China vs. 'Constitutionalism'

The outside world is taking note of a propaganda campaign within the People's Republic of China against "constitutionalism. The effort, spearheaded by a series of articles in the People's Daily newspaper, appears to confirm liberals' worst suspicions about the Chinese Communist regime. To oppose "constitutionalism" must mean to prefer arbitrary, essentially lawless rule. In American "conservative" terms, to oppose constitutionalism is to favor unlimited government, which inevitably means unlimited tyranny. The Chinese don't help matters by criticizing not just what you'd expect, i.e. the Marxist notion of "bourgeois constitutionalism," but also "socialist constitutionalism." What is their problem?

Fortunately, the People's Daily articles are available in English so we can delve into them ourselves if we dare. For starters, the writer (or writers) blame American-influenced constitutionalist thinking in part for the fall of the Soviet Union. They see the oft-expressed ideal of "democratic socialism" as a western construct subversive of the preferred ideal of "people's democratic dictatorship." But what is constitutionalism? People's Daily argues that constitutionalism is inherently bourgeois, and once you work your way past the jargon you can see why they think so. The Chinese Communists at People's Daily identify constitutionalism above all with the protection of vested interests, that being the presumed motivation for checks-and-balances and other limitations on government. Citing American history with inevitable selectivity, the newspaper argues (as have many American historians) that the primary purpose of the U.S. Constitution was to protect the bourgeoisie from the poor. Going further, the article asserts that the power of capital, not the Constitution, is the only effective check on political power in America.

The US President’s power is not locked in a constitutional cage, but is locked in a capital-monopolist oligarch cage. When US officials break through constitutional and legal restraints, and use the power in their hands to seek profit for the capitalist wealth clique and obtain huge commissions from it, they will not meet with obstruction – in the US, the revolving door between officialdom and commerce is an extremely widespread phenomenon; but if someone breaks through constitutional and legal restraints to shake the bourgeois’ sacred right to property, he will most certainly be severely punished. Above the US Constitution, there is another high-level law that overrides it, only, it isn’t God’s will or natural law, but the will of the monopolist clique.

In a purportedly classless society, it follows, constitutionalism has no place if its only purpose is to protect vested interests that unjustly monopolize the means of production. As Marxists, the People's Daily writers reject any natural-rights justification for constitutionalism, arguing that "natural rights" are self-serving class constructs. From the Communist perspective, natural-rights theory is the "self-deification of the bourgeoisie," virtually a form of superstition.

Amid the hubbub over constitutionalism, it might be forgotten that China has a constitution. But that constitution enacts "people's democratic dictatorship," with emphasis on "dictatorship," which is what "socialist constitutionalists" supposedly want to do away with. For People's Daily, "democratic dictatorship" is synonymous with "democracy." Their position seems to be that you can't have one without the other.

The Preamble of the Chinese Constitution is utterly clear about the rights of the Chinese popular masses: “The Chinese Communist Party with its leader Chairman Mao Zedong has led the Chinese nation and people, … they overthrew imperialist, feudalist and bureaucratic rule … therefrom, the Chinese people grasped the State power and became the masters of the country”. Essentially speaking, this judgement is the scientific judgment of historical materialism and dialectical materials, and dues [sic] not require the use of religious theology or spiritualist natural rights, natural law theory to prove it.

That last sentence is regrettable, a bit of secular pomposity hardly more supportable than the claims of natural rights.  Historical or dialectical materialism are arguably pseudosciences, the proofs of which are as elusive as those for natural-rights theory. Getting past the gobbledygook, however, the main point is that, rather than checking the people's will, a constitution "must always do what the popular will tells it do." Communists, however, insist on the Party as a necessary intermediary and an essential part of their more "scientific" constitutional order.

As long as the relationship between the Constitution and the people is clear, the relationship between the Chinese Communist Party and the Constitution will be equally clear. As the Chinese Communist Party implements its concept of serving the people, the Chinese Communist Party is the representative of the interests and will of the popular masses. Separating the Constitution from the Party’s leadership and the popular will fundamentally does not conform with Marxism.

To be fair, the above quote should be recognized as a caveat. "Implementing China’s Socialist Constitution well crucially depends on doing Party building well, on ensuring that the Chinese Communist Party becomes a party that truly serves the people," the paper elaborates, "on ensuring that officials at all levels of power in China identify with the core principles of the Constitution. Otherwise, the Constitution is an empty text." True enough. A meaningful difference between "bourgeois" and "communist" constitutionalism becomes clear here. People's Daily acknowledges that the success of a communist constitution depends on the Party doing the right thing, i.e. serving the people. A communist constitution, it follows, is designed to maximize the effectiveness of government by virtuous people. A bourgeois constitution, as we well know, is designed to minimize the damage that can be done by the government of bad people. The problem with both forms of constitutionalism is that constitutions themselves don't discriminate between good and bad rulers. Thus a communist constitution also maximizes a bad ruler's potential for mischief, becoming "empty" by its failure to prevent abuses of power, while a bourgeois constitution can prevent good people from taking arguably necessary actions with the arguably necessary speed. The difference between the two may be less a matter of belief in natural law than a matter of belief in human nature. If communists believe in the perfectibility of man, at whatever cost in individual lives, bourgeois liberals believe that absolute power (defined always as power over them, never as their own power) corrupts absolutely, and that both individual and collective well being depends on power being checked.  Both forms of constitution come with costs, but now, at least, China can point to benefits as well when communists rarely could before. Which you prefer may depend on what you expect for yourself, and what you expect of yourself. Before making political judgments, or "moral" judgments of politics, know yourselves first.