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郭国汀律师专栏
·语言风格——关于袁红冰改良还是革命的争论
·就袁红冰之《改良还是革命》与申先生的论战/郭国汀
·英雄人格哲学—袁红冰《自由在落日中》读后
·划时代的政论——简评袁红冰《改良,还是革命?》
·为什么袁红冰之《改良,还是革命?》是划时代的政论?
·再论政治案低调消音妥协辩护论的严重危害性
·再论政治案件低调消音妥协辩护论的危害性引起争论
·政治案辩护律师的最佳策略
·驳政治肮脏论
·文字狱与极权专制体制
·暴政与人种的优劣/新南郭
·虚伪是极权专制的必然付产品
·极权专制政体与思想家
·最暴虐无道的政府!/南郭
·郭国汀:歌功颂德或批评批判?
·判断一个政权合法性的公认标准
·判断政府合法性的普世公认标准 郭国汀
·中国律师理所应当关心政治 郭国汀
·政治体制的根本问题
·中国的前途在于专制改良还是政治民主革命?
·西方现代政治民主的基本要件
·郭国汀: 政府无权杀人!
·政府绝对无权武力镇压(屠杀)和平集会示威游行或罢工的公民
·国民有权推翻暴力镇压(屠杀)和平抗议民众的任何政府
·中国历史上不存在极权
·民主政治的终极目标是自由——答尼采黄昏君的质疑/南郭
·极权专制独裁者与知识分子
·与网友谈论民主政治与政权合法性
·政府不得滥杀和平请愿公民的最新国际公约
·中共极权专制暴政祸国殃民绝对乏善可陈
·郭律师评价中国律师诉讼及司法体制现状
***(40)宪政研究
·什么是宪政?
·什么是共和?
·宪政的实质
·分權制衡理論的历史淵源
·中国自由文化运动与宪政研究
·The Arguments For and Against the Notwithstanding Clause
·Freedom is not free but it is costly
·宪法改革的设想 南郭提要
·联邦共和民主宪政体制是美国经久强盛不衰的原因
·党化党控教育是中共祸国殃民的一大罪恶
·立宪时代的法政哲学思考提要
·有限政府与法治宪政
·联邦主义要旨
·It’s Not Patriotic to Violate the Constitution
·An Imperial Presidency Based on Constitutional Quicksand
·US Constitution revolution for real democracy
·One of the major writer whose legal thought Influence the Americas Founding Fathers
·Beyond the Constitution
·Philosophy Constitutionalism
·USA Constitution is in grave danger
·Constitutional Interpretation
·The Bill of Rights
***(41)民主研究
·美国宪政民主的基本要素
· 政治民主机制的最新发展--监督民主
· 序《民主导论》
·民主的真实含义
·自由宪政民主政治的七项实质要件
·民主的实质
·谁是真正的人类政治民主之父?
·民主就是[山头林立]?!
·共和比民主更为根本
·共和民主宪政要旨
·什么是联邦主义民主宪政?
·我的民主朝圣之旅
·民主的灯塔永放光茫
·古希腊雅典民主政体
·伯拉图亚里士多德论古希腊民主体制
·伯拉图论共产主义
***(39)法治研究
·法治论/郭国汀
·自然法原理
·法律的定义
·法律的本质与精神
·什么是法治?
·法治的基本原则
·法治的目的
·法治与民主的前提与条件
·法治的起源与历史
·开明专制与法治--极权流氓暴政下决无法治生存的余地
·法治的基石和实质
·法治的精神
·法治余论
·一篇值得推介的法治论文杰作/郭国汀
·Judicial Independence and Canadian Judges
***(37)自由研究
***表达自由新闻与出版自由
·当代自由主义的基本特征
·只有新闻自由能治官员腐败之顽症
·郭国汀 唯有思想言论舆论新闻出版结社教育讲学演讲的真正自由才能救中国!
·中国争人权、言论表达自由权的先驱者与英雄名录
·中国政治言论自由的真实现状-我的亲身经历(英文)
·郭国汀论政治言论自由:限制与煽动罪(英文)
·郭国汀论出版自由——声援支持《民间》及主编翟明磊
·郭国汀 美國言論自由发展簡史 [1]
·美国的学述自由:Academic Freedom in the USA
·祝愿祖国早日实现真正的自由!新年祝福
·向中国良知记者致敬!
·丹麥主流社會召開中國言論自由研討會
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Philosophy Constitutionalism

Stanford Encyclopedia of Philosophy Constitutionalism
   Constitutionalism is the idea, often associated with the political theories of John Locke and the "founders" of the American republic, that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations. This idea brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state. How can a government be legally limited if law is the creation of government? Does this mean that a government can be "self-limiting," or is there some way of avoiding this implication? If meaningful limitation is to be possible, must constitutional constraints be somehow "entrenched"? Must they be enshrined in written rules? If so, how are they to be interpreted? In terms of literal meaning or the intentions of their authors, or in terms of the, possibly ever-changing, values they express? How one answers these questions depends crucially on how one conceives the nature, identity and authority of constitutions. Does a constitution establish a stable framework for the exercise of public power which is in some way fixed by factors like the original meaning or intentions? Or is it a "living tree" which grows and develops in tandem with changing political values and principles? These and other such questions are explored below.
   1. Constitutionalism: a Minimal and a Rich Sense
   2. Sovereign versus Government
   3. Entrenchment

   4. "Writtenness"
   5. Montesquieu and the Separation of Powers
   6. Constitutional Law versus Constitutional Convention
   7. Constitutional Interpretation and Constitutional Theories
   8. The Fixed View and the Living Tree
   9. Textualism: The Meaning of a Constitution’s Text
   10. Originalism
   11. Hypothetical Intent Theory
   12. Dworkin: Moral Theory
   13. Critical Theory
   Bibliography
   Other Internet Resources
   Related Entries
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   1. Constitutionalism: a Minimal and a Rich Sense
   In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some acknowledged means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws). Take the extreme case of an absolute monarch, Rex, who combines unlimited power in all three domains. If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could be said to contain only one rule, which grants unlimited power to Rex. He is not legally answerable for the wisdom or morality of his decrees, nor is he bound by procedures, or any other kinds of limitations or requirements, in exercising his powers. Whatever he decrees is constitutionally valid.
   When scholars talk of constitutionalism, however, they normally mean something that rules out Rex’s case. They mean not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers.[1] Often these limitations are in the form of individual or group rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g. in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g. procedural requirements governing the form and manner of legislation); and of course civil rights (e.g. in a Charter or Bill of Rights). Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations. In this richer sense of the term, there is no "constitution" in Rex’s society because the rules defining his authority impose no such limits. Compare a second state in which Regina has all the powers possessed by Rex except that she lacks authority to legislate on matters concerning religion. Suppose further that Regina also lacks authority to implement, or to adjudicate on the basis of, any law which exceeds the scope of her legislative competence. We have here the seeds of constitutionalism as that notion has come to be understood in Western legal thought.
   In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of a constitutionally unlimited sovereign (e.g. Rex) versus that of a sovereign limited by the terms of a social contract containing substantive limitations on her authority (e.g. Regina).[2] But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can "command" himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle.[3] Though this feature of Austin’s theory has some plausibility when applied to the British Parliamentary system, where Parliament is often said to be "supreme" and constitutionally unlimited,[4] it faces serious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution. Austin’s answer was to say that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies -- e.g. Parliament or the judiciary -- can be limited by constitutional law, but the sovereign -- i.e. "the people" -- remains unlimited. Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with "the people", then we have the paradoxical result identified by H.L.A. Hart -- the commanders are commanding the commanders. In short, we lapse into incoherence.[5]
   2. Sovereign versus Government
   Though there are serious difficulties inherent in Austin’s attempt to make sense of "the people’s sovereignty," his account does bring out the need to distinguish between two different concepts: sovereignty and government. Roughly speaking, we might define "sovereignty" as the possession of supreme (and possibly unlimited) power and authority over some domain, and "government" as those persons or bodies through whom sovereignty is exercised. Once some such distinction is drawn, we see immediately that sovereignty might lie somewhere other than with the government. And once this implication is accepted, we can coherently go on to speak of limited government coupled with unlimited sovereignty. Arguably this is what one should say about constitutional democracies where the people’s sovereignty is thought to be unlimited but the government’s power is constitutionally limited. As Locke held, unlimited sovereignty remains with the people who have the normative power to void the authority of their government (or some part thereof) if it exceeds its constitutional limitations.
   Though sovereignty and government are different notions, it does seem possible for them to apply to the same individual or body. It is arguable that Hobbes insisted on the identification of sovereign and government insofar as he seemed to require a (virtually) complete transfer of all rights and powers from sovereign individuals to a political sovereign whose authority was to be absolute, thus rendering it possible to emerge from the wretched state of nature in which life is "solitary, poor, nasty, brutish and short."[6] In Hobbes’ theory, supreme sovereignty must reside in the supreme governmental person or body who enjoys unlimited power and authority to rule the commonwealth. Anything less than unlimited government would, given human nature and the world we inhabit, destroy the very possibility of stable government. So even if "sovereignty" and "government" are different notions, this neither means nor implies that the two could not apply to one and the same individual(s).

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