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Towards Constitutional Re-Enlightenment: Teaching American Constitutional Law in China
By LIU Han | Essay | 9 Tsinghua China L. Rev. 63 (2016) | Download Full Article PDF

Contemporary students of constitutional law basically know two things. First, China’s Constitution is inactive and (or because) China has no judicial review. Second, the U.S. Constitution is active and (or because) judicial review operates robustly in America. Then what is the point of teaching American constitutional law in China?

In this essay, I will try to answer the question by sharing my experience of teaching American constitutional law at Tsinghua Law School during the past few years. My experience may be of interest to constitutional teachers in the English-speaking world or anyone interested in the international transference of constitutional ideas. I will first explain the reasons for teaching American constitutional law in China. Then I will account for the methods of teaching I employed in the courses. After that, I will talk about the content I teach and the reactions of the students. A conclusion follows.

I. Why Teach American Constitutional Law?

To be sure, American constitutional law is hardly relevant to Chinese constitutional practice. In terms of political principle, China remains a socialist country, at least in a political, constitutional sense. In terms of institutions, Chinese courts cannot apply the Constitution in litigations. China is also greatly different from America in terms of culture.

At most, American constitutional law only has direct influence in the academic domain. In China, studies on the U.S. Constitution belong to the subject of comparative constitutional law, a subdivision of comparative law. Historically, comparative law initially aimed at the integration of legal systems, particularly private laws. The rise of comparative constitutional law was part of the post-Cold War trend of constitutional convergence. Before that, a nation’s constitution was closely integrated to the politics, history, and culture of the land; it was difficult to effect constitutional graft or borrowing. While trade law became internationalized, constitutional law remained a national heritage.

The rise of comparative constitutional law resulted from two main reasons. First, after the Cold War, multiple countries started to make new, liberal-democratic constitutions, especially in Eastern Europe and the former-Soviet regions. The U.S. Constitution became the main reference, and American constitutional scholars actively took part in “constitutional engineering”. Second, the internationalization of judicial review went along with economic globalization. Deciding constitutional cases, higher courts judges referred to the interpretation of similar provisions by their international colleagues. Cross-border communication among judges increased. American constitutional law became the focal point in both constitution-making and constitutional interpretation.

In both aspects, however, China did not swim with the tide. On the one hand, China’s last constitution-making was more than thirty years ago—the making of the 1982 Constitution. Afterwards, the Constitution has been only amended, but not remade. On the other hand, China has not adopted judicial review. The Chinese Supreme People’s Court attempted to introduce it at the beginning of the 21st century, and many legal scholars advocated for it. For both the bar and academia, the American model loomed large. After the attempt failed in 2008, however, the gate to judicial review was closed in China. The U.S. Constitution, then, is “useless” from a practical point of view in Chinese law.

The fact that the U.S. Constitution cannot influence Chinese legal practice does not mean that it has no social impact in China. Quite the contrary, it is influential because, as a political-social discourse, it impacts people’s constitutional imagination which can shape social reality. It has been so and perhaps will continue to be so. Three points can be made to illustrate this.

First, the U.S. Constitution has had significant influences on Chinese constitutional history. In the early Republic of China, the founder Sun Yat-sen was a fan of American constitutionalism. His idea of “Five-Power Constitution” was modelled upon the tripartite separation of powers as operated in the United States. After each province separated from the Qing Empire during the Republican Revolution in 1911, the idea of establishing a federal union like the United States attracted many politicians and intellectuals.

Second, American constitutionalism has greatly influenced the contemporary Chinese elite’s way of constitutional thinking. When Chinese judges, lawyers and scholars think about—or even just mention—constitutional law, the U.S. Constitution would first come into their mind. Even in the official polemics against Western constitutional system, one will first criticize American constitutionalism, because the United States remains the best representative of the “capitalist camp”. British constitutionalism was once the exemplar to the Chinese elite in late Qing dynasty; the French constitutional system attracted politicians and intellectuals in the early Republic of China. Today, it seems American constitutionalism becomes the only myth. Multiple bestsellers on American constitutionalism have come out; there is even a professor of Chinese literature who writes about the U.S. Constitution.

Third, the United States Constitution impacts China’s future elites by assuming an enlightening role for students at top Chinese law schools. Just as a freshman wrote in her homework in one of my courses: “Constitutionalism is the ‘good thing’ that we should pursue, because the United States has it while we don’t. This is my first thought when I came to law school.” As far as I know, some even have already been impressed by the U.S. Constitution before college. A student has even read the Chinese translation of The Nine: Inside the Secret World of the Supreme Court during high school. In China, Constitutional Law as a compulsory course for first-year law students is supposed to teach the Chinese Constitution. Yet the shadow of the U.S. Constitution is everywhere. Almost everybody would know Marbury v. Madison in the first year of college studies. In contrast, perhaps none has read the full text of The Communist Manifesto. In topics of politics and law, America is of the most interest to them.

All in all, American constitutional law has become a symbol or a legalese, flowing from university classrooms and law journals, to television shows and online forums. It becomes a vision, a dreamland: there, as a bestseller’s title goes, “the justices have the final say”. Whenever the Chinese constitutional system is talked about, American counterpart emerges in people’s minds—just like girls often complain about their own boyfriends by comparing them with others. Explicitly or implicitly, American constitutional law points out the direction of constitutional reform for the Chinese legal circle. For the past two decades or so, it has been a reference for Chinese constitutional reform in its progress towards establishing some form of judicial review.

America’s Constitution is definitely a classic in the Chinese constitutional discourse. Teaching American constitutional law in China becomes an important issue. This issue concerns not only with constitutional reform; it also affects the Chinese people’s daily lives. It not only forms the basis of constitutional theory; it is also connected to legal education. It applies not only to academic studies; it is also linked to the public opinion.
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