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Of comparative constitutional
monocropping: A reply to
Qianfan Zhang
Michael W. Dowdle*
1. Introduction
It is generally forgotten that the modern Western tradition of constitutionalism, was
originally highly variegated. By the late eighteenth century, three distinctive strands of
constitutional thought had emerged: a political strand, associated with English constitutionalism; a legalist strand, associated with the American constitutional document
drafted in 1787; and a democratic-statist strand associated with postrevolutionary
France. Throughout the nineteenth century, these strands would continually interact
with and inform one another, and it would be through their mutual interaction that
the idea of constitutionalism would gain its intercivilizational appeal.
However, since the end of World War II, the notion of constitutionalism has
increasingly contracted to focus, in a more limited way, on the concepts and tropes
associated with the American constitutional document of 1787, a phenomenon that
this essay will refer to as “constitutional monocropping.” This has significantly limited
the utility of “constitutionalism” as a comparative point of reference. This response
essay will seek to show how a fuller understanding of China’s constitutional potential requires us to move beyond this limited vision of constitutionalism and again
appreciate the diversity of experiences and ideas that had previously informed our
understanding of this phenomenon.
2. Varieties of constitutionalism
We can better appreciate the diversity of early modern constitutional thought, and
how that diversity contributed to the ultimately transcivilizational propagation of the
idea of constitutionalism, by examining its origins in eighteenth-century Europe and
North America. Modern constitutionalism was born some two-and–a-half centuries
* National University of Singapore Faculty of Law. Email: [email protected]
I•CON (2010), Vol. 8 No. 4, 977–984
doi: 10.1093/icon/mor004
978 I•CON 8 (2010), 977–984
ago, when the English politician Lord Bolingbroke found himself leading the opposition against a new force in English politics, a figure that would eventually become
known as the prime minister.1 In this case, the prime minister was Sir Robert Walpole,
and the position had evolved because the sitting king at the time, George I, was a recent German émigré who spoke no English and had little understanding of England’s
political system. Walpole was both the king’s informal representative in Parliament
and the de facto leader of the king’s cabinet. Of course, his representations and policy
choices were highly partisan as well.
Walpole presented a dilemma for Bolingbroke: how to oppose and criticize Walpole
and his policies without appearing to criticize his patron, the king—criticism of the
king being a capital offense. Bolingbroke’s solution was to create an abstract vision
of English government, which he associated with the king, and then show how Walpole’s actions were contrary to that vision. In defending this vision, he could be seen
as defending the king while, at the same time, attacking Walpole.
Bolingbroke’s solution was not original. Some one hundred years earlier, the great
English judge and jurist Edward Coke had used a similar rhetorical device to critique
the political actions of King James I, in effect, by distinguishing the position of the king
(which was ideal and abstract and which enjoyed legal sanctification) from the person
occupying that position. Coke justified that abstract vision by associating it with the
Aristotelian idea of a “constitution.”2 Bolingbroke, following Coke’s lead, also referred
to his idealized vision as the English “constitution.”3
During the time he was developing his notion of constitutionalism, Bolingbroke
was also playing host and mentor to a young French judge and social commentator
(who had inherited the presidency of the Bordeaux Parlement from his uncle) CharlesLouis de Secondat, Baron de La Brède et de Montesquieu, more commonly known to
history as Montesquieu. Montesquieu was deeply impressed by Bolingbroke’s idealized vision of English government and would eventually popularize and further theorize that vision in his monumental De l’esprit des lois (The Spirit of the Laws [1748]).
But Bolingbroke’s reach did not stop with Montesquieu. As the eighteenth century
wore on, other groups began forming in English society, which, like Bolingbroke,
found themselves wishing to oppose royal policy without appearing to oppose the
king himself. These included the budding English radical movement of the 1760s and
1770s (as personified in particular by John Wilkes) and the English colonies in North
America. Both of these movements borrowed, directly and extensively, from Bolingbroke in advancing the idea that English sovereignty was vested in an abstract vision
1
2
3
See, generally, Isaac Kramnick, Bolingbroke and his Circle: The Politics of Nostalgia in the Age of Walpole
(1968).
See, generally, J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical
Thought in the Seventeenth Century; A Reissue with a Retrospect (1987).
See also J. H. Burns, Bolingbroke and the Concept of Constitutional Government, 10 Political Studies, 264–276
(1962).
Of comparative constitutional monocropping: A reply to Qianfan Zhang 979
they called the constitution and not in the person of the king (the American position)4
or his political representatives (the English radical position).5
It was this political vision of constitutionalism that initially catalyzed the constitutional imagination of the American revolutionaries.6 After gaining independence,
however, the American political leadership found itself increasingly on the other side
of the coin—as the focus of the very kind of constitutional criticism it had earlier leveled against the king. Their response was to codify the American Constitution, so as to
remove it from the realm of political debate.7 Interestingly, this response was not effective as a political matter. Political debate over the nature of the American Constitution
continued, often with little reference to the actual document. The particular political
dynamics that the framers of that document had sought to terminate—what today we
would call pluralism as distinguished from republicanism—continued to such an extent that many of the principal framers, including James Madison, Thomas Jefferson,
and John Adams, all at one time or the other felt that their constitution had failed. And
in a way, it did—in the 1820s, the new American nation would eventually stabilize
around a vision of constitutionalism that was, in many ways, exactly the opposite
of what the framers had tried to enshrine in their document. This was the vision of
“Jacksonian Democracy,”8 which would become the defining paradigm of America’s
constitutional governance for the remainder of the century.
But the American response of codification was an outlier. Back on the European
continent, constitutionalism remained a political discourse. The English radical
movement matured in the 1790s and, over the next thirty years, used their political constitutional tropes to reshape the nature of English governance and of English
constitutional thought.9 In doing so, they were strongly influenced by the French
revolutionaries, who had affirmatively rejected American-style codification of
their constitution, arguing that such codification represented simply another form of
tyranny.
On the other side of the channel, the French were engaged in their own exploration of the constitutionalist project. Originally, the French revolutionaries had
rejected American constitutional codification because—like Thomas Jefferson, on the
other side of the Atlantic—they felt that such codification would only reproduce in
4
5
6
9
7
8
William D. Liddle, ‘A Patriot King, or None’: Lord Bolingbroke and the American Renunciation of George
III, The Journal of American History, 951–970 (1979); Issaac Kramnick, Ideological Background, in A
Companion to the American Revolution 88–93 (Jack P. Greene and J.R. Pole eds., 2000) [see, especially,
at 91].
See Marie Peters, The ‘Monitor’ on the Constitution, 1755–1756: New Light on the Ideological Origins of English Radicalism, 86 The English Historical Review, 706–727 (1971).
See Isaac Kramnick, Ideological Background, op cit. See, also, Bernard Bailyn, The Ideological Origins of the
American Revolution (1967).
Gordon S. Wood, The Radicalism of the American Revolution (1992).
Id.
See, generally, E.P. Thompson, The Making of The English Working Class (2nd ed. 1980).
980 I•CON 8 (2010), 977–984
legal-bureaucratic form the tyranny the revolution itself was seeking to transcend.10
Like the English radicals, the French revolutionaries initially preferred that their constitution remain political—a product of popular will rather than of elite legislation.
With the establishment of governmental stability under Napoleon, the French came
to associate constitutional bureaucratization with the reification of the democratic
state.11 It was this French notion of constitutionalism, as creating rather than limiting
the democratic state, that caused constitutionalism to spread throughout Europe.12
It was this vision upon which the European continent’s first stable constitutional
order, the French Third Republic (1870–1940), was founded.13 It was also this vision
that spread the idea of constitutionalism beyond European boundaries: first to the
Ottoman Empire (as a product of the Tanzimat reforms) in the 1870s,14 from where it
then spread to Persia (Iran) and elsewhere in the Middle East; and, a little later, to Meiji
Japan in the 1880s, and from there onward to China and East Asia.15
In sum, it was this diversity of visions, experiences, and considerations—from
radical to conservative, from revolutionary to stabilizing, from oppositional to constitutive, from politically enabling to politically restraining—that prevented constitutionalism from merely languishing as an arbitrary social history of an arbitrary
social geography, and that allowed it to find relevance to humanity as a whole. As
noted above, it was the French vision that initially recommended constitutionalism to
Europe, and then to the Middle East, and then to East Asia. It was the English vision
that initially recommended it to the American revolutionaries. And it would be the
American version that would associate constitutionalism with Enlightenment values.
3. Constitutional monocropping
Today, however, that diversity appears largely forgotten. Today, the overwhelming
majority of our comparative constitutional analyses only really recognize one
See Lynn Hunt, Politics, Culture, and Class in the French Revolution 48–49 (1984); Simon Schama, Citizens:
A Chronicle of the French Revolution 579–580, 890 (1989). Compare Thomas Jefferson, Letter to Samuel
Kercheval, July 12, 1816, reprinted in The Portable Thomas Jefferson 558–559 (Merrill D. Peterson, ed., 1975).
11
Cf. Thomas Henne, Environmental Policy in Germany and the United States, 51 Am. J. Comp. L. 207–228
(2003); Jean-Benoît Nadeau and Julie Barlow, Sixty Million Frenchmen Can’t be Wrong: Why We Love France
but not the French 218 (2005).
12
Zachary Elkins, Diffusion and the Constitutionalization of Europe, 43 Comp Pol Studies 969–999 (2010).
13
Compare Stephen E. Hanson, The Founding of the French Third Republic, 43 Comp. Pol. Studies 1023–1058
(2010).
14
Robert Devereux: The First Ottoman Constitutional Period: A Study of the Midhat Constitution and Parliament
(1963). See also Abdul-Hadi Hairi, European and Asian Influences on the Persian Revolution of 1906, 6 Asian
Affairs 155–164 (1975).
15
George Akita, Foundations of Constitutional Government in Modern Japan, 1868–1900 (1967). See also
Xiaohong Xiao-Planes, Of Constitutions and Constitutionalism: Trying to Build a New Political Order in China,
1908–1949, in Building Constitutionalism in China 37–57 (Stéphanie Balme & Michael W. Dowdle eds.,
2009). Cf. Zhu Suli, ‘Judicial Politics’ as State-Building, in Stéphanie Balme & Michael W. Dowdle eds.,
op cit., at 23–36.
10
Of comparative constitutional monocropping: A reply to Qianfan Zhang 981
meaningful vision of constitutionality, namely, that particular vision of constitutionalism that emerged in the United States in association with the then-novel form
of document drafted in 1787, ratified in 1789, and entitled “The Constitution of the
United States.” This contraction is what we are calling “constitutional monocropping.” And it is readily apparent in Professor Zhang’s article, to which this essay is
responding.
That article begins by suggesting that constitutionalism in China might be “dead”
due to China’s authoritarian political environment, and, in particular, due to its
lack of electoral democracy and its lack of effective judicial review. At the same time,
however, the article acknowledges that this does not mean that the Constitution
completely lacks meaning within the larger political culture. Recognizable constitutional structures are, in fact, beginning to appear in China: administrative litigation;
documentary constitutional endorsement of private enterprise, private property,
the rule of law, and even of human rights; and an emerging popular constitutional
consciousness that is at least sometimes able to use this budding constitutionalism
to constrain governmental hubris.16 The article then compares and contrasts two
possible developmental trajectories that have recently revealed themselves in China.
One is a trajectory of juridification (that is, judicial review), as revealed in China’s first
“constitutional case,” Qi Yuling v. Chen Xiaoqi. The other is an alternative trajectory,
that of “popular constitutionalism” as evinced by the public outcry and governmental
response to the tragic and unjust death of Sun Zhigang while in governmental custody in Guangdong. Of these two, the article asserts that while the latter has shown
the most effectiveness to date, that effectiveness is inherently limited. Only the formal
power of judicial review, it concludes, can lead China to real constitutionalism.
But is such a conclusion warranted? In fact, the vast majority of the world’s
constitutional systems, obviously, could only have emerged out of nonconstitutional
regimes. These include many of the Continental European constitutional systems
(including that of the French Third Republic and post-Bismarckian Germany), the
English system of the nineteenth century, and the Meiji and Ottoman models that
propagated constitutionalism outside of Europe. Since juridification is itself a product
of the constitutionalization process,17 such emergences could only have been driven
by popularization.18 The only real exception to this observation is that of the United
States, and it is an exception that proves the rule. The United States Constitution was
not born out of a preconstitutional, authoritarian regime. Instead, it was in the very
See also Michael W. Dowdle, Of Parliaments, Pragmatism, and the Dynamics of Constitutional
Development: The Curious Case of China, 35 N.Y.U. J. Int’l. & Pol. 1–200 (2002).
17
Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003); Martin
Shapiro & Alec Stone Sweet, On Law, Politics, and Judicialization (2002).
18
See, e.g., E. P. Thompson, supra note 9.
16
982 I•CON 8 (2010), 977–984
unique position of being able to construct a wholly new and modern constitutional
state on what was, effectively, a greenfield site.19
One suspects that the reason why Professor Zhang ultimately chooses to endorse
the trajectory of juridification over that of popularization is because the dynamic of
juridification has been the principle focus of American constitutional thinking since
the latter part of the nineteenth century.20 The article’s sole comparative referent for
the Qi Yuling case is Marbury v. Madison—indeed, it embraces the commonly heard
description of the Qi Yuling case as the “Chinese Marbury v. Madison.” In doing so,
however, it ignores a great many other inaugural examples of judicial review—such
as those found in India, South Korea, and South Africa in the 1950s, Russia and the
Philippines in the 1990s, and Thailand in the 2000s—whose ultimate effect was the
evisceration of an emergent constitutional system rather than the entrenchment of
it.21 As explored by a leading American constitutional scholar, Bruce Ackerman, in
the early 1990s, the American experience of Marbury is actually quite unique, insofar
as the experience of constitutional emergence is concerned.22 It is only the conceptual
hegemony of the American perspective that converts the exceptional into the rule.
And, at the same time, American visions of constitutionalism for the most part have
no articulate conception of popular constitutionalism, and so it is hard to find explications or even successful examples of that process from that perspective.23 Nevertheless,
a popular constitutionalist dynamic was the driving force behind England’s constitutional transformation into a constitutional democracy in the nineteenth century.
Indeed, the very term “popular constitution” appears first in English constitutional
discourse in the 1810s.24 Popular constitutionalism was also the driving constitutional force behind the entrenchment of France’s distinctly secular constitutionalism during the early decades of the Third Republic.25 But unfortunately, this longstanding and successful history of popular constitutional development is rendered
largely invisible by a vision of constitutionalism that begins and ends on only one
particular side of the Atlantic.26
See Akhil Reed Amar, Some New World Lessons for the Old World, 58 University of Chicago Law Review
483–510 (1991); see also Peter Gay, The Enlightenment: An Interpretation, in The Science of Freedom (vol. 2,
1996).
20
See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2005).
21
See Stéphanie Balme & Michael W. Dowdle, Exploring for Constitutionalism in 21st Century China, in Building
Constitutionalism in China 2–5 (Stéphanie Balme & Michael W. Dowdle eds.); Michael W. Dowdle, op cit.,
at 25–26.
22
Bruce Ackerman, The Future of Liberal Revolution (1992).
23
See Larry D. Kramer, op cit.
24
See James A. Epstein, Narrating Liberty’s Defence: T. J. Wooler and the Law, in Radical Expression: Political
Language, Ritual, and Symbol in England, 1790–1850 (29–69, 1994).
25
See Stephen E. Hanson, op. cit. See, e.g., George R. Whyte, The Dreyfus Affair, A Chronological History
(2006).
26
See also Jason Frank, Constituent Moments: Enacting the People in Post-Revolutionary America (Duke
University Press, forthcoming).
19
Of comparative constitutional monocropping: A reply to Qianfan Zhang 983
4. Ecological implications
Of course, the American constitutional system has worked impressively over its two
centuries of operation—as much if not more so than any other. It seems to provide a
good-enough model from which we can evaluate how one can get to where one needs
to go, constitutionally speaking. This being the case, what are the problems with this
so-called “monocropping”?
In fact, there are at least two. First, such monocropping conceals developmental
potential. As noted above, the American constitutional model describes a mature
constitutional system. One that is already ruled by law, one that is already democratic,
one whose participants already accept the need for cooperation, and in which there is
already a general faith in the effectiveness of the system. But a description of maturing
is not a description of development. The former is a condition, the latter is a process. If
I tell you that Cindy cannot even do long division, what does that tell you? You may be
tempted to assume that it means that Cindy is not good at math. Actually, it tells you no
such thing. Maybe Cindy is six-years-old; maybe she has never been to school; maybe
she nevertheless just discovered a proof for the four-color theorem. All of these possibilities are consistent with the original proposition but would imply a conclusion about
her developmental potential that is very different from the one we originally derived.
Humanity has a strong tendency to erroneously equate evaluations of potential
with evaluations of accomplishment. And this is what constitutional monocropping
encourages us to do with regard to constitutional development. We saw a good example of such in this article, which, in its first part, details how a limited focus on
American understandings of constitutionalism can easily lead one to conclude that
in China constitutionalism is “dead.” Of course, this is not the case at all; in fact, it is
a powerful potentiality in China’s ongoing political-legal evolution, as Zhang’s article demonstrated. But as the article also demonstrated, perceiving this potentiality
demands that we look beyond the standard American tropes. At how, for example,
political actors can serve the public even in authoritarian conditions; or how strategic
speech can nevertheless bind political action even absent judicial or democratic oversight—potentialities that are simply not comprehensible according to our received,
American constitutionalist tropes about the psychology of political behavior.27
Second, a monocropping of the American vision forecloses the possibility of future
constitutional learning. The American model focuses primarily on structure rather
than outcome.28 For the most part, it does not recognize even the possibility that institutional alternatives might exist for the separation of powers, judicial review, electoral democracy, or the rule of law.29 In not conceptualizing the possibility for alternatives, the American model makes the list of structures that tend to define (American)
See also Michael W. Dowdle, op cit.
See, e.g., Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, in,
Constitutionalism, Identity, Difference, and Legitimacy 39–53 (Michael Rosenfeld ed., 1994).
29
Cf. Fareed Zakaria, The Rise of Illiberal Democracy, 76 Foreign Affairs 22–43 (1997).
27
28
984 I•CON 8 (2010), 977–984
constitutionalism the be-all and end-all of constitutional possibility. There is nothing
more we need to know.30
And again, examples of this can be found in this article. Even where it makes significant observations that deviate from American constitutional tropes—as when detailing the constitutional developmental potential of authoritarian systems or when exploring the dynamics of a popular constitutionalism—it never offers these insights as
correctives or alternatives to our received constitutional understandings. China’s constitution is not dead. But why, in the face of the overwhelming social evolution that
China has experienced over the past thirty years, could we even imagine that it could
be. Clearly, there is something incomplete about a constitutional vision that cannot
perceive possible constitutional potential in such an environment. In this sense, China
would seem to have a lot to teach us about the possibilities of constitutionalism. However, for this to occur, we would have to reopen our constitutional understanding to
the fact that American tropes do not exhaust humanity’s constitutional possibilities.
5. Conclusion: The American vision and China
In conclusion, we might note that the American vision of constitutionalism seems
particularly inapplicable to the constitutional situation of present-day China. China is
currently in the process of creating a state, not of simply making “more perfect” an already—by implication—largely “perfect union.” Unlike the drafters of the American
Constitution of 1787, China’s leadership has never claimed that it is seeking a “more
perfect” union. It has never claimed to be anywhere close to constitutional perfection.
Quite the opposite, it has consistently projected itself as being in the midst of a process of developing a new state, or new vision of the state, out of the remains of a failed
one.31 Its problems are those of constructing a constitutional order, where none had
previously existed. This is a dilemma for which American constitutional metaphors
provide no conceptual or instrumental use.
At the end of the day, as Frederick Maitland so eloquently expressed it in his inaugural lecture delivered to Cambridge University in 1888, if there is ever to emerge a
meaningfully “comparative” understanding of law, it will have to be an understanding
that escapes the conceptual straightjacket of a single jurisdictional perspective.32 And
if this we cannot do, then we will indeed undoubtedly find that constitutionalism in
China is “dead.” However, such a finding would only tell us about the limitations of
our own understandings of constitutionalism.33 It will tell us nothing about the future
possibilities of China.
David Sciulli, Theory of Societal Constitutionalism: Foundations of a Non-Marxist Critical Theory 9–10
(1992).
31
See Zhu Suli, op cit.
32
Frederic William Maitland, Why the History of English Law is not Written, in The Collected Papers of
Frederic William Maitland: Downing Professor of the Laws of England, vol. 1. 480–497 (H.A.L. Fisher ed.,
1911).
33
Cf. Jean Baudrillard, The Illusion of the End, in Jean Baudrillard: Selected Writings 254–265 (Mark Poster
ed., 2001).
30