美国宪政的生成模式——从社会到国家

The Generative Patten of US Constitutionalism-from Society to the States

近代美国宪政的生成是由两个重要因素决定的:一是以西方法律文化为渊源。从法律文化的角度看,立宪主义的确立是北美公民社会和独立后的合众国在长期奋斗中对自身生存和发展方式所做出的政治抉择。二是以独立前后的社会宪政运动为先导,在邦联试验失败后又继之以国家宪政运动为主导,并且是社会和国家两种力量对接和碰撞的结果。美国宪法是将其宪政实践作成标本,宪政与宪法之间存在着有机的互动关系,应从内容和形式两个方面把握好二者的关系。

The generation of the modern US constitutionalism is determined by two important factors. The one factor is that it is originated from the Western legal culture. From the point of view of legal culture, the establishment of the US constitutionalism is a political selection that the North American civil society and the independent US have made in their long-term struggle for their own existence and development. The other is that it is the outcome the abutment collision of social Constitutionalism and state Constitutionabsm. The US constitution takes the practice of constitutionalism as its specimen. There exists an interacting relation between the two. We should therefore distinguish the two of them from their content and their form.