Background:2011year3month9At seven o’clock that evening, at Shaw Law Building, Hongjialou Campus, Shandong University110Held Doctoral Forum on Constitutional Government，The topic is interpretation of "The Federalist Papers"，Main speaker Tian Lei，Chief reviewer Jiang Feng，Host Jiang Zhaoxin。Mou Xiankui and a doctoral candidate at the Law School、Master’s students participated in the forum and actively asked questions and discussed。
Jiang Zhaoxin:First of all, please allow me to be entrusted by Teacher Li Zhongxia，As the host, let’s talk about today’s rules。Teacher Li Zhongxia told me that everyone has read the Federalist Papers，So today we are interpreting the Federalist Papers，Because it is a content of legal method research，Please also pay attention to the issue of legal methods。Because Teacher Jiang Feng has been engaged in research on the Federalist Papers，One of Mr. Tian Lei’s research interests in the United States is the Federalist Papers，Teacher Tian has a background in political science，Today we will listen to how two teachers interpret the Federalist Papers。Students can ask questions after this，First of all, Teacher Jiang will respond，Please ask Teacher Tian to respond。Then，Now, please let Mr. Tian speak first，The time is thirty minutes。
Tian Lei: Our academic activities should be based on a spirit of diversity。Collection of Federal People’s Papers is not just for students majoring in Constitutional Law，Not just a scholar who studies the U.S. Constitution，Everyone should pay attention to "The Federalist Papers"，Because it is a first-hand document of the Constitutional Convention，In a sense，It is also one of the symbols of the history of Western civilization，So the study of "The Federalist Papers" should go beyond the Constitution，Even in the legal field。
I once recommended that everyone read the first chapter of The Federalist，Chapter 10，Part 39，Article 53 and Article 78。In fact，I don’t know whether Teacher Jiang and Teacher Jiang agree，I personally think that the essence of the "Federalist Papers" is concentrated in Chapter 10。In this book，These people first served as politicians and framers of the constitution，The second is being a theorist，This is the first detail that needs attention。The second one was that the background was some kind of very emergency situation，It was the Federalists and the Anti-Federalists who fought fiercely in New York State over whether to ratify the Federal Constitution。The third is that the Federalist Papers played a very limited role even in New York State at the time。To the 19th century，Almost forgotten by Americans，Not even forgotten。And the articles that people valued at that time were different from those now。Tocqueville mentioned twenty important articles in "On Democracy in America"，But there is no chapter 10。Title 10 did not become important until the twentieth century, largely because the famous American constitutional scholar Charles Beard put forward a proposition in "The Economic View of the American Constitution": "The Philadelphia constitution itself was the work of the economic elite. To stir up the fruits of revolution，It is a conservative counterrevolution”，Beard’s point of view was first discovered in many social and economic materials after World War II，Disproven，But this proposition proposed by Beard is an important theoretical proposition in the history of the American Constitution，It is also Beard who repeatedly mentioned Hamilton's proposition in Article 10 in his theory，That’s why the tenth chapter becomes extremely interesting。
There are actually two main ways of interpreting the ten articles。One is the idea that the famous political scientist Robert Dahl said that Article 10 represents a pluralist democracy，We can clearly see it in the text；The other is60The use of ideology to explain the founding and constitution of the United States emerged in the United States after the 1990s, represented by Bernard Bailey and his students at Harvard University。Later formed80The resurgence of republicanism in American constitutional thought in the 1990s。Elements of republicanism are found in Title 10 of the American Federalist。The reason why there was a resurgence bet365 live casino and sports bettingof republicanism in the 1980s was because of the activist republic of the Warren Court，Many election cases，In fact, many judges incorporate their personal preferences into their judgments，It is a violation of the constitutional order of the United States，They proposed atomism。Republicanism is the opposite of atomism。
The Federalist Papers were mainly written by Hamilton and invited Jay and Madison to write them。Most of the important American constitutional and democratic ideas we see now are the embodiment of Madison’s ideas。Jay was injured at the time，Written only a small portion of the first ten articles。And Hamilton，His thinking is too advanced。He was trying to establish a political、Economy、A country with a strong military monarchy。Hamilton stood at the forefront of the times，Ambition and talent。Jay is primarily a diplomat，Former Supreme Court Justice，So in "The Federalist Papers" we see that Jay is mainly talking about how to defend the country。Hamilton himself is an outstanding political theorist，Still a very outstanding manager。While he was president in Washington，Minister of Finance in the first government。Is the most important member of the first government。He is also a military genius，Has been following Washington as aide-de-camp。This is completely different from Madison’s life experience。Hamilton was not born in the United States。Article 2 of the U.S. Constitution stipulates that only those born in the United States can run for president，However, persons born before the enactment of this Constitution are not subject to this restriction，Such a regulation itself leaves room for Hamilton。Because Hamilton wanted to be president，Without his support，The federal constitution cannot and will not be passed smoothly。Hamilton due to subsequent political scandals and premature exposure of ambition，Had to leave politics，In the duel with Bor，Killed by Bol。Madison has been a frail and sickly person since he was a child，Born in Virginia to a family of farmers，Studying at Princeton，later became a congressman from Virginia。
In Chapter 10，United States Constitutional Convention，It should reflect more of Madison’s political thought。For Madison，After the founding of the United States，As a Confederate entity，The operation of the United States is unsatisfactory。Because there is no strong government，Conflicts often arise between states。We can see from Chapter 10，Local states at that time，Or it can be said that the politics between the states are very chaotic。What the North American states actually wanted to establish after getting rid of the British colonies was an extreme form of democracy，The typical representative is Pennsylvania。They even elect governors who only serve one year terms，This result has led to chaos in the political arena，Various problems occurred，Continuously electing inflammatory and ambitious politicians。So for Madison，He wants to establish a strong central government，Guarantees to check factions in local politics。This is different from Hamilton’s purpose of establishing a strong government。This is why Madison and Hamilton agreed during the adoption of the Constitution，They parted ways soon after the adoption of the Constitution。Because Hamilton was a fanatical Federalist after all。And Madison was the number two Republican in Jefferson，He was never a Federalist，Madison believed that only the federal central government could restrain local factional struggles。No one discussed judicial review in Madison’s day，But Madison discussed the review of local legislation with Virginia legislators，Essentially a veto power over local legislation。Madison emphasized in the fourth to last paragraph of Article 10 that the community included more territory，It can include more partisan interest groups，The likelihood that a majority of the population will have a common motive to infringe upon other citizens will be reduced，Even if you have，But it is also difficult for those with common interests to exert their power。
The other thing I want to say is virtue。Because it was the first to interpret "the political arena is a big market" as Dahl did，Contains various interest groups，Those who are powerful make a difference”，Madison believes in expanding the territory，In order to form a larger constituency。Long selection period，Only in order to choose those with more virtue。In order for this representative to have enough experience，To understand what the community needs。Montesquieu and traditional republican theory，Need a small country with few people，In order to practice。But，The Federalist Papers mainly refuted this point，And through political events，To prove that a republic does not necessarily have to be realized in a small country。
Jiang Zhaoxin: Thanks to Mr. Tian Lei for explaining the specific value of the Federalist Papers in the constitutional field and the inspiration for constitutional law itself，Give Teacher Tian Lei another ten minutes，Tell me what level everyone should know，What are the specific questions，Can continue the discussion。
Tian Lei: Some students asked which articles they needed to read。This book is not very easy to read。If you want to know more，I think the essence of theory is still mainly concentrated in10Article, No.39Pianhe53Article. bet365 best casino gamesOf course you have to read Chapter1This article is to be read, No.78Article 1 is Hamilton’s argument for judicial review, which is subtly different from our usual understanding of judicial review，“The highest law is made by the people to restrict the legislative body。"In fact, it is a higher political form used to ensure the legitimacy of legislation。Seems to be the same as what we now call judicial review，But there are essential differences。What we need to think about is how to bring back the concept of people’s theory in the Constitution。Of course，The construction of constitutional theory is very important，Ackerman's "with the people》is an important book.
Jiang Zhaoxin: Now I invite Teacher Jiang Feng,20minutes to submit a major comment。Teacher Jiang Feng has been studying the Federalist Papers，I hope Teacher Jiang will make comments based on his own research，Give Teacher Tian Lei another five minutes to respond。We can discuss it together later。
Teacher Jiang Feng: Thank you, Teacher Jiang，Thank you, Teacher Tian。I will mainly talk about two issues。First, let me talk about my understanding of Chapter 10。The second is to talk about my impression of the U.S. Constitution reflected in the "Federalist Papers"。As Teacher Tian Lei said，The tenth chapter is very important。In order to demonstrate the proposition that "the United States must unite"，Madison established a system of theories now known as representative democracy。Madison believed that direct democracy was vulnerable to partisanship。Party struggle is when one party easily imposes its own interests on other factions。A person cannot be his own judge。The Federalists are most worried about the emergence of a majority monopoly。The U.S. Constitution attempts to establish a political antitrust mechanism。Prevent any faction from monopolizing political power。Therefore, party struggle is an important factor in the decline of the Republic。But party struggle has two sides。Party struggle also has its own advantages，Is the inevitable result of political freedom。So whether Madison believes that the constitutional constraints on partisanship are strict，There are two main ways: one is to remove the weeds，Completely eradicate party strife，Completely eradicate the soil of party struggle。Liberty and party struggle are like air and fire，are inseparable even for a moment。It is inappropriate to remove air to extinguish a fire。The other is to control the consequences of party strife。It’s not about controlling the number of parties，Instead it should be increased。If nationwide，The number of parties increases，A faction in a big country，Among many factions，Then the possibility of controlling other factions will be reduced。When talking about religious issues in Britain, Voltaire once said, "Religious freedom in Britain is not because there are few religious sects in Britain。If we only had one religion，Then we will definitely be subject to religious tyranny；If we had two religions，Then we will suffer from religious struggles；If we have three religious sects，Then we will enjoy religious freedom for a long time。”This is consistent with Madison’s discussion of the containment of party disputes。Political unity does not depend on a high degree of unity，But it depends on the difference in internal height。How to achieve internal differences，Contain party strife，Then it lies in uniting the thirteen states of the United States。Madison believed that the United States should be a union of small states。In Title 9, the Anti-Federalists believe that the Republic is only suitable for small countries。Otherwise political freedom will be replaced by autocracy。Madison believes that if small republics unite into a federation，Then it will have the dual advantages of the freedom of a small republic and the power of a large federation。So Madison’s fundamental purpose is to call on the United States to unite。This is the tenth article，Even the main content of the two chapters of Chapter 9 and Chapter 10。
Secondly, I would like to share some of my views on the U.S. Constitution。Our view of the U.S. Constitution，You cannot simply judge whether it is good or bad。Not all the contents of the U.S. Constitution are worthy of our reference。First，Need to pay attention to the background at that time。In fact，When the United States Constitution was formed, it was not because the people enjoyed too little democracy，But too much democracy。So the purpose of the constitution is not to ensure democracy，But to give democracy a constitutional constraint。For example, bicameral system，This system is designed through confrontation and competition within the parliament，Despotism that weakens legislative power，To prevent people’s passion from influencing legislation and causing political instability；So is the presidential veto，The executive’s veto power over legislation shows the strengthening of the then relatively weak administrative power，Strengthen the powerful legislative power at the time，In fact, it is a sharing of legislative power，The purpose of partition is to weaken the people’s representative system；Judicial review system too，In order to prevent legislative monopoly，Judicial review is to put a constitutional right into the hands of judicial trials，It is a comprehensive intervention in legislation。There is Bet365also a Bill of Rights，The bill of rights is to put some constitutional rights on a highway that is beyond the reach of legislation，Thereby achieving the purpose of restricting legislation。Madison believed that any power should be unrestricted，They are all dangerous。The people’s power is the most powerful，Then restrict it through the constitution。This is somewhat unique compared to the Chinese Constitution。Rereading "The Federalist Papers"，I’m thinking，Why Madison loves the separation of powers system so much。There are many ways to control power，But why adopt the decentralization method，A difference between Madison and Jefferson。Jefferson believed that government corruption must be limited by the participation of the people。He has a famous saying that "the tree of freedom must be watered with the blood of tyrants and patriots"。If the government is corrupt，We need people to vote or even make revolutionary changes。But Madison doesn’t like this，He believes that this will weaken the authority of the government。We should not discuss everything with the people。The way to overcome government corruption should rely on internal strength，The reliance of internal strength is decentralization。This is different from China’s constitutional purpose in the past century。China has established a constitution over the past century，Opening Congress，It is to fight for democracy，So this means we cannot accept the U.S. Constitution in its entirety，We cannot blindly emphasize the adoption of American-style constitutional review，Because the subject of scrutiny in the United States has great legislative power。But what we can learn from is，Madison advocates (Hamilton also agrees)，Public life、The formulation of policies in political life relies on extensive discussions and the expression of different political voices。The government should become a platform to accommodate various voices。China’s achievements in the past thirty years of reform and opening up largely lie in the direction and factors of constitutional democracy，We have more freedom，Our voices are getting more responses，Rather than the establishment of a centralized system，From this point on, we learn from American democracy。
Jiang Zhaoxin: Now I have five minutes for Teacher Tian Lei to respond to Teacher Jiang Feng’s comments。
Tian Lei: OK。I am mainly focusing on the second point mentioned by Teacher Jiang。Starting from the second point, I may be very different from Teacher Jiang。First of all, what is the fundamental purpose of the United States Constitution。There is a common view now but it is not well thought out，The purpose of the constitution is to restrict the government。This point of view is easier to deduce，Because some political theories tell us that government is evil。Especially whether the constitution and restrictions are limited to Chinese or have homophones，Visibly and intangibly aggravates our misunderstanding。But for the United States Constitution，Especially from the perspective of "The Federalist Papers"，No.264page，Whether it is the judgment of constitution-making or the judgment of establishing a good political order, it is relatively clear。The primary purpose of the constitution is to "organize a government where one person rules people，The greatest difficulty is to make the government first manage the people，Then run the government itself。Without a doubt，Relying on the people is the best control over the government，But experience teaches people，Supplementary measures are needed”，So for the United States, a central government must be established，The past Confederacy was too loose。So the government must have power，The government must be able to manage itself，At the same time, government is a public good，Our current democracy also needs to prevent the government from being controlled by some special groups，For example, to capture the economic elite，Become their tool，In my opinion, this is a judgment of general political theory。So how to restrict the government，First, we must rely on the people，On the other hand is decentralization。Therefore，Let’s go back to the U.S. Constitution，The U.S. Constitution is the first practice of a political model that realizes popular sovereignty。Classical political theory believes that the best political system is a mixed system，The more typical one is a monarchy、A mixture of aristocracy and civilians，Maybe represents the UK。Monarchy has the dignity of a monarch，Aristocratic system has the knowledge of aristocrats，Democracy has the interests of the common people，Thus achieving checks and balances。The political system should reflect the basic structure of society。In this political theory，Monarchy only represents the monarch，Aristocracy only represents the nobility，The branch of democracy only represents the people。But "The Federalist Papers" has always emphasized the sovereignty of the people。Maybe it depends on the president、Congress、The courts represent the people，Just in a different way、With different mechanisms，At different times、The most direct one is the House of Representatives，Senate、Presidents and judges must be indirect。They all represent the people but in different forms。For Madison，He does see the dangers of direct Bet365 Online Live Dealerdemocracy，But his method is not to restrict the people。I agree with the former judgment，Just before the constitution，Big problems have arisen in the practice of democracy。But Madison is still different from his teacher Jefferson，Jefferson believed that a constitution should be drafted every nineteen years，Jefferson relied entirely on democracy。Madison indeed saw the chaos of democracy，But he never decided to abandon democracy and restrict the people。What I think is not quite accurate is that what we call representative government is different from Madison。He emphasizes more on representation，In the state of a big country，Such direct democracy may not be possible，But the people still retain control over their representatives。Even a direct summons。This is what I want to say。
Jiang Zhaoxin: Can Teacher Tian Lei talk about the reference significance of American constitutionalism to China，Opinions on steel teacher Jiang Feng。
Tian Lei: I think one of my different judgments is what kind of political type China’s constitutional system is。China was not a totalitarian system from the beginning。Of course I am talking about it1949years later。Totalitarianism is a political theory derived from the Soviet paradigm，But it is not appropriate to apply it to China。I think a better article is "On the Central Group Relations in Contemporary China - Retelling Mao Zedong" written by Su LiOn the ten major relationships>》。Including first establishing the "large regional system" and then because of the threat to the central government，Undo it beforehand，And "Republic of Virtual Kings"，China has never shown too much totalitarianism in the relationship between the central and local governments。This is why China’s reform and opening up can proceed，The Soviet model failed quickly。Therefore，You cannot use the Soviet model to force China。
Jiang Zhaoxin: Now I would like to ask our teacher Mou Xiankui to express his views。
Mou Xiankui: I am mainly here to study today。First of all, I have to express my gratitude。In my time of studying，This book does not have a specific explanation，So it is more difficult to learn，Now students have the opportunity to meet with Teacher Tian Lei who specializes in the "Federalist Papers"、We are very lucky to discuss with Teacher Jiang Feng。I bought "The Federalist Papers" when I was in college，But it was not very clear when I first read it，But as the study deepens，Looking back now，all have a better understanding。
Teacher Jiang Feng’s comments are not so much comments，It is better to say that it is an expression of opinions。The opinions expressed are very close to China’s reality。I have a different point of view，The judgment that "The Federalist Papers" restricts people's rights may be a personal opinion，I don’t quite agree。It may be that the powers of Congress should be limited，But is Congress a representative of the concept of the people。The people have too much power，So it is not very accurate to limit it。There is also the relationship between freedom of speech and China’s reform and opening up，Is freedom of speech a decisive factor in the achievements of reform and opening up。Of course it has something to do with the central government’s decentralization，The disintegration of the planned economy，But it is more driven by the economy，Personal interests drive the development of the entire society。What I want to say most is，No matter which teacher speaks today，I have benefited a lot from them all，I came here with a learning attitude。Thank you everyone。
Jiang Zhaoxin: I would like to ask if the two teachers have any responses。(None。) In fact, this is a very good opportunity for communication，Now leave some time for everyone to discuss freely，You can ask the teachers directly，You can also draw the attention of the moderator，Leave a comment。We have about an hour to discuss freely。
Doctoral student participants:
09Level:Wang Yong, Miao Yu, Ma Honglun
10Level:Constitutional major: Duan Lizhang，Jia Chenhao，Wang Jian，Xiang Huanwei，Zhang Zhihua，Wu Xiaoshuai，Wang Cuixia
Legal majors: Li Juan, Zhang Jing, Wang Junfeng
Civil Law Major: Ren Zhongxiu
Recording arrangement: Chen Zihan Reviewer: Li Zhongxia
