National Survival: Constitution-Making in a Failed State

China's ‘fragmentation and reform' dilemma, in the words of the late Yale Professor Jonathan Spence, features the emerging state failure and the rising sense of national insecurity in the post-Opium-War era starting from the mid-nineteenth century.^[152] It symbolised the subsequent, century-long decline of the world's largest economy and the painstaking survival of the biggest nation-state on earth.

In the matrix of the dilemma, China with the biggest economy became a failed state. In the wake of state failure came continued political decline and other worse scenarios. Over the course, all reform and opening up in China was in a sense the national defence reform, and the constitution-making was more like national security constitution- making. As one recent Harvard Law Review note correctly observed, the framer of the 1933 draft constitution John Wu realised

that national security was one of the primary challenges facing the Republic of China in the 1930s... that the Qing Dynasty collapsed ‘mainly because it could not resist foreign invasions,' and that the early Republican regime had failed for the same reason.^[153]

Politically felt national insecurity, rapid economic retrocession in terms of gross domestic product (GDP) performance, and nation-wide social unrest have been the three major driving forces for the growing demands of constitution-making and the overarching process of the constitution-making in post-1840 China. Therefore, the 1946 constitution-making was more than not the conclusion of the long process of constitutional movements fomented and spurred by the 1840 dilemma.

According to the renowned historian of world economy Angus Maddison,^[154] in 1820, China’s GDP provided one third of the whole world's turnout of GDP, and significantly more than that of the entire West combined, 18 times that of the US; while a century later in 1950, China’s GDP quickly shrunk and plummeted to 4.6 per cent of global GDP, less than 1/10th of the West and 17 per cent of the US.

China’s economic development was consistently strong and independent enough to reject international trade as it was in the early nineteenth century. In this sense, the Chinese Sino-centrism world order did have the economic foun­dation. China’s enduring economic autarchy that enjoyed continued growth in terms of aggregate national wealth and population growth, in which every other aspect remained unchanged would have reasonably translated into accrued state power, economic prosperity, and social stability. It was especially so in the 1820s and 1830s, which represented the peak of China’s economic and demographic development before the opium war. Judging by this jarring contrast of numbers mentioned above, you can imagine what kind of state failure China had been through under the lingering impact of the 1840 dilemma.

In the wake of state failure came continued political decline and other worse scenarios. That is why the century after 1840 has been generally regarded by the Chinese people as the century of the national salvation and national survival. According to a new study by the Chinese political scientist Wang Shaoguang, the fact of China’s failed state for a century since 1840 could be measured by two sets of data: unequal treaties (sovereignty dilemma) and domestic wars (governance dilemma).^[155] Apart from China's involvement in the two world wars and wars against foreign invasions, the domestic wars and military strife recruited tens of millions of people to become soldiers across the country. Countless numbers of people thus lost their lives. That was one typical symptom of the governance dilemma in the wake of state failure.

The sovereignty dilemma can be seen in the following table:

Table 1 A Summary of China’s Foreign Relations Treaties (1689-1949)

In addition to the failed state symptoms on the international and domestic levels, there was the striking demographical disaster: the extremely low life expectancy rate between the 1840s and 1940s. In 1820, the population in China was 381,000 thousand.

Formally starting from the late 1890s, constitutional government emerged as one agenda for the social and political reforms in China that aimed to save the fate of a fallen giant.

Social reformers and patriots petitioned the Imperial Government urging a complete reform, so that the Government might take the responsibility in facing the issue. They believed that one of the chief sources of the influence of other countries in world-leadership lay in the fact that they had a constitutional government. Nothing stimulated the reform movements in China more than the effect of the Russo-Japanese War of 1904-1905. The public believed that the greatest reason for Japan's success was its efficiency of government, which was credited largely to the Japanese Constitution. The Constitutionalists seized upon this opportunity to again present memorials to the Imperial Government petitioning for the introduction of a Constitution.^[158]

The Longest Process: Making the 1946 Constitution of the Republic of China 59 The subsequent four decades witnessed an unabated national movement of constitution-making. National salvation was the overarching agenda set for the constitution-making. There was the consensus among the social elites about the Constitution’s potential to produce both power and prosperity for the Chinese nation. To quote Sun Yat-sen, ‘making the five-power constitution is the only feasible way to make China a wealthy and powerful state’.^[159] Sun’s son, who oversaw the whole constitution-making process through the 1930s and 1940s, also firmly believed that ‘constitution-making as the principal method to unite the nation’.^[160] This echoes with what the leading Yale constitutional law scholar Bruce Ackerman said about the constitution-making process of the United States, describing it as revolutionary, charismatic, and nationalistic.

Paradoxically, while China’s constitution-making carried a strong sense of nationalism and national salvation, the Constitution was based on the ‘poorest and weakest’ China in a century. Broader considerations, therefore, were taken by the framers during the procedures of constitutional designing, drafting, and framing. In Sun Yat-sen’s words, ‘the political constitution is one giant machine that reins in human’s acts, a giant machine that can harmonize the relation between freedom and autocracy’.^[163] In every sense, the history of China’s constitution-making is a complicated story.

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