Research On The Value Orientation Of Constitutional Changing In The United States Of America

The Value Constitutional jurisprudence is a new subject to study the constitution,which is based on the paradigm of philosophy of value.It is different from the paradigm of the Normative Constitutionalism and political Constitutionalism.The Value Constitutional jurisprudence concerns the value relationship between subject and object from the perspective of the relationship,in order to explain the phenomenon of constitutional value.It reveals the inherent law of development of the constitution.The contents include: the generation of value of constitution,the realization of value of constitution,the evaluation of value of constitution,and so on.The previous research focused on the political and normative perspectives of the constitution of the United States.This paper focused on the perspective of philosophy of value to study the value orientation of constitutional changing from the Founding Era to the Reconstruction Era in American.The value orientation of constitutional changing presents the tendency of development of constitutional value,which rounds the constitutional basic values in practice.It is not only a cognition activity of constitutional value,but also the activity of realization and evaluation of constitutional value.The People are the creator and the fundamental driving force of history.Their practice reflected the needs of the specific historical stage.The need of people promotes the advance of history.From the Founding Era to the Reconstruction Era,the center object of the American people is to build a great Republic.The national building activity presses the changing of power of the federal government.The Federal government must use powers conferred by the constitution to realize the historical mission of national building,and expanding its powers through the "multiple" constitutional changing mechanism,making full use of the state's capacity to meet the needs of "people" in the specific historical stage.The nationalism sweep away the threats to national interests,such as "State power doctrine" and slavery,which make people need transformate from fact to effectiveness.Therefore,the constitutional changing forced by the need of "people" must also reflect and realize the nationalism.In this process,the value orientation of nationalism closely round the basic value of the constitution,accepting the regulation and inspection of the basic values,and following the historical standards of historical development law,in order to ensure the "good" nationalism.Finally it realize union between the "constitutionalism of powers " and "constitutionalism of rights ".From the Founding Era to the Reconstruction Era,the constitutional changing realize the normative requirement by the "people" put forward in the specific historical stage,resolving the tension between facts and norms,ensuring the stability,authority and adaptability of constitution.Although constitutional changing is a relative ideal way of solving the tensions between the "people" and the constitution,the constitutional changing cannot solve the slavery problem successfully.So,it indicates that constitutional changing is not best way for the realization of value of constitution.It can not maintain the stability,authority and applicability of the constitution forever.Nevertheless,From the Founding Era to the Reconstruction Era,the constitutional changing realizes the nationalism value of the people in a long historical period,and maintains the stability,authority and applicability of the constitution very well.Therefore,from the perspective of comparative constitution,the study has important significance for construction of research paradigm of the Value Constitutional jurisprudence in China.It has important practical significance to perfect the realization mechanism of constitutional changing,and determine the direction of civil rights of the value orientation of constitutional changing in the Post-constitution of Reform Era.This paper uses many different methods,which includes the value research methods,normative analysis,historical analysis and comparative analysis method.There are some innovations of this paper,which proposed three ways of constitutional Revolution,constitutional amendment and constitutional changing.The Aristotle's "four factor theory" explains reasons of the value orientation of the constitutional changing.The "double standard" evaluates the value of nationalism with standard of value and historical standard.The empirical model analyzes the specific realization mechanism of the constitutional changing,and so on.In this paper,according to the need of research,the whole article structure is divided into six parts:The Chapter?,to introduce the general theory of the constitutional changing and Value Constitutional jurisprudence.Firstly,the paper expounds the general theory of constitutional value,including the generation of the constitutional value,the realization the constitutional value,the evaluation of constitutional value.The object is to give a simple explanation for the general theory of constitutional value.Secondly,to study the meaning,the nature,the realization mechanism,and the logical structure of constitutional changing.Thirdly,to study the relationship between the constitutional revolution and the constitutional amendment and the constitutional changing.It cleares their own inherent nature.Finally,the features are analyzed with the value orientation of constitutional changing.The Chapter ?,the research on ontology of the value orientation of constitutional changing of the United States.It studies the basic value structure of the United States Constitution.The basic values include the democracy,republic,rule of law,liberty and federalism.The basic value structure has an important regulatory function for the value orientation of constitutional changing.It can prevent the constitutional changing toward "malignant changing",strengthening the legitimacy of the constitutional changing.The American constitutional changing is different from the Germany,which is very developed in practice.It is important dimension to understand the constitutional changing of the United States.On the other hand,it analyses difference of the whole values between the Articles of Confederation and the Federal Constitution to show the value characteristics of the Federal Constitution.There are three historical forms in the value orientation of constitutional changing in U.S.A,which are the value orientation of nationalism from the Founding Era to the Reconstruction Era,the value orientation of economic liberalism from the Reconstruction Era to the New Deal Era,and the value orientation of civil rights from the New Deal Era to today.The three different forms reflect the overall trend of the development of value idea of American people in different historical stages.The Chapter ?,research on the reasons of value orientation of the constitutional changing of the United States.This chapter uses the Aristotle's "four factor theory" to analyze some reasons about the value orientation of nationalism.These four reasons include the material cause norms and facts,form factor of progressive realization of constitutional value,dynamic cause of need of strong political community for people,and objective cause of keeping the stability,authority and adaptability the constitution.These four reasons show various kinds of factors of value orientation of nationalism.The Chapter ?,research on the implementation of value orientation of the constitutional changing of the United States.The paper studies the problem of the realization of the value orientation of nationalism from the Founding Era to the Reconstruction Era.First of all,a theoretical model is constructed to analyze the concrete realization mechanism of constitutional interpretation,so as to reveal the general principles of the realization of constitutional changing.In the American constitutional practice,the value orientation of nationalism was realized by a series realization mechanism,it focuses on the judicial interpretation,the constitutional convention of the president and the political party convention and so on.The three realization mechanisms tell us that how to embody and realize the value orientation of the nationalism.From the back to look at the development process of the constitution changing,the constitutional amendment can help us to understand the value orientation of nationalism.Therefore,I also study the relationship between the Reconstruction Amendments Clause and the value orientation of nationalism.The Chapter ?,evaluation on the value orientation of constitutional changing in the United States.This chapter evaluates the value orientation of nationalism of the constitutional changing from the Founding Era to the Reconstruction Era.The Value evaluation is the activities of value recognition.The value evaluation lies in the evaluation criteria.The evaluation criteria consist of value standard and historical standard.The value standard is the internal standard of the value relationship.The historical standard is the external standard and the "meta standard".Through the evaluation of these two standards,it is generally believed that nationalism is "good?.The Chapter ?,research on the significance of value orientation of the constitutional changing of the United States.The research is focused on theoretical and practical significance of value orientation of the constitutional changing of the United States.In theory,it can promote the study of Value Constitutionalism,expanding new research areas of constitutional law in China.In practice,it can perfect the realization mechanism of constitutional changing,and establish the direction of the value orientation of civil rights of constitutional changing in the Post-constitution of Reform Era.