This is the transcript of episode 11 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

One day in November 1873, the twelfth year of the Tongzhi reign, Ge Pinlian, a worker in a tofu shop in Cangqian, Yuhang County, Zhejiang, died at home. His face had turned blue and foam gathered at his mouth. His wife, Bi Xiugu, gave him a bowl of American ginseng broth, but could not save him.

Ge had been sickly since childhood and suffered from an ailment known as “flowing fire.” Two days before his death, he was still working at the tofu shop despite red, swollen knees and bouts of violent shivering. Others urged him to rest at home, but he refused. On his final morning, he was seen staggering alone across Yuhang Bridge, his face blue and his feet dragging. It was the last image he left behind.

At first, no one thought a murder had occurred. His body remained at home awaiting burial. On the following evening, however, pale red fluid seeped from his mouth and nose. Modern forensic medicine would explain this as a consequence of decomposition in warm weather: gases forming inside the body can force residual blood from the nose and mouth. To people at the time, it looked like the mark of poisoning.

Suspicion turned toward his wife. Bi Xiugu had fair skin and liked to wear a white blouse with a green skirt, earning her the neighborhood nickname “Little Cabbage.” A recent rumor claimed that she was having an affair with their landlord, Yang Naiwu—a piece of gossip summed up by the phrase “the sheep eats the cabbage,” a pun on Yang’s surname. Ge’s mother already distrusted her daughter-in-law because of the rumor. When the corpse appeared to show signs of poisoning, she became convinced that Bi and Yang had committed adultery and poisoned her son. She reported them to the authorities.

This was the beginning of the famous Yang Naiwu and Little Cabbage case, later called the foremost of the “Four Great Strange Cases of the Late Qing.” With a single accusation from the dead man’s mother, the case began climbing the judicial hierarchy toward the emperor himself.

An earlier episode examined the late-Qing law reforms, the radical attempt to remake the legal system during the dynasty’s final decade. The Yang Naiwu case occurred more than twenty years before that reform movement and is often treated as a defining example of systemic failure in the traditional judicial order.

An Unwashed Silver Needle

The case began with a silver needle in the hands of a coroner.

After receiving Ge’s mother’s complaint, Liu Xitong, the Yuhang county magistrate, went to the Ge home with an official coroner and one of his own retainers. Their guide was The Washing Away of Wrongs, a traditional manual of forensic procedure. It listed blackened gums, bleeding from the body’s openings, split and everted lips, and blisters as signs of arsenic poisoning. But Ge’s body had already begun to decompose. His face was pale blue, bloody fluid ran from his nose, and fragile blisters had formed on his skin. Distinguishing poison from ordinary decay required exceptional care.

Then came the silver-needle test, familiar from historical dramas: insert a silver needle into the dead man’s throat, withdraw it, and examine the color. What those dramas often omit is an easily neglected preliminary step. The needle was supposed to be washed with soap-pod solution to reduce interference from decomposing matter. The coroner in this case skipped it. He inserted the unwashed needle directly into Ge’s throat and pulled it out dark blue-black. Unable to identify any specific poison, he reported only that Ge had “died after taking poison.”

The magistrate’s retainer, who had no forensic qualifications, immediately declared it arsenic. The coroner was the legally qualified examiner, but coroners belonged to a stigmatized “mean” social category and occupied an extremely low status. He did not dare contradict the magistrate’s man. Liu Xitong had also heard the adultery rumor before the inspection began. He accepted the retainer’s opinion and ordered the coroner to write “death by poison” into the autopsy report.

A procedural failure, interference by an unqualified outsider, and widely circulated gossip had converged. The case already had its conclusion.

Confession, Torture, and a Manufactured Chain of Evidence

Taken to the county yamen, Bi Xiugu initially insisted that she knew nothing about her husband’s death. Under modern criminal procedure, an ambiguous autopsy and neighborhood rumor would not be enough to identify a suspect, much less force her to incriminate herself. Qing justice, however, was built around the centrality of confession and the legal use of judicial torture. A defendant’s confession carried the greatest evidentiary weight. With few effective investigative techniques, torture offered the most direct route to obtaining one. Once “no beating, no confession” became conventional wisdom, confession ceased to be a means of adjudication and became an end in itself.

The Great Qing Code authorized an instrument called the zan, a wooden finger press used on female prisoners. In practice, county and prefectural officials also resorted to punishments the law did not authorize. A later Shenbao report described Bi’s torture in horrific terms, including red-hot wire applied to her breasts and boiling water poured over her back. Scholars continue to dispute these claims; some believe the newspaper embellished them to arouse sympathy and denounce judicial darkness. One point is beyond doubt: Bi endured physical torment severe enough to break a person psychologically.

Under that torment, she finally confessed. Following the magistrate’s suggestions, she invented a complete story: she had begun an affair with Yang the previous April, received a packet of arsenic from him a few days before Ge’s death, and poured it into the ginseng broth that killed her husband.

The case’s other suspect, Yang Naiwu, was born in 1841. Shortly before the case, he had passed the provincial civil-service examination and attended the celebratory Luming banquet. Later newspaper accounts said that Yang avoided cultivating officials, wrote petitions for aggrieved commoners, and turned stories of official-gentry collusion and abuse into songs for the public, thereby offending local authorities. Those reports are not especially reliable, however, and do not prove that the officials acted out of personal revenge.

As soon as Bi confessed, the county yamen summoned Yang. He invoked the procedural privilege attached to his new status as a provincial graduate. Local officials could not torture a degree-holder unless the court first stripped him of his rank. Yang withstood the first interrogation. His advantage did not last. Liu reported through the Hangzhou prefect and Zhejiang governor, seeking revocation of Yang’s degree. The Tongzhi emperor approved the request.

Once stripped of status, Yang lost his protection. The case moved to Hangzhou Prefecture, where Prefect Chen Lu tortured him with leg presses and other instruments. Yang lost consciousness twice, was revived with cold water, and was questioned again. He finally understood that rational denial in that courtroom would only purchase more meaningless pain. He surrendered. He confessed to adultery and poisoning, then invented a source for the poison under further questioning: he claimed to have bought the arsenic from a Cangqian apothecary named “Qian Baosheng.”

Chen Lu instructed Liu Xitong to trace the poison. Yet no druggist named Qian Baosheng existed in Cangqian. There was only a man named Qian Tan. Liu had his legal secretary write to Qian Tan and pressure him to cooperate. A nonexistent “Qian Baosheng” was forced into the record.

The paper chain was now complete: the autopsy report, two confessions, and witness testimony. On the page, every link appeared to close. Chen Lu proposed that Bi Xiugu be executed by lingchi and that Yang Naiwu be decapitated immediately.

Why Five Levels of Review All Failed

This was still only a local recommendation, not a final sentence. The case had to proceed upward, and every level theoretically had a chance to find the errors. Important Qing homicide cases were subject to an elaborate system of successive adjudication, transmission, and review: initial adjudication by the county, a second hearing at the prefecture, a third before the provincial judicial commissioner, and final provincial review by the governor. Each autumn, the central Board of Punishments, joined by the Court of Judicial Review, the Censorate, and senior officials from the six boards, conducted the Autumn Assizes for death sentences submitted from across the empire. In principle, a condemned prisoner passed through five gates, and any one could reverse the case.

The difficulty was that higher officials seldom saw raw facts. They saw files already organized by their subordinates. The same documents were copied and checked again and again. Each additional tier made them look more thoroughly verified, even though no one had returned to the original evidence. The Yang Naiwu case passed upward without ever escaping the framework fixed at the beginning.

The Zhejiang judicial commissioner did personally question Yang and Bi. But he still organized the interrogation around their confessions. He did not ask whether Ge had actually been poisoned or determine that “Qian Baosheng” did not exist. Governor Yang Changjun later dispatched an acting county magistrate to conduct a supposed secret investigation in Yuhang. The investigator did no meaningful work and returned with a perfunctory report that nothing was wrong. Yang Changjun maintained the judgment and formally submitted it to the center.

Why were so many officials reluctant to overturn their subordinates? The Great Qing Code prescribed offenses for official failures such as wrongfully imposing a punishment, conducting a false inspection, and deciding a case carelessly. It also imposed a principle sometimes described as reversal liability for wrongful judgment: if a miscarriage of justice was uncovered, every official who had handled the case, from magistrate to governor, could be punished.

The rule was meant to discipline officials and prevent wrongful convictions. In practice, it created the opposite incentive. Rejecting a subordinate’s judgment meant rejecting the administrative credibility of the entire chain below. Every official became tied to the others. To avoid liability, each person signing a review had reason to preserve the original judgment. Accountability for error became a mechanism for concealing error. Officials had neither an incentive to correct the case nor the courage to do so.

That was the institutional cause of failure. A procedurally elaborate review system coexisted with confession-centered justice, which made torture routine, and reversal liability, which made correction politically suicidal. More layers solved nothing. Five levels of review became an empty journey for paperwork.

Capital Appeals, Gentry Networks, and the Press

The Qing legal order did contain an internal corrective mechanism known as the capital appeal, or jingkong. It allowed people in the provinces to petition central institutions such as the Censorate and the office of the Beijing gendarmerie directly.

Yang Naiwu’s elder sister, Yang Juzhen, believed completely in her brother’s innocence and spent the family’s resources organizing an appeal in Beijing. Her first petition was sent back to Zhejiang for retrial, where officials again affirmed the judgment. Yang’s wife, Madam Zhan, later filed a second capital appeal. Repeated petitions did not immediately change the result, but they kept the case in view at the center.

Sustained litigation required substantial money. The famous “red-topped merchant” Hu Xueyan financed the Yang family’s efforts. One of Yang Naiwu’s old classmates served on Hu’s staff and told him what had happened. Hu immediately agreed to cover all the family’s expenses in Beijing. He also used his own network to support the petitions, relieving the family’s financial burden and connecting it to much more powerful social resources.

A political network of Zhejiang officials in Beijing was equally important. As a newly successful examination candidate, Yang stood within a broader Zhejiang gentry community. Through provincial connections, Yang Juzhen reached Xia Tongshan, then vice minister of war. Xia read a petition Yang had written in blood from prison and erupted in anger: “If this case is not clarified, no one in Zhejiang will ever again devote himself to study and advancement.” He mobilized the political resources available in the capital and brought together eighteen Zhejiang officials to impeach Governor Yang Changjun before the Censorate. Their motive ultimately involved the honor of Zhejiang’s educated elite. Turning a new provincial graduate into a convicted murderer humiliated the entire province.

Another emerging force also mattered: the press, especially the Shanghai-based Shenbao. Beginning with its first report on January 6, 1874, the paper followed the case for more than three years. It published over seventy reports and commentaries, together with the full text of nearly twenty memorials and edicts. The coverage broke local officials’ monopoly over information and created a public sphere that crossed provincial boundaries.

An important qualification is necessary. Popular retellings often say that Shenbao reporting directly forced Empress Dowager Cixi to order a reversal. Scholars caution against giving the press so much power. An absolute monarchy was not going to change a judicial decision simply because a foreign-owned newspaper criticized it. The paper’s influence was indirect. It supplied public legitimacy to Zhejiang officials in Beijing as they impeached the provincial governor, allowing factional conflict to appear as a response to the judgment of the realm. It also gave Cixi a politically useful justification for reopening the case.

A deeper political logic was at work. The Taiping Rebellion had ended only recently, and the Xiang Army network represented by Yang Changjun remained exceptionally powerful in Jiangnan. Cixi had been looking for opportunities to weaken its control. The Yang Naiwu case offered an ideal opening. Collective failure throughout Zhejiang’s official hierarchy allowed the court, under the banner of public opinion, to bypass the judicial authority of provincial governors and bring the case to Beijing.

The Exhumation at Haihui Temple

In October 1875, the first year of the Guangxu reign, Cixi issued an edict ordering all witnesses and evidence transferred to Beijing for direct adjudication by the Board of Punishments. The method of review finally changed. The board did not merely reread the confessions. It confronted suspects, witnesses, and original officials with one another, pursued the source of the poison, reexamined the autopsy, and focused on contradictions throughout the file. It then made the decisive choice to exhume and reexamine Ge Pinlian’s remains.

On January 23, 1877, thousands gathered at Haihui Temple outside Beijing’s Chaoyang Gate; foreign journalists were among them. Sang Chunrong, president of the Board of Punishments, and Vice President Weng Tonghe personally supervised the examination. Liu Xitong and the original coroner were ordered to attend. The seals on Ge’s coffin were broken and the lid opened before the crowd. The remaining soft tissue was removed, and coroners lifted out the bones and examined them one by one. At last, one called out: “All of Ge Pinlian’s bones are yellowish white. There was certainly no poison. He died of illness!”

Liu Xitong’s legs gave way and he fell to his knees. The original coroner signed a confession on the spot, acknowledging that he had failed to wash the needle with soap-pod solution and that the original finding of “death by poison” was false. A supposed “iron case” sustained for four years and through five levels of review collapsed before a skeleton.

Two months later, the Board of Punishments submitted its final memorial to the Guangxu emperor. Yang Naiwu and Bi Xiugu were declared innocent of murder. Bi was nevertheless sentenced to eighty strokes for “failure to observe womanly propriety,” later commuted to a monetary redemption. Yang was assigned one hundred strokes for failing to avoid the appearance of impropriety and for falsely accusing others while imprisoned. Because his degree had already been revoked, the corporal sentence was waived, but his status was never restored. More than thirty Zhejiang officials—including Governor Yang Changjun, Prefect Chen Lu, and Magistrate Liu Xitong—were demoted, dismissed, or exiled.

The Cost After Exoneration

The case had been reversed. Exoneration did not restore what had been taken.

When Yang Naiwu left prison, the leg presses had left him permanently disabled and walking with a limp. His examination degree was gone, and the litigation had ruined his family. Back in Yuhang, he spent the rest of his life raising silkworms and selling silk to survive.

After her release, Bi Xiugu entered a Buddhist convent outside Yuhang’s south gate and took the religious name Huiding. Accounts of her later life dwell on the hands permanently twisted by the finger press.

Posterity has repeatedly told the exoneration as a classic example of late-Qing judicial self-correction. Look closely, however, and every force that made reversal possible came from outside the ordinary judicial process: Yang’s examination status, the provincial network of officials in Beijing, the money of a powerful merchant, and the public pressure generated by a newspaper in the foreign settlement. The five-tier review system prescribed by Qing law accomplished nothing.

Every effective effort also came from Yang Naiwu’s side. Bi Xiugu was a poor woman without degree, property, husband, or support from her husband’s family. She had no independent ability to appeal within the long judicial hierarchy. In an age without enforceable rights, she was rendered voiceless. Her words were swallowed and rewritten. Every attempt to retract her confession was treated as deceit. Every word forced from her under torture became evidence against her.

The case still deserves attention today. Can institutions escape the trap of treating confession as supreme? Can accountability be designed without creating incentives to hide mistakes? Can every future Bi Xiugu be given a voice? These are questions every legal professional should take seriously.

Key Figures

• Yang Naiwu — A newly successful provincial examination candidate from Yuhang County, Zhejiang. Rumor drew him into the case, and torture by the Hangzhou prefect forced a false confession. After exoneration, he remained stripped of status and disabled in both legs, supporting himself through sericulture.
• Bi Xiugu (“Little Cabbage”) — Ge Pinlian’s wife and a commoner. Unable to withstand torture at the county yamen, she falsely confessed to adultery and murder. After exoneration, she became a Buddhist nun under the religious name Huiding.
• Ge Pinlian — A worker in a tofu shop in Cangqian, Yuhang, and the deceased in the case. He suffered from “flowing fire” and died of illness in November 1873, but officials misidentified his death as arsenic poisoning.
• Qian Tan (“Qian Baosheng”) — Proprietor of Cangqian’s Airentang apothecary. Liu Xitong intimidated him into supplying false evidence of an arsenic sale. He never appeared before the Hangzhou prefectural court and died during questioning before transfer to Beijing.
• Liu Xitong — The Yuhang county magistrate. He prejudged the case, falsified the autopsy record, tortured Bi Xiugu, and pressured Qian Tan to furnish false evidence.
• Chen Lu — The Hangzhou prefect. He used leg presses and other torture on Yang Naiwu, ordered officials to complete the false chain of evidence, and issued the first proposed death sentences.
• Yang Changjun — Governor of Zhejiang and a former Xiang Army commander. After the capital appeals began, he delayed review in an effort to preserve the credibility of the provincial administration.
• Hu Xueyan — A celebrated “red-topped merchant” and pharmaceutical magnate. He contributed 200 taels of silver to the Yang family’s second capital appeal and continued to provide financial backing.
• Xia Tongshan — Vice minister of war. He organized eighteen Zhejiang officials to impeach the provincial authorities and helped move the case to the Board of Punishments.
• Weng Tonghe — Vice president of the Board of Punishments. He took part in the central review and helped advance the exhumation at Haihui Temple.

Key Concepts

• Successive adjudication, transmission, and review — Qing death sentences passed through county, prefecture, provincial judicial commissioner, governor, and Board of Punishments. In this case, dependence on written files, the perverse incentive created by official liability, and confession-centered adjudication caused every level to fail.
• Confession-centered justice — A defendant’s confession was treated as decisive proof of guilt. The principle that “no case stands without a confession” reinforced the legal use of torture and became a root cause of wrongful conviction.
• Reversal liability for wrongful judgment — Qing law imposed severe consequences for erroneous capital cases. In bureaucratic practice, accountability became concealment: officials preserved one another’s decisions to avoid punishment.
• Capital appeal (jingkong) — A remedy allowing people in the provinces to petition central offices such as the Censorate directly. The two appeals organized by Yang Juzhen were essential to keeping the case before the central government.

Related Episodes

• 09 The End of the Chinese Legal Tradition: How Late-Qing Reforms Reshaped the Rule of Law
• 02 A Survival Manual for Tang-Dynasty Justice: A Case that Sparked the Rites-vs-Law Debate
• 07 The Republican-Era Swordswoman and the Clash of Rites and Law: Shi Jianqiao’s Assassination of Sun Chuanfang

This is the transcript of episode 10 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

On the evening of January 31, 1976, smoke hung thick in a corner bar in Phoenix, Arizona. Several Mexican American laborers were playing poker around a greasy wooden table. An argument broke out over a three-dollar wager. Beer bottles shattered, a knife flashed in the dim light, and one of the men fell. He clutched his chest as the ambulance raced away, but died before reaching the hospital. He was thirty-four years old.

Police found several unsold cards in the dead man’s pocket. A few lines were printed on each:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford one, the government will appoint one for you.

At the top was a name: Ernesto Miranda.

The destitute man who had just been stabbed in a bar fight was one of the most consequential litigants in American constitutional history. He was the defendant in Miranda v. Arizona, the case that placed “you have the right to remain silent” in police dramas around the world.

Police soon detained a suspect in the fight. With a complicated expression, a young officer took out a card identical to those in Miranda’s pocket and read it slowly: “You have the right to remain silent…” The suspect listened without expression and then stopped talking altogether. Without a direct confession, prosecutors ultimately declined to charge him. The man who had actually wielded the knife crossed the border amid the confusion and disappeared into the Mexican night.

It was an absurd ending: the constitutional shield Miranda had helped create protected the men implicated in his own death ten years later.

In an earlier episode, I discussed Marbury v. Madison—the political struggle through which the Supreme Court claimed the power to interpret the Constitution. Once it had acquired that power, how would the Court use it? There are many possible answers, but few are as dramatic as the case we are about to examine.

From a Confession to the Supreme Court

Turn the clock back to March 3, 1963, again in Phoenix. An eighteen-year-old woman stepped off a city bus after a long day at work. The suburban street was dim and silent except for the sound of her shoes. A battered Packard pulled up beside her. Its door flew open, hands reached out from the darkness, and she was dragged inside.

Her hands were bound and she was raped in the desert. The assailant later drove her back downtown and left. She told police that he was a Hispanic man who wore glasses and that a rope had been tied across the back seat of his car.

Ten days later, two officers traced the description to a Packard owned by a twenty-three-year-old Hispanic man. He had served in the Army, had a criminal record, and worked loading produce. His name was Ernesto Miranda.

Officers brought Miranda from his home to the station and arranged a lineup—the familiar scene in which several men stand behind glass while a witness tries to identify one of them. The victim was anxious and afraid and would not make a positive identification. That did not stop the investigation. Officer Cooley entered the interrogation room, looked Miranda in the eye, and spoke with the calm confidence of someone who had already won: give it up. The victim just identified you. We know it was you.

The claim broke Miranda’s last psychological defense.

He was taken into a windowless interrogation room cut off from the outside world. Two experienced officers questioned him continuously for two hours. At last he broke down. He confessed to rape and kidnapping and signed his name to a paper bearing several preprinted clauses. In substance, they said:

I, Ernesto Miranda, swear that this statement has been made voluntarily and without threat or coercion; that I fully understand my legal rights; and that I understand any statement I make may be used against me in court.

Later investigation showed that Miranda had only a middle-school education. He was emotionally unstable and psychologically immature. His mother had died when he was young, his relationship with his father was poor, and he had been discharged from the Army for psychiatric reasons. In other words, a vulnerable man with limited intellectual ability and an unstable mental state confessed after two hours of isolated questioning and signed language the police had printed in advance.

His trial began three months later, in June 1963. Alvin Moore, a seventy-three-year-old veteran attorney, was appointed to represent the indigent Miranda without charge. Moore moved to exclude the confession—a claim with almost no chance of success at the time. The judge overruled him and admitted the preprinted confession in full. Miranda was sentenced to thirty years in prison, and the state supreme court affirmed.

Moore kept appealing. The case climbed the judicial ladder until it reached the highest seat of power in Washington.

Before Miranda: The Voluntariness Test

Before turning to the Supreme Court’s decision, we need to understand the rules governing American police interrogation before Miranda. Courts decided whether a confession could be used through the “voluntariness test.” A judge reviewed the circumstances surrounding the interrogation and asked whether the defendant had confessed of his own free will.

That may sound reasonable. The problem was that the standard was inconsistent. One judge could find a confession voluntary while another, faced with the same facts, could find it coerced. Police officers had no clear line telling them what they could and could not do.

Worse, interrogations took place behind closed doors. There were no recordings and no independent witnesses. In court, every dispute became a swearing contest between police and defendant. If a suspect alleged coercion, the officers would testify that the questioning had been calm and the confession entirely voluntary. Without a recording, judges almost invariably believed the police. Constitutional rights were hollowed out by an endless contest no defendant was likely to win.

The Supreme Court understood the problem. Over the three decades before Miranda, it had gradually tried to standardize interrogation law through a series of landmark cases.

In Brown v. Mississippi (1936), the Court established that confessions extracted through physical violence were categorically inadmissible. Sheriffs had hung the defendants from a tree and whipped them until they confessed. A unanimous Court held that such violence offended the most basic idea of justice.

Then came Gideon v. Wainwright (1963), which recognized the right of indigent defendants to appointed counsel. Legal representation became a foundation of a fair trial.

In Escobedo v. Illinois (1964), the Court extended the right to counsel backward from the courtroom to police interrogation. Once an investigation had focused on a particular suspect and police had taken him into custody for questioning, a confession obtained after officers refused his request for a lawyer had to be excluded.

But Escobedo left a large loophole: the suspect had to ask for counsel before the police were required to stop. If he did not know the right existed—or was too afraid to invoke it—officers could behave as though it did not exist.

That same year, in Malloy v. Hogan, the Court held that the Fifth Amendment privilege against compelled self-incrimination applied to the states. That decision cleared the way for Miranda to establish a national rule.

Is Closed-Door Interrogation Inherently Coercive?

Even after those decisions, the Court still faced a more fundamental question: could interrogation behind closed doors be coercive in itself? To answer it, we have to look beyond Ernesto Miranda to three other cases the justices considered alongside his.

The first was Vignera v. New York. Police arrested Vignera on suspicion of robbery and questioned him in shifts throughout the day. No one told him he could remain silent or consult an attorney. He confessed orally. Only at eleven that night did an assistant district attorney conduct a formal interview before a stenographer and turn the earlier admissions into a written record. Vignera was sentenced to sixty years in prison.

The second was Westover v. United States. Police arrested Westover on suspicion of robbery and held him in isolation for more than fourteen hours without explaining his rights. FBI agents then took over. Although they administered their own warning before questioning him, the Supreme Court later observed that the two interrogations formed an “uninterrupted chain” from the suspect’s perspective. After hours of intense, unwarned questioning had worn down his will, being told that he could remain silent had little practical meaning.

The third, and perhaps most disturbing, was California v. Stewart. Police arrested Stewart on suspicion of robbery and murder. To force him to talk, they also detained his wife. He was isolated in a cell for five days and questioned nine separate times. He maintained his innocence through the first eight sessions. During the ninth, after hearing his wife crying nearby, he finally broke down and confessed. The police file contained no record that officers had ever told him about his constitutional rights.

The Birth of the Miranda Rule

When the Supreme Court considered the four cases together, Chief Justice Earl Warren understood these tactics better than most. He had spent years as a California prosecutor and sent many serious offenders to prison. He knew the methods because he had once used the same kind of psychological strategy. During the 1966 oral argument, Warren held up not a passage from the Constitution but interrogation manuals circulated internally by police departments in major American cities. They catalogued standardized techniques for isolation, deception, psychological pressure, and manipulation.

On June 13, 1966, the Court ruled by a narrow vote of 5–4. Warren wrote the majority opinion. He began from the pressures inherent in custodial interrogation:

When police take a person into an interrogation room and cut him off from the outside world, they place him in a strange setting he cannot understand. Each new psychological pressure can erode his freedom of choice. To protect the Fifth Amendment privilege against compelled self-incrimination, that fear must be dispelled through a clear and explicit warning of rights.

The Miranda rule was born.

The Court did not prescribe a single fixed script. Instead, it required police to convey four essential points completely and accurately: first, you have the right to remain silent and refuse to answer questions; second, anything you say can be used against you; third, you have the right to consult an attorney and have counsel present; and fourth, if you cannot afford an attorney, the government will appoint one for you.

Only after a suspect understands these rights and voluntarily waives them may questioning begin and the resulting statement be used in court. The Miranda rule is therefore, at its core, an exclusionary rule for unwarned confessions. If police question a suspect without clearly explaining these rights, the resulting statement is inadmissible. The rule forces law enforcement to respect a suspect’s basic rights instead of treating a confession as something to be obtained at any cost.

The 5–4 vote matters. The four dissenters argued, first, that the Constitution had never authorized the Supreme Court to write such detailed operating procedures for every police department in the country. In their view, the Court had exceeded the judicial role and engaged in legislation. Second, they believed that moderate psychological pressure was legitimate so long as officers did not use violence or deprivation, such as denying food or sleep. Miranda, they warned, would shackle police and allow dangerous criminals to escape punishment.

Although the dissent did not carry the day, opposition to the rule never disappeared. In 1968, two years after the decision, Congress enacted 18 U.S.C. § 3501 in an effort to overrule Miranda. It provided that a confession could be admitted whenever it was voluntary, even if police had not administered the warning. For critics, it was an opportunity to reclaim authority from an overreaching Court.

The issue reached the justices again in June 2000 in Dickerson v. United States. By a decisive vote of 7–2, the Court held § 3501 unconstitutional. Chief Justice William Rehnquist wrote that Miranda was no longer an ordinary evidentiary rule Congress could change at will. It was a constitutional rule. Over more than three decades, it had become embedded in routine policing and in the public understanding of legal rights.

The shift from 5–4 in Miranda to 7–2 in Dickerson showed how firmly the warning had taken root. Reading Miranda rights became a standard feature of American policing.

Does Miranda Let Criminals Go Free?

What about the dissenters’ fear that the rule would allow large numbers of offenders to escape justice?

Consider Miranda’s own case. After the Supreme Court excluded his confession, prosecutors had to find another way to prove guilt. They turned to his girlfriend. After Miranda’s first arrest in 1963, she had visited him in jail. With no officer present and in an entirely private conversation, Miranda told her the details of the kidnapping and rape. He asked for forgiveness and begged her to help cover up the crime.

At the retrial, she took the stand and repeated what he had told her. The defense objected, but the judge overruled it for a straightforward reason: Miranda had confessed to her in a private setting independent of the government. There had been no official compulsion. His statement was voluntary.

In March 1967, without using the unlawful confession, a jury again found Miranda guilty of kidnapping and rape on the basis of witness testimony, the victim’s account, and physical evidence. He was again sentenced to thirty years in prison.

The result was instructive. The Miranda rule was not a device for excusing crime. It required law enforcement to follow lawful procedures. If police gathered enough admissible evidence, they could still convict without a confession.

What did the numbers show about its effect on law enforcement?

New York University professor Stephen Schulhofer conducted a detailed study and estimated that excluding unwarned confessions caused a substantive loss in only about 0.78 percent of criminal prosecutions. Research by Richard Leo likewise found that more than 80 percent of suspects waived their rights and continued answering questions after hearing the warning. Rather than paralyzing interrogation, Miranda helped professionalize policing and pushed investigators away from crude psychological pressure toward more sophisticated methods.

Exceptions and Adjustments

Since 1966, the Supreme Court has also qualified the Miranda rule through a series of decisions.

First came Harris v. New York (1971), which established the impeachment exception. A statement obtained in violation of Miranda cannot be used directly to prove guilt. But if a defendant chooses to testify and gives an account that sharply contradicts the earlier statement, prosecutors may use the statement on cross-examination to challenge his credibility. Miranda cannot become a shield for perjury in court.

Next came New York v. Quarles (1984), which recognized the public-safety exception. Police apprehended an armed suspect in a supermarket and noticed an empty holster at his waist. Realizing that a gun had been hidden somewhere in the store, an officer immediately asked, “Where is the gun?” without first giving the warning. The suspect pointed toward a carton. The Supreme Court held that both his answer and the weapon were admissible. An urgent threat to public safety could temporarily take priority over the warning requirement.

Then came Oregon v. Elstad (1985). Police obtained one statement before administering the warning and a second, identical confession after providing it. Was the later statement “fruit of the poisonous tree” and therefore inadmissible because the first one had been obtained unlawfully? The Court said no. Miranda is a “prophylactic rule”; a technical failure to warn is not itself the same kind of constitutional violation as a coerced confession. If the initial statement was not produced by torture or some other form of compulsion, a later voluntary confession following a proper warning is not poisonous fruit and may be admitted.

The Miranda rule has never been static. Over six decades, the Court has patched and qualified it repeatedly. Yet it has never overturned the rule itself. Anyone who wants to do so must answer a basic question: if police may question people in custody without explaining these rights, how much practical meaning remains in the Fifth Amendment command that no person “shall be compelled in any criminal case to be a witness against himself”?

Epilogue

Return to the dim Phoenix bar. On January 31, 1976, the paroled Ernesto Miranda lay dying on the floor. In his pocket were cards bearing the warning that carried his name. Selling them earned him a little spare change.

Ten years earlier, his confession had rewritten American criminal procedure. Ten years later, a card bearing his name protected those implicated in his death.

The absurd ending offers a reminder: law protects everyone equally. Even a criminal—even the person you most want to make speak—does not lose his constitutional rights at an officer’s whim. A society’s commitment to civilization is measured not by how it treats the law-abiding, but by how it treats those it regards as the worst among us.

The next time you hear the famous Miranda warning in a police drama, remember that it carries nearly two centuries of American constitutional history. It traveled outward from the country’s highest court until it reached every windowless interrogation room.

Key Figures

• Ernesto Miranda — The defendant in Miranda v. Arizona. A school dropout with a history of mental instability, he was arrested for kidnapping and rape in 1963 and confessed without first being told his constitutional rights. His case transformed American criminal procedure. Paroled in 1972, he was stabbed to death in a bar fight in 1976.
• Carroll Cooley — A Phoenix police officer and one of Miranda’s principal interrogators. At trial, he acknowledged that Miranda had not been informed of his right to silence or counsel.
• Alvin Moore — The seventy-three-year-old court-appointed lawyer who represented Miranda without charge, sought to exclude the confession at trial, and carried the case toward the U.S. Supreme Court.
• Earl Warren — The fourteenth chief justice of the United States (1953–1969) and author of the Miranda majority opinion. His years as a California prosecutor gave him extensive knowledge of police interrogation methods.
• William Rehnquist — The sixteenth chief justice of the United States (1986–2005). He wrote the 7–2 majority opinion in Dickerson confirming that Congress could not abolish the constitutional rule announced in Miranda.
• Twila Hoffman — Miranda’s girlfriend. At his 1967 retrial, she repeated his private jailhouse confession and became a key prosecution witness in his second conviction.
• Stephen Schulhofer — A professor at New York University whose empirical work estimated that Miranda caused an actual prosecution-loss rate of about 0.78 percent.
• Richard Leo — A professor at the University of San Francisco School of Law whose field research found that more than 80 percent of suspects waived their rights and continued answering questions after receiving the warning.

Key Cases and Concepts

• Miranda v. Arizona, 384 U.S. 436 (1966) — By a 5–4 vote, the Supreme Court held that suspects must be informed of the right to remain silent and the right to counsel before custodial interrogation; otherwise, their statements cannot be used in the prosecution’s case-in-chief.
• Voluntariness test — The principal pre-Miranda standard. Judges assessed the “totality of the circumstances” to decide whether a confession was voluntary, an uncertain inquiry highly dependent on case-by-case discretion.
• Brown v. Mississippi (1936) — A unanimous Court held that confessions extracted through physical violence violated basic fairness and were inadmissible.
• Gideon v. Wainwright (1963) — Established the right of indigent criminal defendants to court-appointed counsel, making legal assistance a foundation of a fair trial.
• Escobedo v. Illinois (1964) — Extended the right to counsel into pretrial interrogation but left the practical loophole that a suspect first had to request an attorney.
• Malloy v. Hogan (1964) — Applied the Fifth Amendment privilege against compelled self-incrimination to the states through the Fourteenth Amendment, preparing the way for a nationwide Miranda rule.
• Vignera v. New York / Westover v. United States / California v. Stewart — The other three cases decided with Miranda, involving all-day serial questioning, an uninterrupted chain of local and federal interrogation, and nine isolated sessions over five days. Together they exposed systemic problems in closed-door custodial questioning.
• Miranda rule — An exclusionary rule for unwarned statements: a statement obtained through custodial interrogation without a proper warning is generally inadmissible in the prosecution’s case-in-chief.
• 18 U.S.C. § 3501 (1968) — Congress’s attempt to supersede Miranda by making a confession admissible whenever it was voluntary, even if police had not administered the warning.
• Dickerson v. United States, 530 U.S. 428 (2000) — Held § 3501 unconstitutional by a 7–2 vote and confirmed that Miranda announced a constitutional rule Congress could not abolish.
• Harris v. New York, 401 U.S. 222 (1971) — Established the impeachment exception: an unwarned statement cannot directly prove guilt but may be used to challenge the credibility of a defendant who testifies inconsistently at trial.
• New York v. Quarles, 467 U.S. 649 (1984) — Established the public-safety exception, allowing officers to ask urgent questions without first giving the warning when an immediate danger exists.
• Oregon v. Elstad, 470 U.S. 298 (1985) — Held that a technical failure to warn does not automatically taint a later voluntary confession made after a proper warning.
• Prophylactic rules — Rules created by courts to safeguard constitutional rights before a direct violation occurs. Miranda warnings protect the Fifth Amendment privilege even though the precise script does not appear in the constitutional text.

Related Episodes

• 08 The Supreme Court in the Crevice: The Birth of American Judicial Review — How Marbury v. Madison gave the Supreme Court the power to interpret the Constitution. Miranda is a classic example of the Court using judicial review to impose a procedural rule on police throughout the country.

This is the transcript of episode 09 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

In the episode on Shi Jianqiao, I mentioned the “late-Qing legal reforms” as the foundation on which the Republic of China later built its Complete Book of the Six Codes. Today I want to look closely at this radical legal transformation in the Qing dynasty’s final years.

The subject receives surprisingly little attention on the Chinese internet. Yet its importance is seriously underestimated. In one stroke, the reforms ended more than two millennia of legal tradition and grafted a modern legal system onto the ruins of the classical Chinese legal order.

Trading Legal Reform for Sovereignty

Let us return to Wuchang in 1902. Zhang Zhidong, the governor-general of Huguang, was negotiating the renewal of a commercial treaty with Britain. On the final day, the talks stalled over extraterritoriality.

We tend to regard extraterritoriality simply as an instrument of Western aggression and proof of China’s semicolonial status. The reality was more complicated. Commerce between two countries required legal rules both sides trusted. When British and Chinese merchants disputed a transaction, which law and which court should decide the case? Britain considered Qing law “barbarous and backward,” unsuited to modern commerce, and demanded that British law govern its nationals. To the Qing government, this was an intolerable violation of sovereignty.

Why did Chinese law appear so backward to the British? The Qing’s central code, the Great Qing Code and Substatutes, combined criminal, civil, and administrative rules in one body and treated punishment as the answer to nearly every kind of dispute. Caning, beating, penal servitude, exile, and death could follow conduct ranging from unpaid debts and broken contracts to a son talking back to an elder. Its central purpose was not to protect individual rights or resolve disputes but to preserve order through obedience.

By the nineteenth century, Western systems had separated criminal, civil, commercial, and procedural law. They had also developed lawyers, public trials, and rules of evidence. Against that background, Western criticism was not merely arrogance. Qing officials sometimes tortured foreign suspects and confined them with convicted killers—practices intolerable to people accustomed to procedural safeguards.

At the decisive moment in the 1902 negotiations, Zhang proposed a clause: if China improved its laws and judicial system to Britain’s satisfaction, Britain would relinquish extraterritoriality. The British accepted; after all, they would decide what counted as satisfactory. The result was the Mackay Treaty. The United States and Japan soon signed similar provisions.

Histories often cite this promise as the starting point of late-Qing legal reform. Initially, however, Zhang hoped to placate Britain with the appearance of change. He later conceded that reform alone could not recover jurisdiction; ultimately, China needed national power.

Even so, the court adopted the proposal. The deeper cause lay in the Boxer crisis of 1900. After the allied armies entered Beijing, Empress Dowager Cixi fled to Xi’an and was nearly named personally responsible by the foreign powers. The shock convinced her that without fundamental change, the dynasty would not survive.

In 1901, while still in exile, Cixi issued an edict announcing reform. Liu Kunyi and Zhang Zhidong then submitted the Three Joint Memorials on Reform, the programmatic document of the New Policies. Legal reform became one of its central projects. After the Mackay Treaty was signed in 1902, the court appointed Shen Jiaben and Wu Tingfang as commissioners for the revision of the laws.

Shen Jiaben: Preserve the Old, but Admit the New

Shen Jiaben’s life was almost a miniature of the reform movement itself. Born in Zhejiang in 1840, he received a classical Confucian education and entered government through the examinations. He earned the jinshi degree in 1883 at forty-three, served as prefect of Tianjin and Baoding and as judicial commissioner of Shanxi, and was already sixty-two when appointed to revise the laws.

Shortly before that appointment, imprisonment had transformed him. During the Boxer crisis, a French missionary with a grievance over an old case accused Shen of colluding with the Boxers. Allied forces detained him for four months before releasing him for lack of evidence. The records say little about what he endured, but afterward his intellectual direction changed completely.

Previously a conventional scholar of statutes and precedents, Shen began to study Western law systematically. Yan Fu’s translation of Montesquieu’s The Spirit of the Laws showed him a mode of abstract legal reasoning missing from the Chinese tradition of rules and decided cases. That discovery shaped the reforms he later led.

Shen supervised translations of thirty-three foreign codes and legal works, invited Japanese jurists to Beijing, and founded China’s first modern law school. His guiding maxim was: “The old need not all be discarded; the new must also be consulted.”

From Commercial Law to a New Criminal Code

The speed of the project was extraordinary. From its formal launch in 1902 to the dynasty’s fall in 1911, Shen’s team attempted to reconstruct a legal order two thousand years in the making.

They began with commerce. The 1904 Imperially Sanctioned Great Qing Commercial Code, modeled partly on Japanese and German law, contained nine general provisions on merchants and 131 articles on companies. Although spare by modern standards, it introduced the limited-liability company to Chinese law. A company became a legal person and shareholders were liable only to the extent of their investment. Behind that rule was a revolutionary premise: individuals and organizations met as equal legal subjects rather than through personal dependency.

Commercial law was only the beginning. Criminal reform reached much deeper. In 1905 the court abolished lingchi, exposure of the severed head, mutilation of corpses, tattooing, and collective liability. Beheading and strangulation remained the only forms of capital punishment. It also replaced beating and caning with fines. Punishment no longer had to be inflicted upon the body; it could attach to property, implicitly recognizing the offender as a property-owning legal subject rather than merely a body available for violence.

Shen then invited the Japanese jurist Okada Asatarō to help draft a new criminal code using Japan’s 1907 code as a model. Promulgated on January 25, 1911, the New Qing Criminal Code was China’s first specialized modern criminal code.

Its innovations were profound. First, it established legality: no act was a crime, and no punishment could be imposed, without a prior statutory provision. The written law, rather than an emperor’s command, became the standard.

Second, it modernized punishment. The principal penalties were death, imprisonment, detention, and fines; strangulation was the sole death penalty. Additional penalties included deprivation of civil rights and confiscation.

Third, it abolished privileges such as the “Eight Deliberations” and substitution of office for punishment, under which imperial relatives, high officials, and distinguished persons could escape or reduce a sentence. A hierarchy that had survived since the Han dynasty was formally removed.

Fourth, it treated children under twelve through protective education rather than criminal punishment—an advanced shift from retribution to rehabilitation.

The Civil Code Draft and the Rites-versus-Law Debate

Civil codification proceeded in parallel. In August 1911, the first independent Chinese civil-code draft was completed. Its five books and more than 1,500 articles followed German and Japanese models. The first three—General Principles, Obligations, and Property—were drafted by the Japanese jurist Matsuoka Yoshimasa and introduced legal persons, bona fide third parties, and limitation periods. The final two books, Family and Succession, retained older norms: parental consent to marriage, the husband’s control of marital property, and the exclusion of women from inheritance.

The text was therefore divided against itself. Its first half spoke the individualism of the late nineteenth century: the person as independent and equal. Its second half still spoke the language of patriarchal kinship: one was first a son, daughter, or wife and only then an individual. Classical and modern ideas confronted each other inside a single code.

The fiercest controversy surrounding the new criminal code became known as the “debate between rites and law.” Here the phrase refers not to the general historical tension between Confucian ethics and state law, but to two camps within the late-Qing codification project. The jurisprudential reformers, represented by Shen Jiaben and Yang Du, supported the new code. The ritual conservatives, represented by Zhang Zhidong and Lao Naixuan, opposed it.

Their disputes were highly concrete. Should consensual sex by an unmarried woman be a crime? Reformers placed it in the realm of morality and public opinion; conservatives believed decriminalization would corrupt social customs. Should relatives be permitted to conceal one another’s crimes? Reformers would preserve the principle without distinctions based on mourning grades; conservatives insisted that proximity, seniority, and kinship rank determined the duty. Could a younger relative defend himself against an elder’s unlawful assault? Reformers called self-defense a natural right; conservatives regarded striking an elder as an intolerable inversion. Even the age of criminal responsibility was contested: Shen initially proposed sixteen but was forced down to twelve.

The conservatives believed China’s agrarian order rested on the family. If the law treated every offender alike and refused heavier penalties for insubordination, the ethical structure of the family—and with it political order—would collapse.

The reformers argued the opposite. China was weak because individuals owed loyalty through the family rather than directly to the state; family rules displaced national law and patriarchs displaced officials. A modern state required law centered on the individual. As Yang Du put it, the spirit of the new criminal code was both nationalism and constitutionalism.

The result was an awkward compromise. The code retained the reformers’ framework, but a Provisional Charter appended rules preserving the old law for offenses against the imperial house, rebellion, foreign aggression, and offenses by juniors against seniors. Beheading survived, and younger relatives could not claim self-defense against elders. The main text promised equality before the law; the appendix declared some people more equal than others.

From Statutes to Judicial Institutions

The movement reformed more than statutes. It also attempted to restructure judicial power. Traditionally, administration and adjudication were united: the county magistrate was both local executive and judge, while at the center the Board of Punishments, Court of Judicial Review, and Censorate had overlapping authority.

The 1906 institutional reform transformed the Board of Punishments into a Ministry of Law responsible for judicial administration and the Court of Judicial Review into the Supreme Court responsible for adjudication. For the first time, judicial power was formally separated from administration.

Implementation met resistance. The ministry and court quickly fought over personnel and authority. The ministry sought to preserve bureaucratic control, while the court asserted judicial independence. An even sharper conflict set the central government against provincial governors. Creating independent trial courts throughout the country meant taking a core power from provincial officials whose military, fiscal, and judicial authority had expanded enormously since the Taiping and Nian rebellions.

Provincial governors and the governor of Shuntian resisted plans for local courts, disputing jurisdiction, judicial independence, and professional qualifications. By then the center was too weak to prevail. It conceded step by step, and local judicial reform was shelved. The episode anticipated a recurring problem in modern China: a beautiful institutional blueprint on paper cannot survive unchanged when the underlying distribution of power remains intact.

By 1911 the movement had alienated interests from the center to the provinces. Conservative officials repeatedly impeached Shen for betraying orthodoxy. The court quietly removed him from leadership by ordering him back to his former ministry post. That same year the Revolution of 1911 began; within months the Qing emperor abdicated.

Three Legacies of a Failed Reform

Did the late-Qing reforms succeed? In their immediate aims, clearly not. They did not save the dynasty, nor did they recover extraterritorial jurisdiction. China achieved that only in 1943 through new treaties with its wartime allies.

Historically, however, their consequences were immense.

Their first legacy was the formal transformation of Chinese law: from a unified code dominated by punishment to separate branches and distinct substantive and procedural rules. The Republic inherited these forms. It revised the unimplemented Qing criminal code, removed the Provisional Charter, and promulgated it as the national criminal law. The Qing civil draft directly informed the Nationalist civil code. Even the structure and concepts of today’s Chinese Civil Code can trace part of their lineage to that draft.

Their second legacy was the problem of decontextualized legal transplantation. In a few years, the drafters imported doctrines accumulated over centuries in the West into a society still dominated by agriculture and deeply rooted kinship structures. Many ordinary people—and many local officials—could scarcely understand the new provisions. Lao Naixuan mocked the criminal code as something written for foreigners. The criticism was not entirely wrong: demonstrating reform to the foreign powers was a primary motive, and foreign rules were copied before they could be adapted locally. Advanced texts and social reality diverged, leaving many provisions suspended in midair.

Yet a law perfectly fitted to existing society cannot help move that society forward. Shen and his colleagues planted a measuring rod in the ground of the twentieth century and waited for China to reach its height.

The third, and perhaps most important, legacy was a new conception of law. Ideas that once looked heretical took root in Chinese legal thought. For the first time, ethical conventions with millennia of authority could be declared legally invalid.

When news of the Wuchang Uprising reached Beijing in the autumn of 1911, the seventy-one-year-old Shen had been out of office for months. He returned to his old ministry room, surrounded by unfinished drafts and translations. He knew the dynasty would not last, and that his decade of codes would probably never take effect under the Qing banner.

But he did not stop. He worked until the day the emperor abdicated. Asked later whether he regretted it, Shen answered indirectly: “Law is the pattern of all under heaven and the measure of all affairs.” Law supplies the rules and standards of the world, no matter who sits upon the throne.

Key Figures

• Shen Jiaben: The central figure in late-Qing legal reform, arguing for modern legal institutions while preserving parts of tradition.
• Wu Tingfang: An important legal and political figure involved in the late-Qing reforms.
• Lao Naixuan: A conservative voice in the rites-versus-law debate who opposed the New Criminal Code’s departure from traditional ethics.
• Zhang Zhidong: A late-Qing statesman whose position reflected tensions between local and central power, tradition and reform.

Key Cases and Concepts

• Late-Qing legal reform: The 1902–1911 reform effort to recover legal sovereignty and save the dynasty.
• Consular jurisdiction: Foreign powers’ judicial privileges in China, a major external pressure behind reform.
• Great Qing New Criminal Code: A major product of China’s transition toward modern criminal law.
• Rites versus law: Institutional conflict over kinship ethics, marriage and family, and principles of punishment.
• Dali Yuan and new-style courts: Key institutions in the modernization of the late-Qing judiciary.

Related Episodes

• Podcast 01｜From the First Emperor to the Revival of Roman Law: State-Building Meets the Rule of Law : Provides a longer view of the relation between state power and the rule of law.
• Podcast 05｜Gao Mingxuan and Chinese Criminal Law: Four Elements vs. Three Tiers : Extends the story into modern Chinese criminal-law theory.

This is the transcript of episode 08 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcast . The episode is in Chinese; this transcript has been translated into English.

In episodes 3 and 6, we talked about Trump and birthright citizenship. Both times we saw the U.S. Supreme Court playing the role of arbiter in contemporary constitutional disputes—it can interpret the Constitution, find the president in violation of it, and overturn acts of Congress. But by what right does the Supreme Court hold such power? Nothing in the text of the Constitution states that “the Supreme Court has the power to interpret the Constitution.” Where did this power come from?

The answer: the Court fought for it itself. Or, more precisely, it won it through a concrete case—a case that appears in virtually every course on American legal history and constitutional law. That case is Marbury v. Madison.

The Election of 1800 and the “Midnight Judges”

Let’s go back to where the story begins. In 1800, the United States held its third presidential election. The two great camps were the Federalists and the Democratic-Republicans, both parties founded by the nation’s Founding Fathers. The sitting president was the Federalist John Adams, one of the principal drafters of the Declaration of Independence and, after Washington, the second president of the United States. His rival for the presidency was the Democratic-Republican Thomas Jefferson—also a principal drafter of the Declaration of Independence, counted alongside Washington and Franklin among the three great founders of the republic.

The two men had been comrades in the War of Independence; now they were political enemies. The election was extraordinarily bitter, with both sides attacking each other throughout the campaign. The result was a landslide for Jefferson’s Democratic-Republicans—they took not only the presidency but both houses of Congress as well.

That meant the Federalists had lost the executive and legislative powers at the same time. So they turned their eyes to the third power: the judiciary. In the American system of separated powers, the judiciary is supposed to be a neutral referee that takes no part in the substance of governing. But precisely for that reason, it is the most stable branch. What the Federalists set out to do, before losing everything, was to turn the judiciary into their own stronghold.

They had to act during the transition period, before the new government took office, using the last of the power in their hands to rush their people into the judicial system. In January 1801, the Federalists appointed their own Secretary of State, John Marshall, as the new Chief Justice of the Supreme Court. That is, Marshall served as Secretary of State and Chief Justice at the same time—unthinkable today, but in the early republic holding two offices at once was not unusual. And this arrangement planted a subtle seed for what came later, which we will get to shortly.

On February 13, the Federalist-controlled Congress, with its term about to expire, passed a new Judiciary Act with three main provisions: first, it created sixteen new lifetime federal circuit judgeships, all filled by Federalists; second, it greatly expanded the jurisdiction of the federal courts, so that cases involving federal matters could be heard directly by federal courts without going through the state courts; third, it reduced the number of Supreme Court justices from six to five, to prevent the Democratic-Republicans from nominating a new justice once in office. Posterity mockingly called this law the “Midnight Judges Act.” Its purpose was transparent—to strengthen Federalist control over the judicial power—but objectively it also strengthened the judiciary itself and made the structure of separated powers more solid.

Two weeks later, on February 27, the Federalist Congress passed the District of Columbia Organic Act, formally creating Washington, D.C., and authorizing the president to appoint justices of the peace for the District—roughly equivalent to today’s magistrate judges, with jurisdiction over civil cases and minor criminal cases in their districts. On March 2, Adams signed an order nominating forty-two justices of the peace—all their own men, of course. On March 3, the Senate rushed to confirm the appointments. Why the hurry? Because the next day, March 4, the new Democratic-Republican president, Jefferson, would take office.

Under the custom of the time, Senate confirmation alone did not put the nominees in office. They had to receive commissions issued by the State Department before their appointments took effect. So from the evening of March 3, after Congress adjourned, Marshall sat in his State Department office signing commissions one by one. But there was not enough time. Marshall signed every commission and affixed every seal—but as dawn approached, seventeen of them had not been delivered to their recipients.

Among the seventeen who never received their commissions was a man named William Marbury, one of the leading figures of the Federalist Party. He was more than happy to accept the appointment. But even though Congress had confirmed it and the State Department had issued it, the commission simply never reached his hands.

At noon on March 4, the new president, Jefferson, was sworn in. He walked into the State Department office and saw the seventeen undelivered commissions on the desk. He told his new Secretary of State, James Madison, directly: hold these commissions—not one of them is to be delivered.

Jefferson simply abolished twelve of the seventeen posts and reassigned the remaining five to his own Democratic-Republicans. The commissions of Marbury and the other sixteen Federalists were thus nullified. And that was not all: Jefferson also replaced nearly half of the mid-level officials in the federal executive.

Meanwhile, in March 1802, the new Democratic-Republican Congress passed a law repealing the entire “Midnight Judges Act” of the year before. The sixteen newly seated federal circuit judges all lost their jobs. And to prevent the Federalist-controlled Supreme Court from declaring the repeal unconstitutional, Congress pushed the Court’s session, originally scheduled for June 1802, all the way back to February 1803—a delay of eight full months. This was open suppression of the judicial power by the legislative power.

Worse was still to come. Congress launched impeachment proceedings against federal judges. John Pickering, a district judge in New Hampshire, was removed. Then the spear of impeachment pointed straight at one of the Supreme Court’s own justices—Samuel Chase. In the final vote, he escaped removal by a single vote.

I recount all this so you can feel the real atmosphere the Supreme Court faced in February 1803. It was not a lofty, revered guardian of the Constitution. It was prey backed into a corner, trembling.

It was against this backdrop that Marbury—the justice-of-the-peace nominee whose appointment had been cancelled because his commission never arrived—filed suit against the new Secretary of State, Madison. This is the famous case of Marbury v. Madison. After working its way through the courts, the case finally reached the Supreme Court.

A Lawsuit Aimed at the Separation of Powers

Marbury’s claim was straightforward: he asked the Supreme Court to order Secretary of State Madison to hand over the commission that belonged to him. His legal basis was Section 13 of the Judiciary Act of 1789, which authorized the Supreme Court to issue writs of mandamus to sitting officers of the federal government.

The Jefferson administration at first refused to appear. Madison did not show up in person and did not even send counsel. Their reasoning: the courts have no power to interfere in the executive affairs of the government—after all, I am the elected government, representing the will of the people. You justices are appointed, not elected. On this point Jefferson’s political instincts were sharp. A challenge by the judicial power to the executive power had never happened in American history; this was an entirely new question.

From the very beginning, this case was aimed straight at the separation of powers. And now this hot potato landed in the hands of Chief Justice John Marshall—himself a Federalist. The separation of powers, the founding principle of the American republic, had arrived at a crossroads of history.

If Marshall ruled for Marbury and ordered Madison to hand over the commission, the Jefferson administration would, with absolute certainty, refuse to comply. That would create a deadlock—an order of the Supreme Court openly ignored by the government. And the Court commands no army; it has no power of enforcement. As Alexander Hamilton wrote in Federalist No. 78, the judiciary has neither purse nor sword. The Court’s authority rests on general acceptance—and once a Supreme Court judgment is ignored by the government, that authority collapses.

Conversely, if he ruled against Marbury and simply dismissed the case, that would amount to bowing to Jefferson. It would be an admission that the Court could not protect rights a citizen had already lawfully acquired—that the president could do as he pleased. The Court would lose all standing in the political system, the Federalists would lose decisively to the Democratic-Republicans, and America would slide toward one-party dominance.

To win was to invite humiliation; to lose was slow suicide. For the Supreme Court of that moment, this judgment was a walk on a tightrope.

Marshall’s Three Questions

How did Marshall break the deadlock? He split the opinion into three questions.

First question: did Marbury have a right to the commission?

Marshall’s answer: yes. His logic was perfectly clear: nomination by the president, consent of the Senate, signature and seal by the Secretary of State—at that point the appointment was complete. Delivery of the commission was a matter of convenience, not a condition of validity. Marbury therefore held a definite, vested legal right to the office of justice of the peace. For the Jefferson administration to withhold it was a violation of that right.

Second question: if the right was violated, does the law afford a remedy?

Marshall was equally emphatic: it does. Here he invoked a maxim from Roman law—“where there is a right, there is a remedy.” The maxim rests on a basic principle from Roman times: if a person enjoys a right under law, then the law must provide him a path to relief when that right is injured.

Then he wrote the sentence that has been quoted countless times since: the very essence of the United States is that it is a government of laws, and not of men. If a nation’s laws furnish no remedy for the violation of a vested legal right, that nation does not deserve the title of a government of laws.

But what if the party violating a citizen’s rights happens to be the government itself—the executive branch? How is a court to protect the right then? To answer this, Marshall divided the acts of executive officers into two categories.

The first category is acts of political discretion. When the president makes decisions in foreign affairs, national defense, and the other domains the Constitution commits exclusively to him, the Secretary of State and the department heads are merely the president’s agents, carrying out his political will. Such decisions are answerable only to the nation and to the voters; the courts have no standing to question them.

The second category is acts bound by law—where the law has already imposed on a particular officer a specific, definite, unquestionable legal duty, and that duty bears directly on the individual rights of particular citizens. In that situation, the officer is no longer the president’s agent—he is an instrument of the law. What he does is what the law commands him to do, not a matter of his own judgment of values. So if he fails to do it, the courts have the power to intervene. If you, the Secretary of State, will not deliver a commission already signed and sealed, of course the courts can act.

This distinction is enormously important. It is in fact a cornerstone of all modern administrative law. When we speak today of “citizens suing the government,” of bringing suit against official inaction—the origin of that idea traces in large part back to this passage of Marshall’s reasoning. And even as Marshall granted the courts jurisdiction over the government, he drew a red line the courts must not cross: politics to politics, law to law; political questions the courts must not touch, legal questions the courts must not shirk.

So Marshall answered the first two questions clearly: Marbury had the right; the right was violated; the courts could grant relief. And then?

Third question: does the Supreme Court have original jurisdiction over this case?

The air in the courtroom must have frozen at that moment. Because Marshall suddenly swung his gun around—not at the Jefferson administration, but at a law passed by Congress. Section 13 of the Judiciary Act of 1789 plainly authorized the Supreme Court to issue writs of mandamus, and Marbury’s counsel had cited exactly that provision. But Marshall said: wait—let us look at the Constitution again.

Article III, Section 2 of the Constitution is perfectly clear: the Supreme Court’s original jurisdiction extends to only three kinds of cases—those affecting ambassadors, those affecting other public ministers and consuls, and those in which a state is a party. Marbury’s case, a dispute over the appointment of a local justice of the peace, is obviously not on that list.

So here is the problem: Section 13 of the Judiciary Act of 1789 says the Supreme Court may take the case; the Constitution says it may not. One is a statute enacted by Congress; the other is the supreme law of the land. They are in direct conflict. Which one governs?

Marshall’s answer: the Constitution governs.

Here he wrote the most famous syllogism in the history of American law: the Constitution is the supreme law of the nation, established precisely to limit the powers of every branch of government, and its authority is superior to any ordinary legislation; the Judiciary Act of 1789, by presuming to enlarge the Constitution’s limits on the Supreme Court’s original jurisdiction, is repugnant to the Constitution; and a law repugnant to the Constitution is not law—it is void from the beginning.

Then came the decisive conclusion—it is emphatically the province and duty of the judicial department to say what the law is and where its limits lie. When a judge deciding a concrete case faces a conflict between an act of Congress and the Constitution, he has only one choice: apply the Constitution, and declare the law that violates it void.

Not one word of this conclusion appears in the constitutional text. Marshall interpreted it into existence. But from that day forward, it became an unbreakable rule of American constitutional practice.

Defeating Your Opponent by Yielding

And so the Supreme Court’s final judgment: Marbury loses. The Supreme Court has no jurisdiction and therefore cannot issue the writ of mandamus. Case dismissed.

Let’s take apart exactly what makes this judgment so brilliant.

On the merits, it is a retreat. Marshall voluntarily declared that his Court lacked jurisdiction, which left Jefferson no ground whatsoever for attacking it. When a judge says he himself cannot take the case, can you accuse him of overreach?

Institutionally, it is a seizure of power. To arrive at the conclusion “I have no jurisdiction,” Marshall first had to decide whether Section 13 of the Judiciary Act of 1789 was unconstitutional. And to decide whether a statute is unconstitutional, he first had to establish that the courts possess the power to review acts of Congress for constitutionality. In other words: he said “I will not take this case”—but the premise of saying so was precisely “I have the power to review whether the laws you, Congress, enact violate the Constitution.”

This is what it means to defeat your opponent by yielding. That sense of proportion—knowing when to advance and when to retreat—is the most remarkable thing about Marshall. On the great questions, not an inch of ground; on the small ones, voluntary concession.

From that day on, the U.S. Supreme Court formally possessed its sharpest weapon: the power of constitutional review. The Court can interpret the Constitution, strike down laws passed by Congress, and nullify executive orders signed by the president. This power appears nowhere in the constitutional text; it went through no amendment process and no popular referendum. It was “invented” by a judge, in a judicial opinion, through a single act of legal reasoning.

And so the Supreme Court safely survived the most dangerous period of its founding. But the story of judicial review was only beginning.

From Horizontal to Vertical: The Expansion of Judicial Review

What Marbury established was horizontal review: the Supreme Court may review the federal government. But what about the states? Can the Supreme Court review state legislation, and the judgments of state courts?

That brings us to the next two milestones.

One is Martin v. Hunter’s Lessee (1816). The case concerned title to land in Virginia belonging to Loyalists after the War of Independence. The Supreme Court ruled, but the Virginia courts refused to comply. Justice Joseph Story wrote the opinion, holding that under Article VI of the Constitution, federal law must be interpreted and applied uniformly throughout the nation, and that in all cases involving the Constitution and federal law, the federal judicial power extends to the judgments of the state courts.

The other is Cohens v. Virginia (1821). The case arose in Virginia, where a state court had convicted a man for selling federal lottery tickets. The defendant appealed to the Supreme Court. Virginia’s position: I am a sovereign state; the Supreme Court has no authority to re-examine my criminal judgments. Marshall wrote the opinion himself: in cases involving the Constitution and federal law, the United States is one nation. On matters touching federal questions, the states do not hold final sovereignty. The Supreme Court holds final appellate jurisdiction over such judgments.

Taken together, these two cases meant that the Supreme Court could henceforth review the legislative, executive, and judicial acts of the states. One Constitution, one standard, one court of final appeal. At the time, it was an institutional arrangement unique in the world.

Of course, power is a double-edged sword. Judicial review has been abused in history, at a staggering cost.

The most notorious counterexample is Dred Scott v. Sandford (1857)—a case we have mentioned repeatedly in earlier episodes. The Supreme Court used its power of constitutional review to hold that Black slaves were not citizens of the United States, and to declare the Missouri Compromise of 1820 unconstitutional. It was only the second time in the Court’s history that it had struck down an act of Congress. The decision inflamed the conflict between North and South and is regarded as one of the catalysts of the Civil War. The Court paid with its reputation, and it took a full generation to slowly rebuild its authority.

The lesson is a profound one, and it points to the deepest question of legitimacy in the institution of judicial review.

The Counter-Majoritarian Difficulty: The Fight over Legitimacy

In 1961, Alexander Bickel, a constitutional scholar at Harvard, coined a famous concept: the counter-majoritarian difficulty. Bickel’s point: the core of democracy is majority rule. Congress is elected by the majority of the people; so is the president. But the justices of the Supreme Court are not. They are nominated by the president and confirmed by the Senate, and once seated they serve for life—they neither court voters nor fear re-election. So by what right do nine unelected judges veto legislation that represents the will of the majority? Doesn’t that violate the fundamental principle of democracy at its root?

The challenge is in fact as old as the founding. Jefferson himself held that the three branches are equal in standing, each with its own independent power to interpret the Constitution; a court’s judgment binds only the parties in the particular case and has no general binding force on future legislation or governance. This position later developed into a theory known as departmentalism.

The most powerful scholarly rebuttal to the Supreme Court’s monopoly on constitutional review came from John Gibson, a judge of the Pennsylvania Supreme Court. In 1825, in Eakin v. Raub, Gibson wrote a dissent that remains required reading in American constitutional law courses to this day.

Gibson made three arguments:

First, no clause of the constitutional text expressly authorizes courts to declare acts of the legislature void. Marshall said the power is “implied” in the logic of the Constitution—but Gibson replied: that is not implication, that is inference. And an institutional arrangement of such magnitude cannot rest on inference; it requires express authorization.

Second, interpreting the Constitution is not the courts’ monopoly. Courts must of course interpret the Constitution when they adjudicate—but doesn’t Congress interpret the Constitution too, when it legislates so as to keep its laws constitutional? If both branches claim to be interpreting the Constitution, why must the courts’ interpretation prevail over Congress’s? That is “judicial supremacy,” not “constitutional supremacy.”

Third, democracy’s mechanism of self-correction. If legislation goes wrong, it is the people who should correct it—by voting the authors of bad laws out at the next election. To let unelected judges correct the errors of elected representatives is not a victory for the rule of law; it is “an extraordinary political power quietly grafted onto the ordinary judicial power.”

Each of these three arguments strikes at a joint of the institution of judicial review.

How did the defenders of constitutional review respond? The two most persuasive theories come from two twentieth-century scholars.

The first comes from John Hart Ely. In Democracy and Distrust (1980), he proposed the theory of representation reinforcement. The legitimacy of constitutional review, Ely argued, does not rest on judges being wiser than legislators or better at making value judgments. It rests on their capacity to safeguard the fair functioning of the democratic process itself. Judges should intervene in only two situations: first, when a political majority tries to monopolize the channels of politics—by suppressing civil rights, say, or manipulating electoral districts; second, when minority groups are systematically shut out of politics and will never have representation in the legislature—then the courts must step forward and hold an umbrella over them. In this framework, judicial review is not opposing democracy; it is patching democracy.

The second theory comes from Bickel himself—the Harvard professor of the “counter-majoritarian difficulty” we met above. Precisely because constitutional review carries a counter-majoritarian color, he argued, courts must exercise this power with extreme restraint. This is a kind of passive virtue. Courts should make full use of procedural devices to avoid ruling on the merits—not every case must be heard; of the seven or eight thousand petitions the Supreme Court receives each year, perhaps only a few dozen are granted. The Court’s political capital is finite: every use spends some of it, and the more it is used, the faster its legitimacy wears away. The best court is the one that seems to do nothing much all year—while the Constitution’s bottom line never retreats a single step.

Epilogue

And with that, our story of judicial review is told. This institution was not “designed”; it grew out of a crack in the Constitution—the product of political struggle, a political window of opportunity seized with judicial wisdom.

As for Marbury, the man who never received his commission: he went back to Maryland and carried on with his business. In 1810 he even ran for Congress, and lost. To the end of his life, he never obtained that piece of parchment that was rightfully his. Judged by the outcome, he lost. But judged by the institution—every citizen who walks into a U.S. federal court today because their constitutional rights have been violated owes a quiet debt of gratitude to this man who lost his case.

Key Figures

• John Marshall — Fourth Chief Justice of the United States and author of the Marbury opinion; served thirty-four years and laid the foundational architecture of federal judicial review
• William Marbury — Federalist merchant, nominated as justice of the peace for the District of Columbia, who brought his historic suit because his commission was never delivered
• John Adams — Second president of the United States, who launched the mass “midnight judges” appointments on his way out of office to preserve Federalist influence over the judiciary
• Thomas Jefferson — Third president of the United States, who ordered the undelivered commissions withheld and the posts abolished; a lifelong opponent of judicial supremacy
• James Madison — Jefferson’s Secretary of State and the nominal defendant, who refused to appear in court
• Joseph Story — Supreme Court justice, author of Martin v. Hunter’s Lessee, which established federal courts’ vertical review over state judiciaries
• Roger Taney — Fifth Chief Justice, Marshall’s successor, and author of the majority opinion in Dred Scott v. Sandford, which pushed constitutional review into catastrophic abuse
• John Gibson — Judge of the Pennsylvania Supreme Court whose dissent in Eakin v. Raub mounted the systematic scholarly rebuttal to Marshall’s reasoning
• Alexander Bickel — Twentieth-century constitutional scholar who named the “counter-majoritarian difficulty” and proposed the theory of “passive virtues”
• John Hart Ely — Constitutional scholar who proposed the “representation reinforcement” theory in defense of judicial review’s democratic legitimacy

Key Cases and Concepts

• Writ of mandamus — A judicial order compelling a government officer to perform a clear legal duty; rooted in the English common-law tradition
• Judicial review — The power of courts to review legislative and executive acts for constitutionality and declare unconstitutional ones void; nowhere written in the Constitution, created by the Marbury decision
• “Acts of political discretion” vs. “acts bound by law” — Marshall’s classic division of executive action: matters like foreign affairs and defense belong to the president’s exclusive discretion and are beyond the courts’ reach, while purely ministerial duties clearly fixed by law are subject to judicial supervision
• Departmentalism — The position of Jefferson and Madison: the three branches are equal, each with its own independent authority to interpret the Constitution
• Counter-majoritarian difficulty — Bickel’s name for the question of whether unelected justices striking down democratically enacted legislation violates the fundamental principle of democratic self-government
• Representation reinforcement — Ely’s claim that judicial review should focus on protecting the fairness and openness of the democratic process, not substitute for Congress’s substantive value judgments
• Passive virtues — Bickel’s claim that courts should use procedural techniques to avoid divisive questions, conserving their limited political capital and letting the political process digest substantive value conflicts

Related Episodes

• 03 How Trump Challenges the Constitution: The Legal Battle over Birthright Citizenship — the federal courts’ central role in a contemporary constitutional dispute (birthright citizenship)
• 06 U.S. Birthright Citizenship: Total Victory or Temporary Truce? — a contemporary case of federal district courts halting a presidential executive order

This is the transcript of episode 07 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcast . The episode is in Chinese; this transcript has been translated into English.

In episode 2, we told the story of Xu Yuanqing’s revenge case in the Tang dynasty. At the time, that case set off a great debate over rites versus law that occupied the entire legal world for decades. In the end, the debate reached no definitive conclusion; the court chose a compromise resolution, leaving the underlying rites-versus-law question unsettled.

More than a thousand years later, in the twentieth century, that core question was still not fully resolved—when a person kills for the sake of “filial piety,” what exactly is the law supposed to do? In today’s episode, we fast-forward to 1935 to look at what was called “the strangest case of the Republic”—Shi Jianqiao’s assassination of Sun Chuanfang.

Three Shots in the Buddhist Hall

On the afternoon of November 13, 1935, in Tianjin, a Buddhist lay-practitioners’ hall called Jushilin was holding a sutra-chanting service. Sun Chuanfang, the warlord of the Zhili clique, sat in the front row in a monk’s robe, eyes closed, packed in among the other devotees, his head bowed as he listened to the chanting.

Among the devotees was a woman. Making the excuse that the brazier in front was too hot, she rose and moved to Sun Chuanfang’s right rear.

Then she drew a Browning pistol, aimed it at the back of Sun’s head, and fired a single shot. Sun died on the spot. But not yet satisfied, she fired two more.

The hall erupted into chaos.

What followed was the most dramatic moment of the whole case. The assassin did not flee. Instead she announced in a loud voice:

“My name is Shi Jianqiao. I have avenged my father. I killed Sun Chuanfang. One person acts, one person answers for it—I will never implicate anyone else!”

Then she pulled out the leaflets she had prepared in advance and printed herself, A Letter to My Countrymen, and scattered them across the hall like snowflakes. The leaflets stated plainly that she had killed Sun Chuanfang to avenge her father; now that her great vendetta was fulfilled, she would surrender of her own accord and submit to the law.

The devotees present all fled, and no one helped her call the police—she even wanted to go and turn herself in. In the end it was the hall’s gatekeeper who heard the shots and fetched a patrolman from nearby. Shi Jianqiao voluntarily handed over the pistol and the three remaining bullets, and went with the police to the Tianjin police station to surrender.

The case caused a sensation across the country. A warlord killed, the assassin a woman, the motive revenge for a father—this hit nearly every hot button of the press of the day, and public opinion fell almost entirely on the side of the assassin, Shi Jianqiao. For the Tianjin District Court charged with trying the case, it was without question a hot potato.

A Ten-Year Road to Revenge

It was precisely for this reason that the name Shi Jianqiao—a name with a distinctly chivalrous ring—was written into the history of Chinese law.

The origin of the whole case goes back another ten years, to 1925. This was the time of the Zhili-Fengtian War, with warlords of every stripe locked in a free-for-all. Shi Jianqiao—she did not yet go by that name; she was called Shi Gulan—had a father named Shi Congbin. To be precise, he was her adoptive father. He was a division commander under the Fengtian warlord Zhang Zongchang and served as deputy military commissioner of Anhui. In October 1925, when Sun Chuanfang of the Zhili clique went to war with the Fengtian clique, Shi Congbin was ordered into the field. But he advanced too far alone, with no reinforcements behind him, and near Guzhen in Anhui he was captured by Sun Chuanfang’s troops.

Here we should note some background. Amid all the warlord fighting there was a certain code, an unwritten rule—that prisoners were not to be killed, especially high-ranking generals. Today I capture your man, tomorrow you capture mine; spare a life, and there will be good terms between us later. This was a tacit rule the warlords had honored for years.

But Sun Chuanfang did not honor it.

He had Shi Congbin bound with wire, decapitated, and his head displayed at the Bengbu railway station. The body was left exposed for days, the head hung up for all to see. Worse still—the family was strictly forbidden to collect the body.

Shi Gulan was twenty at the time. For her, that her father had been so brutally killed and defiled, and that she was not even allowed to recover his remains—what kind of hatred was that?

But Shi Gulan was no ordinary woman. She came from an official’s family; her biological father, Shi Congyun, was a martyr of the Luanzhou Uprising during the 1911 Revolution, and every one of these father figures was a person of real standing. A woman from such a family carries in her bones a fierceness that is hard for us to imagine.

When No One Can Be Relied On, You Rely on Yourself

Even so, in that era, the obstacles facing a woman who wanted to take revenge with her own hands were enormous. At first Shi Gulan did not choose to act herself. She tried two paths, and both left her heart cold.

The first path: she went to her cousin, Shi Zhongcheng. This was a man Shi Congbin had personally taken in, raised, and groomed; you could say that without Shi Congbin there would have been no official career for him. When Shi Gulan came to him, he agreed readily enough. But as his rank climbed and he became garrison commander of Yantai, he began making excuses—in plain terms, a man greedy for wealth and rank who would not take the risk. In her fury, Shi Gulan broke off all ties with him as siblings.

The second path was a fellow provincial, a lieutenant-colonel named Shi Jinggong. This man sought out Shi Gulan on his own, saying he deeply sympathized with the Shi family’s plight and was willing to help her take revenge. In that era, for a man to say such a thing to a woman, the meaning was clear. Shi Gulan, by then nearly at the end of her rope, even broke the traditional taboo of “one husband for life,” married Shi Jinggong, and bore him two children.

And the result? As Shi Jinggong’s career flourished, he grew more and more afraid of death, and in the end he went back on his word entirely—forbidding Shi Gulan ever to speak the word “revenge” again.

It was then that Shi Gulan wrote a few lines of verse. Let me read them aloud:

Sparing not my life, to avenge my father— / year after year unavenged, the grief wears on. / With a foolish heart I begged others for aid; / in the end I must step forward myself.

In the end, relying on anyone was useless. She could rely only on herself.

Changing Her Name

And so Shi Gulan did something with great ceremony.

She changed her name. “Gulan,” in Shi Gulan, means “orchid in an empty valley”—a very traditional, gentle woman’s name. She changed it to “Shi Jianqiao,” drawn from the lines “raising my head to gaze at the bright moon, drawing my sword toward the blue sky.”

For a woman to change her own name into a “code name for revenge”—this showed she had already made up her mind. This had to be done, and she was already prepared to pay any price for it.

She wrote a farewell letter to her husband, her children, and her youngest sister, and, taking her two sons, went to Tianjin.

Closing In, Step by Step

Once in Tianjin, Shi Jianqiao began a months-long pursuit. How did she find Sun Chuanfang?

In the spring of 1933, while accompanying her son to school, she ran into a servant of Sun Chuanfang’s young daughter at the gate of a private primary school, and thus learned the Sun family’s address.

In June 1935, in Taiyuan, Shanxi, she bought a Browning pistol and matching ammunition.

In the autumn of 1935, she saw the Sun family again at the opening ceremony of a middle school in Shanghai; this time she memorized the license plate of the Sun family’s black sedan—1093. She then went to cinemas in Tianjin and, from the radio, learned to recognize Sun Chuanfang’s voice and face.

On the day before the Double Tenth of 1935—the anniversary of Shi Congbin’s death—she went to the Guanyin Temple to burn paper offerings and chant sutras for her father. There, she happened to overhear that Sun Chuanfang often went to chant sutras at a place in Tianjin called Jushilin.

Shi Jianqiao then disguised herself as a “devotee” and, through the introduction of a woman lay practitioner, joined Jushilin. She went twice, observing Sun Chuanfang’s seat during the service until she knew it clearly. In the meantime, she bought a mimeograph machine, cut the stencils herself and printed alone, producing multiple copies of the A Letter to My Countrymen leaflet. On each leaflet, beside the signature “the avenging daughter Shi Jianqiao,” she left a print of her own thumb.

This was Tianjin in 1935. Outside, a world in chaos; at home, hatred. She was doing a thing she knew would change the course of her whole life. What came next you have already heard: in that Buddhist hall, Shi Jianqiao shot Sun Chuanfang dead in public and was taken away on the spot by the patrolman.

Rites and Law: A Problem Harder than the Tang Dynasty’s

With the story at this point, we come to the very heart of the case—the trial.

The theme of this episode is the “clash of rites and law.” The Xu Yuanqing revenge case we discussed in episode 2 took place in the Tang dynasty. In the Tang, the relationship between rites and law was essentially one of “the unity of rites and law”—in the Old Book of Tang, in a memorial, Zhang Yue wrote that “virtue and rites are the foundation of governance, punishment and law its instruments.” The law itself served to uphold Confucian ethics, so when someone avenged a father, the judge faced not an either-or choice but the question of how to strike a balance within a single value system.

But by 1935, the situation was entirely different.

Beginning with the legal reforms of the late Qing, China’s legal system underwent a thorough Westernization. By the 1930s, the Nationalist government in Nanjing had promulgated the Six Codes—the constitution, civil law, criminal law, commercial law, the code of civil procedure, and the code of criminal procedure—a vast and intricate framework of supreme law. This system was built on the foundation of modern state theory. That is to say, in a modern society the state alone holds a monopoly on the power to punish. Any private redress, any private vengeance, any blood feud is, in the logic of modern rule of law, absolutely forbidden.

This produced a fundamental contradiction. In China, at least since the Han dynasty, “one does not live under the same sky as the killer of one’s father” had been an ethical creed engraved in the bone. The Book of Rites says, “For the enemy of one’s father, one does not live under the same sky.” To avenge a father was not a choice but a duty. A person who did not avenge his father was, in social ethics, unfit to be called a person.

But modern criminal law says that killing is killing; however good the motive, it is merely a factor to be considered at the sentencing stage, and can never serve as grounds for acquittal.

This is where the true tension of the Shi Jianqiao case lies—it is not merely a question of guilt or innocence, but a collision between traditional ethics and modern law, between two utterly different sets of ideas.

Three Statutes, One Point of Contention

Let us look concretely at the three articles of the 1935 Criminal Code of the Republic of China that bear on this case.

First, Article 271, paragraph 1: “Whoever kills a person shall be punished with death, life imprisonment, or imprisonment for not less than ten years.” This is the conviction. Shi Jianqiao fired three shots and Sun Chuanfang died on the spot; the facts were beyond dispute, with no argument to be had.

Second, Article 62—the provision on mitigation for voluntary surrender: “Whoever surrenders for a crime not yet discovered and submits to trial shall have his punishment reduced.” In the criminal law of the time this was a “mandatory reduction”—so long as surrender was found, the sentence had to be reduced. And here a point of contention arose: Shi Jianqiao had intended to surrender voluntarily before the killing, but she was seized by the patrolman the gatekeeper had summoned before she could even place the call to the police. Did this count as “surrender” in the legal sense?

Third, Article 59—the provision on discretionary mitigation: “Where the circumstances of a crime are such as to merit compassion, the punishment may be discretionarily reduced.” This was a “may reduce”—not mandatory, but left to the judge’s discretion. This was the one crack in the case through which the traditional ethic of “filial devotion” could be slipped into the modern legal framework.

Three statutes, one point of contention. Next we look at how the Republic’s three tiers of courts understood this logic.

Three Tiers, Three Trials

First, the Tianjin District Court, at first instance, handed down its verdict on December 16, 1935—ten years’ imprisonment.

In this verdict, the judge accepted “surrender” but refused “discretionary mitigation.”

The judge held in the opinion that Shi Jianqiao did not flee after the killing but turned herself in, which accorded with the spirit of surrender, and so reduced the sentence under Article 62. The statutory minimum for homicide was ten years, and surrender was a mandatory-reduction provision, so following the statutory minimum, the court imposed ten years—already the lightest punishment the legal framework allowed.

But at the same time the judge refused to apply Article 59. The reasoning: the court had already used the surrender provision to reduce the sentence to the minimum, but to formally acknowledge in law that “avenging one’s father” could serve as grounds for mitigation—modern criminal law could not open that door.

This was the first instance’s balance: procedurally it credited the sincerity of your conduct; substantively it refused to credit the rightness of your reason.

Neither prosecution nor defense was satisfied with the verdict. The defense thought it too heavy, the prosecution too light. Both sides appealed.

Next, the Hebei High Court, at second instance, handed down its verdict on February 11, 1936—seven years’ imprisonment.

For the whole of Chinese legal philosophy this verdict is a remarkable specimen. The appellate judge did something quite “sophisticated.”

He first corrected the first instance’s finding of “surrender.” He said that under Article 62, one premise for finding surrender is a “crime not yet discovered,” an element expressly required by the criminal law. Shi Jianqiao had committed the act in broad daylight; the fact of the crime and the identity of the offender were known to the public the very instant the shot was fired—this was not a “crime not yet discovered,” and so could not count as surrender. Article 62 did not apply.

Procedurally, he tightened the interpretation of surrender and preserved the rigor of the statute.

And then? He turned around and applied Article 59 instead. His wording was that Shi Jianqiao’s “biological father died a terrible death; she avenged what touched her to the quick; moved by filial devotion, she is truly deserving of compassion.”

In other words: I will not give you a procedural pass, but on the merits I openly acknowledge that avenging one’s father, by the traditional ethics of the Chinese, is “truly deserving of compassion.” In the end I reduce your sentence from ten years to seven, not because procedure favors you, but because in the motive of your act there is a moral weight worthy of our serious regard.

This was the appellate judge’s cleverness: let procedure be procedure and sentiment be sentiment; keep the two lines distinct.

Finally, the Supreme Court in Nanjing, at third instance, ruled on August 1, 1936—the appeal was dismissed and the second instance’s verdict of seven years upheld.

The Supreme Court’s stance was perfectly clear: the second instance’s application of the law was sound, its legal reasoning beyond reproach, and its weighing of the circumstances forgivable. Seven years’ imprisonment was the final word on the case.

Here the judicial process came to an end. Three tiers, three logics, arriving at last on a seemingly compromise number—seven years—that reached a certain subtle balance.

But the story was not over.

A Precedent: The Zheng Jicheng Case

The reason the Shi Jianqiao case became “the strangest case of the Republic” lies, to a large degree, not in how the courts handled it, but in what happened after the courts had ruled.

Let us look outside the courtroom.

First, there was a very important “precedent.” In 1932, three years before the Shi case, a man named Zheng Jicheng shot dead the Fengtian warlord and Shandong military governor Zhang Zongchang on the spot at the Jinan railway station. Zheng Jicheng’s stepfather, Zheng Jinsheng, had been killed by Zhang Zongchang. After firing, Zheng Jicheng surrendered on the spot. That case, too, caused a nationwide sensation, and society launched a vast “movement to redress the wrong.” In the end, under the forceful intervention of Feng Yuxiang, Han Fuju, and others, Zheng Jicheng served only about a week before being pardoned by the Nationalist government.

The pardon in the “Zheng Jicheng case” established, in the social psyche, a key point—that “the state does recognize filial revenge.” So the moment the Shi case arose, public opinion immediately began drawing comparisons: since you could pardon Zheng Jicheng, on what grounds do you refuse to pardon Shi Jianqiao?

Public Opinion, Politics, and a Pawn

The second factor was the amplification of the media. In the 1930s, China’s urban newspaper industry was in a golden age. The Xin Tianjin Bao and Da Gong Bao of Tianjin and the Shen Bao of Shanghai all ran “extras” the very day the Shi case occurred. The copies of A Letter to My Countrymen Shi Jianqiao had printed in advance, and the poem she wrote beginning “Sparing not my life, to avenge my father,” were printed again and again in the papers.

The media crafted for her the image of a “Republican-era swordswoman.” A frail woman who endured in silence for ten years and cast aside wealth, rank, and family happiness, all to fulfill a single word: “filial piety.” In the Chinese society of the time, this narrative had enormous force.

Even more moving was her conduct in prison. After being jailed, Shi Jianqiao found that fellow women inmates had no cotton clothes for the winter because they were poor, so she paid out of her own pocket to buy them cotton garments. Once the papers reported this, another halo settled over her—this was a person who acted not for herself but for others.

The third factor, and the most crucial, was political.

Shi Jianqiao’s adoptive father, Shi Congbin, had been an old subordinate of Feng Yuxiang’s in the Central Plains War. More importantly, her biological father, Shi Congyun, was one of the principal instigators of the Luanzhou Uprising in the 1911 Revolution. And who was the other principal instigator of the Luanzhou Uprising? Feng Yuxiang.

And what was the relationship between Feng Yuxiang and Sun Chuanfang? During the warlord melee, Sun Chuanfang had defeated Feng Yuxiang’s Northwest Army, and among those defeated was Feng Yuxiang’s sworn brother Zheng Jinsheng. So the moment Feng Yuxiang heard of Shi Jianqiao’s deed, he sprang into action. He joined with Yu Youren, Zhang Ji, Song Zheyuan, and other Republican elder statesmen in a joint petition for a pardon.

Some prominent women within the Nationalist Party, such as Zhang Mojun, were also at work, jointly petitioning the central authorities for a general amnesty.

On September 25, 1936, Ju Zheng, president of the Judicial Yuan, personally chaired a Yuan session and brought up Shi Jianqiao’s pardon as a provisional motion, resolving on the spot to petition the Nationalist government for a special pardon.

Behind the Pardon Order

On October 14, 1936, Lin Sen, chairman of the Nationalist government, signed the pardon order.

The text of the order read like this:

“Shi Jianqiao, because her father Shi Congbin was in earlier years done to death by Sun Chuanfang, was moved to avenge her father, and so killed Sun in a Buddhist hall, thereupon at once surrendering to the court… Considering her act of killing, it does indeed violate the criminal law; yet inasmuch as a single woman, stirred by filial devotion, cast aside all thought of self, she is hereby specially pardoned, as a token of compassion.”

This passage conveyed two signals. First, “considering her act of killing, it does indeed violate the criminal law”—I acknowledge that you broke the law, and the majesty of modern criminal law must be upheld. Second, “inasmuch as a single woman, stirred by filial devotion, cast aside all thought of self”—but you acted out of filial devotion, and this I understand, forgive, and pardon.

This pardon order was issued under Article 68 of the Provisional Constitution of the Political Tutelage Period of the Republic of China. In that era, the head of state’s power of pardon was a kind of sovereign exception—it rode above ordinary judicial procedure and could, after the law had exhausted every means, deliver one final “rule-by-man verdict.”

But we cannot see only the “rule by man.” Behind this pardon, the political purpose is worth pondering.

After Sun Chuanfang fell from power and retired, he had all along been colluding with the Japanese, seeking to instigate North China autonomy. For the Nationalist government in Nanjing, Sun Chuanfang was in any case a “political hazard” that needed to be removed. Shi Jianqiao’s single shot, in a sense, solved a problem for Chiang Kai-shek’s government.

Besides, what year was 1936? The footsteps of Japan’s invasion of China were drawing ever closer, and North China was tottering. At such a juncture, Chiang Kai-shek needed to win over every force he could. By pardoning Shi Jianqiao, he handed a great political favor to Feng Yuxiang, Song Zheyuan, and other figures of the Northwest Army and the regional power-holders.

So a pardon order, ostensibly a matter of “filial piety,” was in reality a move in a grand game of political chess.

Afterward

Shi Jianqiao actually spent nine months and ten days in prison.

After her release, her life was no less remarkable. When the War of Resistance broke out, she divorced her husband and threw herself into the fight against Japan. She served as head of the Women’s Association for Resistance Support and of the Suzhou Refugee Association, and launched a campaign to raise funds to buy warplanes. She led the way by donating her own jewelry of many years, and she mobilized Feng Yuxiang’s brothers to raise funds together, with Feng personally going into the homes of wealthy merchants and gentry to make his case. In the end they truly raised enough to buy a fighter plane. She was called “the leader of the plane-fundraising campaign.”

After the victory in the War of Resistance, in 1946, with the support of Feng Yuxiang, Yu Youren, and others, she founded a private “Congyun Primary School” in Suzhou—“Congyun” being the name of her biological father, Shi Congyun. It was devoted to taking in children of impoverished families and orphans of fallen soldiers. During this time she came into contact with Dong Biwu, Zhou Enlai, and other senior figures of the Communist Party, and her thinking gradually leaned left.

After the founding of the People’s Republic, she was elected chair of the executive committee of the Suzhou Women’s Federation; in 1957 she became a specially invited member of the Beijing People’s Political Consultative Conference. She died of illness on August 27, 1979, at the age of seventy-four.

Coda

With the story at this point, we return to the theme of this episode: the clash of rites and law.

The Xu Yuanqing case and the Shi Jianqiao case were separated by more than a thousand years, yet their core question was one and the same: when a person kills for the sake of “filial piety,” what is the law to do?

The Tang dynasty’s choice was “the unity of rites and law,” reconciling the matter within a single, unified value system. And the choice of the Republic’s three tiers of courts? As I see it, they ran into a problem harder than the Tang’s—the legal system had already modernized; sentiment and law were no longer of the same source, and law and ethics no longer flowed from one wellspring. Within this framework, what the judges could do was, in the crevices of statutory law, use technical provisions like “surrender” and “discretionary mitigation” to give traditional ethical ideas a small place to rest.

You could call this “cutting the foot to fit the shoe,” or you could call it “dancing in chains”—but however you judge it, at the purely technical level of law, the three tiers of courts performed an exceptionally exquisite operation.

And then the pardon order came. By way of the “sovereign exception,” politics accomplished what the law could not—and did not want to—do: it gave revenge a safe and dignified ending.

Whether this was a failure of the rule of law or a triumph of humanity, different people will give different answers. But at least one thing is certain: from Xu Yuanqing to Shi Jianqiao, from “rites above law” to “a compromise between sentiment and law,” China’s legal minds have never truly let go of the problem of “filial piety and revenge.”

Key Figures

• Shi Jianqiao: Avenged her father by assassinating Sun Chuanfang and became a focus of public opinion in modern criminal justice.
• Sun Chuanfang: A Beiyang warlord and the target of Shi Jianqiao’s revenge.
• Shi Congbin: Shi Jianqiao’s father, whose death began the revenge narrative.
• Feng Yuxiang and Yan Xishan: Important figures in the promises of revenge and the Republican political background.
• The Nationalist Government: The political authority that ultimately changed the case through a pardon.

Key Cases and Concepts

• Shi Jianqiao’s assassination of Sun Chuanfang: A landmark Republican-era case where revenge, public opinion, criminal law, and politics intertwined.
• Three tiers and three trials: The modern judicial process through the district court, high court, and Supreme Court.
• Pardon: A tool through which political power intervenes in the execution of a criminal judgment.
• Rites versus law: The renewed conflict between traditional filial duty and modern state criminal law.

Related Episodes

• Podcast 02｜A Survival Manual for Tang-Dynasty Justice: A Case that Sparked the Rites-vs-Law Debate : Reads an earlier debate over revenge and state law through the Tang Xu Yuanqing case.

This is the transcript of episode 06 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcast . The episode is in Chinese; this transcript has been translated into English.

On June 30, 2026, the U.S. Supreme Court handed down its final, substantive judgment on the question of birthright citizenship. By a 6-3 vote, the nine justices struck down the Trump administration’s Executive Order No. 14160, further cementing the birthright citizenship guaranteed by the Fourteenth Amendment. This is a judgment worthy of a place in the annals of American constitutional history.

Last year, the Court had already ruled once on this same matter. But that was a procedural ruling, and in its outcome it favored the Trump administration; this year’s judgment, by contrast, is exactly the opposite—a substantive rejection of the order itself. Over the course of more than a year, from the signing of the order, to the fight over nationwide injunctions, to a last-ditch counterattack through class action, and finally to the showdown at the Supreme Court, the whole saga rose and fell dramatically. In this piece, I want to tell that story from beginning to end, in careful detail.

The Starting Point: An Order Overturning a Century-Old Constitutional Principle

Let’s go back to where it all began.

On January 20, 2025, on the very first day of his second term, Trump signed Executive Order No. 14160, titled “Protecting the Meaning and Value of American Citizenship.” The name was grand, but what it sought to overturn was a constitutional principle more than a century old, one many regard as a foundation stone of the nation—birthright citizenship. That principle guarantees that any child born on U.S. soil, regardless of the parents’ status, automatically becomes a U.S. citizen. Trump’s order directed all federal agencies to stop granting this, to no longer automatically confer citizenship on certain babies born in the United States.

Which babies, exactly? The scope was very broad. It covered not only the children of illegal immigrants, but also the children of people who were here legally but only for a short stay—those on student visas, work visas, or tourist visas—whose children would likewise no longer automatically become U.S. citizens.

Here is a figure to give you a concrete sense of scale: if this order had actually taken effect, roughly 250,000 newborns per year would have been affected. About 150,000 of them from undocumented families, and about 100,000 from families here legally but on short-term stays.

The moment the order was signed, American society erupted. Democratic-led states—Massachusetts, Washington, Maryland, New Hampshire—together with a range of immigrant-rights organizations, filed suit almost overnight. Judges in several federal district courts quickly issued temporary injunctions.

CASA: The Blade of the Nationwide Injunction Is Snapped

A temporary injunction is a provisional measure meant to protect the plaintiffs in a case. Federal courts around the country found that Trump’s order abolishing birthright citizenship substantively violated the plaintiffs’ constitutional rights, and so, before the case reached final judgment, they temporarily blocked the order.

But here was the sticking point: these temporary injunctions were not limited to the plaintiffs in the case—they extended nationwide. The Trump administration seized on precisely this point and took the case straight to the Supreme Court. Their core demand was clever: not to argue whether the order was unconstitutional, but to challenge the legitimacy of the “nationwide injunction” as a judicial tool itself.

On June 27, 2025, the Supreme Court ruled 6-3, with Justice Barrett writing the majority opinion. The core logic was this: the relief a federal court can provide has, since time immemorial, been strictly limited to the parties to the litigation, and there is no such thing as a “universal remedy” benefiting the whole country. She advanced a concept she called the “complete-relief principle”—the scope of a court’s injunction need only be enough to provide complete relief to the plaintiff, and not one inch more.

In other words, if a pregnant mother sues as a plaintiff, the court need only enjoin the government from applying the order to her own child, and that already gives her “complete relief.” Extending the injunction to every other mother in the country would not make this plaintiff-mother’s relief any more “complete.”

So the Court’s conclusion was: dissolve the nationwide injunctions, and preserve only the protection for the named plaintiffs.

The direct consequence of this judgment was a serious disparity in enforcement between the states. A baby born in a plaintiff state like New Jersey, versus one born in a state like Texas that had not joined the litigation, would face completely different mechanisms for determining citizenship. For a single, unified federal constitutional right, this is unthinkable—you cannot have some children automatically becoming Americans and others not, simply because they were born in different states.

Class Action: The Counterattack

This judicial fracture forced the plaintiffs into a crucial strategic pivot—the class action.

On the very day the Supreme Court handed down its CASA ruling, the ACLU (American Civil Liberties Union) immediately filed a new suit, expressly seeking to have it certified as a nationwide class action.

It was a deft move. Because in her majority opinion, Barrett had in fact hinted that although the path of the “universal injunction” was now closed off, if you could satisfy the strict requirements of a class action—numerosity, commonality of legal questions, adequate representation—you could still seek relief covering the whole country.

And so, on July 10, 2025, a federal judge in New Hampshire granted preliminary certification of the class action, grouping every baby born after February 19, 2025 who was affected by the order, together with their parents, into a single class, and reissued a temporary injunction. This maneuver, at the eleventh hour, bridged the differences between the states, prevented the order from taking real effect, and paved the way for the eventual constitutional review.

Certiorari Before Judgment, and a Historic Oral Argument

In the second half of 2025, the litigation went through a series of procedural tugs-of-war. By December 2025, the Supreme Court made a rare move: it granted certiorari before judgment—skipping the circuit court of appeals and taking the case directly.

This is a fairly uncommon move for the Supreme Court. It meant the nine justices considered the case so important that they could not wait for the normal appellate process; they had to act now.

On April 1, 2026, the Court held oral argument. There is a historic detail here worth dwelling on: President Trump himself attended the oral argument in person. This was the first time in American history that a sitting president had personally sat in on a Supreme Court oral argument, and the image itself carried enormous symbolic weight.

At the argument, Deputy Solicitor General John Sauer, representing the government, tried to rewrite the history of the Citizenship Clause. His core argument was that people had long misread the Fourteenth Amendment. That phrase in the amendment, “subject to the jurisdiction thereof,” he said, was by no means merely geographic jurisdiction, but required the parents to have formed a permanent, exclusive relationship of allegiance to the United States—a lawful, domiciliary presence. On this logic, because illegal overstayers and short-term visa holders had not severed their allegiance to their home countries, their children ought not automatically become U.S. citizens.

The plaintiffs’ lawyer, Cecilia Wang, responded very directly. The order, she said, not only conflicted with the text of the Constitution, it was a flagrant defiance of more than a century of settled interpretation and precedent.

How intense were the two hours of argument? I read through the transcript that later circulated, and the justices’ questions came down like rain, barely giving counsel room to breathe. You could feel, viscerally, the weight of this case.

The Endgame: A 6-3 Victory, a 5-4 Anxiety

Now let’s turn to the very heart of the matter.

On June 30, 2026, the Supreme Court issued its final judgment. First, the vote: on the surface, the Court struck down Executive Order 14160 by 6-3, declaring the Trump administration’s ultimate defeat. But on the core question of whether the order was unconstitutional, the majority was in fact only five votes—an advantage of a single vote. That means there were very sharp divisions among the justices.

This subtle gap between “6-3” and “5-to-something” is the most intriguing feature of the whole judgment, and I’ll unpack it in detail below.

Roberts’s Majority Opinion: Three Historical Pillars

Let’s first read carefully the majority opinion written by Chief Justice Roberts. In my view, this is one of the best opinions Roberts has written in recent years—the logic is exceptionally clear, and it takes the government’s arguments apart cleanly. He built three historical pillars.

Pillar One: The Territoriality of English Common Law

Roberts takes us back several centuries to England. He cites a very famous case in English history—Calvin’s Case. That case established a principle:

A child born within the territory of the sovereign naturally owes “allegiance” to that sovereign and enjoys the sovereign’s protection, no matter how “transient and uncertain” the parents’ presence within that territory may be.

Roberts then says the American founding generation was deeply influenced by English common law, and especially by Chief Justice Marshall’s formulation: a sovereign nation holds “full and absolute power” over everything within its territory. Whatever status you entered the United States under, so long as your person is now on U.S. soil, you must obey U.S. law and are subject to the jurisdiction of U.S. courts and police. This jurisdiction has only one extremely narrow exception: only people enjoying extraterritoriality—like the children of foreign ambassadors to the United States, or the children of a hostile occupying army—fall outside U.S. jurisdiction. If you have a child in the United States, then geographically, territorially, you are subject to U.S. jurisdiction. You cannot escape it.

Pillar Two: The Total Repudiation of Dred Scott

In 1857, that infamous Dred Scott case—the Supreme Court then ruled that Black people were not citizens. The logical foundation of that judgment was to base citizenship on “blood,” rather than on “soil.”

Roberts states plainly in the judgment that the Reconstruction statutes passed after the Civil War, and the Fourteenth Amendment that followed, had as their very purpose the complete abolition of this exclusionary standard based on bloodline and race. To bring blood back into it now is to negate the very reason the Fourteenth Amendment exists.

Pillar Three: Reaffirming Wong Kim Ark

Wong Kim Ark was the son of a Chinese laborer, born in San Francisco; because of the Chinese Exclusion Act of the time, his parents could never be naturalized as U.S. citizens. Yet in 1898 the Supreme Court ruled clearly: he was born in the United States, therefore he was a U.S. citizen, and it had nothing to do with his parents’ immigration status.

Here the Trump administration mounted a very cunning defense. They argued that Wong Kim Ark’s parents had a “permanent domicile” in the United States at the time, and so the precedent did not apply to illegal overstayers or short-term visa holders.

How did Roberts respond? He dug out the historical records of the period, and concluded: the 1898 Supreme Court never treated “permanent domicile” as a precondition for birthright citizenship. That phrase simply is not part of the core logic of that judgment.

Then Roberts said something I particularly love. Executive Order 14160, he noted, is stuffed with qualifying words—“mother,” “father,” “lawful,” “temporary”—not one of which appears in the Constitution’s Citizenship Clause, for a simple reason: they are irrelevant.

Jackson’s Concurrence: An Anti-Caste, Anti-Subordination Reboot

Having covered Roberts, let’s turn to Justice Jackson’s concurrence. She is the youngest justice, nominated by Biden, and a member of the Court’s progressive wing. Her concurrence is, in my personal view, the most intellectually profound part of the entire judgment.

Jackson advanced a concept—she called the Reconstruction-era constitutional amendments the nation’s “anti-caste, anti-subordination reboot.” If you understand the Fourteenth Amendment merely as “a remedy for the particular evil of slavery,” she said, you have badly underestimated it. Its aim was far larger—to eliminate entirely any possibility of creating a permanent second-class caste within this country.

She issued a very forceful warning: if you allow the executive branch to strip particular children of birthright citizenship based on the status and lineage of their parents, you will manufacture within the United States a permanent, marginalized, second-class citizen caste. And that is precisely the social poison the Fourteenth Amendment was meant to eradicate for good.

It is a powerful passage. Because it pulls the question out of the dry debate over constitutional hermeneutics and places it in a grander sociological and political-philosophical dimension—behind the question of “who is an American” lies the question of how a nation defines itself and how it treats its most vulnerable.

The Time Bomb Kavanaugh Planted

Now let’s turn to Justice Kavanaugh.

Kavanaugh voted to strike down the order, and it was his vote that made the final margin 6-3. But when I read his opinion—concurring in part and dissenting in part—I genuinely gasped. Because buried inside it is an enormous time bomb.

He stressed two things.

First, he held that Trump’s order violated statutory law, not the Constitution. The statute he meant is the Immigration and Nationality Act—a law that has already codified broad territorial rules of citizenship in statutory form. So the order conflicts with existing law and should be struck down.

Second—and this is the crux—he went on immediately to say: the Fourteenth Amendment itself does not prohibit Congress from restricting birthright citizenship by legislation. In other words, Congress could, without violating the Constitution, pass a new law abolishing birthright citizenship for the children of illegal immigrants and short-term residents.

What Kavanaugh means is: though the president cannot decide this unilaterally, so long as you go through Congress, you can lawfully abolish birthright citizenship. The right itself is not protected by the Constitution; you can take it away by ordinary legislation.

This amounts to handing conservatives a road map.

And because Kavanaugh declined to join Roberts’s majority opinion, on the fundamental question of whether the order itself is unconstitutional, the tally became 5-3-1:

• Five who found it unconstitutional: Roberts (Chief), Sotomayor, Kagan, Barrett, Jackson;
• Three who found it constitutional: Thomas, Alito, Gorsuch;
• Kavanaugh: finding only a statutory violation, abstaining on the constitutional question.

This means only five justices support the conclusion that “birthright citizenship is a constitutional right.” Should any one of them leave the bench in the coming years and be replaced by a conservative, this fragile majority would instantly flip to 5-4.

Demographically, Sotomayor is already in her seventies this year, and Roberts is seventy. If Trump gets one more nomination in his remaining term, this fragile majority will collapse in an instant. And at that point, birthright citizenship would no longer be a constitutionally guaranteed right.

For liberals, this is not a war already won. It is merely a position held for now.

Giving the Three Conservative Dissents a Fair Hearing

As a piece of commentary that tries to be responsible, I must also lay out the conservative minority’s voices clearly, and in as fair-minded a way as I can. Because these three justices’ arguments, too, rest on very serious, self-contained foundations of constitutional theory.

First, Justice Thomas, an exceptionally steadfast and diligent originalist. He wrote a 91-page dissent all on his own. His core argument is: you have all misread the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment. When Congress drafted the amendment in 1866, “subject to the jurisdiction” did not mean the simple, geographic, territorial jurisdiction the majority takes it to mean, but required a complete and exclusive political allegiance. In the common sense of the nineteenth century, he says, a citizen is not someone who happens to be passing through a piece of territory. A citizen is someone rooted there, who treats the place as a permanent home, who is willing to fight for it when war comes. Short-term visitors, foreign students, those who slip across the border—their political allegiance to their homelands has not been severed, so by what right do their children automatically become American citizens? Thomas also cites specific provisions of the Reconstruction statutes, which, in defining citizens, expressly excluded “persons subject to any foreign power.” This, he says, fully proves that the lawmakers of the day never intended to grant citizenship to temporary aliens who had not yet renounced their foreign allegiance.

I may disagree with Thomas’s conclusion, but I cannot deny that his reasoning is solid. The 91-page opinion draws on a vast body of nineteenth-century congressional debate records, contemporaneous legal dictionaries, and works of political philosophy. It furnishes ample ammunition to anyone who might, in the future, try to challenge birthright citizenship along originalist lines.

Next, Justice Alito, who wrote a separate dissent with a very specific focus: birth tourism. He offered a set of figures: each year some twenty thousand-plus foreign pregnant women fly to the United States specifically on tourist visas to give birth, precisely so that the child can obtain a U.S. passport. Alito argued that the majority’s judgment would greatly incentivize this behavior, and that this is a total departure from the framers’ original intent. He also raised the problem of dual nationality: if a baby automatically acquires the parents’ home-country nationality at birth, then where is his “exclusive allegiance” to the United States?

Finally, Justice Gorsuch, whose angle of dissent is more technical, resting on procedure. He argued that the plaintiffs had brought a “facial constitutional challenge,” and that under the standards of American constitutional litigation, for a facial challenge to succeed, you must prove that the statute is unconstitutional in all its applications. Gorsuch said that even granting the order is unconstitutional in some situations—say, for undocumented immigrants who have lived in the United States for a long time—can it nonetheless be lawfully applied to the children of people purely on tourist visas who stay two weeks and leave? If it can, then a facial challenge should not sweep away the entire order. He also criticized the majority for over-relying on the English common-law tradition, arguing that the American founding spirit has its own distinctive understanding of citizenship, and that you cannot simply import England’s tradition of territoriality and treat it as the interpretation of the U.S. Constitution.

Not the End, but Halftime

Having come this far, let me say something that may not be easy to hear: although the June 30 judgment was hailed by many as a “victory,” in my view it looks more like halftime. The fighting has merely shifted from the judicial battlefield to two others.

Battlefield one: peripheral strikes at the executive level.

After the judgment, Trump raged on Truth Social, calling it a “national disaster.” But the people around him reacted faster. Former border official Tom Homan immediately declared: since the Supreme Court won’t let us take the constitutional road, we’ll use executive means to hit birth tourism “double, triple.” How? For example, recommending that the State Department add a mandatory pregnancy-status review to the visa application form, requiring pregnant applicants to make an additional declaration; for example, sharply restricting the entry of pregnant women; some have even proposed limiting the “chain migration” quotas by which children who obtained citizenship by being born in the United States can later petition for green cards for relatives abroad. None of these touches the constitutional debate, but the effect is the same—they will make birth tourism extremely difficult.

Battlefield two: legislation.

This is the true significance of Kavanaugh’s time bomb. After the judgment came down, Trump quickly changed his tune, saying Congress “should begin today” legislating to abolish birthright citizenship. He stressed that this path requires neither a two-thirds majority in Congress nor ratification by three-quarters of the states—that is the path of a constitutional amendment—all you need is ordinary legislation. Conservative lawmakers like Senator Mike Lee and Representative Brian Babin have already stirred into motion; the birthright-citizenship bill they are pushing takes direct aim at amending that clause defining citizenship in the Immigration and Nationality Act.

But here lies an interesting legal predicament. As many constitutional scholars have pointed out: of the nine justices on the Supreme Court, five have already said clearly that birthright citizenship is a constitutional right guaranteed by the Fourteenth Amendment. If Congress passes an ordinary law to amend it, then once that law reaches the Supreme Court again, these five majority justices would in all likelihood still rule it unconstitutional.

So from a purely legal standpoint, the road Kavanaugh drew is actually a dead end—at least so long as the composition of the Supreme Court remains unchanged, it goes nowhere. But its real function is this: it tells conservatives that your enemy is not the Constitution itself, but these five people on the Supreme Court. Replace just one of them, and everything becomes possible.

And so a constitutional right—birthright citizenship—is transformed into a question of Supreme Court personnel.

Two Intertwined Threads

Here, let me offer a brief summary. Put all these cases together, and you can actually see two threads intertwining.

The first thread is the boundary of judicial power. CASA tells us that the power of a single federal district judge is being redefined—where once he could cover the entire country with a single injunction, now he cannot. To seek broad relief, you must go through the more complex procedure of a class action. This raising of the threshold is no accident; it is the carefully engineered result of the Supreme Court’s conservative majority—it markedly diminishes the ability of a single judge to block a president’s executive order.

The second thread is the nature of citizenship. The majority opinion in the final judgment held the line on the principle of territoriality established in 1866, and did not let this country return to an age defined by bloodline. But that fragile five-vote majority, hanging over everyone’s head, is a constant reminder of just how fragile this consensus is.

As I wrote this piece, I kept returning to the passage Justice Jackson wrote in her concurrence. The true aim of the Fourteenth Amendment, she said, is to forestall the creation of a permanent second-class citizen caste within American society. And if you allow a parent’s immigration status to draw a line through the child, you are burying that line in the very soil of this country.

Today, that line has been pulled out—for now. But whether it can be planted back in depends on every political choice yet to come, every judicial appointment, and every American’s answer to this question:

A child born on this land—by virtue of what, exactly, does he become an American?

Key Figures

• Donald Trump: Used Executive Order 14160 to try to restrict birthright citizenship.
• John Roberts: Wrote the majority opinion, confirming birthright citizenship while addressing the scope of relief.
• Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson: Defended the Fourteenth Amendment principle from different angles.
• Brett Kavanaugh: Left room for later disputes over procedure and remedies.

Key Cases and Concepts

• Executive Order 14160: The direct policy instrument by which the Trump administration challenged birthright citizenship.
• CASA: A procedural dispute over nationwide injunctions and the scope of enforcing the order.
• Class action: An important path for broad relief after nationwide injunctions were limited.
• The Fourteenth Amendment and birthright citizenship: The core constitutional rule governing citizenship for those born in the United States.

Related Episodes

• Podcast 03｜How Trump Challenges the Constitution: The Legal Battle over Birthright Citizenship : Introduces the background, Wong Kim Ark, and procedural starting point of the dispute.

This is the transcript of episode 05 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcast . The episode is in Chinese; this transcript has been translated into English.

On February 26, 2026, the renowned jurist Gao Mingxuan, often called a grand master of Chinese criminal law, died of illness at the age of ninety-eight.

As one of the first generation of legal scholars trained after the founding of the People’s Republic of China, Gao’s life was almost a living history of Chinese criminal law. He was the only scholar who participated throughout the drafting of the PRC’s first Criminal Law. He was China’s first doctoral supervisor in criminal law. He wrote the first legal monograph published after reform and opening up, and co-edited the first nationally unified criminal law textbook.

It is no exaggeration to say that behind every criminal judgment issued in China today, there is a theoretical foundation that Gao helped lay.

But the life of any discipline lies in reflection and renewal. Law is no exception. As we remember Gao’s historical contributions, Chinese criminal law is also standing at a point of deep transformation. In recent years, scholars have fought a long and consequential debate over two systems for understanding crime: the “four-element” theory and the “three-step” theory. On the surface, this is an argument among scholars in their studies. At its core, it concerns something much larger: how the state’s power to punish should be exercised, and how the rights of ordinary citizens should be protected.

Gao Mingxuan: A Living History of Chinese Criminal Law

To understand Gao Mingxuan’s contribution, we need to begin in May 1928 in Xiandie, a small fishing village in Yuhuan County, Zhejiang. Gao was born there into a family with both scholarly and legal traditions. During the Nationalist period, his father served as a judge in the Hangzhou District Court and later as a judge of the Zhejiang High Court. His uncle and elder brother also worked in law.

In that atmosphere, Gao developed a strong interest in law from childhood. When he was nine, the full-scale War of Resistance against Japan broke out. His father refused to serve the Japanese occupiers, resigned angrily, and returned home. During that period, he strictly supervised Gao’s studies.

After junior high school, Gao entered the prestigious Wenzhou High School. The school’s principal, the educator Jin Rongxuan, held a campus essay competition on the topic “How to Build a New Wenzhou High School.” The young Gao won first prize with his strong writing, making his name known across the school.

When Gao graduated from high school in 1947, his talent was already obvious. He was admitted to Fudan University, Wuhan University, and Zhejiang University at the same time. He chose Zhejiang University’s law department. Later, because of historical changes and university restructuring, he transferred to the law department of Peking University, and in 1951 entered the criminal law graduate program at Renmin University of China.

At Renmin, he met the Soviet legal experts who would influence him for life, including Bestrova and Damaheng, and received systematic training in criminal law. In 1953, Gao graduated with top marks and stayed on as a teacher. That was the beginning of more than seventy years in legal education.

The Long Road to Legislation: From Draft 22 to Draft 38

On the eve of the founding of the PRC, the central leadership decided, for political reasons, to completely abolish the old Nationalist legal system known as the “Six Codes” and build a socialist legal system from scratch. The decision broke with the old order, but it also meant that in the early years of the new state, punishment of crime often took place in a vacuum where there was no comprehensive criminal code to rely on. Courts handled cases largely through policy or through scattered special regulations such as rules on counterrevolutionary crimes and corruption.

In September 1954, the PRC’s first Constitution was promulgated, and the creation of a unified Criminal Law finally went onto the agenda. In October, the General Office of the Standing Committee of the National People’s Congress formed a criminal law drafting group under the direct leadership of the Party Secretariat. Gao, who had been teaching for only a year, was selected for the team because of his academic strength. He was only twenty-six, the youngest member of the group.

He could not have known that the work would take twenty-five years.

The drafting process was a long and exhausting journey. The team worked day and night, collected cases widely, and studied domestic and foreign legislation. By June 1957, it had produced Draft 22. In October 1963, it completed Draft 33. That draft had even been reviewed and approved by the Politburo Standing Committee, and final enactment seemed close.

Then came the Cultural Revolution, and China’s legal construction fell into more than a decade of stagnation. Drafting was halted. Renmin University itself stopped operating for a time. Gao was sent down for labor and was later assigned to Beijing Medical College, where he remained for eight years. Through those long, bitter years, he preserved the materials and documents from the criminal law drafting process, waiting for the return of legal order.

At last, in October 1978, as the Third Plenum of the Eleventh Central Committee approached, the state put forward the principle that laws must be available, obeyed, strictly enforced, and violations punished. Criminal law legislation entered its third launch. The drafting group quickly restarted work based on Draft 33. After repeated revisions and intense debate, the historic Draft 38 took shape.

On July 1, 1979, the Second Session of the Fifth National People’s Congress adopted the Criminal Law of the People’s Republic of China. Gao was overwhelmed with emotion. He later recalled that this ended the PRC’s thirty-year history without a criminal code, and that criminal judgments without cited legal provisions had finally become a thing of the past.

From a twenty-six-year-old young scholar to a middle-aged man with gray at his temples, Gao poured the best years of his life into those thirty-eight drafts.

To preserve that precious historical memory, Gao published The Gestation and Birth of the Criminal Law in 1981. The book recorded in detail the disputes and revisions from Draft 22 to Draft 38. It was also China’s first legal academic monograph after reform and opening up, and it sold out in less than a month.

The Establishment of the Four-Element Theory

Once China had a criminal code, the next question was practical and fundamental: what logic should courts use to decide whether a person has committed a crime? This brings us to the most central and contested theory in criminal law: the theory of the constitution of crime.

As mentioned above, the early PRC abolished the old legal order and built legal education along a path of learning from the Soviet Union. In the early 1950s, Soviet experts such as Bestrova came to Chinese law schools. What they brought with them was the four-element theory, then dominant in Soviet criminal law.

To help people quickly grasp the logic of conviction during that formative period, the criminal law teaching and research section at Renmin University’s law department collectively wrote Lectures on the General Part of Criminal Law in 1957. The book introduced the four-element theory and marked its landing in China.

By 1982, in order to meet the needs of the restored college entrance examination and the rebuilding of legal institutions, the Ministry of Justice organized leading scholars to write a unified national textbook. Gao Mingxuan and Professor Ma Kechang of Wuhan University, then known together as “Gao in the North and Ma in the South,” co-edited the first national textbook on criminal law. With a total circulation of nearly two million copies, it firmly established the four-element theory as the basic framework of Chinese criminal law.

So what is the four-element theory? It holds that for conduct to constitute a crime, four puzzle pieces must all be present at the same time:

First, the object of the crime: what social relation the act infringes. A homicide violates another person’s right to life; theft violates property rights.

Second, the objective aspect of the crime: the external manifestation of the criminal activity. What did the actor do? What result occurred? Was there causation between act and result?

Third, the subject of the crime: whether the person who committed the act has reached the legal age of criminal responsibility and has normal mental capacity.

Fourth, the subjective aspect of the crime: the actor’s mental state. Was the act intentional or negligent?

Under this theory, the four elements stand or fall together. In deciding a case, the judge effectively draws a cross in the mind and fills in each element. Only when all four are complete and fit together tightly can a crime be established.

This way of thinking, emphasizing the unity of subjective and objective elements, is intuitive, clear, and easy to learn. At a time when many judicial workers had limited legal training, the four-element theory worked like a sharp and efficient knife. It helped Chinese courts sort out facts and punish crime, and it made a real historical contribution.

From Four Elements to Three Steps: A Century-Level Debate

After reform and opening up began in 1978, China’s social structure, economic model, and intellectual life all changed dramatically. The planned economy gradually gave way to a market economy. Social conflicts and forms of crime became more complex, including new kinds of economic and financial crime.

In that context, the 1979 Criminal Law, with only 130 crimes, began to look inadequate. Between 1981 and 1996, the Standing Committee of the National People’s Congress issued more than twenty separate criminal laws and accessory criminal provisions to patch the gaps. In 1997, the state decided to comprehensively revise the Criminal Law. Gao participated throughout that revision as a legislative expert.

The 1997 Criminal Law greatly expanded the list of crimes and adjusted the structure of punishment. More importantly, it expressly established three basic principles: legality, equality before criminal law, and proportionality between crime, responsibility, and punishment. Gao spent his life defending the principle of legality: no crime by analogy, and no crime without an express legal provision. The final establishment of that principle marked the true modernization of Chinese criminal law and gave Chinese criminal law a stronger basis for engagement with the world.

Improved legislation created fertile ground for theory. In the 1990s, as Chinese legal education opened up, many younger scholars, including Chen Xingliang, Zhou Guangquan, and Zhang Mingkai, studied in Germany, Japan, and other major civil law jurisdictions. They translated and introduced a large body of German and Japanese criminal law literature.

These scholars brought back a very different logic of conviction: the German-derived three-step theory. Under this theory, a judge’s reasoning should not be a flat puzzle, as in the four-element model. It should be more like a funnel with three strict filters.

The three steps are:

First, fulfillment of the statutory elements: this is a factual judgment. The judge asks only whether the actor’s conduct and result match the description in the criminal statute. If you stab someone to death with a knife, your conduct satisfies the statutory description of intentional homicide.

Second, unlawfulness: this is an objective legal value judgment. Even if the conduct fits the statutory description, does the overall legal order provide a justification? If there is a justification, such as self-defense or necessity, the conduct is legally permitted and therefore not unlawful.

Third, culpability: this asks whether the actor can be personally blamed. If the conduct fits the statute and lacks justification, the judge must still ask whether moral and legal blame can be attached to the actor. A person with severe mental illness who lacks capacity, or a person acting under coercion, may not be culpable and therefore may not be criminally liable.

The introduction of the three-step theory landed in Chinese criminal law like a depth charge. Scholars such as Chen Xingliang argued openly for a transformation of criminal law knowledge: a move away from the Soviet model and toward the German-Japanese layered system. They criticized the four-element model for failing to distinguish clearly between “unlawfulness” and “responsibility.” In their view, without a progressive filtering structure, judges facing difficult cases are left to make life-and-death decisions through an inexpressible kind of intuition.

Traditional scholars struck back. They argued that the four-element theory had been refined through decades of Chinese judicial practice and had developed deep institutional fit. Starting over would confuse grassroots judicial workers. They also argued that it is absurd to blame the four-element theory alone for weak human rights protection. Human rights depend on fair criminal procedure and concrete institutional implementation, not merely on conceptual games.

The debate reached a peak in the 2009 National Judicial Examination. Some of that year’s criminal law questions clearly leaned toward three-step reasoning in classifying cases. The legal academy was shaken. Some scholars even joked that it was a “war of the gods” in Chinese criminal law.

Four Elements vs. Three Steps: A Deeper Look at the Logic

At this point, a reader may ask: are the four-element and three-step theories not both just ways of breaking down the conditions of crime? One has four baskets, the other has three filters. What is the real difference? Why are so many leading younger scholars so convinced that the three-step model is logically tighter?

To answer that technical question, we need to look at the logic more closely.

In simple cases, any theory looks smooth. To test whether a theory is rigorous, we need to pressure it with hard borderline cases. That is exactly how Chen Xingliang and others exposed what they saw as the logical weaknesses of the four-element model.

Scenario One: The Problem of Self-Defense

Suppose you are walking down the street and an attacker tries to kill you with a knife. To save yourself, you seize the knife and kill him. In law, this is self-defense and does not constitute a crime.

Under the four-element theory, the case feels awkward. If the judge says you are not guilty, which element is missing? Objectively, someone died. You are a normal adult. Subjectively, you intended to kill him in order to survive. So what is absent? Traditional textbooks can only explain this by saying that social harmfulness is excluded, then build a separate house next to the four-element structure called “grounds excluding crime” and place self-defense there. Logically, the structure is broken.

Under the three-step theory, the reasoning is much smoother. Your act satisfies the statutory elements of homicide. Factually, the killing occurred. But at the second step, unlawfulness, the law asks whether there is a justification. Because you were defending yourself against an unlawful attack, the legal order encourages and permits your act. Unlawfulness is blocked. Because there is no unlawfulness, there is no crime. The loop closes cleanly.

Scenario Two: Instigation and Juvenile Offenders

Another classic example shows the precision of the three-step model. Suppose an adult, Zhang San, instigates a thirteen-year-old, Li Si, to commit burglary.

Under the four-element theory, a person must satisfy the object, objective aspect, subject, and subjective aspect of a crime all at once. But Li Si is thirteen and has not reached the legal age of criminal responsibility, so he lacks the proper criminal subject element. He therefore does not constitute a crime.

Here comes the problem: if Li Si has not committed a crime, to whom is Zhang San’s status as instigator attached? To convict Zhang San, traditional theory often has to bypass joint crime and introduce the concept of an indirect principal offender, treating Li Si as Zhang San’s tool without independent agency. That patch feels cramped. The deeper reason is that in the four-element theory, all elements are mixed together to explain social harmfulness. Unlawfulness and responsibility are not separated, which creates a classification problem.

The three-step theory solves this neatly because it clearly separates unlawfulness from culpability.

Li Si committed burglary in the factual sense and satisfied the first step: the statutory elements. He had no lawful justification such as self-defense, so the second step, unlawfulness, is also satisfied. In legal evaluation, what Li Si did was unlawful and wrong.

For accomplice liability, the three-step theory holds that it is enough for the instigated person to commit an unlawful act. The instigated person does not have to be punishable in the end. Since Li Si’s conduct has crossed the first two steps and is unlawful, Zhang San, as the instigator, can naturally be held liable.

Only at the third step does the judge examine Li Si’s personal responsibility. Because Li Si is only thirteen and lacks mature capacity, the law does not blame him subjectively. Li Si is not punished, but Zhang San, as an adult with full responsibility, must bear criminal liability for instigation.

This is the point. The three-step theory separates “the act is wrong” from “this person can be blamed.” The act is wrong, so the instigator is punished. The child who performed the act may be excused, so the child is not punished. That layered movement from objective unlawfulness to subjective culpability is why many criminal law scholars argue for the three-step model.

A Historical Monument That Cannot Be Erased

Still, when discussing theoretical change, we must not fall into historical nihilism. Whatever criticism the four-element theory faces today, the historical monument built by Gao Mingxuan and the first generation of Chinese criminal law scholars cannot be erased by anyone or any era.

In the early PRC, when legal resources were desperately scarce and legal nihilism was widespread, Gao’s generation built the first shelter for China’s criminal justice system. The four-element theory has logical flaws, but over decades it guided millions of cases through its simplicity and usability. It contributed greatly to maintaining social order and building legal authority.

Gao’s lifetime of work also won him the highest recognition at home and abroad. In April 2015, for his outstanding contribution to criminal law, he received the Cesare Beccaria Award from the International Society of Social Defence, an honor often called the Nobel Prize of criminal law. Gao became the first Asian scholar to receive it. In 2019, on the eve of the seventieth anniversary of the PRC, the state awarded him the national honorary title of People’s Educator, making him the only representative from the legal academy to hold that honor so far.

Academic progress is possible because the shoulders of earlier generations are broad enough. What is most admirable about Gao is not only his body of work, but also his openness as a scholar and his humane spirit as an educator.

Since becoming China’s first doctoral supervisor in criminal law in 1984, he trained more than sixty doctoral students. Many leading scholars who later criticized the four-element theory and called for a transformation of legal knowledge, including Chen Xingliang, were Gao’s own students.

Facing fundamental challenges from younger scholars, Gao never used authority to suppress them. He once advised young teachers: when teaching undergraduates, focus on the basics and avoid controversial issues at first; when teaching graduate students, explain both sides of the debate fully; when teaching doctoral students, discuss the most advanced questions and encourage them to think for themselves. He lived by the idea that students need not be inferior to the teacher. That tolerance for dissent and encouragement of innovation is one of the forces that has allowed Chinese legal scholarship to keep renewing itself.

Looking Ahead

From the historical moment of Gao Mingxuan’s death, the future direction of Chinese criminal law is already quite clear.

First, the theoretical system will move from closure toward broad compatibility. On reform of the theory of crime, scholars have proposed several paths: reordering the four elements, adding or subtracting elements from the existing model, or starting over with a full three-step structure. The future Chinese theory is unlikely to be a pure copy of the German-Japanese model, and it will not simply return to the old Soviet path. More likely, it will draw deeply on Chinese judicial practice, integrate the existing elements under the statutory-element analysis, and build a new layered model that combines logical rigor with Chinese institutional reality: fulfillment of elements, unlawfulness, and criminal punishability.

Gao himself advised younger scholars to value international cooperation and exchange in criminal law: learn from others’ strengths, but also have the courage to explain China’s own experience.

Second, the philosophy of punishment will complete its shift from social defense alone toward human rights protection. As legal civilization advances, criminal law should not only be the sword that punishes crime. It should also be a constitutional charter that limits state power and protects citizens. By introducing the strict logical filters of layered theory, future judgments can better prevent abuse of punishment and ensure that every decision affecting liberty and life can withstand serious logical and ethical scrutiny.

Finally, legislation and amendment will become more refined in the face of new challenges. As Gao pointed out in his later years, China’s criminal law should continue to be revised through criminal law amendments, steadily improving the coherence of the system and the technique of legislation. Whether dealing with complex cybercrime or legal gaps created by artificial intelligence, theory must provide more precise tools.

Gao Mingxuan has left us, taking with him an age of passion, hardship, and pioneering labor. But the first stone of the rule of law that he helped lay, and the scientific spirit with which he encouraged reform and pursued truth, will continue to guide later generations of Chinese legal professionals.

The best way to remember Gao is not to seal his doctrines in a shrine. It is to inherit his courage, keep pushing the transformation and improvement of Chinese rule of law, and build China’s legal structure more firmly with both rigorous logic and deep human concern.

Key Figures

• Gao Mingxuan: Chinese criminal-law scholar who helped draft the PRC’s first Criminal Law and long defended the four-element theory.
• Ma Kechang, Chen Xingliang, and Zhang Mingkai: Important Chinese criminal-law scholars associated with the discussion of the three-tier theory.
• Cesare Beccaria: A key source of modern criminal-law thought and the Enlightenment tradition of limiting state penal power.

Key Cases and Concepts

• The 1979 Criminal Law of the People’s Republic of China: The PRC’s first criminal code and the institutional background of this episode.
• Four-element theory of crime: The traditional framework judging crime through object, objective aspect, subject, and subjective aspect.
• Three-tier theory of crime: A layered analysis of Tatbestandsmäßigkeit, unlawfulness, and culpability.
• Legality and human-rights protection: The deeper issue of boundaries on state penal power.

Related Episodes

• Podcast 09｜The End of the Chinese Legal Tradition: How Late-Qing Reforms Reshaped the Rule of Law : Adds historical context for the development of modern Chinese criminal law.

This is the transcript of Episode 04 of my podcast Reasoned Talk . You can listen on Xiaoyuzhou or Apple Podcasts . The episode itself is in Chinese.

Three Ways of Remembering Defeat

Japan’s prime minister, Sanae Takaichi, enjoys strong domestic support, while her hard-right statements have once again sent Sino-Japanese relations toward a low point. This is not entirely new. Far-right forces were never completely uprooted after the Second World War, and Japan has long struggled to reach a consensus on war and history. Irreconcilable currents coexist within the country, while the government’s position shifts with public opinion. As a result, relations with China and South Korea periodically become tense.

In The Long Defeat, Japanese American sociologist Akiko Hashimoto identifies three narratives through which postwar Japan remembers the war.

The first is the narrative of the “heroic fallen.” Favored by the right, it portrays soldiers killed in the war as heroes whose sacrifice made Japan’s future possible. Responsibility recedes: war criminals become heroes and aggression is repackaged as national defense. Politicians’ visits to Yasukuni Shrine and attempts to sanitize textbooks belong to this narrative.

The second is the narrative of the “innocent victim,” the dominant form of postwar memory. It emphasizes the suffering of Japanese civilians—the bombing of Tokyo and Osaka and the atomic destruction of Hiroshima and Nagasaki. This memory is grounded in real catastrophe, but it can evade Japan’s aggression and the suffering it inflicted abroad. Japan did not experience attacks on its home islands until the closing phase of the war; that cannot simply be equated with the destruction endured by invaded countries from the outset.

The third is the “perpetrator” narrative. It faces Japan’s identity as an aggressor, acknowledges its war crimes, and argues that the country must expose its past, break with militarism, and seek reconciliation. Japanese society, in this account, must confront the Nanjing Massacre, the “comfort women” system, Unit 731, and other brutal truths.

Because people remember the past differently, Japan has never agreed on what defeat meant. Official discourse has usually favored a victim narrative. Postwar pacifism has often centered on preventing another war, rather than remorse for a war Japan initiated. Family silence as the wartime generation aged strengthened this tendency, while the more recent rise of right-wing nationalism has narrowed the space for discussing responsibility.

Yet the perpetrator narrative never disappeared. Courageous individuals kept it alive. One of the most representative was historian Saburō Ienaga. For 32 years, he fought the state in court to defend historical truth and force Japanese society to face the crimes of war.

Saburō Ienaga and an “Inconvenient” Textbook

Ienaga was a prominent postwar historian and educator who taught at the institution now known as the University of Tsukuba. He became famous, however, not simply for scholarship but for a high-school history textbook. Outraged by government efforts to alter its account, he began the litigation collectively known as the Ienaga textbook lawsuits. From 1965 to 1997, he sued the Japanese government three times over textbook screening.

The controversy grew out of Japan’s postwar textbook system. Private publishers prepared textbooks, but the Ministry of Education screened them before schools could use them. The system, introduced during the Allied occupation, was meant to prevent a return to state-directed ultranationalist education and to protect quality. In practice, it also allowed officials to filter historical interpretations they disliked, especially accounts of wartime aggression.

Ienaga had worked on textbooks since 1947. His New Japanese History was already in classrooms in the 1950s, but official pressure mounted during the 1960s. Its descriptions of the Nanjing Massacre, Unit 731, the comfort women, and other sensitive subjects repeatedly angered examiners. The third edition was rejected in 1957; the fifth was initially rejected in 1963 and passed only conditionally after revision. Officials issued more than 300 comments, many complaining that the account was too graphic or placed excessive emphasis on Japanese atrocities.

Ienaga concluded that screening had become ideological control and violated academic freedom. In June 1965, then nearly fifty, he sued the state and the Ministry of Education, arguing that the system amounted to prior censorship forbidden by Article 21 of the Constitution.

The First Lawsuit: A Constitutional System, but Potentially Illegal Decisions

In the first suit, Ienaga sought both a declaration that the screening system was unconstitutional and compensation for damage caused by the review of his fifth edition. He argued that many comments intervened in his interpretation rather than correcting errors. Examiners objected to calling Japan’s war in China an “invasion” and challenged specific figures for victims of the Nanjing Massacre. When he rejected revisions he considered false, the book failed screening until substantially cut.

The Tokyo District Court delivered judgment in July 1974. It found eight comments unsupported and unlawful and awarded Ienaga a symbolic 100,000 yen. For the first time, a court had explicitly found particular textbook interventions illegal. But it refused to invalidate the system itself, holding that limited intervention could be justified to preserve neutrality and accuracy.

In 1986, the Tokyo High Court overturned even the damages award. On 16 March 1993, the Supreme Court also held the system constitutional. National standards, it reasoned, protected educational equality; moreover, a rejected textbook could still be published as an ordinary book, so screening classroom eligibility was not the same as prohibiting publication.

At the same time, the Court articulated an important limit: if an examiner’s understanding of historical fact or scholarship was clearly mistaken, the decision could be an unlawful abuse of discretion. It found no such error in the disputed items and rejected Ienaga’s appeal. After 28 years, he had failed to overturn the system, but the judgment supplied a legal standard that would matter later.

The Second Lawsuit: The Brief Triumph of the Sugimoto Judgment

Ienaga filed his second lawsuit in June 1967, while the first was pending. When revising the sixth edition, he tried to restore wording previously changed under official pressure. The Ministry rejected the book again. Unlike the first claim for damages, this administrative suit asked the court to cancel the rejection itself.

The case produced a sensational victory. On 17 July 1970, the Tokyo District Court, presided over by Judge Sugimoto, held that the rejection amounted to advance scrutiny of the author’s ideas and violated Article 21’s ban on censorship. It also found improper control of education under the Basic Act on Education and revoked the Ministry’s decision.

Ienaga called it a magnificent judgment beyond anything he had expected. But the government appealed. In 1975, the Tokyo High Court avoided the constitutional question while still finding an abuse of authority and leaving the revocation intact.

On 8 April 1982, the Supreme Court did not squarely decide who was right. It remanded the case because curriculum standards had changed and the old book could no longer return to use even if approved. In 1989, the High Court dismissed the claim for lack of a continuing legal interest. Formally, Ienaga lost.

The Sugimoto judgment nevertheless mattered. It was the first postwar judgment explicitly to declare textbook screening unconstitutional. Its emphasis on the people’s right to education, students’ right to learn, and teachers’ freedom to select materials influenced public debate and showed that an individual could force the state to defend its conduct in open court.

The Third Lawsuit: Four Illegal Decisions and 400,000 Yen

By the 1980s, disputes over war memory had intensified. Right-wing groups promoted sanitized accounts, while China and South Korea watched Japanese textbooks more closely. In 1982, Japanese media reported that the Ministry had required “invasion” to be replaced with the milder “advance” and had challenged accounts of the Nanjing Massacre. The reports triggered major diplomatic protests. Later research showed that the famous word change had not actually occurred in that year’s screening, though similar guidance had existed before. The controversy nevertheless led the government to promise that screening would take relations with Asian neighbors into account.

Now in his seventies, Ienaga returned to court. Editions submitted in 1980 and 1983 again received demands concerning Japan’s wars, the Nanjing Massacre, Unit 731, and the Battle of Okinawa. In January 1984, he filed his third suit, seeking compensation for unlawful screening and focusing on eight representative interventions.

On 3 October 1989, the Tokyo District Court upheld the system but found one comment unlawful and awarded 100,000 yen. On 20 October 1993, the Tokyo High Court expanded the number of unlawful comments to three and damages to 300,000 yen. The additional findings concerned the Nanjing Massacre and rape committed by Japanese troops there. The demands to alter those passages, the court held, lacked proper grounds.

The Supreme Court delivered the final judgment on 29 August 1997. It again upheld the system and retained the “clear error” standard, but tightened the boundary of official discretion: correction could be required when a manuscript had a serious defect that made it unsuitable as a textbook, not merely because an examiner preferred different wording. The Court found a fourth illegal intervention—the order to remove a reference to Unit 731’s human experiments—and raised damages to 400,000 yen.

The 32-year struggle was over. Ienaga had not abolished screening, but he forced the courts and public to confront its abuses. The final judgment confirmed unlawful efforts to suppress the Nanjing Massacre, Japanese military sexual violence, and Unit 731. One person had fought the machinery of state for more than three decades and won a small but precious measure of legal recognition for historical truth.

What the Three Lawsuits Left Behind

The lawsuits were more than legal disputes. They were a prolonged battle over historical memory and the meaning of education.

First, they awakened public attention. Screening had largely taken place behind bureaucratic doors. Litigation put disputed words and official reasoning into the public record. Parents, teachers, and students learned that the history printed in schoolbooks was shaped by political choices.

Second, the litigation helped constrain the screening system. After the Sugimoto judgment, officials had reason to avoid overtly ideological interventions. The 1982 controversy produced the “neighboring countries clause,” instructing screeners to show consideration for Japan’s Asian neighbors when treating modern history. The 1997 judgment further clarified that officials could not demand changes merely because another wording was possible.

Third, Ienaga inspired a wider community committed to historical truth. Teachers, lawyers, scholars, and civic groups supported him. Younger educators inherited his concerns, and later plaintiffs brought related challenges. His willingness to confront power became an expression of what many called “Japan’s conscience.”

There was tragedy too. Ienaga died in 2002 without seeing the government fully accept responsibility for aggression. In court he partly won and partly lost; in the broader contest over memory, he remained in the minority. The textbook problem did not disappear. In the early twenty-first century, right-wing groups again promoted books that minimized the comfort women system and the Nanjing Massacre. Ienaga reportedly described his record late in life as “three lawsuits, three defeats,” because he had not transformed mainstream attitudes at their roots.

Epilogue: Accepting Defeat Is the Beginning of Moving Forward

Ienaga’s story tells us first that an individual is not powerless against the distortion of history. He spent more than thirty years proving that even someone in a minority can speak and sometimes move an entire society. Historical truth survives only because people continue to state it publicly.

Second, a mature country must face its past. Japan’s postwar constitutional pacifism prevented another war and deserves to be valued. But peace means more than refusing to fight again; it also requires acknowledging the war one once began. The perpetrator narrative advanced by Ienaga and his supporters was not an attempt to denigrate Japan. A nation willing to admit wrongdoing is more likely to earn lasting trust.

The lesson extends beyond Japan. How a people understands defeat shapes its future. Denial may preserve pride for a moment but plants dangers for later. Facing failure and admitting wrongdoing is painful, yet it can lay the foundation for peace.

A history textbook is never merely a few pages of paper. It represents how a nation remembers its past and teaches the next generation. More than eighty years after the end of the Second World War, old wounds still ache. There is no shame in accepting defeat. The shame lies in refusing to acknowledge wrongdoing and allowing tragedy the chance to return.

Ienaga’s lonely courage offered Japan and the world an example. Only by facing history can a country truly move toward the future. By remembering honestly and reflecting sincerely, we honor the dead and protect those who come after us.

Key Figures

• Saburō Ienaga: Japanese historian who fought the textbook-screening system and the Japanese government for 32 years.
• Ryōkichi Sugimoto: The Tokyo District Court judge who issued the important judgment in the second lawsuit.
• Japan’s Ministry of Education: The agency responsible for textbook screening and the central defendant in the lawsuits.

Key Cases and Concepts

• The Ienaga textbook lawsuits: Three rounds of administrative and state-compensation litigation over textbook screening, academic freedom, and war memory.
• Textbook screening: A system through which the state influences historical narrative by reviewing teaching materials.
• Academic and educational freedom: Constitutional questions about whether research, writing, and teaching can resist state censorship.
• War responsibility: How Japanese society confronts the history of aggression, the Nanjing Massacre, and Unit 731.

Related Episodes

• Podcast 09｜The End of the Chinese Legal Tradition: How Late-Qing Reforms Reshaped the Rule of Law : Also observes law and historical memory through institutional transformation.

This is the transcript of episode 03 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

Timing note: This episode was released on July 4, 2025. The body preserves the state of the litigation and the analysis at the time of publication. For later developments in the merits of the birthright-citizenship dispute, see the transcript of episode 06 .

The Supreme Court’s Procedural Ruling and the Challenge to Birthright Citizenship

On June 27, 2025, the U.S. Supreme Court issued an important ruling in Trump v. CASA, Inc. It did not decide whether President Trump’s order restricting birthright citizenship was constitutional. Instead, it limited the scope of nationwide injunctions issued by federal district courts. For the Trump administration, it was a major procedural victory.

Birthright citizenship is the principle that a person born in the United States and subject to its jurisdiction is, as a rule, a citizen from birth. Trump has long opposed the current understanding of that principle. He argues that the children of undocumented immigrants should not automatically become citizens merely because they are born on U.S. soil, and that the rule encourages “birth tourism” and the use of childbirth to obtain future immigration benefits for a family.

On January 20, 2025—the first day of his second term—Trump signed the executive order “Protecting the Meaning and Value of American Citizenship.” It directed federal agencies not to recognize citizenship for two categories of people born in the United States: first, those whose mothers were unlawfully present and whose fathers were neither U.S. citizens nor lawful permanent residents at the time of birth; second, those whose mothers were lawfully but temporarily present and whose fathers likewise were neither citizens nor lawful permanent residents.

The order immediately provoked challenges across the country. Attorneys general from twenty-two states, immigrant-rights organizations, and individual plaintiffs filed suit in federal court. Judges in Maryland, Massachusetts, Washington, and elsewhere issued injunctions preventing the government from enforcing the order while litigation continued. They concluded that the policy was likely inconsistent with the Citizenship Clause of the Fourteenth Amendment.

The administration asked the Supreme Court to intervene, but it adopted a carefully designed strategy. It did not ask the Court to decide the order’s constitutionality. Instead, it argued that lower courts lacked authority to provide relief to everyone who was not a party to the cases before them. A federal injunction, in other words, should extend no further than necessary to resolve the concrete dispute.

The Court heard argument on nationwide injunctions in May 2025 and ultimately ruled for the administration by six votes to three. The majority concluded that injunctions protecting everyone in the country likely exceeded the traditional equitable authority of federal courts. Lower courts could issue relief only as broadly as necessary to provide the actual plaintiffs with “complete relief.” The Supreme Court returned the cases for reconsideration under that standard and delayed the effect of its ruling for thirty days.

Writing for the majority, Justice Amy Coney Barrett warned that “imperial” judicial power could disrupt the separation of powers. The government’s obligation to obey the law did not mean that a court possessed unlimited authority to supervise the government in every case. Courts must resolve concrete disputes, she argued, and cannot exceed their own power in the name of correcting executive illegality.

Justice Sonia Sotomayor wrote a forceful dissent for the liberal justices. In her view, the President had challenged a right expressly protected by the Constitution, while the majority focused narrowly on remedial authority and avoided the order’s apparent unconstitutionality. When a policy changes citizenship rules nationwide, she argued, nationwide relief may be both necessary and proper; otherwise, the same constitutional right could vary according to geography and a person’s status in litigation.

The ruling did not mean that the executive order could automatically take full effect in the remaining states, much less that birthright citizenship had ended there. Once the cases returned to the lower courts, the permissible scope of the injunctions would depend on what “complete relief” required for state, individual, and organizational plaintiffs, as well as on the development of class actions. What is clear is that the administration won on procedure while leaving behind enormous constitutional uncertainty.

Trump described the ruling as a “giant win for the Constitution, the separation of powers, and the rule of law.” Supporters said it corrected the practice of a single lower-court judge freezing a national policy and prevented unelected judges from too easily frustrating an elected president. Critics answered that the decision might allow the executive branch to implement a policy in fragments while its constitutionality remained unresolved, making judicial review slower and less coherent.

The legal battle over birthright citizenship was far from over. The Supreme Court had removed one procedural obstacle without answering the basic question: could a president, through an executive order, change an interpretation of the Fourteenth Amendment that had endured for more than a century?

The Fourteenth Amendment and Birthright Citizenship

To understand the dispute, we must return to the history of the Fourteenth Amendment. The Civil War ended in 1865 and slavery was abolished, but Southern states soon enacted “Black Codes” that continued to deny basic rights to Black Americans. Radical Republicans in Congress recognized that only a constitutional guarantee of citizenship and equality could prevent states from rebuilding a racial caste system through legislation.

The Thirteenth, Fourteenth, and Fifteenth Amendments are collectively known as the Reconstruction Amendments. The Thirteenth abolished slavery. The Fourteenth addressed citizenship, due process, and equal protection. The Fifteenth prohibited denying the vote on the basis of race, color, or previous condition of servitude.

The Fourteenth Amendment encountered fierce resistance. President Andrew Johnson opposed Congress’s Reconstruction program, and every former Confederate state except Tennessee initially rejected the amendment. Congress passed the Reconstruction Acts in 1867, imposing federal military administration as part of the process of rebuilding Southern governments. In 1868, enough states ratified the Fourteenth Amendment for it to become part of the Constitution.

Its Citizenship Clause provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

For the first time, the Constitution expressly defined national citizenship. In Dred Scott v. Sandford (1857), the Supreme Court had declared that people of African descent and their descendants could not be U.S. citizens. The Fourteenth Amendment repudiated that racist decision and guaranteed citizenship to formerly enslaved people and to others born in the United States who came within the Clause.

The words “subject to the jurisdiction thereof” preserve a narrow set of traditional exceptions. The U.S.-born children of foreign diplomats are not generally citizens because their parents possess diplomatic immunity. The same principle excludes children born to an occupying enemy force. At the time of Reconstruction, Native Americans who remained within separate tribal political relations were also excluded. Congress later conferred citizenship broadly on Native Americans through the Indian Citizenship Act of 1924.

Apart from those exceptional categories, the Fourteenth Amendment does not impose a general restriction based on a parent’s race or nationality. The Civil Rights Act of 1866 had already made birth and jurisdiction central to national citizenship. The congressional debates over the Amendment also considered the U.S.-born children of foreigners without excluding ordinary immigrant families.

The Fourteenth Amendment had consequences far beyond citizenship. It constitutionalized equal protection and authorized Congress to enforce its guarantees. The federal government acquired an affirmative role in protecting civil rights, and the relationship between national and state power was transformed.

For birthright citizenship specifically, the principle established after 1868 gradually became a foundation of America’s immigrant society. Whether parents came from Europe, Asia, or Latin America, a child born in the United States and subject to its jurisdiction began from the same legal position. Immigrant families did not have to pass uncertainty over national membership from one generation to the next.

The debate never disappeared completely. Critics argued that the rule could be exploited through “birth tourism” and that the Reconstruction Congress did not confront undocumented immigration in its modern form. Supporters replied that the text, the inherited common-law rule, and longstanding judicial practice did not exclude the U.S.-born children of ordinary undocumented immigrants. Against that historical background, the attempt to change the system by executive order produced an unusually intense constitutional dispute.

The Principle Established in Wong Kim Ark

After the Fourteenth Amendment, courts defined the reach of birthright citizenship through a series of cases. The most important was United States v. Wong Kim Ark (1898).

Wong Kim Ark was born in San Francisco in 1873 to Chinese immigrant parents. By the time of his case, the Chinese Exclusion Acts sharply restricted Chinese immigration and naturalization. Wong traveled to China and, on his return to the United States in 1895, was denied entry. The government argued that because his parents were subjects of the Qing emperor, Wong did not acquire U.S. nationality. Wong answered that he had been born in the United States, subject to its laws, and could not be excluded from the Fourteenth Amendment because of his parents’ nationality.

The Supreme Court ruled for Wong by six votes to two. The majority held that the United States had inherited the English common-law principle of jus soli: a person born in the country and subject to its law was generally a citizen from birth. Wong’s parents could not themselves become naturalized U.S. citizens, but they were domiciled in the United States, subject to American law, and were neither diplomats nor members of an occupying enemy force. Wong therefore fell squarely within the Citizenship Clause.

The decision clarified the Amendment’s reach. It protected not only the U.S.-born children of Chinese immigrants, but the children of immigrants from any other country. Unless one of the narrow exceptions such as diplomatic immunity or enemy occupation applied, citizenship could not be denied because of a parent’s place of origin.

The decision was a watershed. It secured constitutional citizenship for Chinese Americans and other Asian Americans who faced intense discrimination, and it confirmed the status of millions of later immigrant descendants. Some state courts had already recognized the citizenship of Chinese Americans born in the United States, but Wong Kim Ark supplied an authoritative federal constitutional rule.

Other cases helped define the boundaries of the Amendment. Elk v. Wilkins (1884) involved a Native American born into a tribal political community. The Court held that he had not been born completely subject to U.S. political jurisdiction and did not automatically become a citizen merely by later leaving his tribe. Congress ultimately addressed that historical exclusion through the Indian Citizenship Act.

Plyler v. Doe (1982) did not decide citizenship. It concerned access to public education for the children of undocumented immigrants. The Court held that states could not deny those children a public education because the Equal Protection Clause protects every “person” within a state’s jurisdiction. At a minimum, the case confirmed that undocumented immigrants and their children remain subject to, and protected by, U.S. law.

Since Wong Kim Ark, the mainstream legal understanding has been that a person born in the United States becomes a citizen unless one of a few exceptional categories applies. Because that consensus endured for more than a century, the administration’s attempt to change it through executive action caused such an upheaval.

Jus Soli and Jus Sanguinis

At bottom, the controversy reflects a collision between two principles of nationality: jus soli and jus sanguinis.

Jus soli, the law of the soil, grants nationality according to place of birth. Jus sanguinis, the law of blood, determines nationality through a parent’s citizenship or descent. U.S. law inherited the English common-law rule of birth within the territory, and the Fourteenth Amendment constitutionalized that tradition.

Most countries combine the two principles in different proportions. The United States relies heavily on place of birth but recognizes exceptions for diplomats and enemy occupation. Countries that historically emphasized descent have gradually introduced ways for children of immigrants born and raised there to acquire nationality.

Jus soli tends to give people born in the same territory an equal legal starting point and makes nationality depend on an objective event. Jus sanguinis emphasizes the state’s connection to ancestry, culture, or parental status, but can also leave people who spend their entire lives in a country with incomplete rights from birth.

Trump’s order required at least one parent to be a U.S. citizen or lawful permanent resident before the federal government would recognize citizenship for the covered categories of U.S.-born children. It therefore represented a marked shift toward jus sanguinis. The administration’s legal theory focused on the phrase “subject to the jurisdiction thereof” and on language in Wong Kim Ark describing the parents’ permanent domicile. It argued that citizenship should require a more durable political connection between the family and the United States.

Many constitutional scholars responded that the Fourteenth Amendment contains no language requiring “permanent residence,” and that Wong Kim Ark did not confine citizenship to the children of citizens or green-card holders. Wong’s parents were legally ineligible for naturalization, yet the Court still recognized him as a citizen from birth. That result suggests that a parent’s ability to become a citizen and a child’s citizenship by birth are distinct questions.

The Constitutional Consequences after Nationwide Injunctions

The Supreme Court’s June 27 decision avoided the merits but changed the rules of judicial relief. By restricting a district court’s ability to stop federal policy through a nationwide injunction, it strengthened the executive branch, to some degree, relative to the lower federal judiciary.

In recent years, immigration policies under Trump and executive actions under earlier administrations alike had been blocked by nationwide injunctions. Supporters of the remedy said it prevented unlawful policies from causing irreparable harm throughout the country and made judicial review an effective check on the executive. Critics argued that it gave a single judge excessive power, encouraged litigants to select a favorable court, and drew the judiciary too deeply into administration.

In the short term, the decision gave the Trump administration time and tactical leverage. It also risked regional or party-specific differences in relief: the same executive order might occupy different legal positions for different plaintiffs and in different places, weakening the uniformity normally expected of federal policy.

Most importantly, procedure could not permanently avoid the merits. When the episode was released, the birthright-citizenship cases were still moving through the lower courts. It was widely expected that the Supreme Court would eventually have to interpret “subject to the jurisdiction thereof” directly. Upholding the executive order would rewrite an understanding that had endured for more than a century. Striking it down would reaffirm the established tradition of birthright citizenship.

Litigants would also adapt. Class actions, coalitions of states, and broad relief tailored to specific affected groups would become more important when a single universal injunction was no longer readily available. Congress might also revisit the remedial power of lower courts.

Whatever the outcome, the ruling marked a new stage in the struggle between courts and the executive. Federal judges would find it harder to freeze presidential policy nationwide through one lawsuit, while policies burdened by serious constitutional doubt might take effect in a fragmented and complicated form before final judgment.

In American democracy, constitutional principles are continually tested through the pull of politics and adjudication. Birthright citizenship is a central legacy of the Fourteenth Amendment and a statement about how the nation defines civic equality and membership. Every attempt to reinterpret it tests the promise in the Declaration of Independence that all people are created equal.

Key Figures

• Donald Trump: Tried to challenge birthright citizenship through an executive order.
• Wong Kim Ark and Wong Si Ping: The family behind United States v. Wong Kim Ark, whose citizenship dispute led the Supreme Court to confirm birthright citizenship.
• Horace Gray: The justice who wrote the majority opinion in Wong Kim Ark.
• John Roberts: Spoke for the Supreme Court majority on the nationwide-injunction issue.

Key Cases and Concepts

• United States v. Wong Kim Ark: The 1898 landmark decision confirming citizenship for people born in the United States and subject to its jurisdiction.
• The Fourteenth Amendment: The constitutional textual basis for birthright citizenship.
• Jus soli and jus sanguinis: Citizenship by place of birth and citizenship by descent.
• Nationwide injunction: A remedy by which a federal district court blocks a government policy across the country.

Related Episodes

• Podcast 06｜U.S. Birthright Citizenship: Total Victory or Temporary Truce? : Follows the final judgment and remaining risks in the birthright-citizenship dispute.

This is the transcript of episode 02 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

The Revenge of Xu Yuanqing

In the late seventh century, during the reign of Wu Zetian, a controversial act of revenge took place. The central figure was Xu Yuanqing, a resident of Xiagui County in Tongzhou, around today’s Weinan in Shaanxi. His father, Xu Shuang, had once been a local official. Years earlier, he had been put to death by the county commandant Zhao Shiyun. The historical record does not explain in detail why Xu Shuang was executed.

Xu Yuanqing was overwhelmed by grief and anger. What made the loss harder to bear was that Zhao Shiyun not only escaped punishment but continued to rise, eventually serving at court as a censor. The apparent failure of local justice convinced Xu that ordinary legal channels would never vindicate his father. He began to plan revenge.

To approach his enemy, Xu concealed his identity and took menial work at a government relay station. Relay stations housed officials and provided fresh horses on long journeys; they were something like state-run guesthouses in twentieth-century China. Years later, Zhao Shiyun—by then a censor—stopped at the station while traveling on official business. Xu seized the opportunity and killed him.

Xu did not flee. He tied his own hands and surrendered to the authorities. The scene calls to mind the knight-errant of martial legend: his great vengeance complete, he calmly presents his neck for execution.

Law and Judicial Institutions under the Tang

Killing a court official was a grave crime. Under the Tang Code, Xu faced execution. The period from Emperor Gaozong through Wu Zetian and Emperor Zhongzong rested on a highly developed legal order. The Tang Code is among the earliest Chinese codes to survive in full. It began to take shape during the Zhenguan era and was formally promulgated during Gaozong’s Yonghui era. Its more than five hundred provisions were arranged in twelve sections, moving systematically from general principles of punishment to particular offenses.

The Code identified the “Ten Abominations”: plotting rebellion, plotting great sedition, plotting treason, depraved rebellion, depravity, great irreverence, lack of filial piety, discord, unrighteousness, and internal disorder. These offenses attacked the political, familial, and hierarchical order, and generally could not benefit from the privileges and forms of commutation otherwise available under Tang law. Killing an imperial censor was treated as “unrighteousness,” an offense against the hierarchy itself.

At the local level, particularly in prefectures and counties, judicial and administrative authority were usually combined. The county magistrate governed the county and judged its cases. He resolved civil disputes, heard criminal matters, and managed ordinary administration. When a crime occurred, he often served at once as investigator and judge, personally gathering evidence and questioning suspects.

The Tang Code regulated interrogation in detail. Officials were taught to use the “Five Hearings,” observing a suspect’s words, expression, breathing, responses, and gaze. When evidence was insufficient, an official could seek authorization from a superior to use judicial torture. Even that power was regulated: a suspect could be beaten no more than three times, with intervals of at least twenty days. If the suspect still refused to confess after three rounds, the accuser might instead be questioned under torture as a safeguard against false accusation. The practice reveals the brutality of ancient justice, but its procedural limits also show an effort to discover the truth and prevent wrongful conviction.

The Tang also had a hierarchy of appeals. A person dissatisfied with a county judgment could petition the prefecture, and then the central government. A particularly striking institution was the dengwen drum, hung outside the court so that people with grievances could beat it and demand official attention. The Tang Code required guards to report such petitions promptly and punished officials who refused to receive them. The mechanism resembled an ancient petition system designed to bring local injustice before higher authority. False accusation and abusive litigation were punishable, but the legal design nevertheless offered a path from the county all the way to the center.

The principal central judicial bodies were known collectively as the Three Judicial Offices: the Court of Judicial Review, the Ministry of Punishments, and the Censorate. The Court of Judicial Review was the highest tribunal for major criminal cases. The Ministry of Punishments administered law and reviewed judgments sent up from the provinces, particularly death sentences. The Censorate monitored officials and judicial procedure and could request that a wrongful conviction be reopened.

Death sentences were also subject to repeated memorials to the throne. Before an execution, the case had to be reported again for the emperor’s final decision. Xu Yuanqing’s case did not arise in a world without procedure. It entered a judicial system that was unusually elaborate for its time. That is precisely why its conflict between morality and law became so acute.

Chen Zi’ang: Execute Him, Then Honor His Filial Piety

When Xu Yuanqing’s case reached Wu Zetian, it created a dilemma. He had attacked a superior and committed a capital offense. Yet Confucian ethics regarded vengeance for one’s father as inherently justified.

Confucius’ disciple Zixia once asked about avenging a parent. Confucius replied that a child whose parents had been killed should sleep on a straw mat with a shield for a pillow, always ready to fight, and should not share the same sky with the murderer. If the child met the enemy in the marketplace or at court, he should not go home for a weapon but fight on the spot. Zheng Xuan later explained: “A father is his son’s Heaven. To share Heaven with the man who killed one’s Heaven is not the conduct of a filial son.” In Confucian ethics, vengeance for a father could be more than permissible; refusing to avenge him could mean abandoning a son’s most basic duty.

On one side stood the law as an expression of state power. On the other stood a moral claim deeply recognized by society. How could both be satisfied?

Wu Zetian initially leaned toward mercy and considered sparing Xu. His story was genuinely sympathetic. The empress also faced persistent doubts about the legitimacy of having taken the Li family’s throne, and a display of benevolence could help her appear a humane ruler.

The young remonstrating official Chen Zi’ang objected. This was the poet who would later write: “Before me, where are the sages of the past? Behind me, where are those still to come? I contemplate the vastness of heaven and earth, alone, and tears fall.” At Wu Zetian’s court he was known for speaking frankly. In Xu’s case he again challenged the sovereign openly.

Chen argued that if Xu’s filial motive justified setting aside the criminal law—and if that became a principle for future cases—the state would fall into disorder. Xu’s willingness to avenge his father and then submit to judgment was noble precisely because he was prepared to sacrifice his life. Sparing him would diminish the moral force of that sacrifice.

Chen therefore proposed an apparent compromise. Xu must be executed according to the Code, but a monument should be erected at his grave to honor his filial devotion. The first action would uphold the authority of law; the second would complete the work of moral instruction. Wu Zetian accepted the proposal. Xu was put to death, while the state formally commended his filial conduct in his home district. The sword of law fell, and the medal of morality followed.

The solution looked balanced, but it left an unavoidable question. If revenge was genuinely an act of loyalty and filial righteousness, why should the law punish the righteous man? Chen had not resolved the contradiction. He had merely tried to preserve both sides at once. That was precisely what Liu Zongyuan would reject a century later.

Liu Zongyuan: First Ask Whether the Father Deserved to Die

Around the Zhenyuan era of Emperor Dezong, Liu Zongyuan read Chen Zi’ang’s memorial on the case. Troubled by it, he wrote the celebrated “Refutation of the Argument on Revenge.”

Liu began with a simple proposition: praise and punishment cannot attach to the same act. Conduct worthy of praise should not be punished, and conduct worthy of punishment should not be praised. To punish what deserves praise is an abuse of penal power; to praise what deserves punishment violates ritual order. Chen’s solution committed both errors and damaged the seriousness of both rites and law.

For Liu, the real question was not how to preserve both systems at once, but whether Xu should have been executed. Drawing on ritual texts and the Gongyang Commentary, he argued that if the father had been punished unjustly—killed though innocent—the son’s revenge could vindicate justice. If the father had lawfully been executed for a crime, however, the son’s retaliation was no more than indiscriminate killing. It removed no evil and instead defied justice.

The facts of Xu Shuang’s death therefore had to be established before anyone could judge the morality of his son’s revenge.

If Zhao had wrongfully killed an innocent Xu Shuang and local officials had covered it up, leaving Xu Yuanqing without any legal remedy, then his revenge represented a desperate effort to enforce justice after public institutions failed. Liu argued that the authorities should not punish Xu; they should be ashamed of themselves. Local officials had betrayed their supposed role as “father-and-mother officials.” How could they then claim the moral standing to punish a filial son forced to seek justice on his own? In such a case, private self-help could at least be understood.

If, however, Xu Shuang had been guilty and Zhao had lawfully carried out a sentence, then he had died at the hands of state law, not a private enemy. Xu Yuanqing’s revenge would amount to hatred of the emperor’s law and the murder of an official who enforced it. The act would be more than ordinary homicide; it would directly challenge the authority of the legal order. In that case, the state should execute Xu without hesitation, and praise would be absurd.

Liu confined the Confucian ethic of revenge to situations in which a grave injustice had gone unremedied. It was not a general license for clan vendetta. His deeper claim was that rites and law should pursue the same end; their apparent conflict arose because the facts had not been established or the rules had been wrongly applied.

Yet Liu’s solution did not eliminate every difficulty. Even if Xu Shuang had been wrongfully killed, Xu Yuanqing’s premeditated homicide remained a serious offense under the written Code. Applying a statute is a positive legal question; motive and personal history belong to moral evaluation. By allowing private force when public remedies had completely failed, Liu ultimately gave greater weight to ethics. If state law no longer served justice, did the individual remain bound to obey it?

The Collision of State Power and the Rule of Law

The dispute arose from the Tang Code’s attempt to combine rites and law. “Rites” meant moral and social ethics; “law” meant the commands of the state. The Code tried to fuse them, but could not eliminate their underlying tension. Moral norms drew from ancestral reverence, blood revenge, and customary ideas of justice—a kind of natural law. State law drew from sovereign authority and the practical need to preserve public order. It was the extension of state power.

As discussed in the previous episode , Francis Fukuyama argues in The Origins of Political Order that the core of the rule of law is a set of abstract rules broadly recognized as legitimate and possessing authority beyond the current ruler. Such rules exist in natural tension with the state power produced by political centralization.

In Xu’s case, vengeance for a father was close to sacred in traditional moral judgment. Wu Zetian’s initial sympathy reflected respect for filial devotion and righteousness. Running parallel to that value, however, was the cold rule of the Tang Code: killing without public authority was a crime. Xu had deliberately killed an imperial official, and the written law demanded severe punishment.

That was the difficulty. Under the values associated with natural law, Xu’s act was righteous; under the legal framework created by state power, it was a capital crime. As later writers summarized the conflict: “In the rites, a son does not share the sky with his father’s enemy; in law, one who kills must die.”

If the state applied its criminal law without regard to traditional morality, the judgment might lose public acceptance and damage the dynasty’s standing among ordinary people and local officials. Yet if the state ignored written law in order to promote filial ethics, legal authority would also suffer. Once vengeance for a father received official approval, what would prevent others from killing private enemies under the same banner? Society could descend into an endless cycle of retaliation.

Two forces within the same political order had collided with unusual intensity. A misstep could upset the balance of the system and weaken the legitimacy and stability of rule.

China was, in this sense, a “precocious” civilization. It built a powerful state very early and stood far ahead in bureaucratic governance. A transcendent legal tradition capable of constraining that state, however, developed more slowly and remained weak. Xu Yuanqing’s case was one of the rare moments when the tension came fully into view. Most of the time, moral ethics could not move the authority of state law.

In a true rule-of-law order, even the state must submit to rules beyond any individual’s will. In Fukuyama’s formulation, the essence of the rule of law is that “even the king is bound by a body of law that he did not himself create.”

The final solution—“execute first, honor afterward”—is strikingly ironic. Law and morality each seemed to retreat a step, as in a carefully staged reconciliation. But the reconciliation was fragile because it established no common principle. Instead it sent a confused message: killing still required a life in return, yet the court might celebrate the killer if his motive was admirable. That compromise may have preserved order for a moment, but it could not resolve the deeper conflict.

Conclusion

The revenge of Xu Yuanqing is a vivid lesson in legal history. It reveals both the wisdom and the limits of imperial government when confronted by a fundamental social contradiction, and it shows how difficult the road toward the rule of law can be. In an ideal order, law promotes good values and morality is sustained through law. Reaching that point may require, as Liu Zongyuan hoped, the careful resolution of individual cases so that rites and law can recover their shared commitment to justice.

Western legal thought contains a comparable debate. Natural-law theory holds that “an unjust law is not law”: human enactments that violate morality lack binding authority. Legal positivism responds that “an unjust law is still law”: a rule validly enacted through the proper process remains legally binding regardless of its moral content. In the Xu Yuanqing dispute, Liu Zongyuan stands closer to natural law, while Chen Zi’ang resembles, in a limited sense, the positivist position.

More than a thousand years later, the case still has something to teach. Law is not only a set of cold provisions; it also carries the public’s expectations of justice and conscience. Officials must enforce law, but they must also consider its social effects and the values it communicates.

Key Figures

• Xu Yuanqing: Killed County Commandant Zhao Shiwen to avenge his father, becoming the central figure in a Tang debate over rites and law.
• Zhao Shiwen: The local official involved in the execution of Xu Yuanqing’s father and the direct target of the revenge.
• Chen Zi’ang: Argued that Xu should be executed under law while his filial piety should be honored.
• Liu Zongyuan: Criticized Chen’s solution and insisted that state law could not yield to private revenge.
• Wu Zetian: The supreme ruler of the era, embodying the tension between imperial justice and Confucian ethics.

Key Cases and Concepts

• The Xu Yuanqing revenge case: A classic Tang dispute over filial duty, revenge, and the state’s punitive power.
• Tang Code with Commentaries: The representative system of Tang written law and legal interpretation.
• Rites versus law: The question of how courts should choose when Confucian ethics conflict with state law.
• Revenge and public power: The central question of whether private justice may replace state adjudication.

Related Episodes

• Podcast 07｜The Republican-Era Swordswoman and the Clash of Rites and Law: Shi Jianqiao’s Assassination of Sun Chuanfang : Also examines revenge, filial duty, and modern criminal law.

This is the transcript of episode 01 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode is in Chinese; this transcript has been translated into English.

Introduction

On February 5, 2020, during the COVID-19 outbreak, Wuhan’s first temporary hospital opened. In a photograph taken almost by accident by a Hubei Daily reporter, a young man lay on a hospital bed reading Francis Fukuyama’s The Origins of Political Order. The image went viral, and the book became a bestseller in China. It was as though the pressure of the pandemic had prompted people to pay closer attention to political order and state-building.

Francis Fukuyama is a Japanese American writer. He is best known for the controversial “end of history” thesis: after the collapse of the Soviet Union, Western liberal democracy had become the endpoint of humanity’s political development. Beyond that claim, however, Fukuyama has written extensively for general readers about politics and economics. He has a substantial following in China, and The Origins of Political Order is among his most influential books there.

The book’s basic argument is not complicated. Fukuyama maintains that a stable political order rests on three elements: state power, the rule of law, and accountable government. Political orders emerge and develop through the interaction of these three forces. State power can command obedience and protect people from external threats. The rule of law and accountable government, meanwhile, constrain that power, demand openness, and make the state answerable to the wishes of its people.

Fukuyama offers several examples. Afghanistan before 2021 held regular elections, yet the state was so weak that the central government could not govern much of the country. Russia has a powerful state and formal elections, but its rulers are not constrained by law. Singapore combines a strong state with a strong legal order, but in Fukuyama’s view its mechanisms of political accountability remain underdeveloped. None achieves a genuine balance among all three elements. If even one is missing, a political order may eventually decline.

State Power: Why China Built a Modern State So Early

The second part of The Origins of Political Order approaches the subject largely through China. Fukuyama argues that China was the first civilization to construct what we would recognize as a modern state. By 221 BCE, when the Qin dynasty was established, China had created a state in the sense defined by Max Weber—more than eighteen centuries before Europe did. Weber described the modern state as a political organization that successfully claims a monopoly over the legitimate use of force within a defined territory. The Qin plainly possessed those characteristics.

For Fukuyama, the principal force behind China’s early state formation was war. The Spring and Autumn and Warring States periods were marked by continuous conflict on an ever-increasing scale. Some scholars estimate that more than a thousand battles took place, and that the Battle of Changping alone produced more than six hundred thousand casualties. Those figures may be exaggerated, but they still convey a level of warfare far more intense than that of contemporary Europe.

By the late Warring States period, territorial annexation had become the central purpose of war. The number of competing states fell from more than twenty to the seven commonly known as the “Seven Warring States.” Each pursued reforms with a simple objective: expand state power and tighten control over the population. Reform focused on the military, taxation, population registration, and bureaucracy. Governments strengthened their grasp over domestic affairs to sustain the enormous cost of war, while also curbing aristocratic families and local powers that stood in the way of centralization. The most consequential example was Shang Yang’s reform of Qin, which laid the foundations for its eventual conquest of the other six states.

In 221 BCE, Qin destroyed its rivals and established a state that, in Fukuyama’s terms, was modern. Over the next two millennia, clans and local powers periodically pushed back, but an impersonal system—one based less on kinship and status than on a systematic, technical bureaucracy—became deeply embedded in Chinese civilization. By the Ming and Qing dynasties, Chinese state power had reached its height, yet the country still did not make a transition to modern democracy.

Fukuyama argues that Europe did not follow early China’s path, and did not produce a Weberian modern state until the seventeenth century, because religious institutions and aristocratic power were too strong to permit such concentrated state authority. China, conversely, failed to develop effective checks on state power precisely because religious and aristocratic forces were comparatively weak.

The Rule of Law Is More Than Written Law

In Fukuyama’s account, the rule of law consists of abstract principles that people broadly recognize as legitimate. Their authority usually has a transcendent source: religion, custom, or human reason. This differs from law in the ordinary sense. Positive law is made by rulers; the rule of law is a social consensus with a claim to stand above the current government. It therefore limits what a government may enact.

If the question is merely whether a government had written laws, China developed them very early. The first Chinese code with an emerging systematic structure is traditionally attributed to Li Kui, a minister of the state of Wei during the Warring States period. The text of his Canon of Laws has been lost, but later references describe six sections: Theft, Robbery, Imprisonment, Arrest, Miscellaneous Provisions, and General Provisions. The first five addressed different categories of legal relations; the sixth set out principles applicable across the others, somewhat like the general part of a modern code.

By the Qin dynasty, the legal system had become more developed. Qin written law took five principal forms:

• Statutes: the main body of Qin law, laying down rules in criminal, civil, and other matters;
• Orders: commands issued by the emperor and officials to supplement or refine the statutes;
• Questions and Answers on Law: explanations of provisions and legal terminology in question-and-answer form;
• Models for Sealing and Investigation: rules governing adjudication, judicial procedure, and official documents;
• Court Precedents: examples drawn from earlier cases.

China therefore possessed a sophisticated legal system at an early date. But in Fukuyama’s framework, those rules were extensions and instruments of state power, not the rule of law itself. To find a legal tradition with a more universal and transcendent claim, we must turn to Europe.

The Revival of Roman Law and the Legal Profession

Modern legality inherited much from Roman law, but the inheritance was not continuous. As the Roman Empire declined, Roman law gradually gave way to Germanic custom and Christian canon law. In medieval Europe, the law of the Catholic Church represented divine authority and became a body of principles in which people widely believed. For a long period, it also constrained secular power. That was one reason Europe took so long to produce a modern centralized state.

Roman law did not disappear entirely. Although many original Roman legal texts were lost, the sixth-century compilation now known as the Corpus Juris Civilis preserved central Roman concepts and principles. Commissioned by the Byzantine emperor Justinian I, it became the foundation for the later revival of Roman law.

That revival was made possible in large part by the emergence of Europe’s early universities. Relatively independent of secular rulers, these institutions occupied a space between the state and the Church and nurtured elements of a modern political order. In the late eleventh century, the University of Bologna arose within the world of the Holy Roman Empire. It is widely regarded as the oldest modern university and developed Europe’s earliest sustained law-school tradition. It would become the intellectual center of the Roman-law revival.

Through law schools and legal scholarship, knowledge of Justinian’s compilation spread across Europe. The first generation of scholars, known as the Glossators, reconstructed Roman doctrine and tried to recover the meaning of the texts. Later thinkers looked further. Thomas Aquinas, for example, argued that law must be tested by human reason and measured against more universal standards of truth. He encouraged jurists not merely to copy existing rules, but to examine their sources and search for a more universal natural law.

The new universities trained jurists and lawyers who could interpret classical texts and apply specialized legal knowledge. Secular rulers and Church authorities increasingly depended on their expertise, particularly in matters of commercial agreement and property. In the process, lawyers developed a collective professional interest and resisted intrusion by political actors and untrained outsiders.

A shared legal corpus, an independent legal profession, and relatively autonomous judicial institutions together made the Roman-law revival possible. They turned law into a force that political authorities in Europe could not ignore. Fukuyama’s conclusion is that Europe eventually took a path different from that of other civilizations: state power, the rule of law, and accountable government constrained one another, and none could dominate completely. That balance was crucial to the emergence of modern democracy in Europe.

Conclusion

Starting from The Origins of Political Order, we have examined the relationship between state-building and the rule of law. Comparing China and Europe helps explain why, within Fukuyama’s framework, their political development followed such different paths.

Fukuyama is an important contemporary thinker and a characteristic voice of neoliberal thought. Many of his theories remain open to criticism and debate. That is no reason not to understand them and learn from the questions they raise.

Key Figures

• Qin Shi Huang: Beginning with the unification of the six states and the commandery-county system, he represents China’s early centralized state.
• Shang Yang: A major architect of Qin Legalist institutions, linking state mobilization, punishment, and administrative order.
• Justinian I: Oversaw the compilation of the Corpus Juris Civilis, the textual basis for the later revival of Roman law.
• Francis Fukuyama: Explains political order through state capacity, the rule of law, and accountable government.

Key Cases and Concepts

• Qin law: The early empire’s capacity to govern through written rules, administrative hierarchy, and punishment.
• Revival of Roman law: Medieval Europe’s rediscovery, teaching, and use of Roman law, which helped form a professional legal community.
• University of Bologna: A major center for Roman-law scholarship and legal education.
• Natural law: A universal legal principle above the ruler’s command, offering intellectual resources for limiting power.
• State-building, rule of law, and accountability: The three lines used in this episode to read modern political order.

Related Episodes

• Podcast 09｜The End of the Chinese Legal Tradition: How Late-Qing Reforms Reshaped the Rule of Law : Looks back at the institutional transition from traditional legal order to modern rule of law.