Towards Constitutional Re-Enlightenment: Teaching American Constitutional Law in China

• Author: Liu Han
• Pages: 64-77

64 TSINGHUA CHINA LAW REVIEW [Vol. 9:63

TOWARDS CONSTITUTIONAL RE-ENLIGHTENMENT:

TEACHING AMERICAN CONSTITUTIONAL LAW IN CHINA

LIU Han

Contemporary students of constitutional law basically know two

things. First, China’s Constitution is inactive and (or because) China

has no judicial review. Second, the U.S. Constitution is active and

(or because) judicial review operates robustly in America. Then what

is the point of teaching American constitutional law in China?

In this essay, I will try to answer the question by sharing my

experience of teaching American constitutional law at Tsinghua Law

School during the past few years. My experience may be of interest

to constitutional teachers in the English-speaking world or anyone

interested in the international transference of constitutional ideas. I

will first explain the reasons for teaching American constitutional

law in China. Then I will account for the methods of teaching I

employed in the courses. After that, I will talk about the content I

teach and the reactions of the students. A conclusion follows.

I．WHY TEACH AMERICAN CONSTITUTIONAL LAW?

To be sure, American constitutional law is hardly relevant to

Chinese constitutional practice. In terms of political principle, China

remains a socialist country, at least in a political, constitutional

sense. In terms of institutions, Chinese courts cannot apply the

Constitution in litigations. China is also greatly different from

America in terms of culture.

At most, American constitutional law only has direct influence in

the academic domain. In China, studies on the U.S. Constitution

belong to the subject of comparative constitutional law, a subdivision

of comparative law. Historically, comparative law initially aimed at

the integration of legal systems, particularly private laws. The rise of

comparative constitutional law was part of the post-Cold War trend

of constitutional convergence. Before that, a nation’s constitution

was closely integrated to the politics, history, and culture of the land;

it was difficult to effect constitutional graft or borrowing. While

trade law became internationalized, constitutional law remained a

national heritage.

The rise of comparative constitutional law resulted from two

main reasons. First, after the Cold War, multiple countries started to

make new, liberal-democratic constitutions, especially in Eastern

Europe and the former-Soviet regions. The U.S. Constitution became