The Intangible Constitution

The classification of written and unwritten constitutions is in actual fact sometimes a misleading one. Readers could easily refer to the United States, Germany, and France as to countries having a written constitution, while Britain as a unwritten one. Never the less, this is hardly a truth.

This is because of the very definition of the term 'constitution'. This term should suggest all the rules, legal one and non-legal one, which govern the exercise of governmental power. In view of this, even the United States has some unwritten constitutional rules in addition to its emblematic Constitution of the United States of America，and, even Britain has some constitutional statues such as the Parliament Act which can be regarded as a written constitution, although without a capital 'C'.

Yet, this classification of written an unwritten constitution remains useful when people want to emphasise the collection and compilation of rules, largely legal ones, of the most fundamental significance in terms of the governmental power in a country. Such a canon of fundamental legal rules usually are entitled Constitution. Readers should notice it is distinguished with its capital C. The existence of this kind of constitutional document distinguishes between regimes with and without a written constitution.

Then, I would like to invite readers to think about why a country or a group of people wants to ordain and establish a Constitution? Even the forefathers of our country, the Republic of China, regarded the making of a Constitution as of the highest priority after the birth of the new Republic, even though the idea of a written constitution is utterly a Western import and unprecedented in the course of Chinese political and legal history. Even the today Taiwan Independence activists are keen to the making of a new Constitution of Taiwan to replace the current 'archaic [sic]' Constitution. Why is the idea of written constitution so dear to these people, particularly those who are desperate for a fresh start?

I will refrain myself from trying to answer this question, which is likely to demand a lengthy account of painstaking historical, genealogical and philosophical explorations and analyses of Western civilizations. Here, I merely want to point out a significant fact for the readers: that the birth of a Constitution always follows political unrests and people's yearning for a fresh start.

Strikingly, people of different cultures in modern times appear to have a strong faith in Constitution. They believe that this document can function miraculously as a supreme law of the land that attains the purpose of limiting the governmental power of their new regime. Because we the people had suffered bitterly the reign of the tyrants, we thus overthrew this unjust government and founded a new one. This new one shall merely exercise according to the will of us, and the means to prevent the abuse of the delegated power by this new regime is to craft a new Constitution. This ideal is successfully embodied by the American people. However, whether this ideal is self-sufficient is in actual fact rather questionable in light of the experiences of many other places.

Republic of China, again, is a example of how far the ideal of Constitution is from the real practice of a constitutional democracy honouring the limited government, the rule of law, the fair and general election, and the civil liberty and equal protection of all citizens. Immediately after the publication of our first version of Constitution, this supreme law was proved to be supreme in the land except our supreme head of government and arm forces. The text was frozen and the governmental power was exercised by the Nationalist government centrally and unlimitedly.

Certainly, the extraordinary wartime conditions faced by the nascent Republic might justify such suspension of our constitutional regime on the grounds that only a highly centralised reign could resist all the vicious threats, posed by both the communist riot and Japanese militarism. In order to sustain the survival of the whole, it was inevitable that the part of our political schemes should be sacrificed, only for a short while. True, Lincoln also suspended the habeas corpus of the US Constitution during the violent American Civil War, and he tried to justified his unconstitutional decision exactly by the foregoing cause: that I have to save the all.

Although I am not confident about myself as an expert of balancing national security and civil liberties so that I dare not to say that the suspension of our Constitution or the US one was unnecessary, I still want to point out that many of the eminent thinkers of our times do have expressed their doubt. Just to provide one example here, an informative account given by a renowned US Supreme Court Justice Brennen:

'There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United Stares during times of war and perceived threats to national security... After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along.'

Putting aside the necessity of freezing the Constitution, what I want to note is that how fragile and unstable a written constitution can be. Not just in our country, but also many other nascent countries can we see the governmental power was easily seized by the dictator. The initial dream of a real democracy, constitutionalism, and civil liberties of the benign revolutionists, reformers, or constitution drafters failed to come true. Our country had spent almost 80 years since the founding of this Republic by the time we commenced to enforce the rules in our Constitution, while many countries today still do not take seriously the political proclamation of their forefathers and We the People.

These facts just illustrate that a written constitution, in itself, is never a sufficient condition to a successful democracy. The fundamentals of a well functioning democracy comprise both legal and non-legal rules. The latter can hardly be exhausted by the Constitution, but these non-legal rules are by no means less essential than the legal rules recorded in the text. The crisis will be serious if we recklessly ignore how significant these non-legal rules are. These rules may be constitutional conventions, or customs, or just the ethics and virtues of politicians.

I know the last one sounds anachronistic, yet I truly believe in its significance. As I mentioned above, the tangible institutions can never in itself guarantee the well functioning of the constitutional democracy at all times. At times of the limitation of the legal machinery emerges, the only safeguard of the blessings of liberty depends on how the persons entrusted with powers by us will behave. The difference between the behaviours turns on politicians' conviction of all the ideals underlying and around the Constitution. This conviction distinguishes George Washington from Julia Caesar; the democracy of the United States from the monarchy of Roman Empire.