Introduction
The identity of ‘We the People' has always been an intriguing issue that puzzles every student of constitutional law. Founding fathers worldwide have penned similar words to celebrate the promulgation of a new constitution.
Hence, phrases such as ‘We the Japanese people' and ‘We the People of South Africa' have become prevalent in the preambles of national constitutions. Despite the ubiquity of this usage, the concept of ‘We the People' remains elusive and slippery. Indeed, the confusion results partly from the lack of a clear founding moment. The founding moment is a period that signifies the political break with the ancien regime, a period in which a series of landmark events ultimately lead to the adoption of a constitution. What happens during this period is not simply episodes of constitutional memories, but also embodies certain normative values and principles.1 It follows that the founding moment not only influences constitutional interpretation, but also shapes the contour of constitutional identity as an imagined community. Recently, the issue of national and constitutional identities has once again become a hotly debated topic in Europe.2 Nonetheless, these* I would like to thank Richard Albert, Nishchal Basnyat, Cristina Blanco Sio-Lopez and all other participants of the Symposium on Founding Moments in Constitutionalism in Yale. Also, I am grateful to Wen-Chen Chang, Tom Ginsburg, Cheng-Yi Huang, Jau-Yuan Hwang, Jimmy Chia-Shin Hsu, Ming-Sung Kuo, Shao-Man Lee and Yen-Tu Su for their comments and suggestions on the draft of this chapter. All mistakes are mine.
1 See Ming-Sung Kuo, ch 1 in this volume.
2B Davies, ‘Resistance to European Law and Constitutional Identity in Germany' (2015) 21 European Law JournaI 434; JW Muller, ‘Constitutional Patriotism Beyond the Nation-State' (2012) 33 Cardozo Law Review 1923, 1929-33; JH Reestman, ‘The Franco-German Constitutional Divide: Reflections on National and Constitutional Identity' (2009) 5 European Constitutional Law Review 374; A Sledzinska-Simon, ‘Constitutional Identity in 3D' (2015) 13 International Journal of Constitutional Law 124, 129; JHH Weiler, ‘On the Power of the World: Europe's Constitutional Iconography' (2005) arguments are ‘strongly Eurocentric.'[758] How these ideas have developed in other corners of the world has not received adequate scholarly attention.
To address this academic lacuna, this chapter focuses on the formation of the constitutional identity embodied in the Constitution of the Republic of China (hereinafter the ROC Constitution), suggesting that, unlike many other countries, there are two distinct and antagonistic constitutional identities - the Chinese constitutional identity and the Taiwanese constitutional identity - that have been forged by formal and informal constitutional practice. The Chinese constitutional identity emerged from a relatively clear constitutional moment in 1947, when the ROC Constitution was promulgated in China. By contrast, there is no dramatic and radical founding moment in terms of the Taiwanese constitutional identity. In this sense, it is roughly similar to the situation in Brazil, Chile,[759] Hong Kong[760] or Pakistan,[761] where political transitions and constitutional replacements have followed a more incremental path.
Constitutional identity often evolves over time through a process of negation, metaphor and metonymy.[762] Nevertheless, a sharp break exists between the Chinese constitutional identity and the Taiwanese constitutional identity: the latter did not evolve from the former, and the former did not cease to exist after the emergence of the latter. Rather, they are two distinct constitutional identities that cohabit in the ROC Constitution, at least after political liberation in Taiwan. This peculiarity results from the entanglements between large-C Constitution and small-c constitution, as well as between constitutional and socio-political developments. Research into the constitutional identities of the ROC Constitution may be fruitful partly because of the ambiguous international status of the ROC (Taiwan). Many people believe they are Taiwanese rather than Chinese, while some spare no effort to maintain the original Chinese identity embodied in the original Constitution of the Republic of China, which is completely different from the current People’s Republic of China (PRC), politically and constitutionally speaking. In such a divided society,[763] the development of constitutional identities is deeply embedded in, and reflective of, the dispute over national identities.
The rest of this chapter proceeds as follows. Section II briefly introduces the concept of constitutional identity by reviewing current literature. Section III elaborates upon the formation of the Chinese and the Taiwanese constitutional identities, arguing that the ROC Constitution has embodied two diametric identities over time with the social and political progress in Taiwan. Section IV addresses several topics in Taiwan through the prism of constitutional identity. Section V concludes.
II.