Tag: constitution

“Constitutional Dynamics in China-Taiwan Relations: A Historical and Comparative Analysis” Presentation at Emory International Law Review Symposium on Disputed Territories Across the Globe, 13 April 2024

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I would like to start by extending my heartfelt gratitude to Angelica Paquette, Editor-in-Chief of the Emory International Law Review, and Grayson Walker for their outstanding organization of this special symposium on Disputed Territories across the Globe: A Future of Peace or Change, and particularly this panel on China-Taiwan relations. A special thank you to Hallie Ludsin from Emory’s Center for International and Comparative Law for her valuable insights as our panel respondent today. I’m also grateful to see Professor Larry Catá Backer among us and would like to acknowledge Professor Martha Albertson Fineman for her invaluable guidance on my comparative and critical-legal research. My work is further supported by the American Council of Learned Societies Emerging Voices Fellowship, for which I am profoundly thankful.

Please direct your attention to this photo on the slide, of a large portrait of Sun Yat-sen at Tienanmen Square, featured prominently during China’s National Holiday celebrations every year around October 1st. Those familiar with Taiwan will recognize similar portraits of Sun Yat-sen in various governmental buildings throughout the island, such as the National Sun Yat-sen Memorial Hall in Taipei. This common reverence for Sun Yat-sen as the founder of modern China underpins the constitutional spirit shared between the Mainland China and Taiwan, despite their political divergences.

Slide 1: Introduction

 

Examining the present cross-strait relations through the lens of their constitutional history is important because constitutional narratives in China and Taiwan play critical roles in shaping their approaches to national sovereignty and cross-strait relations. It is also crucial to help us unravel recent legislative and judicial developments in Taiwan and the PRC, especially those related to questions of citizenship and political identities that significantly impact their bilateral and international relations.

Two Chinese Constitutions from a Single Convention

The constitutions of both the People’s Republic of China (PRC) and the Republic of China (Taiwan) originated from the same event: the Political Consultative Conference (PCC) of 1946, convened in Chongqing. Representatives included the major political factions of the time—the Nationalist Party (KMT) and the Communist Party (CPC), along with various allied minor parties.

Slide 2: One Constitutional Convention, Two Constitutions
The outcomes of the PCC were interpreted differently by the KMT and CPC, each claiming leadership and legitimacy in drafting the post-WWII Chinese constitution. The ROC Constitution was ratified on December 25, 1946, incorporating ‘Additional Articles’ in 1991. Meanwhile, the PRC adopted its first constitution, known as the Common Program of Chinese People’s Political Consultative Conference, on September 29, 1949, undergoing several newer versions adopted in 1954, 1975, 1978, and with the most recent in 1982.
Slide 3: Historical Context
This table lists significant constitutional conferences, dates, participants, and outcomes leading to the formation of the PRC and ROC constitutions. Starting with the 1936 Constitution Drafting Committee, primarily KMT-driven, to the inclusion of the CPC and other parties in subsequent drafts leading to the contested sessions of 1946.
Despite originating from the same draft, the CPC and KMT’s final constitutional claims diverged significantly, particularly in their views on national unification and governance, influencing present-day cross-strait relations.

Constitutional Analysis: Convergences

Slide 4 - Constitutional Analysis: Convergences

Both the ROC (Taiwan) and PRC Constitutions start from a common historical and ideological baseline, claiming to be influenced by Sun Yat-sen’s revolutionary vision. This vision, articulated in their preambles, emphasizes the transformation from the imperial system to a modern Chinese state under popular sovereignty. It underscores a shared commitment to uphold Sun Yat-sen’s ideals, which aimed to modernize China and establish a government that reflects the will and needs of its people.

A critical aspect of both constitutions is their proclamation of the notion of “China” as a singular sovereign state entity, which is to be governed as a multi-party unitary republic. This framework is essential as it delineates the political structure envisioned by both governments, notwithstanding their separate governance and administrative practices.

Interestingly, both constitutions acknowledge “Taiwan” as a province of China. This is explicitly stated in the ROC’s Constitution with the “Additional Articles” introduced in 1991, which refer to Taiwan as the “Province of Taiwan,” along with portions of Fujian Province that remain under ROC’s direct control. In writing, this designation by the ROC Constitution aligns with the PRC’s constitutional view of Taiwan, reinforcing the notion of a singular China inclusive of Taiwan, albeit under different interpretations of “One China” which I will discuss later.

Furthermore, both the “Additional Articles” of the ROC or Taiwanese Constitution and the current PRC Constitution explicitly state that national unification is the ultimate goal. This shared objective highlights the ongoing constitutional and political drive towards a reunified China, despite the complex and often contentious nature of cross-strait relations.

In addition to these convergences related to sovereignty, both the ROC and PRC Constitutions offer similar protections in terms of human rights and civil liberties. These include gender, racial, and ethnic equality; protection of private property; and freedoms concerning speech, press, religion, assembly, and association. Both constitutions also guarantee the citizen’s right to vote and run for election, alongside due process protections. These similarities are not coincidental but are based on the same foundational draft from the 1946 Political Consultative Conference, reflecting a shared starting point for these two political entities. This historical connection underpins the continued importance of constitutional dialogue in understanding and potentially resolving cross-strait tensions.

Constitutional Analysis: Rifts

Slide 5: rifts between ROC and PRC constitutions

The constitutions of the Republic of China (ROC) and the People’s Republic of China (PRC) exhibit significant differences, particularly in how they interpret the concept of “One China,” which both claim to represent exclusively.

In the ROC Constitution, the “Additional Articles” adopted in 1991 introduce the notion of “One country, two areas.” This framework describes the “Free area” comprising Taiwan and a few smaller territories, contrasted against the “Mainland area,” which, according to the current ROC constitution, includes areas under PRC control but viewed as temporarily occupied by “rebel forces.” This narrative underscores the ROC’s view of a divided yet singular Chinese nation under temporary political fragmentation.

The two constitutional texts diverge sharply in their depiction of the basic political system. The ROC Constitution (Article 1) declares a “democratic republic of the people,” emphasizing democratic governance and public participation in government. Conversely, the PRC Constitution’s preamble describes its political system as a “multi-party political consultative system under CPC leadership,” highlighting a model where multiple parties exist but under the dominant influence and direction of the Communist Party of China.

Another point of divergence lies in the proclaimed state ideologies. The ROC Constitution articulates the “Three Principles of the People” as the foundation of its governance—principles that also represent the official party ideology of the KMT. On the other hand, the PRC Constitution (Article 1) enshrines “socialism” as its state ideology, setting a fundamentally different philosophical and practical governance path focused on socialist principles and objectives.

Finally, in terms of Constitutional Territoriality, the differences between the two constitutions are profound and complex. The ROC’s constitution, particularly through its historical claims reaffirmed by the “Additional Articles” of 1991, asserts a claim over a territory significantly larger than that of the PRC. Officially, the ROC maintains its claim over all territories it governed as of December 1946, which includes not only the territories currently administered by and claimed by the PRC (including the South China Sea) but also territories like Outer Mongolia (now an independent nation) and other areas formally ceded by the PRC since 1949, as shown in the map below. These claims, though largely symbolic today, reflect a broad historical view of China’s territorial extent as seen from the ROC perspective.

Source: https://zh.wikipedia.org/wiki/%E4%B8%AD%E8%8F%AF%E6%B0%91%E5%9C%8B%E8%A1%8C%E6%94%BF%E5%8D%80%E5%8A%83#/media/File:Zhonghua_Minguo_Quhua_Fanti.svg

(Map courtesy of Wikimedia Commons available here)

These constitutional rifts highlight the complex, layered nature of the constitutional and political discourses between the ROC and PRC, embodying distinct visions for governance, sovereignty, and national identity within the framework of “One China.” These constitutional differences are crucial in understanding the ongoing tensions and the challenging dynamics of cross-strait relations.

Current Debates on Citizenship and Identity

The intricate dynamics of citizenship and identity between the Republic of China (ROC) and the People’s Republic of China (PRC) underscore the profound constitutional and legal complexities in cross-strait relations. Both the ROC and PRC maintain a staunch “One China” narrative within their constitutions, neither formally acknowledging the legitimacy or even the existence of their counterpart across the Taiwan Strait. This stance significantly influences the legal and administrative approaches to citizenship and identity, as well as the practicalities of cross-strait travel and interaction.

Due to the non-recognition of each other’s passports, both the ROC and PRC have devised specialized travel documents (as shown in the slide below) and established dedicated government agencies to handle cross-strait travel and exchanges. These mechanisms allow for movement and interaction between the two sides without officially recognizing the constitutional legitimacy of the other, maintaining a delicate balance in cross-strait relations.

Slide 7

The definition of citizenship under both the ROC and PRC constitutions continues to evolve, particularly within Taiwan, as reflected in its case law history and administrative interpretations:

  • 1982 ROC Supreme Court Decision (#8219): This ruling asserted that although the mainland territories are temporarily occupied by communist forces, the residents there remain citizens of the ROC, highlighting the enduring concept of a singular Chinese nation divided only by political control.
  • 1993 ROC Ministry of Justice Legal Interpretation Letter (No. 16337): It further clarified that people from the mainland area are also considered citizens of the ROC, reinforcing the inclusive definition of national identity under ROC law.
  • 2002 Taipei High Administrative Court Decision (#4636): This decision affirmed that individuals from the mainland area are still recognized as ROC citizens in accordance with the Constitution, thereby not considered foreigners.
  • 2023 Taiwan High Court, Kaohsiung – State Compensation Case for a Mainland Tourist: This highly publicized case affirmed the lower court’s judgment that mainland individuals are citizens of the ROC. The case is currently pending review by the ROC Supreme Court, indicating the ongoing legal and constitutional deliberations concerning citizenship across the strait.

These legal interpretations and decisions illustrate the ongoing complexity of defining citizenship in a context where constitutional narratives conflict yet overlap in their claims of sovereignty over China. The contentious point of mainland residents being recognized as ROC nationals carries significant implications for identity, political rights, and the broader socio-political relationship across the strait. This area remains a critical aspect of the legal and diplomatic discourse, reflecting the deeply intertwined yet politically divergent identities that characterize Taiwan-PRC relations.

Conclusion

In conclusion, understanding the constitutional dynamics is crucial for comprehending the intricate relations between China and Taiwan, where historical legacies continue to shape contemporary political realities. This historical and comparative analysis not only enlightens us on the constitutional foundations but also underscores the potential for dialogue or constitutional reform, which might pave the way for future peaceful resolutions or continued stalemate in China-Taiwan relations.

New article published: “The Rhetorical Invention of Laws of Sacrifice” (Communication Law Review)

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I am happy to report that my recent article, “The Rhetorical Invention of Laws of Sacrifice: Kelo v. New London,” has just been published and appears in Communication Law Review, Volume 18, Issue 2 (2018): 58-94. My thanks to Dr. Pat Arneson (Chief Editor) for her valuable editorial contribution towards this publication.

The article continues my broader work exploring the concept of sacrifice as a useful concept for thinking about how violent transactions are rhetorically justified. The abstract follows. An online version of the article may be accessed HERE. 

Abstract:

This paper studies the relationship between American legal rhetoric and public ritual of sacrifice through the analysis of Kelo v. The City of New London, a 2005 U.S. Supreme Court landmark decision affirming the regulatory seizure of private homes for commercial redevelopment. Particularly, this paper explores the rhetorical invention and expansion of the law of irresistible public sacrifice as articulated in the Kelo decision. The rhetorical analysis of the Kelo decision finds that the SCOTUS tacitly affirmed the legitimacy of neoliberal logos of governance as the guiding principle for applying the Takings Clause of the Fifth Amendment. Furthermore, the judicial rhetoric in the Kelo decision, in effect, re-framed solely private commercial interest as a sufficient exigence for suspending legal protections of the right of quiet enjoyment of private property. The judicial rhetoric deployed in the Kelo case effectively provided constitutional legitimacy for the privatization of eminent domain power as generally applied in urban redevelopment contexts. More importantly, the Kelo decision also rhetorically transformed a previously exceptional transgressive government act of seizure into a repeatable ritual sacrifice, in full conformity with an updated constitutional memory

Thirteenth Amendment and the “Slaughter-House”

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by Keren Wang

This essay was originally featured on the Penn State Civic & Community Engagement (CIVCOM)  website, responding to this year’s Constitution Day theme: “The U.S. Constitution & ‘The Dangerous Thirteenth Amendment’.” 

Please visit and share with your students this link http://civcm.psu.edu/constitution-day/, where you’ll also find essays by Lauren Camacci, Jeremy Cox, Michele Kennerly, Veena Raman, John Rountree, Mary Stuckey, and Kirt Wilson.  Last year’s resources on “The Spaces Between the First and Second Amendments” can still be found here: http://civcm.psu.edu/constitution-day/past-constitution-days/2016-2/

The Constitution of the United States – Article XIII (Amendment 13 – Slavery and Involuntary Servitude)

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

It is sometimes tempting to overlook the Thirteenth Amendment as an anachronistic keepsake from the Reconstruction Era. It has been more than one hundred and fifty years since the Congress ratified Thirteenth Amendment. The abolition of slavery, once the most divisive issue haunting our nation, has since became saturated in our political and ethical world view.  The notion that “neither slavery nor involuntary servitude… shall exist”  had effectively became a sacred emblem not only for the United States, but also for the civilized world as we know it.

Paradoxically, the historical-thickness and totemic embeddedness of our Thirteenth Amendment is also what make this amendment feel forgettable. We are reminded of our constitutional tenets via explicit challenges (e.g. freedom of speech) and public debates (e.g. the right to bear Arms), and the issue of slavery and involuntary servitude just seem so “settled” in this day and age.

Or is it?

Of course many of the formal elements of race-based chattel slavery are no longer present, but what about the “underlying evils” of slavery? Consider, for example, the 1873 Supreme Court decision in the Slaughter-House Cases (83 U.S. 72). On the surface, the Slaughter-House Cases had little to do with the issue of slavery, as these cases mainly dealt with economic conflicts between government-owned slaughterhouse operation and local slaughterhouses.1 However, the SCOTUS ruled in the Slaughter-House Cases that the Thirteenth Amendment indeed applies to a broad range of economically discriminatory actions. Justice John Archibald Campbell, who delivered the majority opinion of the Court, held the following interpretation of the Thirteenth Amendment:

Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. …And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.

The Slaughter-House Cases, 83 U.S., at 72 (1873)

As evidenced by the above passage, even in the years shortly after its ratification, the SCOTUS has made clear that the Thirteenth Amendment offers broad protection against exploitative and discriminatory labor practices. The language of the Thirteenth Amendment never made “slavery” the exclusive signifier for race-based chattel slavery of the American south. In fact, Justice Campbell explicitly stated in the Slaughter-Case decision that practices such as “Mexican peonage” and “Chinese coolie labor system” were also slavery in terms of the injustices they effectively inflicted.  Thus, the SCOTUS made clear in the Slaughter-House Case that the Thirteenth Amendment protects not only against historical forms of slavery, but also against emergent forms of discriminatory practices that share the “pervading spirit” of slavery.

What precisely are the “pervading spirit” and “evil” of slavery mentioned in the Slaughter-House Cases?  To get something closer to a concrete answer, we shall take a look at the 1968 landmark Supreme Court case Jones v. Alfred H. Mayer Co. (392 U.S. 409), where the SCOTUS held that:

“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery … this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its ‘burdens and disabilities’ –  included restraints upon ‘those fundamental rights which are the essence of civil freedom.’ […] And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

In Jones v. Alfred, the SCOTUS made an updated interpretation to the Thirteenth Amendment, effectively extending the “Slaughter-House principle” to include not only exploitative labor systems, but also other economic injustices that inherit the burdens and disabilities of slavery.

Hopefully,  the judicial interpretations highlighted hereinabove could serve as timely reminders of an amendment that sometimes feels all too forgettable. The SCOTUS decisions also remind us that while the historical forms of slavery may no longer exist, their rhetorical and material overtones do sustain into our present conditions.

Notes

1 The disputes of the Slaughter-House Cases revolves around the effort by the New Orleans city government to create a government-owned meat processing plant, for the purpose of monopolizing all slaughterhouse operations of the city. The local slaughterhouses brought several suits against the city government, and these cases were eventually consolidated into one and brought before the SCOTUS.