The author always believes that the success of American constitutionalism can not be separated from the theories from Europe, among which people's sovereignty and natural human rights can not be separated. The so-called people's sovereignty simply means that the people have the right to decide their own affairs. The idea of people's sovereignty has a long history in the west. In Justinian's "The Ladder of Law", there is such a provision: "All the purposes of the monarch have legal effect, because according to the royal laws that give him rights, the people have transferred all their rights and authority to him." In his book The Deep Background of the Formation of American Constitutionalism, Mr. Qian Fulai believes that this actually means that the power of the monarch originates from the "people".
17th and18th centuries, after the baptism of the "3R Movement" in Europe, the classical natural jurists liberated from the Middle Ages put forward the theories of "people's sovereignty" and "natural human rights" which had great influence on later generations on the basis of the simple social contract theory and natural law theory born in ancient Greece and Rome. Among them, Rousseau, Locke and others are most familiar with the exposition of "people's sovereignty". However, it should be noted that although they are both advocates of "people's sovereignty", Locke and Rousseau's views are quite different. As a radical bourgeois democrat, Rousseau's view of people's sovereignty is absolute. He believes that the people as a whole must have the right to handle their own affairs, and this right is inalienable, indivisible and endowed, and can only be exercised by themselves. Once this right is divided or transferred to others, people's sovereignty will cease to exist. Gu Chunde and Lu completely summarized the characteristics of Rousseau's view of people's sovereignty in the book History of Western Political and Legal Thoughts, that is, "first, supremacy; The second is non-transferability and indivisibility; Third, it cannot be representative; Fourth, it is permanently correct. " Like Rousseau, Locke also regards the natural state as the logical starting point of his theoretical system. He believes that the natural state of human beings is a "state of complete freedom", in which everyone is equal, free but not laissez-faire, and the laws of nature guide human life. However, this "state of complete freedom" has its insurmountable contradictions, because first, this state lacks definite and well-known laws and * * * standards for resolving disputes; Second, this country lacks an impartial judge to adjudicate disputes according to law; Third, this state lacks the right to support and execute correct judgments. It is under such inevitable shortcomings that Locke believes that people are willing to give up part of their rights and entrust them to authorized representatives of the same subject. He said: "This is the original right of legislative power and administrative power and its causes, and the origin of the government and society itself is also here." The biggest difference between Locke's theory of people's sovereignty and Rousseau's is that he agrees that people's sovereignty can be realized by establishing a government and entrusting the exercise of rights to some people.
Under the deep background of the formation of American constitutionalism, Mr. Qian Fulai analyzed Rousseau's and Locke's two different views on people's sovereignty. He thinks there are two kinds of people's democratic rights. One is logical politics, and the other is actual law. Logically and politically, people's sovereignty means that "state power comes from people's rights, so state power must exist and operate to protect people's rights, and it can only be restricted to achieve the same goal." People's sovereignty in practice and law means that "all the people directly master and exercise the supreme rights of the country." The former is a modern representative system, and the latter is a direct democracy in ancient Greece. Then Mr. Qian came to the conclusion that Locke's thought of people's sovereignty had a greater influence on the formation of the American Constitution than Rousseau's.
Let's take a look at how the theory of people's sovereignty inherited by Jefferson and other fathers of the American Constitution influenced the formation of the American Constitution. The Constitution of the United States begins with the following words: "We, the people of the United States of America, have formulated and established this Constitution for the United States of America in order to organize a more perfect union, establish justice, ensure domestic peace, establish national defense, enhance the welfare of the whole people, and ensure that ourselves and our descendants can enjoy the happiness brought by freedom." Apart from the "people of the United States of America" mentioned here, the principle of people's sovereignty is rarely involved in other parts of the Constitution. However, we can see this idea from another document that is regarded as the constitutional basis of the United States, that is, the Declaration of Independence: "As long as any form of government jeopardizes the above purposes, the people have the right to change or abolish it and establish a new government. The basic principles and political organization of the new government must be more conducive to the realization of people's security and happiness. " It is clear here that the North American people can't stand British rule and demand independence, re-establish a better government and realize people's happiness. In the subsequent American War of Independence, Americans re-established their own government through violence. In other words, Americans successfully realized people's sovereignty through war. Assuming that Jefferson did not describe the nature of the War of Independence in the Declaration of Independence as the local people in North America exercising their sovereignty and actively choosing a better government, it is hard to imagine whether the American War of Independence can be widely supported and actively participated by the people. As we know, North America was divided into thirteen states before the War of Independence. The residents of these states were ruled by and paid taxes to the King of England. Psychologically speaking, because most of these residents are from Britain, their concept of the motherland is still Britain, and few people separate their new world from Britain from the national, political and psychological levels. We can't ignore the fact that since Norman conquered England in the 1 1 th century, he is still a descendant of Duke Norman who sits on the British throne. From this historical fact, we can easily draw the conclusion that the British have a feeling close to religious belief for their royal family to a great extent. Although this royal family came from the European continent and aroused people's anger more than once at different times in history, from the bottom of their hearts, they were still under the rule of Norman and his descendants. Various uprisings and disputes in Britain are common in history, but it is rare for the insurgents to expel this foreign ruler or completely overthrow the rule of this foreigner. So we can see that when Cromwell died, charles ii was invited back to continue the royal rule. So how do North American residents who are still British in cultural psychology and political reality view the concept of independence? In my opinion, there are only two reasons.
First, people familiar with the Mayflower incident know that a considerable number of ancestors of North American residents were Puritans, who came to the wild land of North America at that time in order to escape the political persecution of the suzerain country. Here they concluded the Mayflower Convention similar to the social contract, which symbolically announced the beginning of North American history. As they and other immigrants took root in the North American continent, they gradually formed their own interests independent of the suzerain country. Although they still regarded themselves as British nationals before the War of Independence, they were independent of the suzerain in economic interests and their economic base had become more dependent on the North American continent itself. This laid a material foundation for the colonists in North America to rise up and eventually overthrow British rule in North America.
Secondly, as I said before, from the psychological sense of belonging, Britain is still the motherland of these North American residents, and they still accept the rule of the royal family. Then, what liberated them spiritually was the theory of people's sovereignty declared in the Declaration of Independence. This theory makes them realize that this is not a divine right, and the people themselves are the ultimate source of all power. The significance of the government, including the royal family, is to safeguard the overall welfare of the people. When this government or imperial power violates this goal, it is natural to rise up to overthrow it and establish a better government, that is, to realize its own sovereignty. Therefore, the theory of people's sovereignty has become the theoretical basis of the American War of Independence and the logical starting point for the establishment of a constitutional country after the victory of the war: the victory of the War of Independence means the victory of the people, and the victory of the people means that the people will establish a new government to manage the people's affairs in the future. Since the British government oppressed the people in the past, it is also possible for the people to establish a new North American government to oppress the people. How to prevent this government from running counter to the people's interests or sovereignty? Constitution becomes the best choice.
The American Constitution of 1787, except for the people mentioned in the preface, rarely explicitly stipulates in the text that "all rights of the state belong to the people", which embodies the principle of people's sovereignty. That being the case, why do we still think that the American Constitution of 1787 is one of the best documents in human history? The reason is that when the American Constitution was formulated, the fathers of the Constitution adhered to the idea that the principle of people's sovereignty was self-evident. Especially when this theory has been expounded in the Declaration of Independence. Then, after overthrowing British rule, they thought that the people actually gained sovereignty, which can be understood to some extent as the people returned to what Locke called "the state of nature". But as Locke said, although the "natural state" is fascinating, it also has its own insurmountable contradictions, so North American residents need to establish a new government in the form of "social contract". Because North America has a vast territory and a large population, it is objectively impossible to implement the direct democracy system like that of ancient Greece, that is, all the people form a whole to directly exercise sovereignty, and only a government can be established to entrust people's sovereignty to those who agree with the people. At the same time, since people have given up part of the rights enjoyed by everyone as a whole in order to conclude this "social contract", the part that people have not given up will naturally remain in their own hands. It is on the premise of this theory that the fathers of the American Constitution hold the view that all the powers not explicitly given to the federal government in the Constitution are still enjoyed by the states and citizens. At the same time, when drafting the 1787 constitution, they thought that the function of the constitution was to limit the power of the government, because the government is the institution that is most likely to damage people's rights, so the focus of the constitution is to clarify the power of the government and the election method of government members, which can in turn achieve the purpose of protecting people's rights. In addition, if the constitution clearly lists people's rights, and people's rights are diverse and inexhaustible, it may lead to misunderstanding of those rights that are not listed in the constitution, which may lead people to mistakenly think that the constitution only protects those listed rights. More seriously, the government may arbitrarily violate people's rights that are not listed in the constitution on the grounds that it is not explicitly stipulated in the constitution. Therefore, the 1787 Constitution finally gave up the provisions of the Bill of Rights, which was by no means the negligence of the fathers of the Constitution, but their original intention. In other words, the purpose of protecting people's rights is to limit the power of the government, not to stipulate the basic rights of citizens in the constitutional text.
Of course, we see that the wishful design of the fathers of the American Constitution has been rejected in practice. First of all, not everyone is a theorist, and not everyone can see the reasons behind the constitutional design. When people see that they have worked hard to get rid of British rule and establish an independent country, it is of course emotionally unacceptable that the elites of this country should come up with a constitution that makes no mention of people's rights. Second, in fact, because the constitution does not contain the content of individual rights, it encountered many obstacles when it was passed by the States. On this point, we can find evidence in Schwartz's book "The History of American Law". He said: "The main flaw of the original federal constitution was that it did not include any bill of rights. As we all know, its shortcomings in this respect are an important obstacle for countries to ratify it. 1788, the constitutional ratification conferences of five states, including Massachusetts, South Carolina, New Hampshire, Virginia and New York, proposed amendments and suggested that a bill of rights be attached to the constitution, which was the urgent task for the first Congress to be held in 1789. " The final result of the first Congress was the promulgation of the Bill of Rights, the first ten amendments to the Constitution. It should be pointed out that the Ninth Amendment stipulates: "Some rights enumerated in this Constitution shall not be interpreted as denying or ignoring other rights reserved by the people." This shows that the framers finally adopted a clear-cut clause, avoiding the situation they were worried about when formulating the 1787 Constitution. This provision gave the Constitution great flexibility in protecting human rights in the later American constitutional practice, and made the Constitution adapt to the needs of the times for new rights. Obviously, the enduring vitality of the American Constitution is inseparable from its open right design, and all this is due to the parents' insistence on the theory of "social contract". They insist that as long as the American Constitution does not give the government rights, it still belongs to the citizens themselves. Under the guidance of this theory, the first ten amendments to the Constitution not only list important rights, but also avoid the government's violation of unlisted people's rights through the ninth amendment.