Ronald Reagan liked to talk about the Constitution of the Soviet Union: “I got a copy of their constitution and I read it with great interest. And I saw all kinds of terms in there that sound just exactly like our own: Freedom of assembly, freedom of speech and freedom of religion, it’s got it all, folks.” And then he would pause before telling his audience: “Of course, they don’t allow the people to have those things. The Soviet Constitution says ‘The Communist Party gives the people these freedoms…’ and never gave them in reality. Our Constitution says ‘We, the people…’ We allow the government certain rights and privileges.”
I was reminded of Reagan’s folksy wisdom when I read a post on WeChat last week, about the fights between Republicans and Democrats over the make-up of the Supreme Court after the death of Justice Antonin Scalia, on 13 February. The post referred to an editorial in one of the more stridently nationalistic Party organs, The Global Times. It can be found in Chinese here but the WeChat post simply said ‘arrogant Americans are no better than our proud China’.
Anyone who spends a little time following ultra-nationalists posting on Chinese social media knows that this is vanilla compared to what some of them write. I have a masochistic interest in what goes on in the minds of these Chinese netizens and a semi-professional interest in legal discussions, having taught Philosophy of Law at two mainland universities as a guest lecturer. I clicked on the link.
The Global Times is not known for its nuanced analyses. The gist of this editorial was that the partisan fight over the vacated Supreme Court seat proves that laws are rules made by men and that the “fight over Scalia’s replacement proves that even the American model of ‘judicial independence,’ is no exception.” I needed help with the translation of it, but I didn’t need anyone to tell me that the term ‘judicial independence’ as it is used here has to be read with cynicism dripping from your lips or in your inner voice. The tone of the editorial was strident, as is usual with the Global Times, but also suggested that the west had no right to criticize China for placing its judiciary under the political oversight of the Party.
Global attitudes towards the United States have always been subject to a pendulum of extremes. It is the land of hopes and dreams at certain stages; then it is a cynical and hypocritical partisan polity in a different time. Adding to changing perceptions of America is the widespread idea in Chinese society that the two countries are somehow competing for global hegemony. Anyone who has had the dubious pleasure of watching a crudely childish animation show called That Year, That Rabbit, Those Things has seen the rabbits with red stars on their bellies confront an arrogant eagle. You don’t need an art degree to get the references. Other animals appear in the show and they are usually not very difficult to guess: the bear is Russia, the elephant is India – the turban it wears is a giveaway – a chicken represents that cowardly island nation called Japan.
The simplistic storylines are in tune with the simplistic animation, but the cult status of the animation means that the Chinese Internet is rife with insults from the show’s fans and those who hate it, and discussions about the show have become proxies for discussions about topics that are always popular in this corner of cyberspace, among them China versus the United States. Debates are heated and if you thought that western trolls had a monopoly on abuse and denial of service attacks, you would be mistaken.
For some reason the only alternative to Communist dictatorship in mainland China is seen as American partisan shouting across the aisle and a glacial pace of change. Liberal democracy in the eyes of nationalistic or ‘patriotic’ Chinese netizens is only American-style politics; no other western model, such as the British parliamentary system or German federalism, to name just two, seems to be discussed. This dichotomous worldview suits the Communists well, since American culture has a self-critical strain which tends to expose the country as the fraud it indeed so often is.
The death of Justice Antonin Scalia has put the Supreme Court into the spotlight during an exceptionally abusive election year even by bawdy American standards, and the partisan picture is not pretty. My unapologetic socialist friend reveled in his death, wishing him a deserved time in purgatory while Obama could replace him with a ‘worthy liberal’ – an oxymoron to his ideological opponents. Before even contemplating a hearing and while Scalia’s earthly remains were still warm, Senate Majority Leader Mitch McConnell vowed to block any Obama appointee. This maneuver prompted the online magazine Politico to thank the Republican for exposing the myth of an above-it-all Supreme Court.
The nation’s highest court has suddenly become a topic on the Presidential campaign trail, because the death of Justice Scalia is a blow to the conservative majority on the bench. It is highly unlikely that President Obama will be successful in getting a nominee through the Republican Senate in an election year. In 1992 the current Vice President, Joe Biden, was the Chairman of the Senate Judicial Committee and he warned then President George H. W. Bush not to nominate a Supreme Court Justice in that election year.
At the same time, Justices nominated in years when the White House was not up for grabs have also been pawns in political chess matches. In 2006 the current President, Barack H. Obama, filibustered the nomination of Justice Samuel Alito by President George W. Bush. In 1987 the fight over Ronald Reagan’s nomination of the conservative Robert Bork became an epic struggle in which all the big cannons of the left were brought in to prevent a successful nomination, from Senator Ted Kennedy to the director of the NAACP and an even younger Joe Biden.
When President Franklin D. Roosevelt tried to enact his New Deal by creating a plethora of new government agencies and initiatives, he was thwarted by a conservative Supreme Court and got so frustrated that he threatened to expand the Court and appoint a whole bunch of new Justices. This became known as Roosevelt’s Court Packing Scheme and was nothing short of an ultimately unsuccessful attempt at an executive power grab.
All this is to say that the Supreme Court of the United States has always been, either openly or in more subdued ways, part of a political system, and therefore, subject to partisan bickering. The fact that the fight over Scalia’s seat is not very dignified is mistaken by The Global Times as proof of, as the French would say, ‘c’est le ton qui fait de la musique’. Granted, the tone is discordant, but the sheet music dictates that the elected officials of the United States have a say in appointing the Justices of the Supreme Court, from the President who nominates, to the Senate which confirms. The Justices are not above politics, but as one of the three branches of the government they play a crucial part in keeping the other two branches in check – and are in turn kept in check by them. This is, of course, anathema to the Communist Party’s political philosophy of permanent and total domination.
In contrast, Xi Jinping’s favorite legal thinker is Han Fei who believed in harsh and swift justice delivered by a strong and unquestioned ruler. Master Han is often regarded as the Chinese Thomas Hobbes, who famously stated that life without a strong monarch would be living in a world with ‘no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short’. Hobbes witnessed the devastation of the English Civil War and it is unsurprising that he saw a need for order in this chaos.
It would be more correct to call him the western Han Fei, because Master Han saw the devastation of the Warring States Period in Chinese history, many centuries before the conflict between Roundheads and Cavaliers and he, too, believed a strong central authority would be of the greatest good to the greatest number of people. President Xi Jinping has seen political socialism implode all over the world, liberal democracy being imposed by evil imperialist powers and he has embraced a Hobbesian, ‘Han-Fei-ian’ worldview to avert for the People’s Republic the fate of the Union of Socialist Soviet Republics.
In 2022, the year Xi is supposed to step down, the People’s Republic of China will have outlasted the Soviet Union in an uninterrupted Dictatorship of the Proletariat. A western separation of powers and ‘constitutionalism’ only endangers this historic feat. President Xi is more and more often described as the core, like Mao and Deng before him, from which the law emanates as a benevolent bringer of order in the existential chaos.
Moreover, constitutionalism has become a ‘verboten’ word in China after one of Xi’s earliest ideological purges. The liberal constitutional theorist He Weifang called the Constitution of the People’s Republic ‘a sleeping beauty’ in a 2008 essay. In a manner of speaking he exposed the Chinese Constitution as the Soviet one from Ronald Reagan’s speeches. Indeed, in 2010 He wrote: “in the Soviet Union and their satellite states there was a conditional granting of freedoms by the State to the people; in western, liberal democracies there is a conditional suspension of liberty to give the government certain rights.” He Weifang was rewarded for his efforts by a suspension from his post at Peking University and academic banishment to the Chinese equivalent of the Soviet Union’s Siberia: Xinjiang. With Professor He the use of constitutionalism as a metaphor for checking the absolute powers of the Party was also banished. The phrase coming from the core is now ‘rule by law’. This encapsulates a legal justification of Party rule over the judiciary, strong central Party command of the legal system – and an echo of Han Fei’s legal philosophy.
The Party’s mouthpiece sees the fight over Scalia’s seat as ‘proof’ that the US political system does not have an independent judiciary above the parties. Their editor is confusing matters. If the Justices can hold the executive and legislative powers to account their nominations are certainly worth fighting over, since there is a lot at stake. It could be said that Antonin Scalia could not have chosen a better time to die. The people will have an indirect voice in the appointment of his successor, by rewarding either the party that nominates or the party that torpedoes the nomination. The editor of The Global Times should be wondering why the many hundreds of judges of the Supreme People’s Court are not worth the same fight.