty. There also exist separation of power
and checks and balances. Liberal constitutionalism also suggests
the norm of rule of law in the exercise of government power.
Finally, a liberal constitution puts limits on discretionary
and emergency powers of the state.
second element of constitutionalism is rights protection.
Under liberal constitutionalism, there must be constitutional
freedom of speech, freedom of person and freedom of property.
In addition, there is usually an independent judicial or non-judicial
body that regularly conducts constitutional review of legislative
and executive acts. Independent constitutional review, often
in the form of judicial review, is essential to the protection
of individual rights, and it is also an important element
for the preservation of constitutionally mandated separation
of power and checks and balances.
can use the American Constitution to illustrate the two components
of constitutionalism. The original 1787 American Constitution
was mainly concerned with power construction and power lodging.
There were two dimensions along which coercive powers of the
American government were distributed: one horizontal, and
the other vertical. Along the horizontal dimension, governmental
power was divided among three branches of the government:
legislative, executive and judicial. Along the vertical dimension,
governmental power was divided between federal and state governments.
American Constitution was amended in 1791 to add the Bill
of Rights, which strengthened the rights protection function
of the constitution. The initial Bill of Rights contained
ten clauses: from the First Amendment to the Tenth Amendment.
Additional Amendments were added throughout the last two centuries
to provide additional protection for individual rights and
to improve the power structure of the government.
the American Constitution as an example, we now analyze each
component of the liberal constitution more carefully. Under
power construction and power lodging, the two key concepts
are "separation of power" and "checks and balances."
There is a misconception among some Chinese authors, who postulate
that separation of power means a complete separation of legislative,
executive and judicial powers. One Chinese scholar once asked
me why the President of the United States has the power to
veto legislative acts? Does not the executive veto power violate
the basic axiom of separation of power? Another scholar asked
why the Senate conducts the American presidential impeachment
trial? Does not it encroach upon the judicial power of the
Court? These questions arise because of the aforementioned
misconception about separation of power. Indeed, the same
misconception formed the basis of one major objection to the
1787 American Constitution. "In the structure of the
federal government, no regard, [said the enemies of the 1787
Constitution], seems to have been paid to [the] essential
precaution in favor of liberty, [that is, the legislative,
executive, and judiciary departments ought to be separate
and distinct]. [The enemies of the 1787 Constitution argue
that the] several departments of power are distributed and
blended in such a manner as at once to destroy all symmetry
and beauty of form, and to expose some of the essential parts
of the edifice to the danger of being crushed by the disproportionate
weight of other parts" (Federalist Papers, No. 47). The
critics of the 1787 Constitution seemed to rely heavily on
Montesquieu for the misplaced idea that separation of power
implies complete separation of legislative, executive and
Federalists, particularly James Madison, however, had a different
understanding on separation of power. To Madison, enemies
of the 1787 Constitution misinterpreted Montesquieu's theory
of separation of power. The real meaning of Montesquieu's
theory is that, "where the whole power of one department
is exercised by the same hands which possess the whole power
of another department, the fundamental principles of a free
constitution are subverted . . . If we look into the constitutions
of the several States, we find that . . .there is not a single
instance in which the several departments of power have been
kept absolutely separate and distinct" (Federalist Papers,
to the Federalists, the concept of separation of power cannot
be understood separately from the concept of checks and balances.
Separation of power does not mean a complete separation and
absolute demarcation among different branches of the government.
A complete separation will make the government chaotic, unworkable
and potentially dangerous. This is why separation of power
has to be combined with checks and balances. By giving each
branch of the government some control over, or as Madison
puts it, some "partial agency" in, the other branches,
the constitutional system of checks and balances are designed
to prevent one branch of the government from becoming too
powerful and therefore dangerous. That is, checks and balances
work to prevent tyrannical concentration of power. For example,
if there is no executive veto power, say the Federalists,
then the legislature will eventually get all powers of the
government. As Madison puts it, "a mere demarcation on
parchment of the constitutional limits of the several departments
is not a sufficient guard against those encroachments which
lead to a tyrannical concentration of all the powers of government
in the same hands." To Madison, "unless these departments
be so far connected and blended as to give to each a constitutional
control over the others, the degree of separation which the
maxim (of separation of power) requires, as essential to a
free government, can never in practice be duly maintained"
(Federalist Papers, No. 48).
addition to guarding against tyranny, inter-branch checks
and balances, examples of which include the executive veto
power, the legislature's power to veto certain executive nominations
by the President, and the legislature's power to impeach judges,
are also designed to make the government as a whole more intelligent
and more accountable to the long term interest of the people.
For example, the qualified executive veto power subjects legislative
acts to double checks of the legislature and the President
before they become law, so that the probability that a bad
law is to be enacted is reduced. The institution of executive
veto power does not rest on the unfounded assumption that
the President is smarter than the legislature; instead, it
rests on the fact that the legislature is fallible.
summarize, the "true meaning of [the] maxim [of separation
of power]. . . [is] entirely compatible with a partial intermixture
of [several] departments for special purposes, preserving
them, in the main, distinct and unconnected. This partial
intermixture is even, in some cases, not only proper, but
necessary to the mutual defense of the several members of
the government against each other" (Federalist Papers,
people probably noticed that the impeachment trial of Bill
Clinton was conducted by the Senate of the United States,
not by its Supreme Court. Why was it so? How could a legislature
have judicial power? Did this arrangement violate the principle
of separation of power? For the last question, the answer
offered by the Federalists is no. The Federalists offer several
reasons why the Senate instead of the Supreme Court properly
tries an impeached President. First, the impeachment and removal
of a President is essentially a political problem. A political
problem should be solved through political processes in a
democratically accountable way. Trial by judges, who are not
democratically elected, is not democratically accountable.
Second, the President is elected by the people, but the judges
are not. Facing the extraordinary problem of whether to remove
the democratically elected President, the unelected judges
lack the fortitude, credit and appearance of authority to
make a decision. Third, for an issue of such a magnitude,
some public support is very important. In order to garner
public support, public opinion needs to be influenced. The
Court, with unelected judges, is not equipped to influence
the public opinion. Indeed, judges are by design insulated
from public sentiment. In contrast, Senators, being representatives
of the people of various States, are very good at influencing
the public opinion. Fourth, there is a great deal of discretion
involved in determining whether to remove the President. For
such a grave matter and with so much discretion, it is a good
idea to make the decision-making process as safe as possible.
It is safer to have more participants in the decision-making
process. The Supreme Court, according to Hamilton, has too
few members (nine Justices in total). Fifth, impeachment trial
by the Senate prevents double jeopardy. In other words, the
President will not be tried twice by the Court. If the President
is removed, he is still "liable to prosecution and punishment
in the ordinary course of law." If the Court is allowed
to try both the impeachment charges and the ordinary legal
charges, says Hamilton, then "the strong bias of one
decision would be apt to overrule the influence of any new
lights" that might be brought out after the impeachment
trial but before the ordinary charges are tried (Federalist
Papers, No. 65 and 66).
are at least two lessons that we can learn from the institution
of presidential impeachment trial in the United States. First,
separation of power does not imply complete and absolute separation
of various functions of the government. Partial intermixture
of powers is sometimes desirable or even necessary in order
to serve certain special purposes. Second, there are a number
of relevant considerations for a constitutional design of
the government, and a constitution also serves a number of
different purposes. The actual constitution-making process
is one of balancing competing needs of a responsible and efficient
important bulwark of the liberal constitutional structure
is the independent constitutional review, often in the form
of independent judicial review. What is judicial review? Judicial
review is the "power of courts to review decisions of
another department or level of government" (Black's Law
Dictionary). Specifically, judicial review is the power of
courts to review the legislative acts of the legislature and
the administrative acts (either general regulations or specific
acts) of the executive branch. In a federal system such as
that of the United States, judicial review also includes the
power of federal courts to review the acts of the state governments
(both legislative and administrative) for potential violations
of the federal Constitution and other federal laws. Of course,
in order to have judicial review, a person or entity has to
first bring a suit into a court to challenge certain legislative
or administrative act.
the United States, one of the key authorities and the ultimate
authority that the courts rely on in conducting judicial review
is the American Constitution. American courts have the power
to invalidate legislative or administrative acts of other
departments for violations of the Constitution. American courts
also enjoy the exclusive right to interpret the Constitution.
These are generally true both at the federal level and at
the state level. That is, similar to federal courts, state
courts usually have the power to interpret state constitutions
and review acts of state legislatures and other branches of
the state governments. Because of the power of independent
judicial review, American courts, consisting of independent
judges dedicated to legal reasoning, become a bulwark against
legislative and administrative encroachments on the letter
and spirit of the American Constitution. As such, the supremacy
of the Constitution is protected.
question arises naturally. How to constrain the judges? How
to prevent judicial encroachments on the letter and spirit
of the constitution? Under the American Constitution, there
are several constraints on the power of the judges. First,
federal judges can be impeached by the Congress and removed
by the Senate for abuse of power. Second, judicial restraints
and binding precedents are the predominant legal culture and,
in the case of following precedents, is the required code
of judicial conduct in the common law system of the United
States. Third, various rules of legal interpretation place
another set of judicial constraints on the power of the judges.
Fourth, sharp and timely academic and professional critique
of judges' decisions and reasoning, and the widespread press
coverage, also work toward disciplining the judges. Finally,
there are active professional disciplinary actions conducted
by professional organizations of judges and lawyers.
is probably illuminating to compare the Chinese constitutional
system with the American constitutional system. In China,
the national legislature (the National People's Congress,
or the NPC) has the power to write, amend and modify the Constitution.
In other words, the Chinese Constitution is a creature of
the NPC, not vice versa. The NPC also has the exclusive power
to interpret the Constitution. The NPC, as the supreme state
organ, is above the executive department (the State Council)
and the judiciary (the People's Court). There is no separation
of power or checks and balances because the NPC is above all
and is in theory omnipotent. The judiciary is not independent
from the will of the NPC, and there is almost no judicial
review (except to the extent of the Administrative Litigation
Act, which only authorizes the court to review certain specific
administrative acts of the executive agencies of the government).
Finally, for the existing, and very limited, judicial review
in China, the Constitution cannot be cited as an authority.
In other words, China does not have constitutional jurisprudence.
us now turn to the second component of liberal constitutionalism,
which is rights protection. The 1787 American Constitution
did not have a Bill of Rights. In fact, the absence of a Bill
of Rights was one objection raised by the opponents of the
1787 Constitution. The Federalists, defending the 1787 Constitution,
argued in 1787 that there was no need to have a Bill of Rights
in the Constitution. One of the reasons that the Federalists
gave was that a Bill with enumerated rights actually could
provide excuses for a tyrannical government to invade rights
that were not included in the plain language of the enumeration.
The Federalists won in 1787, but their point of view on the
Bill of Rights was abandoned in 1791, when the American Constitution
was amended to add a Bill of Rights, initially containing
key player in the constitutional system of civil and political
rights is the judges. Judicial independence and constitutional
review are not only important for maintaining the supremacy
of the Constitution and the constitutional system of checks
and balances, they are also important for the protection of
individual rights. The American judges are not under the control
of any other department of the government, nor are they constrained
by the temporary will of the majority because they are not
elected officials and they have lifetime tenure. They can
protect people's rights and uphold justice, sometimes even
against the popular will, because they do not need to worry
about re-elections or salary cuts -- judges' salaries can
only rise during their tenure -- and they are not subject
to the arbitrary control of other departments of the government.
Judicial independence and judicial review are a key part to
the system of rights protection in the United States.
are constitutional rights protected by the court? One example
should help. The Fifth Amendment of the American Constitution
states that "[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law." The
Fourteenth Amendment states that "[n]o state shall .
. . deprive any person of life, liberty, property, without
due process of law." What is due process? In short, due
process means certain procedural rights, such as the right
to notice, right to hearing, right to counsel, right to an
impartial judge, etc., that a citizen possesses when his or
her life, liberty or property is facing the danger of being
deprived by the government pursuant to certain laws. (There
is also the concept of "substantive due process"
in American constitutional jurisprudence, but that doctrine
has largely died out.) Due process might mean different procedural
safeguards when the context is different, but its core meaning
is the same. The basic idea is that a person is entitled to
certain procedural protection when he or she is confronted
with the coercive power of the government. The idea is fundamentally
liberal. American judges, being independent from other branches
of the government and also from the popular will, are empowered
to make sure that individuals are entitled to procedural protections
before their life, liberty or property are deprived by the
process is one concept under the larger rubric of procedural
justice. As we discussed in the last essay, there are two
kinds of justice. One is procedural (or formal) justice, and
the other is substantive justice. Procedural justice means
just procedures and processes, substantive justice means just
outcomes and results. For example, if in truth a person has
killed another person, substantive justice requires that the
killer be punished according to law. However, if the killer
is illegally tortured by the police to confess to his or her
crime and, as a result of the confession, the police finds
conclusive evidence (such as the weapon, the body of the victim,
etc.) for the court to convict the killer (which results in
substantive justice), there is no procedural justice because
the process of finding guilt has violated the basic rights
of the killer, who, before the conviction, is a citizen entitled
to the full protection of the Bill of Rights.
more likely outcome in our killer example, however, is that
the jury will not have enough evidence to convict the killer.
Under the well established law of criminal procedure in the
United States, the killer's confession as well as the items
found as a result of the confession will not be admitted into
the court as evidence, because they are all direct results
of egregious violations of basic individual rights. In other
words, the judge would "exclude" the confession
as well as the resulting items from evidence in order, first,
to ensure a fair and just guilt-finding process; second, to
protect constitutional rights of individuals. The judge-made
exclusionary rules in the law of evidence is a powerful guardian
of individual rights in the United States.
comment is in order. For the constitutional protection of
individual rights to be operative and effective, there needs
to be an array of institutional arrangements. For example,
constitutional provisions require legislative implementation
and judicial interpretation. The law, either legislature-made
or judge-found, must specify legal responsibilities for violations
of rights as well as remedies and procedures for victims.
There are two problems with China's protection of individual
rights and achievement of justice in the context of criminal
investigation, prosecution and adjudication. First, although
there are general declarations of individual rights in the
Chinese Constitution, in the written law there are few rules
indicating the legal consequences of violations of individual
rights (e.g., police abuse in criminal investigation). As
a result, in criminal investigation and prosecution police
abuse is rampant, established procedures and rules are often
twisted or violated, individual rights are not effectively
protected, and injustice is frequently the result. Secondly,
since there are no specific provisions regarding the credibility
of illegally obtained evidence (such as through torture) in
criminal prosecution, judges enjoy wide-open discretion. The
unconstrained discretion of the Chinese judges contributed
to inconsistent and arbitrary decisions and judicial corruption.
I will discuss various specific institutional arrangements
necessary for effective constitutionalism and protection of
individual rights in a future essay.
have described the meaning of liberal constitutionalism in
this essay. In the next essay (to be published in August),
I will discuss the relationship between constitutionalism
and rule of law. My thesis will be that, first, constitutionalism
is a necessary foundation of rule of law; secondly, liberal
constitutionalism guarantees the justice of both the content
and the form of law; thirdly, liberal constitutionalism strikes
a proper balance between rule of law and rule of person; and
finally, constitutionalism is safeguarded by the rule of law.
author is an attorney with the New York law firm of Davis
Polk & Wardwell.)
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Henkin, Louis. "Elements of Constitutionalism."
Unpublished Manuscript, 2000.
Holmes, Stephen. Passions and Constraint: On the Theory of
Liberal Democracy. Chicago: University of Chicago Press, 1995.
Mahler, Gregory. Comparative Politics: An Institutional and
Cross-National Approach. Upper Saddle River, New Jersey: Prentice
Sartori, Giovanni. The Theory of Democracy Revisited. Chatham,
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