09/27/2013 04:43 pm ET Updated Nov 27, 2013

We the People('s) Dictatorship? Constitutional Politics in the United States and China

When it comes to constitutional comparisons between the United States and China, the story is more often one of contrast than analogy. Though Americans disagree about whether our Constitution is "living," most everyone can agree the Chinese Constitution has always been dead.

On one level, this should surprise no one. The Chinese Communist Party remains deeply skeptical of any constraint on its ability to make policy. The Supreme People's Court in Beijing cannot exercise judicial review, and the Standing Committee of the National People's Congress (NPCSC) - which is technically empowered to assess constitutional review petitions - has not once nullified a law or regulation.

Yet, over the past decade, the constitutional system in China has - in one small but significant way - begun to resemble that of the United States: Like their American counterparts, Chinese advocates from opposing sides of the political spectrum have been waging policy battles through constitutional argument. Neo-Marxists have employed legal arguments that sound somewhat originalist to stall privatization reforms, while political liberals have begun citing liberty and equality clauses to oppose overbearing state policies. Is the Chinese Constitution beginning to acquire a political life of its own?

Constitutional politics in the United States have been supercharged since before Jefferson denied Marbury his commission in 1801. In the early years of the Republic, political disputes centered on the reach of federal power, and were fought over proxy wars in courtrooms almost as often as they were debated in legislatures. Modern political parties continue to impute preferred policies into the constitutional text - but today, the battle lines are drawn somewhat differently. American liberals favor interpretive approaches that see constitutional meanings as evolving - and socially adaptive - whereas conservatives emphasize strict adherence to original intent or public meanings.

In China, the relevant ideological disputes have been happening within the Communist Party itself. These tensions map along a rift that emerged among the Chinese intelligentsia in the early 1990s: on one side, the New Right, which advocates liberalizing China's economic and political institutions, and on the other, the New Left, which aims to restore state intervention and revive elements of Chinese socialism. These debates are more than academic. The rivalry between Bo Xilai's statist Chongqing Model and Wang Yang's more liberal Guangdong Model, for instance, is emblematic of how leftist and liberal ideologies have been continually shaping Chinese governance.

Over the past decade, advocates have turned to the Chinese Constitution as a basis for argument. Like their American counterparts, they saw a constitutional text that seemed to imbue their preferred policy positions with legitimating authority. As Zhang Qianfan, one of the country's foremost constitutionalists explain, "In our Constitution there are both left and right portions. The leftist portions came in 1982, but through amendment, rightist portions were later added, but they didn't completely eliminate the leftist portions [such as] 'the democratic people's dictatorship'... So if [advocates] wish to utilize this Constitution, from both the left or the right, they can." In doing exactly that, China's constitutional crusaders have borne striking resemblance to advocates in America.

One example of this would be a Marxist professor at Beijing University named Gong Xiantian. In 2005, when the National People's Congress circulated a draft Property Law that would place private property on equal legal footing as state property, Gong fired off a fiercely worded open letter assailing the proposed law for its unconstitutionality. He fixated on the original text of the 1982 Constitution, which enshrined China's core socialist values: "The sanctity of public property under socialism is one of the most defining characteristics of a socialist constitution," he wrote, and thus any law that altered the founding, socialist principles of the Chinese Constitution was therefore unconstitutional.

On some level, Gong's was an implicitly originalist argument. Though his was not a sophisticated argument based on original intentions or public meanings, Gong clearly saw legitimating force in the original textual proclamation that China's was a "socialist Constitution," enveloping a set of principles that - as understood in their original sense - would clearly preclude reforms to elevate private property. Not unlike his conservative counterparts in the United States, Gong saw great appeal in pointing to original meanings in the constitutional text to thwart off undesired progressive changes.

Gong then sought to mobilize ordinary Chinese citizens around his constitutional vision. In the same way that activists in America have sought to tap into social grievances over wealth inequality to rally the public against cases like Citizens United, Gong, too, aimed to build mass support for his position through connecting a constitutional argument with dormant popular frustrations. Adopting the law, he argued in the letter, would be akin to "giving protection to the homes of average citizens, even their dangerous derelict homes, equally with the high-class villas of those who have struck a windfall fortune!" His message resonated with many who have been disenchanted by China's uneven economic growth. Under pressure, the government was forced to postpone consideration of the draft law, meet privately with Gong, and further revise draft legislation - all while publicly defending its constitutionality. The South China Morning Post later called Gong's statement the most "badass (niu) letter in the history of the Chinese legal system."

On the opposite end of the spectrum would be someone like Xu Zhiyong, who has been compared to Thurgood Marshall for his sustained commitment to rights advocacy. A former counsel to blind activist Chen Guangcheng, Xu was a former student of Gong's at Beijing University, where they were known to frequently spar. Along with two other liberal scholars - Teng Biao and Yu Jiang, Xu submitted a review petition to the NPCSC in 2003 that argued for the unconstitutionality of a controversial system of controlling migration called Detention and Repatriation (shourong qiansong). Specifically, they argued, the system violated Article 37 of the PRC Constitution, which prohibits "unlawful deprivation or restriction of citizens' freedom of person by detention or other means."

Like Gong, Xu and his colleagues recognized that popular pressure would be the best way to draw government attention. They pursued a careful media strategy, leveraging national outrage over the death of a college graduated named Sun Zhigang to humanize their legal argument. Their petition quickly caught fire, particularly in the cybersphere as ordinary citizens - already frustrated with police abuse - saw legal remedy for their societal grievances. As Teng Biao recounts, "passionate internet discussions continued... the term 'constitutional review (weixian shencha),' a technical legal term, immediately became a buzzword in conversations about town." Shortly thereafter, the State Council announced a set of replacement regulations that effectively ended the Detention and Repatriation system once and for all.

In America, Republicans might champion the Second Amendment, Democrats the Fourteenth, but for liberals in China, there has been nothing quite as exciting as Articles 33 and 37. In their petition, Xu and his colleagues grounded their legal claims in Article 37 of the PRC Constitution, which prohibits unlawful restrictions on personal freedom. Legal scholar Hu Xingdou has cited the same provision in trying to dismantle an abusive form of administration detention called Re-education through Labor. Article 33, on the other hand, is China's version of the Equal Protection Clause, which has been invoked often by Chinese rights defenders in cases relating to employment discrimination.

Why have so many advocates begun employing constitutional arguments? For one, these arguments enjoy more official legitimacy than other kinds of discourse. Given the regime's own rhetorical commitment to the rule of law, it is more difficult to censor a legal expert explicating a constitutional argument than a dissident spouting ideology. Second, ordinary citizens - who have been subjected to years of legal popularization campaigns (pufa yundong), are by now very receptive to legal argument. That preexisting social grievances are suddenly given legal cover helps galvanize them to action. In the end, it was the popular outrage in each of these cases - not the opinions of a nine-judge tribunal - that compelled the state to respond.

At first glance, it's unclear whether these developments merit praise. After all, the politicization of the US Constitution is probably the aspect of our legal system we least wish other countries to emulate. Our judicial confirmation process is close to broken because of it. But in another sense, our hyper-charged constitutional politics would not exist if we weren't so passionately committed to the idea that our Constitution should be authoritative over everyone. In that light, the rise and resonance of constitutional advocacy discourse in China is unambiguously positive. The first step towards giving legal life to the Chinese Constitution may be to embrace its political one.