Social Movement and Constitutional Change: The Case of America and China

The major challenge that the theory of constitutional change in contemporary United States faces is social movement, and its core concern is to balance and maintain legal and political authorities of the Constitution through interpretation. At the descriptive level, the thoughts of liberal scholars who criticized the theory of originalism restored the true colors of social movement in acting on judicial interpretation of the Constitution in individual cases. At the prescriptive level, social movement is burdened with the “original sin” of political factions. During the Cold War period, pluralist theory linked social movement with the value of democracy, and began to accept its constitutional status. Moreover, both the pluralists and republicans put forward different schemes in response. This paper will also address how these theories can inform our understanding of social movements and constitutional change in China.

Civil Liberty and the Use of Surveillance Materials in Counter-Terrorism Law Enforcement — A Constitutional Reappraisal

The balances between liberty and the response to terrorism were struck in the first flush of emergency. This is especially the case when governments employ surveillance materials in counter-terrorism law enforcement. On one hand, it is imperative for the domestic law enforcement officers to maintain order with the widespread use of surveillance materials. One the other hand, the long-established civil liberty shall not be sacrificed at any cost in time of emergence and it is further contended that even in time of none-international armed conflicts, civil liberty is still under constitutional protection as long as the constitution remain the same. This article aims to address the issue on deprivation of liberty in counter-terrorism law enforcement from a constitutional perspective.

Revamping the Rule of Party's Rule

It is widely observed that over the past six years under the current government there has been a re-focusing on and re-strengthening of the Chinese Communist Party in the social, economic and political lives of contemporary China. To many commentators, this noticeable return of the Party is much alarming given the authoritarian nature of the Chinese political system where systematic recentralization of power can be easily and understandably read as the re-emergence of the ancien regime from the Mao years. Yet at the same time there is also a notable movement under Xi towards increasing regularization, institutionalization and in some sense legalization of the Party's own system of rules and norms. This paper explores the background and motivating factors behind this revamp of the Party's rule system, identifies its distinctive trajectory and characteristics, and teases out its internal tensions and contradictions.

Reverse Law-making: Constitutional Review with Chinese Characteristics

Around the globe, constitutional review is normally performed in a confrontational or hostile environment, where the reviewing organ, be it a court, or an institute in other forms, usually nullifies an unconstitutional legislation to uphold the authority of the supreme law of a specific jurisdiction. By contrast, the National People's Congress Standing Committee, the de facto top legislature in China has applied a more cooperative, and constructive approach while exercising the constitutional review power. The Chinese story tells us that a workable and sustainable review mechanism shall be established and kept by situating itself in the macro-political eco-system, by taking into account all the stakeholders' concerns and interests. This, however, is a universal rule.