Progressive constitutional nightmare - the road of gradual constitutional Reflection

Abstract: The next decade into the twentieth century, the road of progressive constitutionalism seems to have become the intellectual consensus. The one hand, bathed in the blood of the twentieth century history, so shocking picture, which makes every intellectual conscience have to start at the end of the century reflect on us through the bumpy road, on the other hand, since the eighties have a huge resonance in the intellectual theory and Hayek's evolutionary path for the constitutional provision of a solid theoretical foundation. Spontaneous human action rather than the result of human design, exclusion construct, sweetness and light, ripe ... ... all have become the most distinctive progressive constitutional footnote. Based on the progressive constitutional analysis of the way of progressive constitutionalism, which must be reflection.

Keywords: constitutional, gradual, spontaneous, judicial review
First, the origin of progressive constitutional
China's constitutional history, one thing is quite sad: when people went through numerous twists and turns later, he faced up to learning from the West, they were suddenly found, they see Western civilization is not monolithic. Is Hume, Locke, or Rousseau, Robespierre? the Anglo - Saxon or French? never had cracks in Western civilization for many Chinese intellectuals find it difficult to let go and know what to do. And in the year 1917, when the crack finally along with this soon shocked the entire world of cannons and tear into a completely insurmountable divide. By this time in China, the dual task of national salvation and enlightenment packing cross intertwined. How to sort out the relationship between them? how to arrange the order between the two bit? these issues in terms of the intellectuals at the time, always difficult to answer, which is quite difficult. In stimulated humiliation time and time again, from the moment of salvation from the overwhelming of the Enlightenment, the specter of radicalism in this there will always five thousand years of wandering the land of civilization. In the late Qing Dynasty, in the face of Western civilization under siege, stick to the traditional Chinese scholar who had quite confidently declared: "The five relationships to a hundred lines of the original, according to legend same as for thousands of more justice, saints So as a saint, so for the Chinese in China, it is here. "①" husband how weak the Chinese have? I looked Dingding two hundred years, Holy Holy each other, ... ... testimonies Ji Gang, brilliant big equipment. "② However, in a short period Decades later, "Down with Confucianism," the slogan will be resounding. Taiyan remember that the vast majority of Chinese books are Confucian and Taoist doctrine of fallacy, QIAN strongly advocate the abolition of Chinese characters, and personally explore the Chinese romanization program, Wu Chih-hui called on all the bindings are thrown into the latrine to go, and even has long been considered a moderate Hu, also stressed: "We must acknowledge our own people better than Pepsi, not only inferior material machinery, not only the political system as people, and morally inferior, intellectually inferior, inferior literature, music better, art as people, as one body, "" Our ancestors commit a sin too, and until today we "," Chinese traditional culture of deep suffering chronic disease, are caused by our ancestors ". ③ It is no longer a ton output capacity, brandished a knife and no different from the self-castration.

Therefore, in the next decade into the twentieth century, the road of progressive constitutionalism seems to have become the intellectual consensus. Spontaneous, exclusion construct, sweetness and light, ripe to become the most distinctive progressive constitutional footnote. This point of view the development of progressive The most extreme, then with a vulgar materialism has in common: as long as the economy develops to a certain extent, to a certain degree of social development, constitutional will naturally fall from the sky. In view of this, the authors point of view from two this issue.

It was also during the eighties and nineties of the twentieth century, some intellectuals are accustomed to labeling experiencing heavy and painful reflection, began to rethink the United Kingdom and France, two different constitutional path. Thus, the British Constitutionalism been labeled "progressive" label, while France's constitutional roads were labeled "radical" label. They will also "progressive" as the spontaneous, sweetness and light, ripe. and the "radical" as artificial construct, hurricane, just the opposite. So they concluded that: we pursue the process of constitutional reason why so many Experienced Twists and turns, it is because the choice of the radical to the neglect of the French progressive Britain. Future of Chinese Constitutionalism Road, should be a gradual constitutional government. Then, I believe that when people are faced with complicated it difficult to make sense of things, always used to affix a label to facilitate understanding of themselves and others, it does not know that this is often overlooked a lot of detail, that many times, people mistakenly think that the label covers, and that is all.

Of course, the generation of British Constitutional Council and the King of course is the result of the struggle, filled with violence and bloodshed during the period, but it does not have universal application. Particularly in the government-led process of constitutional construction, often violent struggle blindly counterproductive. but it does not mean that the generation of constitutional government is a gentle shower, the water to evolve into something ordinary people can not be used as .100 years ago, Zhang Jian said: "While constitutional government prior to consciousness, presided over the implementation, then the people they have to launch them together. "Therefore, in the government-led process of constitutional construction, it is necessary to avoid radical, but also actively participate, we must rely on government-led, but also to play people's initiative, and can not wait, there is no constitutional as spontaneous from the soil to grow out.

Third, the progressive constitution and Construction
Is the core of the system of constitutional judicial review. We all know, constitutional review system originated in the United States, it is also considered a model of progressive constitutional - no top-down construction, and only spontaneous generation. Judicial review system established in the United States and background with a variety of factors: First, before the founding of the United States was a British colony, which meant it could not get rid of British influence on their own.

Even if the United States was founded, many politicians because of the British offensive, and hope in the political system and the continental legal system backward, but the United States, common law countries eventually become a member. The British practice of some traditional customs and Experience the end of Constitutional Review in the United States has generated a significant impact. For example, the case of Dr Bonham, British colonial legislation than the traditional method, the Privy Council review of colonial legislation. Second, the concept of supremacy of the Constitution of the United States enjoys popular support, and Han-density Hamilton et al Theory of Judicial Review Judicial review system also generated in the United States had an impact. For example, in Hamilton's view, "the legislative representative bodies such as the violation of the right to appoint its representative to exercise the fundamental law of self- null and void when a principle is very clear. Therefore, the legislation unconstitutional nature can not bring it into force. If denied this logic, no different from that: the status of the representative of the subject represented by anti-than, higher than the servants against masters, the people higher than the representatives of the people against themselves. and if so, the person exercising the rights granted not only beyond the powers it has been granted, but also a clear violation of the prohibition when authorized to do. "⑦ Finally, the most legendary is the Marbury v. Madison. It is in a lot of thinking about judicial review of the theory and practical Experience in the call, the Marbury v. Madison was the debut between necessity and accident, and ultimately established the United States Congress passed the Federal Court to review Act powers. Marshall may never think of, one of his party in order to maintain the interests of a ruling, and even some ugly looks, he just wanted more from the Congress and the executive powers Qiangdian there to try to restore the Federalist failure due to damage caused by the election. But is this view seems shameful decision, went so far as judicial review of a system known as the swept the world and become the patron saint of constitutional democracy. Marbury probably would not think that he the court rejected a prosecution, even to their names permanently gone down in history. Links http://www.hi138.com Research Papers Download on the Judicial System of the resulting investigation, we find that , Constitutionalism in many cases it does have a progressive features of spontaneous, not only through the establishment of an artificial construct up. but it does not deny the rational construction of the building has no constitutional role in the process. If we say that a system initially generation is human actions rather than the result of rational design, then when this system has played a huge role, the head of the dazzling aura of the time, other countries can transplant in the transformation based on the basic framework of such a system, or the essence of to make it in their own land take root. It is entirely possible. Otherwise, we can not explain why, in the West spontaneous constitutional democracy can flourish in many Eastern countries. In fact, land of the continent's Constitutional Review pattern is thus established. we all know, this is a constitutional review exercise by the specialized agencies of the model, its system of judicial review with the United States both commonality, there are differences. This commonality is due to the concept of Judicial Review For the universality of democratic constitutional state, the cause of this difference is that European countries in the transplant system of judicial review when the United States to do as the Romans and its transformation, and the operation of the Constitutional Review process through the accumulation of long-range Experience, to explore, trial and error manner specific to its rich content.

IV Conclusion
At first, those who seek intellectual constitutional theory by Hayek sworn enemy of constitutional government - totalitarian and severely criticized the planned economy, but soon, they are caught in a terrible paradox. If the system is spontaneous , which totalitarianism and artificial construction of the planned economy is devastating, then, is undoubtedly constitutional spontaneous self. So they naturally draw the following conclusions: and Western traditions, different histories, cultural differences, geographic different environment different from the issue of whether China and the Western self as constitutional? does not seem possible. It was at this time, such as local resources, local knowledge and other intellectual post-modern thought began to circulate in, the development of these thoughts to the most extreme not only constitutional, even democracy, human rights, elections and so on are totally rejected out. it is clear that democracy, human rights, elections are almost always parked to goods, to the traditional China, we have no democracy, only the people of this, We do not have universal human rights, only the monarchy, patriarchy, the husband, we have elections, but the most common is hereditary, the most respected is the abdication.

For the best answer to this paradox is this: not able to cure the foreign doctors, foreign doctors by prescription, or is a drug, or is nutrition, and certainly not a meal. Also, any theory is solve the problem at the local, Hayek and totalitarianism in the prevalence of the planned economy era, through their own Research revealed its unreasonable, nothing more, his study did not focus on the system after the area of ​​Developing Countries construction problems, and this is precisely today, and we face the urgent need to address. gradual constitutional government is not wrong, once and for all one stroke is often accompanied by violence and bloodshed, the last is just the opposite, but it does not become a dogmatic understanding of the reasons for gradual to wait for the constitutional rabbit hit a tree in China.

① <<wing to teach Corpus>>, Shanghai Bookstore Publishing House, 2002 edition, p. 45.

② Jun Yi Fang: <<Second, save the text to know Hin> ", in <<Westernization Movement (a)>>, Shanghai People's Publishing House, 1961 edition, p. 455.

③ Hu: <<Hu on the school near the>>, 1 set of Shanghai Bookstore Publishing House, 2004 edition.

④ High Full Hi: <<Hayek and Chinese Context> ", in <<-read>> 2008 2.

⑤ Hayek: <"Rational Doctrine of the type>", in Hayek's book: <<Hayek Proceedings>> Deng Zhenglai Selected / translation, Capital University of Economics Press, 2001, p. 203.

⑥ See Hayek: <<Spontaneous Order and the third category: people who design the action rather than the result> ", in Hayek <<Hayek Proceedings>> Deng Zhenglai Selected / translation, the capital of trade University Press, 2001, p. 362 -380 pages.

⑦ [U.S.] Hamilton, Jay, Madison: <<Federalist Papers>>, if every process in the Han Shu Xun translation, The Commercial Press, June 1980 1st edition, p. 392 turn affixed to the Research Papers Download http://www.hi138.com