2, "the political constitution" and "constitution court".The modern constitution idea is thinking about political essence from classical constitution to formal attention on "constitutional law", another important reason is that in modern politics on the protection of the rights of citizens and the western history of powerful judicial tradition together, thus formed between "jurisdiction" and "governance" confrontation.[33]Especially in the Anglo American common law tradition, on the one hand, the protection of civil rights is mainly derived from the court's judgment. Regardless of is the unwritten British constitution "Great Charter" created by the principle of due process, or American written in the constitution of the "bill of rights", are very prone to the court perspective to understand the constitution, emphasizes the legal characteristics of the constitution. On the other hand, in the form of legal, Britain's unwritten constitution in the constitutional law and the common law does not distinguish strictly, even within the prescribed America written constitution, the law and the state constitution, Congress concluded treaties in force of the same rank. USA constitution than Congress is through the constitutional convention gradually created, which and the courts to interpret the Constitution and to exercise the power of judicial review of the history are closely related. In the background of modern constitutional government, constitution to America constitution as the standard view emphasizes more on the constitution from the court's point of view, the understanding to constitution can be interpreted and applied legal documents in the judicial judgment, the judges of the constitutional form "in the world".[34]China constitution scholars "constitution" has been from the "constitutional law" point of view to emphasize the constitution is "law", by the ordinary courts to interpret and apply.

Thus, the classical view of constitution and the modern constitutional view another distinction lies in the court in the political power structure in the different position. In the classical idea of constitution, the court does not belong to the political system of the elements, but a common to maintain social order, dispute resolution mechanism, even in the Rock (John Locke) in political theory, judicial power is only one of the implementation of the right to. However, in America separation of the three powers, judicial power balance theory, obtained with the legislative and administrative equal status, and since the court's interpretation of the Constitution and the exercise of the right of judicial review, the court almost above legislative and executive power, and even the formation of "judicial sovereignty" trend. In the different understanding of the political system, the classical constitution emphasizes structure mode of government, we can call it "the political constitution" (political constitution), which emphasizes on "political exercise created on citizen education positive liberty" civic virtue and social customs and the role of politician. The constitution is the fundamental can not be implemented by the court. Comparatively speaking, the modern constitutional view emphasizes the legal protection of citizens' rights, which the court to protect the fundamental rights of citizens or constitutional rights are not violated the public power, the public power, we can call the "Constitutional Court" (judicial constitution).

The modern constitution idea is changing so much, partly because of the "constitution USA court" plays a unique role in the USA political life, as Tocqueville said, America political problems tend to be transformed into legal issues,[35]While the legal problems often translates as the Supreme Court's judicial review. This unique constitutional ideas exerted a great influence on other countries, especially since the 1960's USA by the Supreme Court "Judicial Activism" actively involved in American political life, which profoundly shaped USA constitution itself. On the other hand, is due to American unique legal education mode and the resulting in the law circle around the Supreme Court a constitutional case of constitutional theory and constitutional theory, this theory and theory with legal education also indirectly affect other countries constitutional theory. Originally, "the court constitution" is in American mode "check and balance" under the principle of "specific political constitution" structure in the form, "the court constitution" is to "political constitution" as the premise, and relates to the "many contents of political constitution" is not can be resolved through the judicial way. But "the constitution court expansion" concept in the context of the global giving people an illusion, as if the core content of the constitution is "the protection of human rights that the constitution of the court", while ignoring the real content of the constitution is "the political constitution" of political community.

Therefore, if the "court of constitution" the constitution as a court to interpret and apply the law, which is understood as "constitutional law" (constitutional law) words, that "political constitution" is still inherited the classical view of constitution, special attention to the political power structure. More importantly, the government structures and not by judicial decision to maintain and implement, but to play the role of beliefs and principles depends on a set of political system and the political system to the effective functioning of the politicians and the people share a set of cultural traditions, customs and even people with tacit methods.[36]Therefore, wearing snow in distinguishing the "constitutional law" and "the Constitutional Convention", the standard is not written or unwritten, but whether can the court's decision to execute and implement. Therefore, fundamentally different and we could see the "constitution" and "laws": Law by the parties is outside of the third party to enforce. As part of the contents of the constitution, especially relates to the protection of the citizen's rights content, often through the courts, this part can be called the "constitutional law" in the constitution; and the core content, such as the national regime, not by the parties outside of the third party to enforce, and must depend upon all parties to abide by a set of rules, this set of rules is what we call "unwritten constitution" the core content, including the constitutional convention, constitutional law etc.. Thus, the real constitution tend to the unwritten constitution form, even countries with written constitutions, constitutional support to the core content relates to the political constitution also must abide by the political community members of the unwritten really be implemented.

Three,"The constitution unwritten constitution": a case study.Although USA constitution to "constitution" is known, but the constitutional practice USA investigation, will find USA constitutional operation is not completely in accordance with the provisions of the written constitution expansion. American constitution scientists have increasingly found, behind American written constitution, it has a set of unwritten constitution.[37]Not only the text of the Constitution and the constitutional convention, hidden, and the traditional theory etc..

1, "secret constitution".USA constitution is composed of constitutional text and the amendment, but in George P. Fletcher the professor looks after the civil war, American increased thirteenth, fourteen and fifteen amendments to the American brought a new constitutional order, that can be called "the second constitution" (the second constitution). The principle and constitution of constitution in 1987 second American (the first constitution) formed by the principle of contrast sharply: "the first constitution" established in the "coalition of the willing of people's consciousness (peoplehood), individual freedom and Republic of elitism" principle, and "the second constitution" built in "organic States of consciousness (nationhood), above all human equality and mass democracy" principle.[38]After the civil war American constitutional largely reflects the two constitution for the priority in America life. "The second constitution preamble speech" is Lincoln in Ge to Middlesbrough, but this speech to the declaration of independence American's "". If American first constitution is one that "free" constitution, so America "Declaration of independence", Lincoln's speech and civil war amendments to the constitution. American second constitution is to promote "equality" of the constitution. However, the nineteenth Century Supreme Court in a series involving the second constitutional cases, and no implementation of the second principles of the constitution, the "second constitution" has become American constitution "secret" (secret constitution). However, Fletcher believes that this "secret constitution" "in fact deeply rooted in USA political and legal culture, and displayed in various fields. "[39]Therefore, to understand America constitution, is to understand a written constitution and amendment from the constitution angle, but also of unwritten constitution perspective America constitution, not only to the "Declaration of independence" and "Lincoln Ge to Leesburg's speech" as part of America constitution, but also take judicial review of the Supreme Court as America constitution, because it is the Supreme Court of judicial review of the embodiment of the thirteenth, in the written constitution text of the fourteen and fifteen amendments to the "secret constitution".

2Judicial review: practice and theory.Typical USA constitution has become the "judicial constitution" or "constitutional law", lies in the system of judicial review. However, the system does not by American constitution which expressly, but by the Supreme Court in the long-term judicial practice gradually established. Marshall (John Marshall) in the case of Marbury (Marbury v. Madison) after the first clear the principle of judicial review, has been the administrative department and other judges boycott and criticism, and in about half a century later Tenny (Roger B.Taney) justice in the Si Ge special case (Dred Scott v. Stanford) to exercise judicial review. Still, by the great criticism from the administrative and public. However, after a long history and the Federal Supreme Court's practice, the judicial review system is established, and gradually evolved into judicial supremacy.[40]The constitutional review system itself is formed USA in constitutional practice, people to abide by the "constitution", and the constitutional convention is possible, lies in the relationship between three kinds of power established by the constitution of the USA changed in practice.

In accordance with the provisions of article third of the constitution American second part, the Supreme Court explicitly cited several constitutional cases have original jurisdiction, and a large number of cases in the appellate jurisdiction by Congress to make the "rules and exceptions" to decide. According to the provisions of the constitution, Congress could command the repeal of the Supreme Court of a case appellate jurisdiction. Congress could even completely deprived of federal court jurisdiction on cases of this kind of right, and delivered them to the state court. For example, in 1868Ex parte McCardleIn the case, Congress (reconstructionReconstruction Congress) is reversed the court jurisdiction over cases of rights. In this regard, the Federal Supreme Court ruling explicitly pointed out: "we cannot explore the legislative motive at. We review the Constitution gives the power of the legislature. The legislature has the right to the hospital the appellate jurisdiction make exceptions to this rule, this is the constitution regulations. "[41]Since American Congress can pass the provisions of the Supreme Court Appellate Jurisdiction of the Supreme Court to control, why not the Supreme Court's Judicial Activism (judicial activism) to correct, or even abolish the right to judicial review? Quirke (Quirk) professor thinks, the main goal is to ensure that members of Parliament re elected members of Congress, so they will try to avoid getting involved in this will cause the enormous political and moral issues. Thus, in the judicial review of the constitutional practice under the background of the provisions of section second, Third Congress of Constitutional Jurisdiction the Supreme Court to make exceptions in practice is invalid, it actually consisted of America constitution unwritten constitution.[42]

Even from the "constitutional law" point of view, America constitution once in the judicial field becomes an "open architecture" (open texture) text,[43]Need to understand the justices explained. As Marshall said, "this is the one we are interpretation of the constitution. "[44]Thus, the political philosophy American Supreme Court judges and the understanding of Constitution Doctrine and theory, constitutes a real USA constitution. A federal sovereignty and state sovereignty for example, in the early Marshall era and the Taney era there are fundamentally different understanding about "; in the later commercial terms" (commerce clause) explained the long history, the relationship between federal and state between the Liberals and conservatives to back swing. In the process the justices of the constitution, the principle (Textualism), originalism (originalism), strict interpretation (strict interpretation), free interpretation (liberal interpretation) and so on the different legal interpretation theory debate is not only a political ideological debate (such as liberal and conservative), but also on the "constitution" the idea that the Constitution itself debate, what is a fixed legal text, or a growing living constitution (living tree).[45]It is based on the jurisprudence, justice through the judicial decision develops the basic right in constitution "does not exist" (fundament rights), such as privacy, "Miranda rights", according to Roosevelt in the "four freedoms" in put forward "from fear of the" developed by the labor right. Explain American Supreme Court of constitution not only improve the written constitution, but also completely changed USA constitution, more important is this interpretation changed USA constitutional system American constitution in virtually, is established by the constitution from the three rights separated system gradually becomes a judicial supremacy or judicial sovereignty system the separation of the three powers, the Republic of China is gradually becoming the "empire of law".[46]

3Other practices.Besides the problem of judicial review, other unwritten constitution also has USA constitution in operation. The state can not be separated from the federal principle after the civil war become a tacit agreement. And the president power operation are basically is established at the constitutional convention.[47]The constitution specifies only Congress has the power to declare war. But in fact, Congress gave up this power, and to the president to exercise, such as the Vietnam War and the Iraq war. From the Congress's point of view, this may be a smart move, because Congress can criticize the government's war policy, and many of the exhibits of the sense of justice lawmakers re elected. In the opinion of Professor Quirke, this variation is due back in USA written constitution has gradually formed a "to the satisfaction of all agreement" (the Happy Convention), which Congress passed the war powers to the president, the power to decide America social, moral and cultural give unelected judges, the establishment of a written constitution the Parliament priority principle gradually by the president and the Supreme Court priority principle is replaced, which constitutes a USA constitution unwritten constitution.[48]

Three, Chinese constitution "unwritten constitution" origin types

If we get rid of the formalism constitutional law pay close attention to the written constitution text, to the unwritten constitution attention, then we will find, constitution of China unwritten constitution is almost in a blank state. This is not to say that the actual operation Chinese constitution no research, but these problems are not from the constitutional perspective to study, largely into economics, sociology, history and political science research. But these Chinese practical experience research due to these subject research perspective and research assumptions, there is no raises the question as to the constitutional issues to discuss. Here, I tried to start several aspects essential to Chinese constitutional, focuses on four different origin type in our country's unwritten constitution, namely standard charter, constitution, constitutional theory and constitutional law.

One, "rubber stamp" mystery: Standard charter

China's Constitution clearly stipulates the system of people's Congress system of constitutional government, the National People's Congress and its Standing Committee is elected by the people exercise state supreme power, has a wide range of sovereign power and the supreme political authority.[49]Can the legal text the expression, the actual operation condition and the system of people's Congress of the formation of the large gap, so that people will often to the NPC and its standing committee criticized as "rubber stamp", shows that the NPC and its Standing Committee and not really play a constitutional text specified function. This criticism is largely from the point of view of formalism constitutional theory, the text of the constitution as the basis, which saw the "norm" and "fact" or "expression" and "practice" in the deviation.

1The interaction structure, people's sovereignty.However, if we start from the practice of constitutionalism China to study, you will find the NPC and its Standing Committee functions of the "stamp" is decided by the construction of the new form Chinese itself. Because the new Chinese not through constitutional and democratic elections, but built up by the leadership of the Communist Party of Chinese all the revolutionary classes by a revolution. China people's Political Consultative Conference not only in time before the National People's Congress, but also in political status once exceeded the National People's congress.[50]The multi-party cooperation system under the leadership of the Communist Party Chinese is undoubtedly constitute the most important form of government the new China, before making its first written constitution in the new Chinese already exist. The multi-party cooperation and political consultation system under the leadership of the Communist Party is the fundamental law of China new China "" (fundamental Law), which is the basis for China constitutional system, is the development of constitution and constitutional basis and premise thoroughly revised Constitution written constitution, written constitution developed only to recognize and consolidate the multi-party cooperation system under the leadership of the Communist Party Chinese this fundamental law. The written constitution of our reason has the highest position, precisely because it recognizes and consolidate the basic law. The constitution of our country has experienced several times of overhaul, but the people's Republic of China has not changed, fundamental reason lies in the constitution of the people's Republic of China Chinese "fundamental law", that is China under the leadership of the Communist Party of multi-party cooperation and political consultation system has not changed. Visible, the new China exists as a national constitutional system (constitution), not the National People's Congress system, the multi-party cooperation and political consultation system under the leadership of the Communist Party but Chinese, leadership of the Communist Party of China is the basic and the core of the system, is Chinese "first law", is the people's Republic of China to constitute the "absolute constitution".[51]As long as the "basic law" does not change, no matter how to modify the constitution, will not change China as an independent political community.

The new China took the multi-party cooperation system under the leadership of the Communist Party China, not only because of the history and reality of the revolution, the Communist Party is due to China represents the working class and the peasant class, represents the most China people, coupled with other democratic parties and representatives of the petty bourgeoisie, National bourgeoisie and other social class, consultation and cooperation between them is sufficient to form a "people's sovereignty", enough to make "political" have the legitimacy. But relying on the people's democratic dictatorship "political" due to the lack of formal elements of constraint to hold, so we must take the "law of nations", by establishing the constitution of the political community "fundamental law" with the formal legal text fixed. Because of the "legal state" is aimed at individual citizens, it is at peace state can only elect deputies to the National People's Congress, the exercise of state sovereignty. So, in Chinese constitutional system in the form of "people's sovereignty" has two different mechanisms: one is "the system of multi-party cooperation led Chinese Communist law" as the absolute Constitution clearly under; second is "as a written constitution" the basic law stipulated the system of people's congress. Accordingly, the two body monarch as Western medieval political tradition "",[52]The sovereign "people" have two kinds of the physical body, the two types of "people's Congress": one is the representative of political philosophy, the historical mission and the interests of the class on the basis that Chinese: Communist Party and other democratic parties; the second is based on the legal procedures after the election: the National People's congress. The former as a political force of class and stratum, the latter as a social force of individual citizens.

Thus, China constitution in the construction process of political sovereignty, written constitution is different from the America dominant mode, is different from Britain's unwritten constitution leading mode, a special cooperation relationship between legal representative political representatives and people form individual based people and citizens form but in the multi-party cooperation system unwritten the Constitution and the constitution, Chinese the leadership of the Communist Party and the National People's Congress system, class based on the people, the people of. Especially China CPC led multi-party cooperation system and the National People's Congress for the two "people's sovereignty" or "the formation mechanism of the will of the people", the Chinese regime shows a unique interactive structure. Therefore, the core problem China constitutionalism is how to deal with the relationship between the two, avoid two because they conflict with each other makes state sovereignty divided into constitutional crisis state. This requires cooperation between the political essence and form of law, to form a good interaction. As the former chairman of the National People's Congress Committee Li Peng said: "the preamble to the constitution, stipulates the leadership in the Communist Party of China undertakings in China. The National People's Congress is the highest organ of state power, but also must work under the leadership of the party. This is a big job comrades did not ambiguous. The 'Party' or 'large' debate within the party and in the society at present. I realized, to do a good job in the work of the NPC, must be aware of the relationship between the two from the theory and the practice that, in accordance with the provisions of the constitution to settle this argument. "[53]

The interaction structure is unique the China constitutionalism is relatively clear division of labor between the two parties as the premise, the political consultation is the essence of political problems between the various parties China discretion is under the leadership of the Communist Party, and the NPC and its Standing Committee to give legal procedures on the endorsement of Chinese Communist Party made after the democratic consultation political decisions, which will be the party's political decision law and national political will, the party will increase the country, to obtain the highest legal effect in the country and the constitution significance. In this constitution, the NPC and its Standing Committee can only play the role of "rubber stamp". Although it can be independent of the Central Committee of the party in accordance with the provisions of the constitution to exercise its power in the form of legal, political will, but in the target, task and political function can't be independent of the Central Committee of the party, because even if the doctrine from the legal point of view, the source of authority of the NPC and its Standing Committee on the "people's Congress" on behalf of the "the people" of the sovereign power, while in China's National People's Congress, the vast majority are Chinese Communist Party members, they represent the sovereign power is bound by the party's mechanism for political will of Party cohesion. Therefore, the National People's Congress will with the Party Central Committee will itself is unified, the two are different ways to represent the will of the people. In the constitutional structure of such, the National People's Congress must fulfill the "rubber stamp" function, it is to give the function a legal justification, without this "legal stamp", Chinese Communist Party in the China leading and ruling position on the lack of legal basis. Need to pay attention to is, "rubber stamp" itself is not a bad word but a neutral word, it can not be understood as the NPC and its Standing Committee "dereliction of duty", also cannot understand to the NPC and its Standing Committee shall attempt nothing and accomplish nothing. On the contrary, the NPC and its Standing Committee in accordance with the constitution to give full play to the role of "rubber stamp" function, but also use the constitution to "taming monarch", which makes the party truly activities in the Constitution and law, and truly the rule of law, not only make the party from the "revolutionary party" to "the ruling party", but also to from the "ruling party" into a "constitutional party". If we take the direct leadership of the rule of law state party compared with the cultural revolution in the present, the party will obviously by the constitution procedure constraints, a fundamental difference between the so-called "rubber stamp" as important as the "constitutional monarchy" and "absolute monarch".

2The preamble to the Constitution: the constitution, combined with unwritten constitution.However, the leadership of the party and the multi-party cooperation system is not in the written constitution, we on the contrary, it itself within the constitution of our. But the content is not specified in the constitution of the text, but in the preamble of the constitution.[54]The preamble to the Constitution made specific provision to the leadership of the party:

First, acknowledge and affirm China leadership of the Communist Party of China China people in the new democratic revolution victory and the historical status of the establishment of the people's Republic of China, recognizes and affirms in the new China "be in power" is the people under the leadership of the Communist Party of the people China. The recognition and affirmation is not only to the political realities of records, but a kind of legitimacy conferred, namely political rule legitimacy comes from the historical tradition.

Second, recognizes and affirms the great into China of socialist construction is completed in China under the leadership of the Communist Party, which not only affirmed during the period from 1949 to 1982 China Communist Party in the China leadership, more important is, this kind of political leadership because it has made great achievements and consolidate its legitimacy, which is often called as the "legitimate performance".

Third, the people under the leadership of the Communist Party in Chinese China political mission, namely our country into a prosperous, democratic, civilized socialist country. This means that the Communist Party of China unable to use modern political sense, political concept, which is formed in the social class or group interests on the basis of political interest group. While the political foundation of the Communist Party of Chinese is not a class or group of special interests, but the interests of the whole nation; not immediate interests, but the long-term interests of civil society; not in the sense of property interests, but the ethical and political in the religious sense of mission. It is the political mission, the country beyond the civil society, independent will and dignity.

Historical tradition, governance and political mission, Chinese constitutional preamble in a unique way to the multi-party cooperation under the leadership of the Communist Party of the constitutional system China political philosophical argument, which is not only a kind of political philosophy, and religion, is classical, and modern, is a western, also Chinese. On this basis, the preamble to the constitution of the leadership of the Communist Party of China all democratic parties and people's organizations to participate in multi-party cooperation and political consultation system is China's fundamental political system. If the "China the leadership of the Communist Party" is China's "first law", and "the Communist Party of China" because on behalf of the people, and have the political sovereignty, then, the constitution of our country will constitute around China Communist expansion. Nature, Chinese Communist Party itself, it represents the interests of its political philosophy and goals, it leads the people in ways and so on, will become the core content China constitution. In fact, since the establishment of new Chinese, regardless of our country constitution amendment, or our constitutional system, without exception, have a direct relationship with the Chinese party line, principles and policies. China's constitution several large-scale modification, as well as a constitutional amendment, are Chinese party puts forward related motion and act.[55]

Therefore, understanding Chinese constitutional must understand Chinese Communist party. From the constitutional perspective, to understand Chinese party must interpret "Chinese Communist Party Constitution" the standard text. Deng Xiaoping once clearly pointed out: "the country must have laws, the party must have rules and regulations, the constitution is the fundamental law of party compasses party. No party, it is difficult to guarantee. "[56]Here, although the legal form of Deng Xiaoping doctrine from the point of distinction between the national law (state law) and the party, but he in the functional significance of more emphasis on the importance of the party's rules and regulations, because there is no perfect party or China Communist Party does not comply with his party, Party, then the state law could not be implemented effectively. Deng Xiaoping actually reveals China rule by law and the constitution is Chinese Communist Party to comply with. According to the "constitution of the Communist Party of Chinese most fundamental party" political action. For example, the current "party constitution" stipulates, "Chinese Communist led people to develop socialist democratic politics. Uphold the party's leadership, the people be in power, the rule of law, go Chinese socialist political development road. "[57]Here the so-called "the leadership of the party, be in power, the people running the country by law" has in fact made clear the party and the National People's Congress matched constitutional system.

Therefore, to understand the reality of life in the Chinese operation of the constitutional preamble, you must understand the written Constitution clearly stipulated in "the leadership of the Communist Party of China" this "first law", it must be understood as a standard China sovereignty "root" Dafa "Chinese Communist Party Constitution". From the constitution of formalism, "party constitution" is only the normative document specification of the party, which belongs to the "party", a legal document is not state, but not the constitutional legal document, but the play of political life in China normative role and status, its real effect and even more important, than the written constitution therefore, from "effective constitution" point of view, the party constitution as a normative charter, its content and political role play, must be understood as the organic part of Chinese unwritten constitution. Once you've established "constitutional status Chinese Communist Party Constitution", there will be a lot of constitutionalism and the content of the "party" need to be incorporated into the research field of constitutional jurisprudence. For example, leader cadre election various organs often appear in the party organizations between the nomination and the election of Deputies of tension, the tension should be put in the relation between the party cadre appointment regulations and national electoral law of. Similarly, "Chinese people's Political Consultative Conference Programme" will no doubt be regarded as Chinese unwritten constitution.

On this basis, Chinese Political Consultative Conference, the Central Committee of the Communist Party and its China as Political Bureau and the Standing Committee of the Political Bureau and the National People's Congress and its Standing Committee, must be understood as clearly stipulated in the constitution of the state organs Chinese. In 2005 promulgated the "civil law" second stipulates: "said civil servants" as mentioned in this law, refers to perform their duty, in accordance with the law in the national administrative system, by national finance burden salary and benefits staff. "Including officials at all levels of Party committees and people's Political Consultative conference. Party committees at all levels and the Chinese people's Political Consultative Conference was a national agency to deal with in practice, and now the national "Civil Servant Law" in fact in the form of law to be clear, undoubtedly played a "name". The "Civil Servant Law" article fourth further stipulates that: "the civil servant system adhering to the important thoughts of Marx Lenin, Mao Zedong thought, Deng Xiaoping Theory and the 'Three Represents' as a guide, the basic line to carry out socialist primary stage, the China cadres of the Communist Party line and policy, adhere to the principle of the party's leading. "This is obviously the" principles and contents Chinese Communist Party Constitution "in the further in the law explicitly, thus forming the effective interaction between the unwritten constitution and constitution.