Read the "biased constitution"

Carle Llewellyn, Keith, Sunstein is a professor at University of Chicago law school, is also one of the USA most influential contemporary scholars. In recent years, Professor Sunstein's works are being introduced China, and gained considerable attention. But in most China law person eyes, Professor Sunstein's image is still probably the dark, because he authored and co authored more than 20 books and hundreds of papers, research field has been covered by the field theory of constitution, constitutional and democratic theory, control theory, administrative law, the theory of legal interpretation and behaviorism legal economics, the vast, concern preference such "big words" from public law and political theory, to justice, until the emissions trading, tobacco advertising, campaign finance regulation, gene engineering, concrete end micro problem. It is difficult for us to follow the discipline construction China, as what Professor Sunstein put the last label. Looks like in the translator, Professor Sunstein is a not only has a realistic feeling strong, more profound theoretical foundation and knowledgeable scholars. But in almost all of his academic works, not only he has a precise analysis of the problem, more flowing he has originality and novelty of the system thinking framework. He had his own unique style and point of view, the source might just is he can always maintain a strong academic vitality. And presented before the readers the "biased constitution", which is a summary of the research America constitution theory of Professor Sunstein for many years, the author explains USA constitutional tradition, from which his creative on the system USA constitution theory construction, and in consideration of the contribution of democracy the theory has made, and in many constitutional and public policy overlap, launched a brilliant discussion and evaluation. a neutrality is regarded as liberal monument, in the concept of such a role, people think that the government can not be crossed field public-private. The neutrality act, usually means that it must be no favoritism to act, so as to avoid the invasion into the private sector, or only in exceptional cases, especially on the ground, the government in order to enter the private sector. Therefore, the private sector to determine whether the government meets the requirements of touchstone neutrality. For example, if the conflict between the two parties, the government to maintain neutral state, it shall stand, and not to take sides. Sunstein, professor in the "biased constitution" in this book, the neutral concept discussion is at the brush. According to the usual thinking, neutral (neutrality) is of the same status (status quo) be bound together in a common cause, "declares the factional prejudice to the status of departure; on the status of the respect is means of neutrality." But the present situation is usually refers to the existing resource allocation and actual practice, this is equivalent to the allocation of resources and the right situation and existing, as to decide what the factional prejudice what is neutral baseline. (fortieth pages) in such a case, the government to respect for the status quo, the dispute on the sidelines, pursue the "time on social issues, and is often considered to be with neutral duty; present situation and the government was trying to change existing, often considered the wealth and resources from a pocket to get another pocket in violation of the neutrality, obligation. is precisely under such background, the "status quo" and "neutral" two words deeply embedded coupled together, "status quo neutrality" (status quo neutrality) has become the keywords appear most in this book. But for the conventional thinking, the author does not take stick attitude, but through careful analysis of the sacred status of deconstruction. In the late nineteenth Century to early twentieth Century, "status quo neutrality" in the legal thought to occupy a dominant position, it contains many of the common concept of nature and of nature, which advocates the respect for the common law, the legal reasoning and legal categories are organized, it will be "free" system into a the constitution requires. (fortieth pages) is in the "status quo dominant neutral" theories, in early twentieth Century, Plessy Lochner case and Muller case, the court will in fact is the legal system, as natural and former political "status", thereby negating the attempt to change the system the claim. (sixty-seventh pages) for example in Plessy, courts that racial segregation is the existing human customs, habits and traditions reflect, therefore, independent and insulated from outside the law, so as to support the requirements of railway company "to provide equal and isolation facilities" for white and colored legislation. (forty-third pages) in the 1908 Muller v. Oregon, the court believed that women and men existing social role is the difference between the natural and fair, between them there is an "inherent differences", so as to support a time limit women working limit law. (sixty-second pages) Professor in Sunstein, it seems, status quo neutrality is usually a fallacy, often have not. (fourth pages) because the status quo neutrality assumes the presence of a former law established, natural existence independent of social organizations outside the "status", but rather, the "status quo" saying with its is the law a necessary or natural prerequisite, but rather by law for and the role of the target. (sixth pages) and the original common law order, itself is not without selection or neutral, and are likely to be highly factional prejudice and various interests overlap product. (eighty-eighth pages) but needs to be pointed out is, Professor Sunstein was not on the "status quo neutrality" concept to completely abandon, on the contrary, he in the third chapter, the legal system is filled with "status quo neutrality", on the negative rights and positive rights, racial and gender discrimination, freedom the definition and property, as well as the administration does not qualify as and the plaintiff's question, is neutral to the modern version of ideas as the basis. Sunstein argues that the key lies in, to the "status quo neutrality" concept is corrected, not the status quo as a judge whether neutral standard, [5] can not be close to American Deliberative Democracy (deliberative democracy) system of the gate, strict censorship should make legal practice has to accept democracy, let the configuration or ownership status the deliberative democracy has become the object and target. (sixth pages) two liberalism and republicanism is the western political philosophy two. A more common view, republicanism and liberalism is opposite, Republican opposition to liberalism advocated atomistic individualism and negative view of freedom, more emphasis on public interests and public participation. Sunstein, tried to mediate between the two. He thinks, the Republic includes: Government deliberations; political equality; universalism or desirable; citizenship. [6] Republican thinkers tend to emphasize the fundamental value of political freedom, emphasis on the individual and the community are stand on one's own, not bondage. Opposition to liberalism and republicanism is a mistake, American's founders were liberal republicanism. They "to establish a rational republic. The Republic of China is different from the self-interest based the Republic of China, is also different from 'natural' or simply to authority (authority) as the foundation from the Republic of china." (Twentieth pages) Sunstein efforts will republicanism with interest groups pluralism with distinction, that interest group pluralism is missing, it is not the law is considered as to product, and the law as a commodity, as is the benefit choice after summation. (twenty-fifth pages) Professor Sunstein think that the key of modern legal and regulatory policy is the agreement reached between the equality of citizens. Therefore, he will be Deliberative Democracy (deliberative democracy) as the basis for the interpretation of the Constitution and the principle of government decision. "For public officials to the people, and its position should avoid interest groups of power, which can be extensively around the public interest review." (Xu Yan) the review process that requires participation of the general public, participants were asked to be largely independent of the government (136th pages). Sunstein argues that deliberative democracy for the civil war and the new deal, such as the history of American several most important constitutional moment (constitutional moment) are powerful. He stressed, "should be considered the political principle of understanding is an important part of the political ideas of Madison. It becomes the same including representative, checks and balances, federalism and judicial review, the government system and. Relating to the belief that, American people argue for a functional intactness of the Republic, difference and dissent is the creative source of essential." (135th pages) in Sunstein professor's eyes, in the Republic of China at the beginning of every hue to create characters, stage, expression and opinion is particularly complex. The framers tried to quote without favoritism principle, to resist the monarchy heritage, public officials with self and factional disputes three dangerous. Therefore America constitution to create deliberative democracy system, so that the maximum representative officials are responsible to the people, and develop without consideration of faction dominating form. (pp. 19-20) he cites James Madison in the "Federalist Papers" discusses in the tenth chapters, points out that the representative system "through a selected group of citizens, public opinion will be to refine and amplification, because of their wisdom to insight into the country's true interests, and their patriotism and to just love, so that they do not seem to be as temporary or partial consideration to sacrifice the interests of the state." [7] so the political results not only self reflect, or on a specific or former political rights protection, it is produced by the deliberation and discussion process developed. Sunstein professor also devoted much effort to the New Deal period of constitutional change. As Roosevelt pointed out, "'political' (deal) the word implied meaning is, the government itself will take positive action to achieve its stated goal, which is no longer stand.... 'new' (New) the word implied meaning is a design, the new order of things is to make the most of farmers, workers and merchants benefit from." (fifty-seventh pages). In the opinion of Professor Sunstein, the new deal is a concrete manifestation of the traditional American pragmatism philosophy in the real world, but also agreed to develop and deepen the deliberative democracy. The new owners insist that any of the existing configuration of respect, must be based on a rational basis. Therefore, through the review process of democratic institutions, including the rule of law established is suitable for free, welfare or democracy itself judgment. At the same time as the first part of this paper pointed out, the Constitution and not always the existing configuration as the analysis. And from the general agreement of deliberative democracy, derived from the principle of constitutional interpretation. From the perspective of deliberative democracy constraint, the court should play a positive role in two cases, the first kind is with the democratic process be bound together in a common cause, the impairment is unlikely to gain political rights of relief. For example, to freedom of speech and the right against the election by the government to provide judicial protection actively, because these rights constitute the background premise of political consideration, political equality and citizenship. (142nd pages) second is for a fair hearing in the legislative process to be fully expressed in class or interest, the court should be more positive critical review. (143rd pages) in the main deliberative democracy theory, Professor Sunstein explains how Deliberative Democratic convention, is used to solve the positive action, welfare rights, education, reasonable review and government behavior theory, the specific constitutional disputes. Sunstein advocated Republic did not deny the value of the individual and multiple presence, rather it is a "heterogeneous republic". He stressed that the "public good", but not in the public interest or the whole value above all, because of the "public good" is not predetermined, but a product review. Therefore, Sunstein the freedom and the Republic together that can be more accurately described as he put the democratic and Republic together. three in America, constitution of 1787 is USA people constitutionalism symbol, is also a constitutionalism. but in the creation of judicial review in the case of Marbury v. Madison, according to Marshall's legal reasoning is invalid constitution, and conflict problems, into those conflict law invalid by the judicial organs. The court so as to realize the "great power", the ordinary judicial functions into the review of constitutionality. This case irresistible symbolic significance, constitutional guidelines is the judge, and the Warren Court Practice and drama to this concept added fuel. (Ninth pages) although professor Sunstein role given considerable also on the court in the USA constitutional concerns, but that, left to judicial review actual and potential contribution of judgment, not understanding America administrative state. [10] but Professor Sunstein think, research on the generation of constitutional scholars around the court this center (court-centeredness) expansion, which weakens the other officials and ordinary citizens sense of responsibility, dispersion of judicial other strategic focus. So it is necessary to the line of sight to the executive and the legislature, turned to the Democratic arena. Such a shift will help to explore the constitution created the original goal of democratic deliberation, the benefit from the general discussion by the representative and the public. (pp. 9-10) in fact, Professor Sunstein, the is a kind of modern state control more practical understanding. In 1984 Schaefer Lin precedent, decision when the law is ambiguous, for any reasonable explanation has a legal duty of the authorities, the court should respect them. Points out that he is wise, this is a "administrative state anti Marbury type" cases, Schaefer Lin case caused by the power of modern administrative state displacement, change between organs of the administrative organ and the court, the legislative power. Because the current law is often left to the traditional legal interpretation crevice tool which can't be solved and vague, the solution of these problems will require a more pure by Zhengmin legislature lineage and more able to deal with the administrative organ, rather than the court to make policy judgments and policy choice. and constitution of legislative and administrative process should also give more concern, the professor and Sunstein One principle runs through it all. deliberative democracy advocates fit, so that can make the play more and more important in the political life of the state constitution. (thirteenth pages) in this book, Professor Sunstein shows himself in such research approach. He is gracious freely between peak and trough of the administrative entity constitution of reciprocal, for example in the status quo neutrality theory background, Professor Sunstein first to review the traditional administrative behavior "lawsuit" (standing) of the citizen sector restrictions, and the executive authorities do not be presumed not review, is explained, and then explain the new trends of the development of the case. (pp. 87-90) Sunstein also discussed the government risk management principles, discusses the regulation on the campaign, children's television program, discusses the principle of protection of freedom of expression on political speech, discussed the government regulation on violent pornography, science and speech, celebrity defamation and commercial speech, non political speech, is discussed. Attention to social pornography, abortion and the surrogacy problem, etc.. In this analysis, highlighting the professor Sunstein strong realistic care and concern for the legal issues, as the extended line of the political and policy issues. four sense of this, Professor Sunstein's works is a reconstruction America constitutional system try, as liberal republicanism bunch, he to some classical and traditional liberalism challenge, clarify many constitutional appear wrong concept, and many of the decision to the Supreme Court gives accurate analysis, more importantly, his theory of deliberative democracy as the vein, the constitutional debate, by the court to democratic participation stage, thus the construction of the base American a study of intellectual.