The Same Constitution, the Different Politics：A Comment on The Constitution as the Basic and Higher Law

This essay is an analysis and interpretation of The Constitution as the Basic and Higher Law by Professor Chen Duanhong. In Chen's article, positivism and mysticism intertwine with each other, which led to many criticisms and misunderstandings among constitutional lawyers. The paper puts forward criticism on the puzzling and mysterious statements in Chen's article, such as "the Chinese People under the Leadership of the Chinese Communist Party is the constituent assembly", "Constituent moment is a sacred moment", and "democracy and dictatorship are unified in ‘the Chinese People under the Leadership of the Chinese Communist Party-". The paper also pierces through some of Chen's apparently inconsistent formulations to understand his political constitutionalism. Chen's contributions include highlighting the political dimension of the Constitution, demonstrating the real reason why the Constitution can not be judicialized, and pointing out the distinctive features of Chinese Constitutionalism. Chen stresses that "The Politics is the Constitution itself", which does not mean he believes that all political actions are constitutional; what he means to say is the implementation and updating of dominant wills in the Constitution is political; Chen's five basic laws are a theoretical description of the constitutional reality; this description serves normative purpose, but does not necessarily represent his normative positions. In Chen's political constitutionalism, "the political" is mainly concerned with the structure of real power: political constitutionalism calls for new social forces to move the hard ball of the current political system, and it requires these forces to be internalized into the formal system. "The political" is also concerned with the structure: political constitutionalism needs a new political structure to ensure the accountability of the power.