Chapter 37 V. Democracy and Constitutionalism

Like the republic, democracy is seen as an ancient ideal and tradition.As far as Chinese history is concerned, it can be traced back to the "township drinking ceremony" in Zhou Rites.The so-called "village drinking ceremony" means that the feudal lords or high officials regularly invite domestic sages, capable people, village elders, township officials and other "sages of society" to hold receptions, and conduct political consultations on major military and state affairs in the midst of interlacing of dendrobium and chips. A "political consultative conference" or "meeting of elders".In ancient times, it is not surprising that such meetings are held regularly (the elderly have more experience) and the virtuous (the sages are more wise). It is also beneficial.At that time, these "social sages" who participated in the meeting were probably able to speak freely and endlessly (later generations gradually evolved into a pure etiquette), so they were considered to be a kind of "primitive democracy and people's character". Politics of city-state democracy" (Li Zehou's "On the History of Ancient Chinese Thought").

In fact, this is the same as calling Zhao Zhou's regent a republic, and it can be discussed based on the present and the past.Just as calling for republicanism is only a republic, not a republic, the township drinking ceremony is only a negotiation, not a democracy.Democracy certainly includes consultation, but consultation does not mean democracy.The purpose of democracy is not to "discuss things", but to "authorize".That is to say, under a democratic system, the power of the ruler must be granted by the people (or citizens, nationals), and any power without authorization is illegal. This is called "sovereignty lies with the people."Moreover, once the authorization is changed, the ruler must surrender power, which is called "transferable". "Sovereignty rests with the people" and "can be transferred" are the key to democracy, and elections are its concrete manifestation.If the sovereignty does not lie with the people, or theoretically power cannot be transferred, that is non-democracy.

This is another tradition that China does not have.Yes, there was a so-called "people-based" thought in ancient China, but "min-based" (the country is based on the people) is not "democracy" (sovereignty lies in the people).Democracy is divided into "master and servant" (the people are the masters of the country, officials are the public servants of the people), and people's duties are divided into "primary" (the people are the most important, the community is second, and the king is the least).What's more, "the emperor is less important than the people" is just an ideal, not a fact. The fact is that "the emperor is more important than the people".When the king is the most noble, he is also called "Supreme" (Ninth Five-Year Lord); The king is the father, called "the king's father"; the minister is the son, called "the minister".Please take a look, how can there be any "sovereignty in the people" here? It is clearly "sovereignty in the king".The so-called "people-based" is nothing more than "the people" as the "capital" of governance.In other words, it is their "water for boats".

Obviously, the monarch is not the "son of the people", but "the proud son of heaven"; officials are not "servants of the people", but "parents of the people".What a "parental official" with people-oriented thinking can do is "make decisions for the people" (being an official does not make decisions for the people, it is better to go home and sell sweet potatoes). "Making decisions for the people" and "serving the people" are completely two concepts.The server is a "public servant", but the master is a "master". Although "making decisions for the people" is better than "tormenting the people", it is still "democracy", not "democracy".

In Chinese history, neither the concept of "sovereignty rests with the people", nor the system of "authorization by the people" (there is a ceremony of divine grant of monarchy).None of the ruling powers of dynasties (including small courts) in the past dynasties were conferred by the people, but seized by the rulers themselves.A palace coup is scheming, and vying for the Central Plains is plundering.There are few people who take by chance, and there are many people who plunder, but none of them are taught by the people.Of course, once they gain power, those in power will also flaunt that their world belongs to the people, which is called "the one who wins the hearts of the people wins the world."It seems that although their political power was not delegated by the people, it "follows the people's will" or even "the wishes of the people."According to the principle of "God's will is the will of the people", this may as well be regarded as the authorization of the people, but it is nothing more than "heart granting" (authorization of people's hearts).In fact, those who win the hearts of the people do not necessarily win the world, and those who win the world do not necessarily win the hearts of the people.For example, Liu Bei is said to have won the hearts of the people, but how can he win the world?That is to say, there is only one in Kyushu, and it is still typed.Another example is that when the Qing people just entered the customs, how did they ever win the hearts of the people (the "shaving order" was not popular)?But still win the world.It can be seen that "political power grows out of the barrel of a gun" is the truth, but "the one who wins the hearts of the people wins the world" is doubtful (please refer to Chang Shuyuan's "Whoever Wins the World Does Not necessarily Win the Heart of the People").

As for the transfer of power, it is even more incredible.Not only the rulers of the empire disagreed, but also the rulers of the Republic of China.The problem is not that they are willing or not, but that they simply do not recognize the rationality, legitimacy and possibility of the transfer of power.The Kuomintang leader Chen Lifu once said to the democrat Shen Junru: "We have worked hard to get here. You have to rely on the empty words on the round table. How can such a cheap thing be?" If it is not granted by the people, it cannot be transferred.If you want to get it, you have to rely on your ability to get it, or you have to fight your life to grab it!

Since political power is not granted by the people, the people under the rule certainly have no civil rights.Without civil rights, there can be no constitutionalism.Because constitutionalism is not simply "constitutional governance", but more importantly, "constitution by the whole people".Sovereignty does not lie in the people, and citizens have no civil rights, so how can they legislate?Not only does it have no right to make laws, it is not even a citizen or a citizen, it is a "subject".A subject is a "submitted people", and naturally they are allowed to be taken away.What's more, the country was brought down by the ruler.According to the logic of "fighting the country and sitting on the country", of course, the ruler (or the winner) governs the country according to his own wishes and methods, and formulates rules.So, who is willing to formulate a constitution after victory to be their own "curse"?I'm afraid not.Therefore, although the dynasties of all dynasties had to carry out a series of "legislative" work when they founded the country, it was not so much "legislative" as it was "law-making."Because those so-called "laws" deal with subjects, not to restrict the emperor.The autocratic emperors were not interested in "ruling the country by law" or "administrating by law". What they believed in was "an oral constitution" and "union is the country".

What's more, constitutionalism is not just "constitutionalism" (administration within the framework of the constitution), but more importantly, "restriction of government" (restriction of government administration).Not only the government must be limited, but Congress must be limited, and Congress must be limited first.Its proof is the famous "no legislation" clause in the First Amendment to the U.S. Constitution - "The Federal Assembly shall make no legislation to establish religion, or prohibit the freedom of religious activities; The right to petition the government, to express grievances, to seek grievances".This clause stipulates in the simplest and most straightforward language that Congress shall not pass laws that may violate the fundamental rights of individuals.Therefore, not only the power organ (government) authorized by the people must be restricted, but also the public opinion organ (congress) authorized by the people must be restricted.What is embodied here is the spirit of constitutionalism.

Thus, we can see the difference between democracy and constitutionalism—democracy focuses on empowerment, while constitutionalism focuses on restricting government.According to the principle of democracy, sovereignty rests with the people, governance is delegated to the people, and the legislation of the Congress and the administration of the government must be approved by the majority.Therefore, it is entirely possible for democracy to lead to "tyranny of the majority", thus turning "people's democracy" into "dictatorship of the masses".Constitutionalism does not.Because the issue to be considered in constitutionalism is not authorization, but limitation of power.In the eyes of constitutionalism and constitutionalists, any unrestricted power is dangerous, and it is not dangerous because it comes from the people or is in the hands of honest men.Where power comes from, in whose hands, and how to use it, these are not issues considered by constitutional government, but the tasks of democracy and the republic.What constitutionalism needs to consider is how to prevent absolute power from leading to absolute corruption and absolute tyranny.Therefore, constitutionalism not only requires the rulers to be legal (including taking the constitution as the only legal basis for political power and exercising power within the framework of the constitution), but also requires the constitution itself to be legal.From this point of view, constitutionalism is not only a "restriction of government" but also a "restriction of laws."That is to say, only the "law that limits the law" is the "constitution".

This again is unheard of for us.We have always only known the "king's law" and not the "constitution"; we have always only known that the king's law is for "governing the people", and we don't know that there is also a "restricting government" law.Therefore, the "Constitution Outline" promulgated in the last years of the Qing Dynasty has the following clauses: "The Emperor of the Qing Dynasty rules the Qing Empire, and will be respected forever"; "The emperor's sacred dignity is inviolable."What kind of constitution is this, and what kind of constitutional government is there!The result turned out to be this: the "constitutional government" of the Qing Dynasty not only did not limit the monarchy, but put a "legal" cloak on the unrestricted monarchy.This is of course unsatisfactory, and the "one thousand generations" Qing Empire had no choice but to go to the guillotine.

However, the failure of the late Qing constitutional movement could not simply be attributed to the mistakes of an individual (such as the constitutionalists) or a certain group (such as the Qing royal family), but should still be attributed to the absence of a "tradition of government restriction."When we say that there is no tradition of government restriction in Chinese history, we do not mean that all the powers of the dynasties are unlimited.In fact, the powers of officials at all levels and departments have certain rules and even strict limits (for example, concubines are not allowed to interfere in politics, and eunuchs are not allowed to interfere in politics).Acting beyond authority or intervening in politics has always been a taboo of dynasties and officialdom.But this is only "restriction of authority", not "restriction of government", so it is also called "authority", not "restriction of government".Moreover, the delineation of powers is precisely to ensure that the supreme power (monarchy) is not restricted and restricted.This is called "limited power and unlimited government", that is, the officials who act as agents of imperial power and the Yamen have authority, and the emperor and the court who hold power have no restrictions. Of course, the unlimited power of the monarch does not mean that the emperor can do whatever he wants.In fact, as Emperor Wen of the Sui Dynasty said, "Liangui is the son of heaven and cannot be free."For example, Han Gaozu, the founder of the country, and Ming Wanli, the incompetent ruler of success, also cannot do whatever they want on the issue of establishing a reserve.But such restrictions are either due to morality, or public opinion, or tradition, or custom, and none of them are due to law.Even if it is due to the law, the "law" is just "the law of etiquette" or "ancestral family law", not the "constitution".Constitutionalism is not.Constitutionalism is not only "restriction of government" (restriction of Congress and the government), but also "constitutionalism", that is, "restriction of power according to the Constitution."The essence of constitutionalism is that any political power, including legislative power and executive power, can only be based on the Constitution and is restricted by the Constitution.Therefore, constitutionalism depends not only on whether power is restricted, but also on whom it is restricted by, whether it is restricted by the constitution or by other powers (such as monarchy).This point is even more important.Obviously, just as the rule of law does not equal the rule of law, the limitation of powers does not mean the limitation of government, let alone constitutionalism. Constitutionalism takes the constitution as the highest and only basis. Therefore, a country with constitutionalism must be a country ruled by law, and the tradition of constitutionalism must be the tradition of rule of law.If it is said that democracy is owned by the people, governed by the people, and shared by the people, and republic is shared, governed by, and shared by the people, then constitutionalism can be said to be owned by, ruled by, and shared by the law.In a constitutional state, all powers are governed by the law, all laws are governed by the constitution, and all people and institutions must observe and obey the constitution.The Constitution is supreme. So, what is the difference between a supreme constitution and a supreme monarch?The difference is that the constitution cannot be violated (unconstitutional), but can be discussed, criticized, opposed, and amended (constitutional amendment); the monarch can neither discuss, criticize, oppose, nor amend or defy.Can the Constitution also be criticized and opposed?Of course you can, because the constitution can be amended.If you can't criticize and object, why discuss it and how to revise it?In fact, criticism and opposition are an important part of the discussion and an important basis for constitutional amendments.This is also crucial.Because if there is no such distinction, the constitution will become a new and materialized autocratic monarch, which is also contrary to the spirit of constitutional government.In this sense, the rule of law that limits both government and law is constitutional government. Democratic mandate, constitutional restriction, and the republic that coordinates the two.The task of the republic is to ensure that the power authorized by the people is not usurped, but also to ensure that the government restricted by the constitution is efficient.Therefore, a modern country must be a trinity of republic, democracy and constitutionalism.Democracy solves the problem of authorization, republic solves the problem of governing, and constitutional government solves the problem of government limitation.Without a republic, democracy becomes a tyranny of the majority; without a democracy, a republic becomes an oligarchy; and without a constitution, they both become lawlessness. And vice versa.Without democracy, constitutionalism is meaningless; without a republic, constitutionalism is a mere formality; and if there is neither democracy nor a republic, then constitutionalism may become a dictatorship.In the absence of democracy and republic, the constitution will not only be reduced to a dead letter, but it is likely to be used as a sharp weapon to suppress the people, just like "the way of heaven" and "public opinion" were used to justify dictatorship.Therefore, a country that can truly bring benefits to the people must be democratic, republican, and constitutional at the same time.Of course, it must also be freedom, the rule of law, and human rights at the same time. Such a political system or system does not exist in our nation, and it is impossible for us to have such political thoughts and traditions.Even many officials and scholars may not be able to clearly explain the respective connotations of democracy, republic, and constitutionalism and the relationship between them. They often compare the rule of law with the rule of law, and confuse power with rights.It seems that our People's Republic has a long way to go, and the reform of the political system cannot be accomplished overnight.Therefore, we have to ask one more reason, that is, why it is impossible for the above-mentioned systems and ideas to grow spontaneously in our cultural soil.