宪法的守护者:试论中国宪法法院建构

中国是成文宪法国家,宪法在中国特色社会主义法律体系中居于最高地位,拥有最高效力。但是在现实中,宪法的规范效力往往无法实现,违宪活动时有发生,这与我国缺乏有效的宪法监督机制有关。一般来说,世界上宪法监督机制无非就是司法审查制度、议会监督宪法制度、专门宪法监督机构等三种类型,为了实现宪法监督的实效,各国都选择适合本国国情需要的宪法监督机制。在中国建立何种类型的宪法监督机制一直是学界争议的难题,而在全国人民代表大会下,设立宪法法院,保障宪法实施,是符合当代中国现行体制的最佳选择。     

The Iroquois Confederation Constitution: An Analysis

The Iroquois Confederation was not an influence on the U.S.Constitution, but it is worthy of study as an independentlydeveloped political system with the oldest surviving constitutionin North America. A systematic institutional analysis of theGreat Binding Law, the orally transmitted constitution of theConfederation, reveals, among other things: tribal inequalitydespite their formal equality under a unanimity rule; a highlevel of responsiveness despite a nondemocratic, elitist methodfor selecting leaders; many ancillary institutions for achievinga traditional form of consensus rather than simple majorityrule; two means of elevating men to the Confederation Council,each a paradoxical blend of the pre political and the post-traditional;the first use of a formal amendment process in constitutionalhistory; and an underlying "code of imperialism" that, togetherwith the second method of selecting Confederation Council members,transformed a defensive alliance into a potent actor in NorthAmerican history. Overall, the Confederation institutionallyapproximated an Aristotelian "mixed regime" which, despite itscreation under circumstances the Iroquois describe in Hobbesianterms, was quite libertarian.     

Dead Heat: The 2006 Public Choice Society Election

In 2006, the Public Choice Society chose a new president using approval voting. There were five candidates, and the election was extremely close. We indicate the sources of support of the different candidates, based in part on spectral analysis, by voters who cast between one and five votes. Using preference information that was also gathered, we show that two candidates different from the approval voting winner, including the apparent Condorcet winner, might have won under different voting systems. Because most voters did not indicate their complete preference rankings, however, these differences are hardly robust, especially since the outcome was essentially a dead heat.     

Incrementalism: Dead yet Flourishing

Charles Lindblom's 1959 essay “The Science of ‘Muddling Through’” is best known for the strategy of decision making—disjointed incrementalism—that it recommended. That famous paper and Lindblom's related work also provided two theories: a critique of the conventional method (the synoptic approach) and an argument for using incrementalism instead. Both are applied theories: they are designed to help solve complex policy problems. Lindblom's negative applied theory has stood the test of time well: the empirical foundations of its main micro‐component (cognitive constraints of individuals) and its central macro‐component (the impact of preference conflict on policy making) have grown stronger since 1959. The picture regarding the positive applied theory is more mixed. As a coherent decision‐making strategy, disjointed incrementalism has almost disappeared. Yet its key elements, the major heuristics identified in “Muddling Through,” are thriving in many applied fields. Intriguingly, they are often accompanied by subroutines—especially optimization as a choice rule—typically associated with the synoptic approach.     

Completing the Constitution: The Fourteenth Amendment and Constitutional Rights

Although the Fourteenth Amendment has been the vehicle for anumber of transformations in the protection of rights, therehas been no consensus on what it means. The amendment is sometimesheld to have revolutionized the Constitution, in effect replacingthe traditional federal system with a more national system.It is also argued that the amendment essentially reaffirmedthe prewar Constitution. The truth appears to lie with neitherside: the drafters of the amendment attempted to "complete theConstitution," neither to reform it radically, nor to reaffirmit simply. In doing so, they unwittingly followed in the tracksof the original "father of the Constitution," James Madison,who believed the original Constitution to be defective in importantways. Proper attention to the context and the structure of thetext of the amendment reveals just how the amendment was to"complete the Constitution." So examined, the amendment revealsitself to be a precisely stated, clearly drafted text, containinga number of new constitutional principles. Properly understood,the amendment affords constitutional protection for rights alreadypossessed in some sense, but therefore unprotected in the oldConstitution.     

简论学生的意识维度构成

人是多维度的存在,意识便是其中重要的一维。以意识维度建构的人为意识维度的人,它由经验(或体验)及意向中的意识构成。但意识维度的人又必须依赖体历,必须朝向当下的实在界而获得存在的前提、可能和意义。     

关于公共利益原则的宪法正当性

宪法视域中的正当性问题是以宪法文本的正当性为前提、以宪政的价值判断为主线展开的。公共利益原则的宪法正当性主要涉及公共利益原则的宪法表现形式、公共利益原则的价值判断标准、公共利益原则的宪政制度设计等问题。研究公共利益原则的宪法正当性,对于我国立法、行政和司法机关具体适用此原则具有重要的现实意义。     

After Bagehot: Rethinking the Constitution

'Rethinking the constitution' surveys the political and cultural impact of Bagehot's 1867 strategy for the survival of an elitist state in a democracy. Also looks at the recent erosion of the conditions for Bagehot, and asks what the next major reinterpretation of the constitution will be. Assesses Gordon Brown's desire to make the constitution democratic while at the same time bolstering national identity and pursuing free market policies.