The Question About The Protection Of Rights Into Constitution

The establishment of market economy and the recovery of democracy give birth to stronger and stronger right consciousness.Various claims of right are protected in accordance with the law.Now doubt it is progressive and positive in the background of rule of law.However,the protection of rights should have correct theoretical supports and right ways.Nowadays,the prevalence of "the protection of rights into constitution "in the jurisprudential circle lack necessary feasibility in theory and practice.This article is to challenge this trend and put forward my opinion to further discuss them.This article with 30000 characters is divided into instruction,five main body parts and conclusion.The first part mainly introduce how the question the article discusses is proposed.Through enumerating all kinds of articles and books about the"the protection of rights into constitution "the writer as a graduate student have read ,the article explains that the trend of "rights into constitution "is an objective important trend and is being generalized.Its remarkable characteristic is the idea of all kinds of civic rights into the Constitution.The article also analyzes the reasons for the rise of the trend from political aspect,economic aspect, social ideological trend,conciousness and so on.The second part questions the trend of "the protection of rights into constitution "from practical aspect.In other words,we analyze the lack of the feasibility of "the protection of rights into constitution" by the background and contents of four constitutional amendments.This part particularly retrospects the background and specific contents of four constitutional amendment in 1988,1993,1999,2004. The four constitutional amendments are in the background of our socialist development and they are the practical summarization of our socialist modernization and the contents involve the guiding principle and related economic policy.Through analyzing them,we find the basic feature of four constitutional amendments.In the background of socialist modernization,the motive of the four constitutional amendments is claims of ruling party and the primary content is achievements of our socialist modernization.Because the procedure of amending constitution is strict, so a right can not be written into the constitution if it does not conform to the features.The third part questions the trend of "the protection of rights into constitution " from a theoretical aspect.First of all,through construing the constitutional governments in Britain,America and France,we enduce that the production of constitution stemed from the necessity of controlling powers. Secondly,through describing the nature and function,we enduce that the constitution protect the rights by controlling powers.The constitution regulates master and scope of state powers and regulates limitation to them.Once again,taking American Constitution as an example,we enduce the reasons of not writing all kinds of rights into constitution,such as the legislative technological difficulty,the possible misunderstanding and illution of people to the constitution, the suspition of redundant burden and so on.In the end,we propose how to protect the civic rights not in constitution.Referring to the ninth amendment of American Constitution is a better way.The fourth part mainly introduces the prerequisite of constitutional protection to rights-setting up the authority of the constitution.First of all,we construe the concept and contents of the authority of the constitution. The authority of the constitution is that the external compelling force and the intrinsic persuasive force of the constitution make people to universally protect it and follow it. The authority of the constitution includes the formal authority and the substantive authority. Secondly,we analyzes the status in quo of authority of our constitution.Because of not formidable market,lack of constitutional exercises in justice,lack of constitutional review mechanism and uncertainties of the constitution,our Constitution lacks the substantive authority.In the end,we suggest how to protect the authority of our constitution.We should foster a sense of constitutional concept,enhance civic constitutional awareness,ensure the constitutionality of legal work,strengthen the constitutional review and improve constitutional judicature mechanism to protect civic rights.The fifth part mainly introduces an important method of constitutional protection to rights-constitutional explanation.Firstly,we describe the concept of constitutional explanation and the present situation in our country.The constitutional explanation means that the authorities with having right to interprete constitution construe the provisions,the meaning of words,language of the constitution according to constitutional princles and spirits.Our country lack the practice of constitutional explanation,so we need strengthen it.Secondly,we introduce the value of constitutional explanation.The cost of constitutional explanation is lower than constitutional amendment's and as the "visible hand" the constitutional explanation is the only way of supervising the implementation of constitution. At the same time,the need of real life summons the constitutional explanation.Once again,we describe the principles the constitutional explanation should follow,such as the principle of following the spirits of constitution,the principle of adapting to social needs,the principle of complying with the legal proceedings and the principle of systematically explaining the constitution.In the end,we propose the suggestions to improve our constitutional explanation,such as the design of main body of constitutional explanation,the scope and name of constitutional explanation,the design of the proceeding of constitutional explanation and so on.The framework of the article utilizes many research methords,such as conceptual analysis,comparison and case analysis. The article follows the logical organization of raising problem-analyzing problem-solving problem.At the same time,we cite the massive domestic and foreign related academic material.We hope the viewpoint has the meager academic value.