Constitutional Cases of Democratic Constitutionalism

1. Marbury v. Madison

On January 20, 1801, President Adams of the United States (a Federalist) appointed Secretary of State Marshall as Chief Justice of the Supreme Court. The new President Jefferson (Democratic **** and Party) abhorred these Federalist machinations. Upon taking office on March 4, 1801, he learned that seventeen warrants for justices of the peace still remained in the State Department, and immediately instructed his Secretary of State, James Madison, to withhold them, and signaled Madison to dispose of them as if they were office waste paper or garbage. Still, this practice did not stop the Federalists from using the Supreme Court to strike back at the Democrats*** and partisans. Magistrate Judge William Marbury, who had not gotten his warrant, and three other "starry-eyed judges" in the same situation went to the Supreme Court and sued Madison for a writ of mandamus ordering Madison to surrender the warrant so he could take office. The basis for their lawsuit was Section 13 of the Judiciary Act of 1789: "The Supreme Court of the United States shall have power, so far as principles of law and usage admit, to make orders to the officers of the Federal Government in office, directing them to perform the duties of the office. This was the opportunity Marshall sought, and he immediately took up the case. This was the famous case of Marbury v. Madison.

2, "qin ding constitutional outline"

August 27, 1908, the Qing court promulgated the "qin ding constitutional outline", ready in Guangxu forty-two years (1916) implementation. It was formulated by the Constitutional Compilation and Research Center (CCRC). It consisted of 14 articles on the "Great Power of the King" and 9 articles on the "Rights and Obligations of the Subjects". The first 14 articles stipulate that the imperial system is hereditary forever, the imperial power is inviolable; the emperor has the power of national legislation, administration, judiciary, command of the army and navy, and personally ruled on foreign war declaration, negotiation of peace, signing of treaties and other foreign affairs; has the right to convene and dissolve the parliament; the imperial edicts to restrict the freedom of the people; the law bill without the emperor's approval, shall not be implemented. The Outline of the Imperial Constitution was divided into two parts, the first part of which, "The Great Powers of the King", was the main one, and consisted of fourteen articles; the second part, "The Rights and Duties of Subjects", read as follows: "I. Subjects who are qualified by law and order may be civil and military officers, and those who are qualified may be civil and military officers, and those who are not. Those who meet the qualifications prescribed by law and order may be civil and military officials and members of Parliament.

2. Within the limits of the law, the subjects shall be allowed freedom of speech, of writing, of publication, of assembly, of association, and so on.

3. Subjects shall not be arrested, imprisoned, or punished except in accordance with the law.

4. Subjects may have their cases tried by judges.

V. Subjects shall be tried exclusively by the courts of justice established by law.

6. The property and residence of the subjects shall not be disturbed without cause.

VII. The subjects shall be obliged by law to pay taxes and to serve in the army.

VIII. The present taxes of the subjects shall be paid as before, unless changed by new laws.

9. The subjects are obliged to abide by the laws of the land. "

All the spirit of the Constitution is contained in the first two articles: "the Qing Emperor ruled the Qing Empire, the lineage of the world, always respect and wear" and "the sacred dignity of the King, inviolable". Although many of the provisions of the Constitution were copied from the Japanese Constitution at the time, and although the imperial power seemed to have been given too much, the reforms were not too strong for this ancient country, where the history of authoritarianism had stretched over 4,000 years. Some provisions still shine with the light of democracy and freedom.

Since 1901, when the Qing government declared the "New Deal", Mr. Li Hongzhang, in his capacity as minister for the signing of the Xinchou Treaty, forced Cixi to kill more than 120 stubborn old-fashioned ministers (the Establishment, the war party, and the faction opposed to the Hundred Days' Reform) in the name of pursuing murderers by the hands of the great powers. There was no longer any opposition to the reforms in the court, and the main officials of the Qing government were left with only the "slow" and "radical" schools of thought toward democratic constitutionalism (constitutional monarchy).

This wise stroke by Mr. Li Hongzhang before his death cleared the way for ancient China's transition to a modern state and fulfilled a promise he often made -- "I am the party of Kang (Youwei)."

Several key figures: the "Five Ministers"; Yang Du; Yuan Shikai; Liang Qichao; and Sun Yat-sen.

3. The Provisional Covenant Law of the Republic of China

On March 8, 1912, the Provisional Senate in Nanjing passed the Provisional Covenant Law of the Republic of China. The Provisional Covenant Law is divided into seven chapters and 56 articles, including the General Outline, the People, the Senate, the Provisional President, the Vice-President, the State Councilors, the Courts, and the Bylaws. It is modeled on the principle of "separation of powers" of the Western bourgeois democracy, stipulating that the legislative power of the country belongs to the Senate; that the Provisional President must have a State Counselor in attendance when exercising his powers; and that the judges have the right to an independent trial. It provides that the sovereignty of the Republic of China belongs to the nation as a whole, and that the nation has the freedoms of person, property, speech, correspondence, residence and religion, as well as the right to petition, vote and be elected. In terms of the system of state institutions, it provides for the implementation of a cabinet system, with the Prime Minister of the Cabinet being elected by the majority party in the Parliament; the Prime Minister may dismiss any matter that the President wants to handle if he does not agree with it; and the President's promulgation of an order has to be countersigned by the Prime Minister of the Cabinet in order to take effect. On March 11, 1912, Sun Yat-sen formally promulgated this fundamental law with the nature of a bourgeois **** and national constitution in Nanjing. The collective identity established by the revolution is characterized by the rejection of the past and the quest for liberation from it. The revolution demands the creation of history, not its continuation. In terms of revolutionizing China's collective identity, the Provisional Civil Charter is no less revolutionary than any other revolutionary constitution (the 1787 Constitution of the United States or the 1789 Constitution of France), with articles 1 and 2 of the General Outline stating that "the Republic of China shall be organized by the people of China" and that "the sovereignty of the Republic of China belongs to the nation as a whole". The sovereignty of the Republic of China belongs to the entire nation. It is clear from these first two articles that it appeals to the principle of reinvention rather than the principle of history. However, this constitution was never implemented.