Marx farrand's "constitution" is the study design American constitutional history of reading a book, the author is to write the book and is committed to collect on the constituent assembly compilation of material has reached more than 10 years, so I think that the history of the book is a reduction sufficient grounds to support. Expressed in this book point of view and to the convention based description, I think this book reflects the current domestic for America convention even American Constitution some common mistakes.

One, about American constitution Designer

When America constitutional designers, easily reminiscent of Washington, Madison, Hamilton, Franklin and other prominent figures USA history, and therefore easy to give a person a kind of feeling, that is USA constitution is formulated by a group of elite. This idea one step further, even as the political elite and Elite Democracy (i.e. optimal representative is elected by an elite group, they deal with public affairs. The concept of scientific discussion and not be) argument. "Constitution" design a book referred to the opposite argument. The first is the state appointed delegates to the constitutional convention, wrote "in many cases, the appointment was politically influential people pursue and obtain the. In other cases, appointed for not proper motivation, almost fraud. Other circumstances, appointed to fill the delegation places convenient to." [1]The author is of the opinion, is that which has both great men, there are not suitable to the people. The positive evaluation of all the while, the author thinks is that they form a representative group. [2]

Another misconception about the founders, associated with this group of data: 55 people in the darkness, 31 people is a lawyer. This can not but make people think the unique character lawyer this occupation has played an important role in the constitutional convention. In fact in the book is no mention of this lawyer temperament in the constitutional convention role, he wrote, "this is a person who indulge in philosophical speculation and political theory of the era, but the farmers and businessmen is practical, and the framers of the constitution that makes it impossible to believe, it is due to show common." [3]Visible, the merchant temperament temperament than lawyers, may play a more important role in the constitutional convention. This temperament is manifested in a pragmatic atmosphere throughout the Convention, also showed that at every meeting is on the verge of bankruptcy when a spirit of compromise. If the law as a special business, so it would not be so hard to accept.

Make two, about American constitution

Some scholars believe that, in 1787 American constitution is one with the original constitution of [4]. The so-called originality, embodied in the constitution text, should show the Constitution in the institutional arrangements or design rules and other previous experience with difference. However, the constitution process, Marx writes: "it can be said, every provision of the Federal Constitution, in the period from 1776 to 1787 America experience, can be found according to the." [5]This is because "no matter the constituent assembly members learned how rich, whether they are talking about the ancient and modern government, how profound knowledge, but to specific issues, they are almost totally dependent on what they see. They rely on their own experience under the state constitution and federal clause." [6]For example, in the detail Committee asked to draft and report a detailed constitution to the Congress, committee members sometimes extracted directly from their own state constitution some clauses. [7]The originality of this issue, the 1787 Constitution from the past experience in a large extent, and created a new system in the extent to which need more research, history, and not subjective speculation.

A similar example is the understanding of "the Great Charter" in England in 1215, some scholars believe that the "Great Charter" created some important system, such as not the aristocratic meeting agreed, the king shall not levy; civilians to enjoy the right to a jury trial etc.. The system does for the first time in the "Great Charter", but a USA scholars have pointed out, these rules as a habit already exist, just as king John to ignore the habits of existence, so the nobles to get these habits to charter form of written down. [8]From this point of view, "the Great Charter" meaning may be just the unwritten rules of culture, while the original is not talking. And in 1787 American constitution may be similar to this. The understanding of this point in the text of the Constitution and the historical function how to evaluation of the 1787 is very important, the third part will be mentioned below.

In the constitutional convention of 1787, also had some occasional events, facts prove that these incidents on the final constitution plays an important influence, the author has also made a description. For example, the author puts forward "if New Jersey scheme and the Virginia scheme and submitted to the general meeting, in May 29th, and without discussion and pick one of the two sides, so the former can be selected, it is entirely possible." [9]Because New Jersey is more in line with the Confederation Congress gives the scheme of the Convention's power, thus easier for the delegates accepted. If so, you may not have later constitution and the federal government. But in the meeting has been over for two weeks, and Virginia has been corrected, the representatives are more likely to accept the first proposed scheme, after the meeting also discussed based on this scheme. The description of these events will help us to understand the historical contingency.

Three, about American constitution

The current domestic constitutional scholars, a say America constitutional trend, scholars generally think that it is a model of good constitution. When talking about China's constitutional reform, especially about the protection of fundamental rights of citizens, often borrow USA constitution has been more mature theories and practices as their argument. However, in this trend, some scholars discuss on Evaluation of transplantation USA constitution and some of its system in Chinese's worth.

First a question, is the 1787 Constitution, the problem of how to evaluate. There are too many words to the constitution, this is also a common phenomenon in the USA. This is a very natural. Because the constitution after more than 200 years, so far only the 28 amendment, now still apply, this can not but make people filled with deep respect for the constitution, and even admiration. But in 1787 the USA constitution and now USA constitution though the word has no difference from the literal, but the essence of the contents of the constitution has a great difference. In fact, in 1787 America constitution is not a perfect text, misunderstandings of it comes from the lack of observation of America constitution of a whole historical. The constitution of 1787, Marx at the end of the book wrote "the American federal constitution is neither God, nor of the greatest works in a certain period of time by human wisdom and determination to write, but a realistic document. It was planning to meet the urgent need, and was modified to accommodate unexpected situation." [10]

In fact, as already mentioned, the constitution of 1787 is the founders' in reference to the previous experience (including the articles of Confederation that Confederate system defects, in the past few years the state constitution, history scholars theory) and develop, it made in order to solve the system, so it is very practical strong. Because of this, it is unable to foresee new situations arising from the historical development. An obvious example, Provisions Article second second of the constitution, the president is the commander in chief of the army and navy. Due to historical limitations, there is no provision about the air force. To solve this problem depend on judicial interpretation. In fact, the constitution has no clear stipulation for many problems, even the judicial interpretation power who enjoy itself, is vague. Therefore, in 1787 after the emergence of the constitution, operation process of how to interpret the constitution, in order to keep pace with the problem.

To realize this point, to the 1787 Constitution itself, a comparatively objective evaluation on it at that time, the role of will. It is just established a basic framework of rules of living America politics, this framework to solve the problem of interstate commerce was urgent, unified external action problems may be sufficient, but to solve the future political legal issues increasingly complex, also need judicial interpretation and various case to this framework filler content. It is in this sense, some scholars put forward the concept of "growth" of the constitution.

The second question is, China should learn from the experience America constitution rules on how much. Because of USA constitution from the development to the development, is to solve practical problems America and changing, and Chinese conditions with the America have very different conditions, so the copy rule seems unwise. But specific to what is Chinese situation, it seems there is no special study. In this case, when speaking of transplantation USA constitution will very cautious. For example, the separation principle in western countries American and popular politics, in Chinese I am afraid I can not be achieved. Other do not say, our country's political consultative system, participation in politics is not holding a negative attitude to religion. In the sensitive Tibet, government financial support to the national cause of Buddhism is the fact that does not dispute. This is a traditional, or is in the national unity policy considerations. But some scholars have pointed out the freedom of religious belief contains the principle of separation of church and state in our current constitutionThis is probably the wrong.

Four, the conclusion
    
Experience tells us, from now on the long history, more prone to distortion, the old things, more easy to be carried on the altar, to become the object of people prostrate oneself in worship. Perhaps it is because American at present is a sole superpower, and a fundamental political system in this country is stipulated by the constitution; perhaps because the stability American constitution amazing, its extensive USA domestic judicial application; or simply because Chinese constitution is no dignity, make people to appeal the constitution perfect typical, and now USA constitution has gradually towards the altar trend. The design of "constitution" is to reveal the details of the meeting was to us, so that we see the father of the constitution is how to represent the interests and debating, and the completion of the constitution has the advantages and disadvantages of how. All this helps us to see America constitution objectively, eliminate some false myth. Can say, "the constitution" design a book on a USA constitutional history gives us knowledge popularization education, on the basis of academic research and discussion, we have a solid foundation.

Notes.
[1] Marx farrandThe, Dong ChengmeiTranslation: "the constitution" design, Shanghai Sanlian Bookstore first edition in 2006, thirty-third pages.
[2] ibid., page thirty-fourth.
[3] ibid., page forty-fifth.
[4]2007 on the evening of May 30th, Professor Wang Xi of Indiana University a lecture at China University of Political Science and Law, when about their views on the America constitution, namely hold such views.
[5] Marx farrandThe, Dong ChengmeiTranslation: "the constitution" design, page 170th.
[6] ibid., page 170th.
[7] ibid., page 109th.
[8] see Mississippi assistant judge of the Supreme Court JohnW.Kyle's paper "MAGNACARTA "," Mississippi loadLaw"Journal, volumeXXIII,March,1952.Number2.The 100th page.
[9] Marx farrandThe, Dong ChengmeiTranslation: "the constitution" design, page seventy-eighth.
[10] ibid., page 176th


USA political and legal network (www.ciapl.com) firstJuly 19, 2007