From “Our Constitution”, “Our People”, to “Our Justices”: Constructing A Non-Citizen “People”

Prevailing constitutional theories assume that citizens are the primary subjects of constitutional rights and be guaranteed all the constitutional rights. They disagree only on of which rights the guarantee is extended to non-citizens. This Article reviews the text of the Taiwan Constitution and relevant constitutional theories to refute the assumption that the guarantee of constitutional rights must be tied to the citizen/non-citizen distinction and also argues that the Constitution leaves room for flexible construction of subject of constitutional rights. This Article further examines related congressional acts and discovers that the execution of this binary citizen/non-citizen distinction turned out to be an unexpected multi-level distinction over a broad spectrum, which also leads to differentiated standards of judicial review. This Article then analyzes relevant J.Y. Interpretations to describe the us-them distinction therein and propose a inclusive constitutional identity.