Comparative Discourse in Constitution Making: An Analysis on Constitutional Framers as Dialectic Agent

The writing and rewriting of constitutions are often inspired or influenced by comparative constitutional sources. The Republic of China (ROC) Constitution has been deemed as strongly influenced by comparative constitutional sources such as the US Federal Constitution, the Constitution of the Empire of Japan (Meiji Constitution), and the Reich Constitution of 11 August 1919 (Weimar Constitution). However, in what ways these foreign constitutional sources have exerted influences upon the domestic discourse of constitutional writing remains unclear. This chapter is aimed at understanding such comparative constitutional influences by closely examining the discourse of constitution drafting and making of the ROC Constitution, which became effective in 1947 and has since been implemented in Taiwan. Having relied on empirical and statistic methods, this chapter finds that comparative constitutional discourse was vital in the drafting and making of the ROC Constitution, and more importantly, the studying abroad experiences of constitutional drafters may have been pivotal to their engagement in the comparative constitutional discourse. Inspired by the comparative discourse in constitution making, subsequent constitutional interpretations by Taiwan’s Constitutional Court have engaged abundantly in comparative discourse, notwithstanding the fact that the Constitutional Court has not indicated precise sources of those foreign influences. Leading constitutional scholars, however, have not been shy away from the acknowledgment of those inspiring foreign sources.