作为自杀契约的宪法

S. Prakash
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引用次数: 1

摘要

Michael Paulsen写了一篇精彩而有创意的文章。他以其特有的引人入胜的方式提出,我们应该采用“构建的元规则”,并始终如一地解释宪法,以避免“宪法内爆”。然而,在这种“拯救”建筑不可能的地方,自我保护的法则必须优先考虑。必须“优先考虑维护宪法所在的国家,以便长期维护宪政,甚至不惜牺牲具体的宪法条款”。保尔森教授因此不赞成“违反宪法”,至少在他自己看来是这样。维护政权和宪法,即使牺牲特定的宪法条款,也是与宪法一致而不是违背宪法的行为。根据保尔森教授的说法,宪法包含了一个普遍的自我保护豁免(必要性规则),它似乎是铁板钉钉的禁令和权利。谁赞成宪法自杀?更准确地说,谁会赞成一部没有紧急条款授权总统暂停部分或全部条款的宪法?让我第一个倒在剑下。尽管我认为自己是保尔森教授工作的众多崇拜者之一,但我不认为他已经证明了自己的观点,至少目前还没有。我质疑宪法是否包含一个“建构的元规则”,要求“在可能的情况下解释宪法,以避免在宪法上造成自我毁灭的后果”。此外,我怀疑宪法是否赋予总统一种潜在的、更强大的权力来牺牲宪法条款,以维护和捍卫宪法和整个国家。在我看来,虽然宪法创造了一个强大的首席执行官,但它并没有赋予总统暂停宪法以挽救它的权力。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Constitution as Suicide Pact
Michael Paulsen has written a wonderful, creative article. In his characteristically engaging manner, he argues that we ought to employ a "meta-rule of construction" and consistently construe the Constitution to avoid "constitutional implosion." Where such "saving" constructions are impossible, however, the law of self-preservation must take precedence. Priority must "be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions."'Professor Paulsen does not thereby countenance constitutional "violations," at least in his own mind. To engage in regime and constitutional preservation, even at the expense of particular constitutional provisions, is to act consistent with the Constitution rather than contrary to it. According to Professor Paulsen, the Constitution contains a general self-preservation exemption (the rule of necessity) to its seemingly iron-clad prohibitions and rights. Who favors constitutional suicide? More accurately, who favors a constitution that lacks an emergency provision authorizing the President to suspend some or all of its parts? Let me be the first to fall on my sword. Though I count myself as one of the many admirers of Professor Paulsen's work, I do not believe that he has made his case, at least not yet. I question whether the Constitution contains a "metarule of construction" which requires that the "Constitution should be construed, where possible, to avoid constitutionally self-destructive re-suits." Moreover, I doubt that the Constitution grants the President a latent and more powerful authority to sacrifice constitutional provisions in order to preserve and defend the Constitution and nation as a whole. In my view, though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it.
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