The Constitutional Equality Norms From The Perspective Of Textualism

The thesis attempts to reconsider the nature of the constitutional equality norms in the viewpoint of"relation-ontology"in order to expound that the life of the constitutional equality norms is rooted in its application, during the countless times of which its connotation is well established. The real constitutional equality norms are closely reflected in the corresponding relation between the equality notion and the individual cases, thus exist as a relation-being. Without application and interpretation, there are no constitutional equality norms.Firstly, we study the equality ideal. As the basis of the justice, the equality itself merely presents its form, while its concrete connotation is to be substantiated by the values of other beings. The course of substantiating does not simply show a sort of easy logic deduction, but a kind of rational demonstration course. The connotation of the equality lies in its"acceptable nature"derived from demonstration, but not the"definitude"brought up by non-specific values (in the nature of natural science). The equality ideal is practical.Secondly, we proceed on the significance of equality norms in the statute after philosophically studying the equality ideal in constitution. Under the interpretation idea, the constitutional equality norms are no longer"correct answers", which people try to search behind the constitutional text. Rather, it is a group of norms which the interpreters make great efforts to detect and prove between the constitutional precepts and the reality. This group remains its vitality through the participation of interpreters and changing of realities, thus it is open, which expands or transfers its possessed meaning through deriving its form. In light of the present constitutional practice, not only the connotation of"equality is a basic right of citizens"derives from the constitutional precept of"every person is equal before the law", but also this derived equality norm produces a sub-norm,"equality is a constitutional principle of objective values". In addition, if we consider the demonstration program and the characters of all kinds of equality norms in the judicial process, and classify them according to the content, we will find the equality norms contain the third respect----the policy.Lastly, whether the equality rights, equality principle, or the equality policy, none of them is a final judgment of equality in the face of the various individual cases. Only after the valuation and argument by the judge in the constitutional lawsuits, the judgment concerned with individual cases can be made. Concretely, in view of the structure of the equality norm, the equality norm which could be applied to a specific case derives from the balance and the choice between the principle of"treating the same similarly"and the principle of"treating the difference differently". The two principles of contrary purposes consist of all the possibilities in logic, so the equality norm of stringent nature is a rule without exception. Whether the conceptual investigation criterion of German or the typical investigation criterion of American is only the outer expression of the competition of the two principles. As the change of the weight of the legislative democracy principle and the judicial review principle, the establishing space of the legislator and the rationality of the judicial review are different, thus the different types of reviewing criterion are embodied.The idea of interpretation gives us a new viewpoint of studying the connotation of the constitutional equality norms. Comparing with the preceding textualism idea of constitution, it emphasizes the"process"and the"method", but not the"conclusion". The process and the method are of great importance. They are essential, non-changing, and assurable which determine the"content"and the"conclusion". In this view, the equality protection in China has not been resolved in the sense of norm, which is not only due to the absence of the constitution lawsuits and the interpretation body of constitution, but also due to the lack of the argument on equality judgment by the constitution interpreter. The"argument"is indispensable to the application of equality norms, through which the connotation of equality norms takes shape. As for the protection of the human right in the constitutional norms at rest in China, it is worth thinking deeply.