This is the transcript of episode 22 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 morning of September 19, 2026, CNN reporter Betsy Klein arrived at the White House for work as usual. A senior correspondent, she had covered the White House for eight years. Her press pass still had almost a year to run: it would not expire until August 31, 2027. At the gate, however, Secret Service personnel told her that it had been deactivated. They took the credential from her and directed her to the White House Press Office for an explanation. Reporters from MS NOW and Politico encountered much the same thing around the same time.

It had begun the previous afternoon, September 18, when Trump posted on Truth Social announcing that CNN, MS NOW, and Politico were banned from the White House because they “constantly” reported “fake news.” Seventy-eight journalists across the three organizations held permanent White House press credentials. All were barred at once. They would lose access to the entire White House complex, including the briefing room, press workspaces, and North Lawn, as well as reporting assignments accompanying the president on his travels.

On September 21, the three organizations and three reporters who had been denied entry sued in federal court in the District of Columbia. The defendants included Trump himself, the White House communications director, the chief of staff, and the director of the Secret Service. The plaintiffs argued that the exclusion constituted viewpoint discrimination and retaliation prohibited by the First Amendment, and violated the Fifth Amendment’s guarantee of due process. They sought a declaration that the White House had acted unlawfully and an injunction.

On September 24, the court issued a temporary restraining order urgently restoring their White House press credentials. On the evening of October 13, it granted the plaintiffs’ motion for a preliminary injunction, finding a strong likelihood of success on their three constitutional claims and requiring their access to be maintained while the case continued. The Justice Department appealed the preliminary injunction on October 14.

The case remains pending. The injunction is interim relief, and there has been no final judgment. This episode examines the history of litigation over White House press credentials.

White House Press Credentials and the Press Pool

Originally, the White House had no dedicated press workspace. Reporters gathered news outside its doors. Beginning around 1895, William Price of the Washington Evening Star waited at the entrance every day, asking people coming and going for information. In 1902, the White House expanded its West Wing offices and provided a dedicated press room. Reporters now had a permanent indoor workspace: the beginning of today’s White House press area.

A dedicated workspace brought a need to manage access, and White House press passes followed. These come in temporary and permanent forms. Permanent credentials, known as “hard passes,” are issued to journalists based in Washington who hold congressional or Supreme Court press accreditation, generally following a Secret Service background check. They allow holders to use a faster security process and work in the press area without continuous escort. These were the credentials deactivated for the three organizations.

Whether temporary or permanent, a press credential principally establishes eligibility to enter the White House grounds and press area. Attendance at particular events or entry into particular spaces requires separate arrangements. A credential alone does not entitle every holder to enter the Oval Office or Air Force One. That is where the press pool comes in. A small group of journalists rotates among news organizations, enters those spaces or travels with the president, and shares its video, photographs, and written reports with other outlets. Television coverage has primary and secondary positions. The primary position rotates among Fox, CNN, NBC, ABC, and CBS. As one of those five, CNN supplies 20 percent of the staffing and costs. Its footage is distributed to more than a thousand local television stations. Deactivating CNN’s hard passes therefore also prevented its reporters from doing their pool assignments.

Since the White House issues these credentials, can it simply decide who receives one and who does not?

Sherrill: Standards and Procedures for Denying a Press Pass

In 1966, Robert Sherrill, The Nation’s Washington correspondent, was denied a White House press pass. The Secret Service initially refused to explain why. Only in 1972, through a freedom-of-information process, did he learn that the refusal rested on security concerns arising from his record of assault. At the time, there were no publicly stated standards for White House credentials, and rejected applicants had no opportunity for a hearing or rebuttal. Sherrill and another applicant sued.

In December 1977, the U.S. Court of Appeals for the D.C. Circuit ruled. The court reasoned that the White House had no obligation to open its doors to everyone. Once it voluntarily established press facilities, however, journalists’ access was protected by the First Amendment’s guarantee of a free press. Depriving a journalist of that access therefore required the due process guaranteed by the Fifth Amendment. The absence of specific security standards and procedural safeguards violated the First and Fifth Amendments, and the plaintiffs prevailed.

The court did not order the White House to issue Sherrill a pass immediately. It required his application to be reconsidered under constitutionally adequate standards and procedures, including notice of the reasons, an opportunity to respond, and a written decision. This preserved room for government security assessments. The government could screen applicants for security risks, but it needed specific standards; a vague invocation of “security” would not suffice.

After the decision, the Secret Service adopted standards and procedures for security clearance in connection with White House press-pass applications in 1978. They were incorporated into the Code of Federal Regulations and remain in effect. Under these rules, the security-clearance inquiry turns on whether an applicant presents a serious threat to the physical safety of the president or the president’s family. Political views, the slant of reporting, and criticism of the president cannot serve as security criteria. Formal procedures provide initial notice, a written response, an opportunity to appear in person, and representation by counsel. These regulations principally address security screening when a journalist applies, however; they do not specifically set standards and procedures for subsequent revocation or suspension.

Decades later, the same reasoning would be applied to those situations.

Acosta and Karem: From Denial to Revocation and Suspension

In November 2018, CNN reporter Jim Acosta clashed with Trump at a White House press conference. The White House then suspended his hard pass. CNN and Acosta sued. On November 16, the judge ordered it restored because the White House had provided neither advance notice nor an opportunity to respond, violating the Fifth Amendment. The plaintiffs dismissed their suit on November 19, so the case never reached a final judgment.

A similar dispute arose the following year. On July 11, 2019, Trump held a social media summit at the White House. After his remarks, Playboy reporter Brian Karem got into an argument with a former Trump adviser. On August 16, the White House suspended Karem’s credential for thirty days, citing a breach of “professional journalistic norms.” Karem sued in federal district court on August 20. On September 3, the court issued a preliminary injunction restoring his credential.

On June 5, 2020, the court of appeals affirmed the injunction. Karem had not been told in advance that an argument in the Rose Garden could result in suspension of his press credential, and the sanction caused him serious harm. The government could not announce a standard after an incident and then apply it to earlier conduct. The court did not deny the White House’s authority to maintain order. It could establish rules of conduct for reporters and sanction violations. The essential point was that the rules had to exist beforehand and be clearly communicated.

Does that mean the same rules apply to every reporting activity inside the White House? Two cases from 2025 distinguished between different spaces and activities.

Ateba: Neutral, Reasonable Eligibility Requirements

Simon Ateba, the White House correspondent for Today News Africa, obtained his hard pass in February 2021. On May 5, 2023, the White House announced a policy change: all hard passes would expire at the end of July, and reporters would have to reapply. The new policy tightened eligibility by requiring prior accreditation from one of the Senate, House of Representatives, or Supreme Court press galleries. About five hundred reporters lost their hard passes following the change, including Ateba. He had not obtained Senate press-gallery accreditation, did not meet the new prerequisite, and was denied a hard pass.

On August 10, 2023, Ateba sued in federal district court. Unlike the earlier cases, this one ended in a decision favoring the White House. On April 8, 2025, the court of appeals held that the White House press area was a “nonpublic forum.” It was not open to everyone, and entrants could be required to meet eligibility criteria. Those conditions were permissible so long as they were neutral and reasonable. The hard-pass prerequisites were neither viewpoint discriminatory nor otherwise unreasonable, and were therefore lawful.

The court also distinguished Sherrill and Karem. Those cases concerned the denial or suspension of credentials that left the journalists unable to enter the White House. Ateba, by contrast, could still apply for a day pass, although daily applications and the lack of expedited entry made it less convenient. He had also brought no due-process claim. The issue before the court was principally one under the First Amendment.

The Associated Press: Access to Highly Restricted Spaces

The other case arose in 2025 and involved the Associated Press. On January 20, Trump signed an executive order directing that the Gulf of Mexico be renamed the “Gulf of America.” The AP decided to retain the internationally established geographic name in its reporting. The administration was deeply displeased. On February 11, the White House began barring AP reporters from the Oval Office and Air Force One.

One distinction matters here: the White House did not deactivate the AP’s press credentials. It excluded AP journalists from particular spaces. But the AP was also part of the White House press pool, supplying photographs and written reports. Being unable to enter the Oval Office or Air Force One meant it could not perform those pool duties, a substantial restriction.

The AP sued on February 21, seeking immediate restoration of access. On April 8, the district court ruled in its favor. The White House could limit the number of reporters admitted to the Oval Office, but could not exclude an organization because of its viewpoint. Doing so constituted viewpoint discrimination and retaliation prohibited by the First Amendment. The court issued a preliminary injunction against that differential treatment.

The White House appealed, and the case took a different turn. On June 6, a divided court of appeals voted 2–1 to stay part of the district court’s preliminary injunction. The majority treated the Oval Office and Air Force One as highly restricted presidential workspaces, rather than public forums under the First Amendment. The president could choose which reporters to invite to these special events, much as he could choose which outlet to grant an exclusive interview. Neutrality could not simply be required in these settings. The appeals court did not, however, stay the injunction as it applied to the East Room, which was open to a larger group of reporters.

The dissent drew a distinction between choosing an interviewer and excluding a news organization from an established pool because of its reporting. The government had no duty to provide every outlet with special access, but it could not withdraw such opportunities to punish an organization for exercising its freedom of speech.

This was not a final decision on the merits. The case leaves a question: the government may choose which organizations receive access to special spaces, but when its choice rests on their views, is it managing access or retaliating against speech?

Returning to the Three Organizations’ Constitutional Claims

The cases discussed so far can be summarized as follows:

• Sherrill required clear standards and procedures for issuing press credentials.
• Karem extended those protections from issuance to revocation and suspension.
• Ateba continued Sherrill’s approach while permitting neutral, reasonable eligibility conditions.
• The AP case has not reached a final judgment. The interim ruling distinguishes ordinary White House areas from special spaces and allows selection for the latter on terms that need not be viewpoint neutral.

With that background, the issues in the 2026 case become clearer.

As noted at the beginning, the three news organizations advance three principal claims. The first is retaliation prohibited by the First Amendment. That amendment protects press freedom and bars government retaliation against media organizations for their speech. Asked about the ban, Trump said it was not about one particular story but about the cumulative effect of reporting over the previous two years. The plaintiffs point to that statement as evidence of retaliation for speech.

Their second claim is viewpoint discrimination, also prohibited by the First Amendment. Relying on Ateba, they argue that the government must select journalists under neutral criteria, rather than treating them differently because of their views. In their account, this ban was plainly based on the organizations’ positions and reporting perspectives.

Their third claim invokes Fifth Amendment due process. Relying on Sherrill and Karem, they argue that hard passes receive procedural protection. The Fifth Amendment requires due process before the government deprives a person of protected interests. Here, the White House deactivated the credentials without clear preexisting standards, notice, or an opportunity to respond.

The defendants, for their part, maintain that Sherrill and Karem were wrongly decided. They preserve the right to seek their reversal on appeal, while acknowledging that the district court must follow those appellate precedents. They also argue that White House access is a privilege rather than a right: the public has no constitutional right to enter the White House, and journalists have no greater entitlement than ordinary members of the public. In addition, the government offered further justifications for excluding the organizations, including alleged threats to national security and disclosure of classified information, and submitted material in support.

There has been no final judgment. At the preliminary-relief stage, however, the court has assessed the plaintiffs’ likelihood of success. On September 24, it issued a temporary restraining order requiring their access to be restored urgently for fourteen days.

Citing Sherrill, the court held that a qualified journalist’s interest in obtaining White House credentials was undoubtedly a liberty interest protected by Fifth Amendment due process. It then relied on Karem for the proposition that a duly issued hard pass could not be suspended without due process. The government did not dispute that the affected reporters had received neither notice nor an opportunity to respond before losing their passes. The record also contained no preexisting revocation standards. Nor had the government supplied sufficient support for its national-security and classified-information justifications.

The court concluded that even a temporary loss of constitutional freedoms constituted irreparable harm. It ordered the defendants other than Trump himself, together with those implementing their decisions, to return and restore the three organizations’ hard passes immediately. It also refused the government’s request to stay the order.

The Preliminary Injunction and Continuing Disputes

Implementation of the temporary restraining order did not proceed smoothly. That morning, reporters from the three organizations arrived for work and were again stopped at the gate. Four had their passes confiscated. The plaintiffs notified the court that the White House was not complying, and the court required a response. The White House began returning credentials around noon, roughly eleven hours after the order had been issued.

Restoration of hard passes did not resolve the disputes over particular reporting assignments. On September 23, CNN applied for credentials to cover the state dinner during the Chinese leader’s visit the following day. An hour before the leader arrived, the White House told CNN it could send only one camera operator and one audio technician, leaving it without an editorial team on site. On the evening of September 25, CNN learned that it could not travel on Air Force One in its pool role to cover the president’s trip. With no replacement designated, that trip had no primary television pool outlet.

The parties continued to contest the motion for a preliminary injunction. On the evening of October 13, the court granted it. The reasoning went beyond due process: the court found that the ban likely violated the First Amendment through viewpoint discrimination, and rejected the Justice Department’s subsequently offered national-security rationale.

That brings us through the latest developments and the earlier precedents. In my view, Trump is likely to lose this case. The ban on the three organizations appears to have been improvised, leaving the government poorly prepared and on the defensive in court. On the surface, this is another episode in the endless exchange of accusations between the American right and left. Judicial intervention has at least made that exchange more exacting. Before speaking, the parties still have to consider the judge—and how much evidence and legal authority they actually possess.

If there is a significant development, I will return to the case in another episode. If it simply fades away, there will be no sequel.

ShowNotes

Key Timeline

• Around 1895: William Price of the Washington Evening Star begins waiting outside the White House daily to gather news from people entering and leaving.
• 1902: Expansion of the West Wing includes a dedicated press room, giving White House reporters a permanent indoor workspace.
• 1966: The Nation correspondent Robert Sherrill is denied a White House press pass without a specific explanation.
• 1972: Through a freedom-of-information process, Sherrill learns that security concerns lay behind the refusal.
• December 1977: The D.C. Circuit decides Sherrill v. Knight, requiring public standards and due process for denying credentials.
• June 22, 1978: The Secret Service publishes security-clearance standards and procedures for White House press-pass applications, incorporated into the Code of Federal Regulations (43 FR 26718).
• November 2018: CNN reporter Jim Acosta loses his hard pass after clashing with Trump at a press conference. A judge orders it restored on November 16; the plaintiffs dismiss the suit on November 19.
• July 11, 2019: Playboy reporter Brian Karem gets into an argument after the White House social media summit. The White House suspends his hard pass for thirty days on August 16. He sues on August 20; a preliminary injunction restores his credential on September 3.
• June 5, 2020: The court of appeals affirms the Karem injunction because he lacked fair notice of the sanction.
• February 2021: Simon Ateba obtains a White House hard pass.
• May 5, 2023: The White House announces new hard-pass requirements, requiring reapplication by the end of July and prior press-gallery accreditation. Approximately five hundred reporters lose their hard passes.
• August 10, 2023: Ateba sues over the eligibility requirements.
• January 20, 2025: Trump signs an executive order directing that the Gulf of Mexico be renamed the “Gulf of America”; the AP retains the original name in its reporting.
• February 11, 2025: The White House bars AP reporters from the Oval Office and Air Force One without deactivating their press credentials.
• February 21, 2025: The AP sues.
• April 8, 2025: The D.C. Circuit rules for the White House in Ateba, identifying the press area as a nonpublic forum. The district court issues a preliminary injunction in the AP case the same day.
• June 6, 2025: A divided D.C. Circuit panel partially stays the AP injunction by a 2–1 vote. The stay covers highly restricted spaces such as the Oval Office, but leaves the East Room portion in place.
• September 18, 2026: Trump announces on Truth Social that CNN, MS NOW, and Politico are banned from the White House. The hard passes held by seventy-eight reporters are deactivated that evening.
• September 19, 2026: Reporters from the three organizations are denied entry and have credentials confiscated. Klein’s pass is valid through August 31, 2027.
• September 21, 2026: The organizations and three reporters file suit in the U.S. District Court for the District of Columbia, No. 1:26-cv-03287-TJK.
• September 22, 2026: The government opposes a temporary restraining order. The White House Press Office separately writes to each organization, setting a September 25 deadline for a written response.
• September 23, 2026: CNN requests credentials for the following day’s state dinner during the Chinese leader’s visit. An hour before the leader arrives, the White House permits only a camera operator and an audio technician to attend.
• September 24, 2026: Judge Kelly issues a temporary restraining order restoring credentials. Implementation is obstructed that morning, and four reporters’ passes are confiscated. Credentials begin to be returned around noon, roughly eleven hours after the order.
• September 25, 2026: CNN learns that it cannot travel on Air Force One in its pool role; the trip has no primary television pool outlet. The organizations’ counsel writes to Justice Department counsel, reserving further rights.
• September 28, October 2, and October 5, 2026: The plaintiffs seek a preliminary injunction, the government opposes, and the plaintiffs reply.
• October 8, 2026: The court holds a hearing and extends the temporary restraining order through October 13.
• October 10, 2026: A Justice Department spokesperson confirms that the Antitrust Division is investigating whether five television networks’ suspension of television pool coverage violated antitrust law.
• Evening of October 13, 2026: Judge Kelly grants the preliminary injunction, finding likely violations of due process and the First Amendment through viewpoint discrimination, and rejecting the subsequently offered national-security rationale. The injunction remains in effect pending final judgment unless overturned on appeal.
• October 14, 2026: The Justice Department appeals the preliminary injunction to the D.C. Circuit.

Key People

• Betsy Klein: Senior CNN White House correspondent who has covered the beat for eight years. Her hard pass, valid through August 31, 2027, was confiscated on September 19, 2026.
• Akayla Gardner: MS NOW White House correspondent and an individual plaintiff.
• Cheyenne Haslett: Politico White House correspondent and an individual plaintiff.
• Jim Acosta: CNN reporter whose hard pass was revoked after a confrontation with Trump in 2018; a court restored it on procedural grounds.
• Timothy J. Kelly: U.S. district judge for the District of Columbia who heard both Acosta’s 2018 case and the present 2026 case.
• Robert Sherrill: The Nation’s Washington correspondent, denied a White House credential in 1966 and the plaintiff in the 1977 decision.
• Brian Karem: Playboy reporter whose credential was suspended for thirty days in 2019; he obtained preliminary relief upheld in 2020.
• Simon Ateba: Today News Africa White House correspondent who challenged hard-pass eligibility requirements in 2023 and lost on appeal in 2025.
• Stephanie Grisham: White House press secretary in 2019, responsible for the decision to suspend Karem’s credential for thirty days.

Key Concepts

• Hard pass: A permanent credential for Washington-based journalists with congressional or Supreme Court press-gallery accreditation, subject to Secret Service screening. It enables expedited entry and unescorted work in the press area.
• Day pass: A credential for a particular visit or short period, with separate application and escort arrangements.
• Press pool: A small rotating group of reporters covering presidential activities in spaces with limited capacity and sharing text, video, and photographs with other organizations.
• Nonpublic forum: Government property opened to particular users. Ateba classified the White House press area this way. Its management must be reasonable and viewpoint neutral, without unbridled discretion over access.
• Retaliation: Adverse government action taken because of a media organization’s speech, prohibited by the First Amendment. The plaintiffs argue that a ban based on the cumulative effect of two years’ reporting constitutes retaliation.
• Viewpoint discrimination: Differential treatment based on an organization’s views, prohibited by the First Amendment. The preliminary injunction found that the ban likely constituted such discrimination.
• Fair notice: Rules underlying a sanction must exist beforehand and be communicated clearly. Standards announced afterward cannot be used to punish earlier conduct. Karem applied this requirement.
• The two-step due-process inquiry: First determine whether the claimed interest receives constitutional protection; then assess whether the procedures used to deprive the person of it were sufficient.
• Irreparable harm: Even a brief loss of constitutional freedoms can constitute irreparable harm for purposes of preliminary relief.
• Temporary restraining order, preliminary injunction, and final relief: Remedies at different stages of litigation. A TRO is short-lived and based on the record then available. A preliminary injunction involves fuller review and can be appealed. Final relief follows adjudication of the case.
• “A privilege, not a right”: The defendants argue that White House access is a privilege, and reporters have no greater constitutional entitlement to enter than the general public. The court did not accept this argument as a basis for denying interim relief.

Key Cases

• Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977): Denial of a White House press credential requires publicly stated standards, reasons, an opportunity to respond, and a written decision. The court preserves discretion over security judgments.
• Cable News Network, Inc. v. Trump (D.D.C. 2018, the Acosta case): After the White House revoked Acosta’s hard pass, the court restored it on November 16 for lack of notice and an opportunity to respond under the Fifth Amendment. The plaintiffs dismissed their suit on November 19; there was no final judgment.
• Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020): A duly issued hard pass cannot be suspended without due process. Before a sanction, a reporter must have notice of the conduct that may lead to punishment and the potential severity of the sanction.
• Ateba v. Leavitt, 133 F.4th 114 (D.C. Cir. 2025): Upholds hard-pass eligibility requirements, identifies the press area as a nonpublic forum, and rejects unbridled discretion over admission. The case did not include a due-process claim.
• Associated Press v. Budowich, No. 25-5109 (D.C. Cir., June 6, 2025 order): A 2–1 panel partially stays a district-court preliminary injunction for highly restricted spaces such as the Oval Office, leaving the East Room portion in place. This is an interim ruling pending appeal, rather than a final judgment.
• Cable News Network, Inc. v. Trump, No. 1:26-cv-03287-TJK (D.D.C. 2026, the principal case): The TRO rested on Fifth Amendment due process. The October 13 preliminary injunction additionally found likely First Amendment violations through viewpoint discrimination and rejected the government’s subsequently offered national-security justification. The Justice Department appealed on October 14.

Statutes and Legal Documents

• First Amendment to the U.S. Constitution, ratified in 1791: Protects freedom of speech and of the press; supports the retaliation and viewpoint-discrimination claims here.
• Fifth Amendment to the U.S. Constitution, ratified in 1791: Its federal due-process guarantee provides the procedural basis for the credential claims. Because the defendants are federal officials, the relevant amendment is the Fifth, rather than the Fourteenth.
• 31 CFR §§ 409.1–409.2, published June 22, 1978, at 43 FR 26718: Secret Service standards and procedures for security clearance in connection with White House press-pass applications, including written notice, thirty days to respond in writing, an opportunity to appear personally, and a written decision. These rules govern security clearance, rather than every aspect of press-credential policy.
• Federal Rule of Civil Procedure 65: Governs temporary restraining orders and preliminary injunctions, including conditions for issuance, security, and the persons bound by an order.

Related Episodes

• Further reading: The First Amendment’s Public Forum Doctrine: Why Is the White House Press Area a Nonpublic Forum?

• 12 Is Burning the Flag a Crime? The Constitutional Battle over the First Amendment : Another examination of First Amendment boundaries through litigation; the present episode concerns reporting access as well as speech.

• 14 Can Being a Vagrant Be a Crime? A Constitutional Moment for American Vagrancy Laws : Uses individual cases to examine constitutional constraints on enforcement and administrative discretion.

• 6 U.S. Birthright Citizenship: Complete Victory or a Temporary Truce? : Constitutional litigation during the same administration, offering a comparison for interim relief and subsequent proceedings.

Main Sources and Verification Notes

• Court filings: Cable News Network, Inc. v. Trump, No. 1:26-cv-03287-TJK (D.D.C.): complaint (ECF 1, September 21, 2026); government opposition to the TRO and three White House Press Office letters dated September 22 (ECF 16 and 16-1 through 16-3); Judge Kelly’s TRO (ECF 24, September 24); plaintiffs’ preliminary-injunction memorandum (ECF 32-1, September 28); government opposition (ECF 43, October 2); plaintiffs’ reply (ECF 44, October 5); Boutrous’s September 25 letter to Velchik (ECF 32-11); Judge Kelly’s October 13 preliminary-injunction ruling granting the three organizations’ request; and the Justice Department’s October 14 notice of appeal.
• Cases: Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977); Cable News Network, Inc. v. Trump (D.D.C. 2018, Acosta litigation, without final judgment); Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020); Ateba v. Leavitt, 133 F.4th 114 (D.C. Cir. 2025); Associated Press v. Budowich, No. 25-5109 (D.C. Cir., June 6, 2025 order).
• Rules and regulations: 31 CFR Part 409 (43 FR 26718, June 22, 1978); Federal Rule of Civil Procedure 65.
• Historical research: Martha Joynt Kumar, Origins of the White House Beat, White House Transition Project, 2017, particularly the discussion of William Price and the West Wing press facilities in 1902; James A. Jacobs, The President, the Press, and Proximity, White House Historical Association, 2015.
• Reporting: AP coverage of restored access on September 24, 2026; CBS coverage of the October 8 hearing, at which plaintiffs’ counsel stated that seventy-eight credentialed journalists were affected; AP coverage of the October 10 antitrust investigation; JURIST’s report on the October 9 extension of the TRO; and AP, Reuters, and USA Today coverage of the October 13 preliminary injunction.
• Verification notes: The materials above were checked through October 15, 2026. Judge Kelly granted a preliminary injunction on October 13 based on due process and First Amendment viewpoint discrimination. The Justice Department appealed on October 14; further appellate orders should be monitored. Complaints, briefs, and White House letters establish what the parties alleged, rather than that their allegations were proven. Claims in the letters of inaccurate reporting or disclosure of classified information have not been established by the court. The account of obstructed implementation on September 24 comes from witness materials submitted by the plaintiffs in support of their injunction motion and represents their account. The Justice Department’s antitrust investigation remains preliminary and does not establish unlawful conduct.

This is the transcript of episode 21 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.

August 25, 1988, Cangnan County, Wenzhou, Zhejiang. The county cinema had been converted into a courtroom. China’s national emblem hung above a pale blue backdrop, with the judges’ bench at the center of the stage. At the plaintiffs’ table on the left sat Bao Zhengzhao, a sixty-one-year-old farmer. At the defendants’ table on the right sat Huang Deyu, then the head of the Cangnan County government. More than a thousand seats in the auditorium were filled. With many people unable to get inside, the court broadcast the proceedings outside, where a large crowd had gathered at the cinema entrance.

This was the People’s Republic of China’s famous “first case of a citizen suing the government”: farmer Bao Zhengzhao and his family had brought the Cangnan County government into court. China’s Administrative Litigation Law would not be enacted until April 1989. When Bao sued, there was no dedicated law governing this kind of litigation. The Wenzhou Intermediate People’s Court, which accepted the case, could only hear it using the 1982 Civil Procedure Law (for Trial Implementation).

How did this case, which preceded the legislation, come about? And what did the court ultimately decide? That is the case we will discuss in this episode.

Why Was the House Unlawful Despite an Approval?

Although media reports often call it “Bao Zhengzhao v. the County Government,” and we usually refer to it simply as the “Bao Zhengzhao case,” Bao was not the sole plaintiff. The plaintiffs were eight members of his family: Bao and his wife, two sons and their wives, and two daughters. They sued the Cangnan County government because, in July 1987, it had sent people to demolish part of their house.

The house was in Bacao village, Cangnan County. The area is now Bacao Community in Longgang, Wenzhou, but at the time it was a village on China’s southeastern coast. A river to its south ran from southwest to northeast into the East China Sea. The Bao family’s house stood near the riverbank on the northern side. Because the location was only a few kilometers from the river mouth, the government had built a sea embankment more than five hundred meters long across the waterway for irrigation and flood control. It was an important local water-control facility.

In 1975, the Bao family dumped stones into the river to make foundations on the embankment slope and over the water, at the western end of the embankment, about fifty meters from the sluice gate. They built a two-story house of three bays, occupying 105 square meters. Because construction on the embankment had damaged it, the local government fined the family in 1983. That penalty did not stop further construction. In 1985, they again dumped stones to form foundations on the slope and over the river east of the existing house, creating another three-bay building site of 126 square meters.

Bao Zhengzhao’s second son, Bao Songcun, was then a member of the Bacao town Party committee and had previously served as the town’s water-management administrator. On August 1, 1985, Bao Songcun submitted a building application to the town’s urban construction office. The application had the local production brigade’s endorsement, but the family had not obtained the required approval from the Cangnan County water bureau. At Bao Songcun’s urging, a staff member issued an “approval notice” in the town construction office’s name consenting to the building. Bao Songcun and the others also paid 708 yuan for the land, then began construction.

After work began, the Cangnan County water bureau discovered what was happening. On September 4, 1985, it sent the Bacao town government a letter entitled “On Immediately Stopping the Unlawful Encroachment on the River Channel.” It stated that the construction was unlawful and required it to stop immediately, with all obstructions removed and the river restored to its original condition.

The county water bureau relied on the Regulations on the Administration of Water Conservancy and Hydropower Projects, issued in April 1983 by the Ministry of Water Resources and Electric Power under the State Council. Chapter Two dealt specifically with protecting these projects. The regulations provided for protected areas to be designated according to management needs; these included river channels and the land protecting both sides of their embankments. Article 9 expressly prohibited construction activities within the protected areas. Article 11 then provided:

Where it is indeed necessary to undertake construction or similar activities within the protected area of a water conservancy or hydropower project, consent must be obtained from the competent water resources and electric power authority … and approval secured through the prescribed procedures.

But, as explained earlier, the Bao family had not obtained the county water bureau’s approval when they applied to the construction office. The office had nevertheless approved the building without the water bureau’s input. That was why the county water bureau wrote to the town government demanding that all obstructions be removed and the original condition restored. The house was still under construction, and the town head informed the family of the demand. They chose to continue and eventually completed a three-story house of three bays, built with concrete, brick, and timber.

Nearly two years passed between the water bureau’s letter in 1985 and the actual demolition in 1987. During that period, the town government, county government, district office, and other authorities repeatedly urged the family to remove the unlawful construction themselves, without conditions. They did not do so. On October 22, 1986, Bao Zhengzhao applied to the town housing-management station to register ownership. The application was not approved.

On February 1, 1987, Bao Songcun used his position on the town Party committee to obtain blank stationery bearing the town government’s official seal. He wrote a letter in the town government’s name and took it to the Wenzhou planning bureau, asking it to recognize the house as lawful. On June 20, the Wenzhou planning and water bureaus issued a notice again requiring the family to remove the construction themselves, without conditions.

On June 30, the Cangnan County government issued a “Decision on the Compulsory Demolition of Bao Zhengzhao’s Unlawfully Constructed House,” relying on the State Council’s “Urgent Notice on Removing Obstructions to Flood Discharge and Storage to Ensure Flood-Control Safety.” The decision was served on July 2. On July 4, the county government organized the demolition of part of the three-bay house the family had built in 1985.

Two details matter here. First, the extent of the demolition: the government demolished portions at the rear of the three-bay house built in 1985, rather than the whole building. Second, the method: small, controlled directional blasts were used on the parts that obstructed the water most severely, with the aim of avoiding damage to other structures. The later account that the “entire building was blown up” is therefore inaccurate.

How Did the Door to Suing the Government Open?

When Bao Zhengzhao saw his house being blasted, he picked up explosives and briefly intended to kill himself together with the demolition personnel. Several of his sons stopped him. His second son, Bao Songcun, argued that they should defend their rights through legal means and went to Hangzhou to hire a lawyer. But bringing the suit proved difficult.

They first asked the Cangnan County court to register the case and were refused. Bao Songcun later recalled that a court president had rebuked them, saying in effect that the county court could not accept a lawsuit against the county government. They then approached the Wenzhou Intermediate People’s Court, which also refused to register it. The reasoning was straightforward: the Administrative Litigation Law, which would specifically govern suits against the government, had not yet been enacted, and no law had expressly made government demolition a matter on which the government could be sued directly. The court lacked a direct statutory basis for accepting their application, and there were few precedents it could draw on. For the local courts, this was a formidable challenge.

One qualification is necessary. Calling Bao Zhengzhao’s case China’s “first case” against the government refers to its influence and historical significance. It does not mean that it was literally the first such case in Chinese history. Nor did the absence of an Administrative Litigation Law mean that there was no legal route at all for suing the government.

Article 3, paragraph 2, of the 1982 Civil Procedure Law (for Trial Implementation) provided:

Administrative cases that the law assigns to the people’s courts for adjudication shall be governed by this Law.

The key words were “the law assigns.” If another law provided that a particular category of administrative case could be heard by a court, the court could use the Civil Procedure Law when hearing it. In other words, this provision connected civil procedure with other legislation. Its application depended on the existence of another law expressly identifying a matter on which a citizen could bring a suit. The provision itself did not define the categories of administrative disputes that could be litigated.

Which other laws provided specific routes for such suits? The 1979 Electoral Law allowed a person dissatisfied with an electoral commission’s decision concerning the voter list to bring proceedings in court. Although an electoral commission was not, strictly speaking, an administrative agency, this opened a route for challenging an official decision. Several tax laws adopted in 1980 and 1981 provided routes for bringing tax disputes to court. The 1986 Regulations on Administrative Penalties for Public Security allowed a person dissatisfied with a ruling on an appeal against a public-security penalty to sue. In March 1987, a court in Lianshui County, Huai’an, Jiangsu, revoked a public-security penalty ruling by the Huaiyin public security bureau, becoming the first court since 1982 to rule against a public security authority. Before the Administrative Litigation Law was enacted in 1989, more than 130 laws and administrative regulations had specified matters on which citizens and organizations could sue administrative agencies. These cases could use the procedures laid down in the Civil Procedure Law.

Alongside these legal rules, the courts were developing the necessary institutions. In October 1986, the Wuhan Intermediate People’s Court in Hubei established the country’s first administrative division, while the Miluo County court in Yueyang, Hunan, established the first such division at the basic court level. In response to requests from courts around the country, the Supreme People’s Court issued its “Notice on Establishing Administrative Divisions” in January 1987. It called for a positive but cautious approach: pilot the arrangement first, then expand it. In October 1988, the Supreme People’s Court formally established its own administrative division. By the time the Administrative Litigation Law was enacted in 1989, courts at different levels had established more than 1,400 administrative divisions.

So, when the Bao Zhengzhao case arose, China had not yet enacted a unified Administrative Litigation Law, but scattered provisions already existed and courts had begun creating separate administrative divisions. Administrative litigation in the People’s Republic developed through practice preceding legislation.

Returning to the case itself, the courts in Cangnan and Wenzhou hesitated to register it chiefly because no statute had placed government demolition within the scope of administrative litigation. Naming the county government itself as defendant, rather than one of its constituent agencies, was also extremely unusual. The lawyer hired by the Bao family helped turn the situation around.

The family’s lawyer was Lou Xian, who also served as legal adviser to the newspaper Economic Life. After meeting the family, he reassured them and urged Bao Zhengzhao to trust the law rather than take drastic action that would escalate the conflict. At the same time, he organized the materials and published them in the newspaper as a legal consultation, drawing greater attention to the case. He then wrote to the president of the Zhejiang Provincial High People’s Court about the family’s inability to have their suit accepted. That letter became the turning point.

In February 1988, the Zhejiang Provincial High People’s Court designated the Wenzhou Intermediate People’s Court to hear the case. Because there was no Administrative Litigation Law and the Wenzhou court had no administrative division, it registered the dispute as a civil case, assigned a civil case number, and used the procedures in the 1982 Civil Procedure Law (for Trial Implementation). In March 1988, the Wenzhou court formally accepted the case and decided to hold a public hearing. That led to the scene with which this episode began.

Why Did the Bao Family Lose?

On August 25, 1988, Bao Zhengzhao’s case against the Cangnan County government opened in the temporary courtroom that the Wenzhou Intermediate People’s Court had set up inside the county cinema. The hearing ran from morning until after ten at night. According to later accounts, the plaintiffs’ lawyers presented seventy-one items of evidence and delivered submissions of more than thirty thousand Chinese characters; the defendant’s representatives submitted sixteen pages of argument.

The dispute was clear. The plaintiffs argued that the family had obtained an approval notice from the construction office, giving the house a lawful basis. The county government’s demolition infringed their property rights, and it should restore the property or compensate them. The defendant argued that the house obstructed flood discharge and had been built without the water authorities’ approval, making it unlawful. Demolishing it to protect the embankment and residents downstream was therefore lawful.

Resolving the dispute required answers to three questions:

1. Was the demolished part of the house within the protected area, and did it obstruct flood discharge?
2. Did the construction office have authority to approve building on water-control facilities and river channels, and what legal effect did its approval have?
3. Did the county government have a legal basis for demolition, and what extent of demolition was appropriate?

Three days after the hearing, in late August 1988, the Wenzhou court delivered its first-instance judgment. It addressed these three questions in turn.

First, on the house’s location and protection of the embankment, the court held that the sea embankment was an important water-control facility serving four districts and two towns in Cangnan. It kept out saltwater, stored freshwater, drained excess water, irrigated farmland, and protected against tides and floods. It served 200,000 mu of irrigated farmland and the lives and property of 500,000 people. No organization or individual could unlawfully encroach on it. The river channel south of the embankment was a principal route for flood discharge and drainage, where the relevant regulations strictly prohibited obstructions. The family’s new house stood on the southern slope and over the river at the western end of the embankment. It was within the protected area, obstructed flood discharge, and endangered the sluice and embankment.

Second, on the construction office’s approval, the court held that the Bacao town construction office had no authority to approve construction on water-control facilities or river channels without the competent water authority’s consent. Its approval violated the relevant legal provisions and was therefore invalid.

Third, on the legal basis for compulsory demolition, the court held that the plaintiffs had failed to learn from the penalty imposed for their unlawful construction in 1975. They had again damaged the embankment and filled the river to build in 1985, violating rules issued by the State Council, the Ministry of Water Resources and Electric Power, and the Zhejiang provincial government. The construction was unlawful. After the plaintiffs failed to comply with notices requiring them to remove it themselves, the county government acted lawfully in relying on the relevant State Council rules to demolish portions of the unlawfully built house.

On that basis, the court relied on the Regulations on the Administration of Water Conservancy and Hydropower Projects and the State Council’s urgent notice on clearing flood-control obstructions to dismiss the plaintiffs’ claims. The plaintiffs were ordered to pay the litigation and appraisal costs. The judgment also specifically criticized Bao Songcun: as a member of the Bacao town Party committee and a former water-management administrator, he had disregarded the law, ignored warnings, built unlawfully, and refused to remove the obstructions. The court described his conduct as particularly serious.

The family appealed to the Zhejiang Provincial High People’s Court. According to later reports, Ren Jianxin, then president of the Supreme People’s Court, saw a report in China Youth Daily and issued an instruction that the Zhejiang court handle the case according to law. On December 26, 1988, the Zhejiang court delivered its final judgment, dismissing the appeal and upholding the original decision.

The case was over. This “first case” of a citizen suing the government ended in defeat for the plaintiffs. The judgment’s significance lay less in whether the family won than in its distinctive place in legal history. It was a “civil judgment,” bore a civil first-instance case number, and was delivered by a civil division. Its reasoning and allocation of the burden of proof did not follow the standard framework of administrative litigation. Yet it brought the unfamiliar idea of suing the government into public view. On the eve of the Administrative Litigation Law’s enactment, people could see a government appear as defendant and respond in court to a citizen’s challenge.

From Judicial Practice to Unified Legislation

Viewed across Chinese legal history, administrative law and administrative litigation were not entirely new concepts. As early as 1914, the Beijing government enacted China’s first Administrative Litigation Law. In 1932, the Nationalist government in Nanjing promulgated another Administrative Litigation Law as part of its “Six Codes.” After the People’s Republic was founded, the old Six Codes were abolished. By the 1980s, China had not yet enacted a unified Administrative Litigation Law; the relevant provisions were scattered across separate laws and regulations.

Meanwhile, preparations for legislation had begun. After the General Principles of Civil Law were adopted in 1986, Tao Xijin, then an adviser to the National People’s Congress Law Committee, proposed at a symposium that the People’s Republic establish a new system of six fundamental laws. Criminal law, criminal procedure, the General Principles of Civil Law, and civil procedure already existed. What was missing was administrative law and administrative litigation law. Wang Hanbin, then secretary-general of the NPC Standing Committee, endorsed the proposal. An administrative legislation research group was subsequently established, with Jiang Ping as chair and Luo Haocai and Ying Songnian as deputy chairs.

The group initially planned to draft General Principles of Administrative Law, modeled on the General Principles of Civil Law. Progress was difficult because theoretical groundwork and practical experience were insufficient. It then turned to procedural legislation and soon produced a preliminary draft of the Administrative Litigation Law. In 1987, the report to the Communist Party’s Thirteenth National Congress expressly called for such a law, accelerating the legislative process. By the time the Bao Zhengzhao case was heard in August 1988, drafting had already been underway for two years. On April 4, 1989, the National People’s Congress formally adopted the Administrative Litigation Law. It took effect on October 1, 1990.

The law contained seventy-five articles and comprehensively addressed the different aspects of administrative litigation.

First, it unified the right to bring proceedings. Article 2 provided that citizens, legal persons, and other organizations who considered that a specific administrative act by an administrative agency or its personnel infringed their lawful rights and interests could bring a suit in a people’s court under the law. This converted rights to sue that had previously been scattered across separate statutes into a unified rule.

Second, it clarified the standard of review. Article 5 provided that, in hearing administrative cases, the people’s courts would review whether specific administrative acts were lawful. This was crucial: it defined legality as the central question. In a case like Bao Zhengzhao’s, for example, the court would need to examine whether the county government’s demolition was lawful; whether the plaintiffs had repeatedly failed to learn their lesson would no longer be the subject of adjudication.

Third, it established the defendant’s burden of proof. Article 32 provided that the defendant—the administrative agency—bore the burden of proving the specific administrative act it had taken, and had to produce both the supporting evidence and the normative documents on which it relied. Article 33 further provided that, during litigation, the defendant could not collect evidence from the plaintiff or witnesses on its own. This differed from the civil-litigation principle that the party making an assertion must prove it. It required the administrative agency to establish the legality of its own action, rather than requiring the citizen to prove that the action was unlawful.

The law also provided for separate administrative adjudication structures, equal procedural standing for plaintiffs and defendants, and a statutory basis for compensation for harm, among other matters.

Of course, the legislative process was far from smooth. During deliberations, some deputies argued that implementing the Administrative Litigation Law might create difficulties for rural family-planning work and state grain procurement. Others suggested postponing its adoption. In its report on the results of deliberation dated April 1, 1989, the Law Committee made several changes. One was to delete the draft provision that compensation should be calculated on the basis of direct loss. The stated reason was that “there are differing understandings of what constitutes direct loss; compensation for administrative infringement is complex and requires further study.”

The 1989 law was therefore not a perfect outcome. Much remained to be improved, and China’s vast system of local courts needed time to adapt to this new institution.

The Bao Family After the Judgment

Finally, let us return to the Bao Zhengzhao case. At the end of the 1988 hearing, county head Huang Deyu walked over to the family and shook their hands. He said: “Whatever the outcome of the lawsuit, your family are citizens of Cangnan County, and the government will continue to serve you.” This scene appeared in retrospective reports and historical accounts years later, becoming a small footnote to the “first case” against the government.

The family did not subsequently face harassment for suing the government. The lawsuit also remained part of the family’s memory. Two years after the case ended, Bao Songcun’s son was born, and he named him “Bao Susong”—“litigation.” His daughter later went to university and studied law. Bao Zhengzhao died of illness in 2002. Before his death, he called his children and grandchildren to his bedside and told them to learn the law, understand it, and abide by it. For an elderly man who had once wanted to take up explosives, finding a place where he could argue his case and have his position heard was already something worth remembering.

The old house at the center of the dispute also found a new purpose. During the redevelopment of Bacao fishing port, the government acquired the Bao family’s old home. Later, the Longgang municipal Party committee and government decided to retain three rooms of the house and renovate and develop the site into the Longgang Rule of Law Museum. The museum displays the original notice to respond to the suit, the judgments, footage of the hearing, and interviews with those involved. The lawsuit that had once drawn national attention was preserved at the place where it began.

From a house that had been partly demolished to a museum recording legal history, the family’s defeat remained unchanged. But their experience of suing the government became a public memory worth preserving. Looking back, what we should remember is that there must be somewhere to question government decisions and a procedure through which to review them. Subjecting power to legal scrutiny and giving citizens a place to make their case: that is the significance the Bao Zhengzhao case leaves us.

ShowNotes

In This Episode

• A courtroom inside a cinema: A farmer sues the county government, the county head appears in court, and a public hearing runs from morning into the night.
• An approval, but still an unlawful building: Tracing the dispute from a house on a river embankment and the town construction office’s approval to the water authorities’ demand to remove obstructions.
• Opening the door to suing the government: After two courts refuse to register the case, lawyer Lou Xian uses newspaper coverage and a letter to the provincial high court to help secure a hearing.
• Suits against the government before the “first case”: Statutory provisions scattered across separate laws, administrative cases heard under civil procedure, and the establishment of administrative divisions in the courts.
• Why the family lost: Whether the house obstructed flood discharge, whether the construction office had approval authority, and whether the county government had a legal basis for demolition.
• From judicial practice to unified legislation: The history of earlier administrative litigation laws, drafting in the 1980s, and the basic rules established by the 1989 Administrative Litigation Law.
• The family after the judgment: A handshake after the hearing, a child named “Litigation,” and the transformation of the disputed old house into the Longgang Rule of Law Museum.

Key Timeline

• 1975–1983: The family creates foundations and builds on the embankment slope and over the river. It is later fined for encroaching on water-control facilities.
• August–September 1985: Bao Songcun applies for an extension, and the town construction office issues an approval. The county water authorities subsequently demand an end to the unlawful encroachment on the river, but the family continues building.
• July 4, 1987: The Cangnan County government forcibly demolishes portions at the rear of the house the family built in 1985.
• February–March 1988: The Zhejiang Provincial High People’s Court designates the Wenzhou Intermediate People’s Court to hear the case; the latter formally registers it.
• August 25, 1988: A public hearing takes place in the Cangnan County cinema, with county head Huang Deyu appearing for the defendant.
• August 28, 1988: The Wenzhou court dismisses the claims of Bao Zhengzhao and the other seven plaintiffs at first instance.
• December 26, 1988: The Zhejiang high court dismisses the appeal and upholds the original judgment.
• April 4, 1989: The Administrative Litigation Law of the People’s Republic of China is adopted.
• October 1, 1990: The Administrative Litigation Law takes effect.
• 2002 and afterward: Bao Zhengzhao dies of illness in 2002. The old house is later acquired during fishing-port redevelopment; three retained rooms are renovated and developed into the Longgang Rule of Law Museum.

People

• Bao Zhengzhao (包郑照): A farmer from Bacao village, Cangnan, Zhejiang, and the lead plaintiff. Eight members of the family joined the suit.
• Bao Songcun (包松村): Bao Zhengzhao’s second son, then a member of the Bacao town Party committee and a former town water-management administrator. He was involved in obtaining the building approval and encouraged the family to resolve the dispute through litigation.
• Huang Deyu (黄德余): Then head of the Cangnan County government, appearing in court on behalf of the defendant, the Cangnan County People’s Government.
• Lou Xian (楼献): The family’s lawyer and legal adviser to Economic Life. He helped secure registration of the case by organizing the materials, publishing them in the newspaper, and writing to the provincial high court.
• Tao Xijin (陶希晋) and Wang Hanbin (王汉斌): Important figures in advancing administrative legislation in the People’s Republic.
• Jiang Ping (江平), Luo Haocai (罗豪才), and Ying Songnian (应松年): Chair and deputy chairs of the administrative legislation research group, involved in researching and drafting the Administrative Litigation Law.

Laws and Concepts

• The “first case” of a citizen suing the government: A description of the Bao Zhengzhao case’s influence and historical importance. Before the unified Administrative Litigation Law was enacted, administrative litigation already existed under provisions in individual laws and regulations.
• Article 3, paragraph 2, of the Civil Procedure Law (for Trial Implementation): Administrative cases assigned by law to the courts were to use civil procedure. The provision itself did not establish a unified scope of administrative acts that could be challenged.
• Building approval and approval authority: Construction within a water-control project’s protected area required consent from the competent water authority and approval through prescribed procedures. The first-instance court held that the town construction office could not approve this construction on its own and that its approval was invalid.
• The Regulations on the Administration of Water Conservancy and Hydropower Projects and the State Council’s notice on removing obstructions: The principal normative documents on which the first-instance court relied to decide whether the house was unlawful and whether the county government had a basis for demolition.
• Legality review: Article 5 of the 1989 Administrative Litigation Law expressly required courts to review the legality of specific administrative acts.
• The defendant’s burden of proof: Articles 32 and 33 of the original 1989 law required administrative agencies to produce the evidence and legal basis for their acts and prohibited them from collecting evidence from plaintiffs or witnesses on their own during litigation.
• Longgang Rule of Law Museum: Created through the renovation and development of three retained rooms of the family’s old home, it displays litigation documents, hearing footage, and interviews, preserving the public memory of the case.

Related Episodes

• 13 China’s “First Constitutional Case”: Qi Yuling’s Stolen Right to Education : Another case famous as a “first,” examining how courts respond to citizens’ claims of rights.
• 15 The Sun Zhigang Case: The End of Custody and Repatriation : Another individual case through which to consider the relationship between adjudication, public debate, and institutional change.

Principal References

• Wenzhou Intermediate People’s Court, Zhejiang, Civil Judgment, (1988) Civil First Instance No. 1, August 28, 1988; reproduced in Appendix Three of Huang Chuanhui, China’s “Challenger”: The Story of the First Farmer’s Lawsuit Against a County Head (中国的「挑战者」号——首例农民告县长案始末), Haichao Publishing House, 1990.
• Gao Haihao, “A Farmer Sues the County Government” (农民告县府), People’s Daily, August 25, 1988.
• Civil Procedure Law of the People’s Republic of China (for Trial Implementation), 1982; Regulations on the Administration of Water Conservancy and Hydropower Projects, 1983; Administrative Litigation Law of the People’s Republic of China, original 1989 text.
• Wang Hanbin, “Explanation of the Draft Administrative Litigation Law of the People’s Republic of China”; NPC Law Committee report on the results of deliberation on two draft laws, published in the Gazette of the Standing Committee of the National People’s Congress, No. 2, 1989.
• Ma Huaide and Kong Xiangwen, “Achievements and Prospects of Administrative Litigation over Forty Years of Reform and Opening Up” (改革开放四十年行政诉讼的成就与展望), Peking University Law Journal (中外法学), No. 5, 2018.
• Wenzhou Publicity, “The Light of the Rule of Law in a City of Reform” (改革之城的法治之光), Wenzhou News Network, February 8, 2024.

The account of the dispute and the court’s reasoning is based primarily on the first-instance judgment. Details such as the handshake after the hearing come from later retrospective accounts. Discussion of the Administrative Litigation Law uses the provisions of the original 1989 law.

This is the English translation of the transcript of episode 20 of my podcast Reasoned Talk (议正言辞). The episode is in Chinese. You can listen to this episode on Xiaoyuzhou , Apple Podcasts , or Spotify .

On December 1, 2018, Meng Wanzhou, then Huawei’s vice chairwoman and chief financial officer, was changing planes at Vancouver International Airport on her way to Mexico. Canadian police arrested her at the request of the United States. The U.S. government accused Huawei of using Skycom, a company registered in Hong Kong, to resell American technology products to Iran in violation of U.S. sanctions. As one of Huawei’s most senior executives, Meng became a target of the prosecution.

For nearly three years afterward, Meng’s name remained at the center of international attention. Although released on bail, she could not leave Vancouver and remained under surveillance. Extradition hearings followed one after another, while relations among China, the United States, and Canada became deadlocked over the case. On September 22, 2021, Meng entered into a deferred prosecution agreement with the U.S. Department of Justice. The agreement was made public two days later, and she returned to China. In 2022, the U.S. government dismissed the charges against her.

To many people, the matter seemed to be over. But on September 9, 2026, another trial began in federal court in the Eastern District of New York. This time, the U.S. government was no longer prosecuting Meng personally. The defendants were Huawei and three of its subsidiaries, and documents Meng signed in 2021 could become highly damaging evidence against the company.

Why, then, did Huawei finally face a U.S. criminal trial four years after Meng returned home? That is the subject of this episode.

Skycom, Iran, and the Bank-Fraud Allegations

U.S. prosecutors had in fact obtained an indictment against Huawei in August 2018. It was not made public until January 2019, more than a month after Meng’s arrest in Canada. The defendants named at the time included Huawei, Huawei Device USA, Hong Kong-based Skycom, and Meng herself. The principal charges included bank fraud, wire fraud, violations of U.S. sanctions on Iran, and obstruction of justice.

To understand these allegations, we first need to look at Skycom. The company was registered in Hong Kong, but its principal business was in Iran. According to the statement Meng confirmed in 2021, all of Skycom’s shares were held by Huawei subsidiary Hua Ying Management in February 2007. In November of that year, the shares were transferred from Hua Ying to another company, Canicula, which Huawei also controlled.

Meng joined Skycom’s board in February 2008 and served until April 2009. The other directors were Huawei employees. Canicula continued to hold Skycom’s shares after Meng left the board, and Huawei continued to control Canicula. From 2010 through 2014, Huawei made Skycom’s major business decisions in Iran. People who worked at Skycom understood that they were working for Huawei and used Huawei email addresses.

The same document states that, from 2010 through 2014, Huawei arranged approximately $100 million in transactions through Skycom and a multinational financial institution. The transactions were ultimately cleared in the United States. They included $7.5 million paid to a British staffing company for engineers assigned to Iran.

In December 2012 and January 2013, Reuters and other media outlets published reports on the relationship between Huawei and Skycom. The reports also said that Skycom had offered equipment made by restricted U.S. vendors to Iran’s largest mobile-network operator.

A bank that continued to process U.S.-dollar transactions connected with business in Iran through the American financial system could face civil or criminal liability. After the reports appeared, the bank providing Huawei with international settlement services asked the company for an explanation. Reuters identified that bank as HSBC. On August 22, 2013, Meng met with HSBC executives and presented a PowerPoint deck describing Skycom as Huawei’s “business partner” and a “third party.” She acknowledged that Huawei had once held shares in Skycom, but said that all of them had since been sold. She also said that Huawei’s business in Iran complied strictly with applicable laws and sanctions.

If the statement Meng signed in 2021 was accurate, her 2013 explanation to HSBC was problematic. It meant she had concealed the true relationship between Huawei and Skycom: the shares had merely moved from one Huawei subsidiary to another Huawei-controlled entity, rather than passing beyond Huawei’s control. HSBC continued its business relationship with Huawei after the meeting.

This leaves two principal legal threads from the early indictment. First, prosecutors alleged that Huawei and Skycom violated sanctions on Iran. Second, they alleged that Huawei concealed its true relationship with Skycom through false statements to the bank, thereby committing bank and wire fraud. Before the 2026 trial began, however, prosecutors decided not to proceed on two of the sanctions counts.

Why does US law have jurisdiction?

Skycom’s business in Iran involved U.S.-dollar transactions cleared through the American financial system, while Huawei’s U.S. subsidiaries also participated in some of the relevant business. Those facts gave prosecutors several possible connections through which to apply U.S. law.

Strictly speaking, the question of U.S. jurisdiction over Huawei has three distinct layers. First, did the cross-border business have sufficiently concrete connections to the United States? Second, could each particular U.S. statute apply to conduct occurring abroad? Third, even if U.S. law applied, could the government obtain evidence, bring the defendants before the court, and enforce any judgment? These questions are often grouped together under the label “long-arm jurisdiction,” but that label can obscure their differences.

The first layer concerns the connection between the conduct and the United States. A cross-border transaction rarely occurs in only one place. A contract might be signed in Hong Kong, the goods sent to Iran, and the payment instruction issued in Europe, while a correspondent bank in New York clears the dollars. If one part of the transaction occurs in the United States and that step violates U.S. law, the transaction is no longer conduct occurring wholly outside the country. U.S. law may then have jurisdiction.

That is the theory behind the dollar transactions in this case. The critical point is not merely that the currency was the U.S. dollar. The indictment specifically alleges that transactions connected with Skycom between 2010 and 2014 cleared through banks located in the United States. Prosecutors therefore contend that part of the banking services, movement of funds, and resulting sanctions risk arose within U.S. territory.

The second layer is that a connection to the United States does not allow every U.S. law to extend indefinitely abroad. The Supreme Court has long applied a principle known as the presumption against extraterritoriality. Morrison v. National Australia Bank in 2010 and RJR Nabisco v. European Community in 2016 set out a two-step method. A court first asks whether Congress clearly indicated that the statute applies abroad. If so, the law applies within the scope Congress specified. If not, the court asks what the statute principally regulates and where the conduct relevant to that focus occurred.

Different charges therefore follow different paths to extraterritorial application. Federal trade-secret law, for example, can reach conduct abroad when the offender is a U.S. citizen, permanent resident, or organization, or when an act in furtherance of the offense occurs in the United States. The money-laundering statute provides extraterritorial jurisdiction over a foreign national when part of the conduct occurs in the United States and the relevant transaction exceeds $10,000. That is why each charge in this case requires its own connecting facts.

The third layer concerns the practical ability of the United States to exercise jurisdiction abroad. U.S. statutes may declare that certain crimes have extraterritorial effect, and U.S. courts may hear those cases, but enforcing the law and the resulting judgment is a separate matter. American police, for example, could not arrest Meng directly in Canada. They had to request Canada’s assistance through the extradition process; otherwise, they could only wait for the accused to enter U.S. territory.

“Long-arm jurisdiction” is therefore not a simple or self-explanatory concept. It combines several difficult questions that must be considered separately.

Charges brought by the United States

In February 2020, before Meng returned to China or entered into the deferred prosecution agreement, prosecutors filed a third superseding indictment. It added three principal charges, including conspiracy to steal trade secrets and conspiracy to commit wire fraud in connection with intellectual-property disputes. Because the indictment covers many allegations, this episode focuses on two representative examples. The following account describes what prosecutors are seeking to prove in court. Except where an existing civil judgment says otherwise, these allegations have not yet been established and do not represent the views of this podcast.

With that caveat in place, consider the T-Mobile incident. In 2006, T-Mobile developed a phone-testing system called Tappy in its laboratory. A mechanical arm fitted with a rubber tip could imitate the way a person taps, swipes, and types on a phone screen. In a matter of hours, it could simulate months of use and expose software lag or display faults before a product reached customers.

According to prosecutors, Huawei Device USA began supplying phones to T-Mobile in 2010. In 2012, T-Mobile allowed a small number of authorized Huawei employees into the laboratory to test devices that Huawei planned to deliver. The companies signed a nondisclosure agreement prohibiting photographs, video recordings, and reverse engineering during the testing process. In May 2013, an unauthorized Huawei employee entered the laboratory with several authorized employees and took photographs of the robot. About two weeks later, an authorized Huawei employee removed a key component from the robot and carried it out of the lab. Surveillance cameras recorded both incidents, and the footage later became important evidence for prosecutors.

T-Mobile complained to Huawei. Huawei said that individual employees had violated company policy and later dismissed the employee involved. In 2014, T-Mobile sued Huawei in federal court in Seattle. A jury found in 2017 that Huawei had breached the nondisclosure agreement and misappropriated T-Mobile’s trade secrets, but it did not find that Huawei had acted willfully and maliciously. Federal prosecutors later incorporated the same events into the criminal indictment as part of the trade-secret allegations.

Next is the Quintel incident. In 2009, British company Quintel approached Huawei about possible cooperation in mobile antennas. Futurewei, Huawei’s U.S. research subsidiary, signed a nondisclosure agreement with Quintel limiting the use of confidential information to the parties’ discussions about a collaboration. Quintel then demonstrated an antenna technology that could adjust its angle according to users’ locations and improve signal quality. At Huawei engineers’ request, it later provided additional technical material.

The collaboration did not proceed. Prosecutors allege that, little more than a month after receiving the material, Futurewei filed a patent application with the U.S. Patent and Trademark Office that made extensive use of technology Quintel had disclosed. Futurewei obtained the patent in 2014. Quintel allegedly learned of it only when Futurewei’s earlier patent surfaced during Quintel’s application for a European patent in 2015. Quintel then sued Huawei for trade-secret misappropriation and sought correction of the named inventors.

Prosecutors further allege that Huawei earned approximately $22 million between 2009 and 2016 from products using the intellectual property. They incorporated this episode into the superseding indictment as well.

The core of the case: RICO

At first glance, these events arose at different times, in different places, and on different lines of business. The central move in the 2020 indictment was to connect them by charging Huawei and several affiliated companies with a RICO conspiracy.

RICO is the abbreviation for the Racketeer Influenced and Corrupt Organizations Act. Congress enacted it in 1970 as part of the Organized Crime Control Act. Although originally used primarily against the Mafia, it later came to cover corporations and other forms of organization. Its provisions now appear at 18 U.S.C. §§ 1961–1968.

Here, prosecutors charged Huawei and affiliated entities under § 1962(d) with conspiring to violate RICO. Three concepts are particularly important to understanding that charge.

The first is an enterprise. Under RICO, an enterprise may be a legally organized corporation or a group of entities associated and operating continuously for a common purpose. Prosecutors refer to Huawei and several affiliated companies as the “Huawei Enterprise,” alleging that they shared a common purpose and an ongoing organizational relationship.

The second is a pattern of racketeering activity. RICO lists offenses that can serve as predicate acts. The indictment in this case identifies bank fraud, wire fraud, trade-secret theft, money laundering, obstruction of justice, and criminal copyright infringement, among others. To prove the RICO conspiracy, prosecutors must establish an agreement that conspirators would commit a series of related predicate offenses reflecting continuity.

The third concept is conspiracy: an agreement to carry out the RICO violation. A conspiracy is not simply a collection of separate incidents, and no single person must commit every predicate offense. The crucial question is whether the defendants knowingly joined the common agreement. For corporate defendants, the court and jury must also determine which employees’ conduct and states of mind may legally be attributed to each company.

Whether senior management knew, whether the company rewarded employees for obtaining competitors’ confidential information, and whether the incidents followed similar patterns could all serve as evidence of a common agreement. Prosecutors must prove every element of the RICO conspiracy against each defendant beyond a reasonable doubt. The defense, by contrast, can argue that the conduct involved isolated employees acting improperly or outside their authority, that management did not approve it, and that the company took corrective action after learning of it. It can also argue that the incidents were not connected by any common agreement and that prosecutors have not proved an agreement to invest proceeds derived from the alleged pattern in the enterprise. If these objections create reasonable doubt about any element, the corresponding RICO conspiracy charge cannot be sustained.

That is the issue the jury must ultimately decide: whether events scattered across more than two decades were isolated incidents selected and assembled by prosecutors, or whether they prove a company-level agreement satisfying RICO’s requirements for an enterprise, a pattern of racketeering activity, and the use or investment of proceeds.

In April 2026, prosecutors filed a fourth superseding indictment that reorganized the case into fourteen counts. They withdrew two counts on September 4, leaving twelve for trial. Jury selection began in the Eastern District of New York on September 8, and the parties delivered opening statements on September 9.

In those openings, the two sides offered opposing accounts of whether a criminal conspiracy existed within Huawei. Prosecutors said that the company had treated crime as a business strategy over the preceding two decades. Defense counsel said that the government had selected a handful of unrelated incidents from the enormous history of a multinational company, involving people who in some instances had never met and worked thousands of miles apart.

Key Evidence and Ongoing Trial

As noted earlier, prosecutors possess a potentially damaging piece of evidence: the Statement of Facts that Meng signed and confirmed in 2021. The four-page document acknowledges that Huawei controlled Skycom, that Huawei employees operated Skycom’s business in Iran, that the business used U.S.-dollar transactions, and that statements Meng made to HSBC in 2013 were untrue.

Section 6 of the deferred prosecution agreement provides that, if the United States prosecuted Meng again, the government could use the Statement of Facts as evidence and she could not contradict it during the proceeding.

In June 2026, the judge ruled that the statement could also be used in Huawei’s criminal trial. Meng was, and remains, Huawei’s chief financial officer, the judge reasoned, and the statement concerned conduct undertaken as part of her corporate duties. Huawei therefore could not exclude the document.

In effect, the court treated Meng’s statement as Huawei’s own adopted statement, rather than as a statement by an outside witness. Had Meng been treated as a third-party witness, she would have had to appear at trial and be available for cross-examination. Once the statement was classified as Huawei’s own adopted statement, prosecutors did not need to call Meng in person in order to offer it.

The jury must assess every count separately: which alleged facts were proved, which conduct may be attributed to each corporate defendant, whether that conduct satisfies the elements of each offense, and whether the separate incidents were connected by a conspiracy.

Many stages remain. A first-instance verdict may not arrive until the end of 2026 or later. If the jury finds Huawei guilty of the RICO conspiracy, the company could face a substantial fine and forfeiture of unlawful proceeds, as well as compliance monitoring after judgment.

Which of the two competing narratives will cross the legal threshold? How will United States v. Huawei—a case stretching across more than two decades, multiple countries, and intense diplomatic and political controversy—ultimately end? We will return to those questions after the Eastern District of New York reaches a decision. Look for Part II of this story.

This case remains pending. Except for final civil judgments and procedural rulings already in force, all statements below concerning criminal liability describe allegations by prosecutors, statements made at trial, or witness testimony. Huawei has pleaded not guilty. The trial information in this episode is current through September 18, 2026.

Key Timeline

• 2007–2014: According to the Statement of Facts confirmed by Meng, Skycom’s shares moved from Hua Ying Management to Canicula, another entity still controlled by Huawei. Meng served as a Skycom director; Huawei made Skycom’s major business decisions in Iran; and related dollar payments cleared through the United States.
• 2009–2016: Quintel’s antenna discussions with Futurewei, the subsequent patent application, and resulting litigation were later incorporated into the intellectual-property allegations.
• December 2012–August 2013: Media reports examined the relationship between Huawei and Skycom. On August 22, 2013, Meng described Skycom to a bank as Huawei’s “business partner” and a “third party.”
• 2013–2017: The Tappy incident occurred, after which T-Mobile brought a civil action. In 2017, a jury found that Huawei had breached its confidentiality obligations and misappropriated T-Mobile’s trade secrets, but did not find that it acted willfully and maliciously.
• August 2018–January 2019: An indictment was filed under seal in the Eastern District of New York. Meng was arrested in Canada in December 2018, and the indictment was unsealed in January 2019.
• February 2020: The third superseding indictment added a RICO conspiracy, conspiracy to steal trade secrets, and related wire-fraud conspiracy allegations, bringing the case to sixteen counts.
• September 2021–2022: Meng entered into a deferred prosecution agreement and returned to China. After she fulfilled the agreement, the charges against her were dismissed while the corporate case continued.
• April–June 2026: A fourth superseding indictment reorganized the case into fourteen counts. The court later ruled that Meng’s Statement of Facts could be used in the corporate trial.
• September 2026: Prosecutors declined to proceed on two sanctions counts, leaving twelve counts for trial. Jury selection began on September 8, and the parties delivered opening statements on September 9.

Key Parties and Events

• Meng Wanzhou: Huawei’s chief financial officer. She is no longer a defendant in the corporate trial, but the four-page Statement of Facts she signed in 2021 has become important evidence.
• Skycom, Hua Ying Management, and Canicula: The transfer of shares and the entities’ actual control relationships form the basis of prosecutors’ account of Huawei’s business in Iran and its statements to the bank. The charging documents did not identify the bank; Reuters identified it as HSBC.
• T-Mobile and Tappy: Tappy is a phone-testing robot designed to simulate a user’s finger movements. The civil judgment is final, but the same facts must be tested again under the higher burden of proof governing the criminal case.
• Quintel and Futurewei: Prosecutors allege that Futurewei applied for a patent after receiving Quintel’s confidential antenna information. The criminal allegation remains for the jury to decide.

Core Legal Concepts

• Deferred prosecution agreement (DPA): An agreement suspending prosecution for a specified period. If the defendant performs the agreed obligations, prosecutors apply to dismiss the charges. A DPA is neither an acquittal nor a guilty plea.
• Statement of Facts: Meng confirmed that its contents were true and accurate. Section 6 of the agreement primarily addresses the document’s use if she were prosecuted again. Its use in Huawei’s trial instead depends on whether the court finds that the company adopted her statement.
• Contacts, jurisdiction, and extraterritoriality: Dollar clearing through the United States and participation by U.S. subsidiaries can create connections to the country, but whether a particular federal criminal statute applies to conduct abroad must still be analyzed statute by statute. The use of dollars alone is not enough.
• RICO conspiracy: Under 18 U.S.C. § 1962(d), prosecutors allege an agreement to violate § 1962(a) by using or investing income derived from a pattern of predicate offenses in the “Huawei Enterprise.” The government must prove not only the enterprise, predicate pattern, and common agreement, but also the required relationship between the proceeds and their use or investment.
• Corporate attribution and the burden of proof: When an employee’s conduct and state of mind can be attributed to a corporation is a central issue. Prosecutors must prove every count against each defendant beyond a reasonable doubt. The admission of evidence does not require the jury to credit it.

Principal Cases and Statutes

• United States v. Huawei Technologies Co., Ltd. (E.D.N.Y. No. 1:18-cr-00457): the principal case discussed in this episode.
• T-Mobile USA, Inc. v. Huawei Device USA, Inc. (W.D. Wash. No. 2:14-cv-01351): the civil Tappy case.
• Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010): reaffirmed the presumption against extraterritorial application of federal statutes and focused the inquiry on the object of the particular law and the location of the relevant conduct.
• RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016): established the two-step extraterritoriality framework and held that some substantive RICO provisions can reach conduct abroad to the extent the relevant predicate offenses themselves apply extraterritorially. It did not resolve every question concerning the extraterritorial application of every RICO provision.
• 18 U.S.C. §§ 1961, 1962: RICO’s definitions, substantive prohibitions, and conspiracy provision.
• 18 U.S.C. §§ 1343, 1344, 1832, 1956, 1512, 2319: Provisions concerning wire fraud, bank fraud, trade-secret theft, money laundering, witness or investigative obstruction, and criminal copyright infringement. These are the principal sources of the predicate offenses listed in the indictment.
• 18 U.S.C. § 1837 and § 1956(f): The extraterritorial provisions for trade-secret offenses and money laundering. The former focuses on the offender’s status or an act in furtherance committed in the United States; for foreign nationals, the latter requires conduct occurring in part in the United States and a transaction exceeding $10,000.
• 50 U.S.C. § 1705 and 31 C.F.R. Part 560: The criminal provision and administrative regulations associated with the Iran-sanctions allegations. Prosecutors declined to proceed at trial on two separate sanctions counts.

Principal Sources

• DOJ announcement of the 2019 indictment and initial charges
• 2020 third superseding indictment (PDF)
• Meng Wanzhou’s deferred prosecution agreement and Statement of Facts (PDF)
• 18 U.S.C. § 1961 (RICO definitions) ; 18 U.S.C. § 1962 (prohibited activities)
• U.S. Supreme Court: Morrison, 561 U.S. 247 ; RJR Nabisco, 579 U.S. 325
• 18 U.S.C. § 1837 (extraterritoriality of trade-secret offenses) ; 18 U.S.C. § 1956(f) (extraterritorial jurisdiction over money laundering)
• Reuters: Meng Wanzhou’s Statement of Facts may be used at Huawei’s trial
• Reuters: opening statements on September 9, 2026
• Fierce Network: prosecutors narrow the charges before trial

This is the transcript of episode 19 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 April 9, 1996, in Hohhot, Inner Mongolia, a young woman stepped out of a restaurant on Xilin South Road, saying she needed to use the toilet. A long time passed, but she did not return. Two factory workers were also having dinner nearby that evening. One had just turned eighteen. His name was Hugjiltu. After dinner, he and his colleague went their separate ways. As Hugjiltu passed a public toilet in the residential compound of the No. 1 Woolen Mill, he discovered the woman’s body. He immediately went back to his workplace, found the colleague he had eaten with, and ran with him to a nearby police post to report the crime.

No one could have imagined that reporting the crime would draw Hugjiltu into a catastrophe. According to local historical records, investigators concluded within roughly forty-eight hours of the crime that Hugjiltu, one of the men who had reported it, was the killer. He was placed under “custody and investigation” on April 12 and formally arrested on May 10. Just one month later, on June 10, he was executed. Only sixty-two days had passed since the crime.

This became the Hugjiltu case, one of the most widely known cases in Chinese legal history. Why did a young man who came forward to report a crime end up convicted of it? How could a murder case proceed all the way to execution in barely two months? What had gone wrong? This episode examines the case in detail.

Doubts About the Confession and Blood-Type Report

Later investigations established that Hugjiltu had indeed discovered the victim’s body in the women’s toilet on his own before finding his colleague and reporting it together. From the police’s perspective, he had been at the crime scene. With no other leads, someone in that position would naturally become a focus of attention. But suspicion alone was not enough. Identifying him as the killer required further, decisive evidence.

According to material subsequently made public, his conviction rested primarily on two pieces of evidence. The first was his own confession, in which he admitted violently sexually assaulting the victim, identified as Yang, and causing her death. The second was a blood-type report. Type O blood had been found beneath the nail of his left thumb, matching the victim’s blood type. Hugjiltu himself had type A blood.

On the surface, the confession and the laboratory report seemed to corroborate each other. A closer examination, however, revealed doubts. Hugjiltu said in his confession that he had suffocated the victim by covering her mouth with his hand. The autopsy attributed her death to asphyxiation caused by strangulation. The two accounts plainly did not match. And blood typing is not DNA profiling: it cannot identify a particular individual. Many people share a blood type. Finding type O blood under his thumbnail did not establish that it was the victim’s blood.

How, then, could such flawed evidence lead so quickly to a death sentence?

Severe and Swift Punishment in the Strike Hard Era

One point needs explaining. In the month before the crime, the National People’s Congress had passed a revised Criminal Procedure Law. But the new law would not take effect until January 1, 1997. Although already enacted, it was not yet in force. The law applicable to Hugjiltu’s case was therefore the older, 1979 Criminal Procedure Law.

Even that earlier law contained rules that later became familiar principles of criminal procedure. It expressly stated: “In deciding all cases, emphasis shall be placed on evidence and on investigation and study; confessions shall not be readily believed. A defendant cannot be found guilty and punished solely on the basis of a confession without other evidence.” It also expressly prohibited torture to extract confessions and forbade the collection of evidence “by threats, inducements, deception, or other unlawful means.”

Yet, as we have seen, apart from the blood-type and autopsy reports, the local police, procuratorate, and court relied above all on Hugjiltu’s confession. Material later made public also suggested that he may indeed have been tortured during interrogation. That raises the question: if the law already warned against relying on confessions and explicitly prohibited torture, why could the case be closed so quickly? Why did the Criminal Procedure Law fail to provide the protection it was supposed to offer?

To understand this, we need to return to the historical setting.

In 1979, the People’s Republic of China promulgated its first Criminal Law and Criminal Procedure Law. As reform and opening continued, public security subsequently deteriorated. In August 1983, the central leadership decided to launch a campaign to crack down on criminal activity, commonly known as “Strike Hard.” On September 2 that year, the Standing Committee of the National People’s Congress adopted the Decision on Procedures for the Speedy Trial of Criminals Who Seriously Endanger Public Security.

Article 1 provided:

To punish swiftly and severely criminals who seriously endanger public security, and to protect the interests of the state and the people, offenders who commit murder, rape, robbery, explosions, or other crimes seriously endangering public safety that warrant the death penalty shall be tried promptly when the principal facts are clear, the evidence is conclusive, and public indignation is extreme. Such trials need not be subject to the relevant service periods prescribed in Article 110 of the Criminal Procedure Law.

Article 2 then provided:

For the offenders listed in the preceding article, the period for appeal by the defendant and for protest by the people’s procuratorate shall be reduced from the ten days prescribed in Article 131 of the Criminal Procedure Law to three days.

Through this decision, the NPC Standing Committee allowed certain serious crimes to be handled under a faster procedure that bypassed provisions of the Criminal Procedure Law. The text contained limiting language—“the principal facts are clear, the evidence is conclusive, and public indignation is extreme”—but in the circumstances of the time, the decision nonetheless loosened some of the procedural constraints on those handling cases at the local level.

Meanwhile, the 1983 amendment to the Organic Law of the People’s Courts allowed the approval of death sentences for certain serious crimes to be delegated from the Supreme People’s Court to provincial-level high courts. Under the amended provisions, the Supreme People’s Court could authorize high courts to approve death sentences in cases involving murder, rape, robbery, explosions, and other crimes seriously endangering public security. This led to a practice in which the appeal and death-sentence approval were combined: in these cases, the high court served both as the appellate court and as the court approving execution.

In 1996, a second nationwide Strike Hard campaign began, running from April 1996 to February 1997. According to the Supreme People’s Court’s 1997 work report to the National People’s Congress, courts nationwide concluded more than 570,000 first-instance criminal cases during 1996, an increase of roughly 15 percent over the previous year. More than 320,000 people were sentenced that year for crimes seriously endangering public security. Of those, approximately 212,000 received prison terms of more than five years, life imprisonment, or death sentences, including death sentences with a reprieve—nearly two-thirds of the total in that category. These figures convey the period’s emphasis on severe and swift punishment.

When the entire justice system encouraged severe and swift punishment, and the law itself left room to accelerate proceedings, events could begin to escape control. Against this background, a serious crime in Hohhot was enough to put the local police, procuratorate, and courts on edge. We cannot know all the circumstances at the time. What we do know is that local investigators had fixed on Hugjiltu, the first person to discover the body. After that, the cold machinery of procedure took over.

On May 17, 1996, the Hohhot Intermediate People’s Court delivered its first-instance judgment. It convicted Hugjiltu of intentional homicide, sentencing him to death and deprivation of political rights for life, and of hooliganism, for which it imposed five years’ imprisonment. The combined sentence was death. The court rejected defense submissions that included his cooperative attitude in admitting guilt.

Hugjiltu appealed, arguing that he had no motive to kill and asking for leniency. On June 5, the Inner Mongolia Autonomous Region High People’s Court dismissed his appeal, upheld the original judgment, and approved his death sentence. He was executed on June 10. Only twenty-four days separated the first-instance judgment from execution. The appeal and death-sentence approval were disposed of in the same ruling.

The prescribed procedures had been followed, but they had barely served their intended purpose. The appeal was decided on the written record, and appellate review was combined with approval of the death sentence. In little more than twenty days, a case file containing a retracted confession, contradictions, and a lack of independent physical evidence had produced an irreversible outcome.

A Turning Point, Followed by Years of Petitions

After Hugjiltu’s execution, his parents had to bear not only the loss of their son but also the stigma of being “the murderer’s parents.” According to later interviews in The Beijing News, both worked at Hohhot’s No. 1 Woolen Mill. In a factory community where everyone knew one another, their son’s convictions for homicide and hooliganism weighed heavily on the whole family. His mother, Shang Aiyun, once outgoing, hardworking, and unassuming, became withdrawn. Sometimes she went out alone and wandered aimlessly through the streets. His father, Li Sanren, often shut himself away at home. Even when their older son was dating, someone warned his girlfriend that there had been a murderer in the family.

At first, they took no public action to seek redress. Then, in 2005, came an unexpected turning point. On October 23, police arrested Zhao Zhihong, who had committed a series of rapes, robberies, murders, and other serious crimes in Hohhot, Ulanqab, and elsewhere. After his arrest, he voluntarily confessed to several crimes the police had not solved. Among them was the murder of Yang in the No. 1 Woolen Mill’s residential compound on April 9, 1996—the crime for which Hugjiltu had been sentenced to death.

Local police subsequently took Zhao to the compound to identify the crime scene. Xinhua reported that they brought him there three times to check his account. He described the toilet’s orientation and internal layout, the victim’s height and age, the manner of the assault, and the position of the body. These details closely matched the police investigation and were far more accurate than Hugjiltu’s original confession.

An acutely awkward situation had emerged: two men were now implicated as the perpetrator of the same murder. One had been sentenced to death nine years earlier; the other was voluntarily confessing nine years later. The apparent “reappearance of the real culprit” placed the judicial authorities in a difficult position. When Zhao’s series of crimes went to trial in 2006, the prosecution did not include the April 9 murder linked to Hugjiltu in its charges. Zhao himself raised it in court, saying that this was another of his crimes for which he had not been prosecuted.

His insistence may not have been entirely a matter of conscience. Under the Criminal Law and its judicial interpretations, a defendant who voluntarily discloses other crimes unknown to investigators after being taken into custody may receive a lighter or mitigated sentence. Even if Zhao was merely trying to obtain leniency, he needed the court to recognize this additional crime. His actions nevertheless placed those who had handled Hugjiltu’s case under intense pressure.

Once Hugjiltu’s parents learned of this, they acted immediately. They petitioned local judicial authorities and brought the matter to Xinhua and other media organizations. In March 2006, Inner Mongolia’s Political and Legal Affairs Commission established a group to re-examine the case. Six months later, it concluded that the evidence against Hugjiltu was plainly insufficient and recommended that the court review the case and initiate a retrial.

But the court did not immediately reopen it. Hugjiltu’s parents would wait for more than eight further years. During that time, they repeatedly submitted materials to the authorities and traveled between Hohhot and Beijing. They tried every avenue they could find, approaching judicial bodies, journalists, and lawyers in the hope that someone would bring the case back before a court. Lawyer Wang Zhenyu began assisting the family’s petitions in 2007. Lawyer Miao Li submitted a written recommendation to the Supreme People’s Court, urging it to take over the case promptly or assign a retrial to a court elsewhere, with a hearing to establish what had happened. Xinhua journalist Tang Ji wrote six internal reports on the case, repeatedly bringing it to the attention of the central leadership. Legal scholars, journalists, and other public figures also helped the family continue speaking out. These combined efforts, both within and outside the system, kept the case from fading from public view.

Asked why the court had taken so long to act, the Inner Mongolia High People’s Court later explained that the case was old, some evidence was difficult to investigate further, and a matter involving a human life required caution. That was the court’s official explanation. Other factors may also have impeded correction. The case had been jointly processed by the local police, procuratorate, and courts during the Strike Hard era and had resulted in an execution. A public reversal would have far-reaching implications. Zhao’s own case, moreover, remained unresolved. The claim that he had committed the April 9 murder rested on his confession without substantive physical evidence. Declaring him the real killer on the strength of a confession alone risked repeating the original mistake. These factors may all have increased the resistance to reopening the case.

Returning to the Original Evidence: Retrial and State Compensation

It was not until November 19, 2014, that the Inner Mongolia High People’s Court decided to retry the case. The court explained that, because the original defendant had died, the applicable judicial interpretation of the Criminal Procedure Law required the case to be examined on the written record rather than through a hearing. The petitioners’ lawyers could inspect the case file and submit their views. They applied for access to materials from Zhao Zhihong’s case, but the court refused on the ground that his case had not concluded and the materials were not suitable for disclosure. In other words, the retrial introduced no materials from Zhao’s case. It proceeded on the evidence in Hugjiltu’s original file.

On December 13, 2014, the court delivered its retrial judgment. It held that the facts underlying the original judgment were unclear and the evidence insufficient, principally for three reasons:

1. Hugjiltu’s original confession that he had killed the victim by covering her mouth was inconsistent with the autopsy finding that she had died of asphyxiation caused by manual strangulation.
2. Blood typing established only a class characteristic. It was neither exclusive nor uniquely identifying and could not establish that Hugjiltu had committed the crime.
3. His descriptions of Yang’s height, hairstyle, clothing, and accent were inconsistent with other evidence. His confessions were also unstable, and he had retracted them.

The court accordingly set aside the 1996 first-instance judgment and appellate ruling and acquitted Hugjiltu. On the day the judgment was served, Zhao Jianping, the court’s executive vice president, apologized to his parents on the court’s behalf. Court president Hu Yifeng also sent them 30,000 yuan personally as a gesture of sympathy and told them that they could still apply to the court for state compensation.

On December 25, 2014, Hugjiltu’s parents filed their compensation claim. On December 30, the Inner Mongolia High People’s Court issued its decision, awarding Li Sanren and Shang Aiyun approximately 2.0596 million yuan in compensation for death, funeral expenses, deprivation of personal liberty, and emotional distress. They received the payment on February 3, 2015.

The nature of this compensation matters. State compensation is a legal remedy for harm caused by state organs unlawfully exercising their powers. The amount depends on statutory rules and the circumstances of the individual case. It addresses the responsibility of the state, rather than that of a particular individual.

The award included one million yuan for emotional distress, then a record in state compensation cases. It also prompted a technical objection: under the Supreme People’s Court’s relevant provisions, compensation for emotional distress should in principle not exceed 35 percent of the combined compensation for deprivation of liberty and harm to life and health. This award clearly exceeded that proportion. The Inner Mongolia High People’s Court responded that the punishment imposed had been the most severe of all—death—and had caused exceptionally grave emotional harm to the family. The amount reflected the case’s particular circumstances and was consistent with the spirit of the law. Hugjiltu’s parents also expressed their understanding of the decision.

Accountability and the Outcomes of Separate Proceedings

State compensation was followed by action against those responsible for the case. On January 31, 2016, the relevant authorities in Inner Mongolia announced that twenty-seven people had been held accountable for the wrongful conviction. Media reports identified officials across the police, procuratorate, and courts. Most measures took the form of Party or administrative discipline, including Party warnings, serious Party warnings, administrative demerits, and major demerits. Feng Zhiming, who had led the investigative team as deputy head of the Xincheng branch of the Hohhot Public Security Bureau, was dealt with separately on suspicion of offenses committed in public office. On October 18 that year, the Hulunbuir Intermediate People’s Court convicted him at first instance of accepting bribes, possessing a large amount of property of unexplained origin, illegally possessing firearms and ammunition, and embezzlement. It imposed a combined sentence of eighteen years’ imprisonment and a fine of 1.1 million yuan.

Those offenses were not directly connected to the Hugjiltu case. Many people were therefore dissatisfied with the outcome of the accountability process. Hugjiltu’s older brother, Zhaoligetu, told reporters: “We are not satisfied, and we do not accept it.” His mother, Shang Aiyun, said that accountability had still not gone far enough. Lawyers quoted in public reporting made the same point: the twenty-seven officials had faced Party and administrative responsibility, while the only person criminally punished, Feng Zhiming, had not been imprisoned for the wrongful conviction itself. When journalists asked the regional authorities how the accountability findings had been reached, they received no direct answer.

Now consider Zhao Zhihong’s case. On February 9, 2015, the Hohhot Intermediate People’s Court sentenced him to death for crimes including intentional homicide, rape, robbery, and theft. It also found that he was the perpetrator of Hohhot’s April 9 murder. On April 30, the Inner Mongolia High People’s Court upheld the judgment and submitted the death sentence to the Supreme People’s Court for approval. In July 2019, the Supreme People’s Court approved the sentence. In doing so, however, it changed part of the underlying factual findings. Of the twenty-one criminal incidents attributed to Zhao in the original proceedings, it confirmed seventeen and declined to confirm four. The April 9 murder was among those four.

The reason was primarily evidentiary. In a press briefing, the head of the Supreme People’s Court’s Fifth Criminal Division explained that Zhao had voluntarily confessed to the murder after his arrest, and details in his account broadly matched the police investigation. But his statements were inconsistent over time and contained numerous contradictions with other evidence that were difficult to explain. For example, he repeatedly said that he had ejaculated during the assault, yet no semen had been detected in the victim’s vaginal secretions or found at the scene. He also said he had pulled off her earrings, whereas the autopsy showed no injuries to either ear.

Whatever the final outcome of Zhao’s case, it could not alter Hugjiltu’s acquittal. The retrial judgment had relied on none of the materials from Zhao’s proceedings. Hugjiltu was acquitted because the facts of his own case were unclear and the evidence insufficient, not because the “real culprit” had subsequently appeared. As a matter of law, he should have been acquitted even without Zhao’s voluntary confession.

This is the Criminal Procedure Law’s principle of acquittal where the evidence leaves doubt. To determine guilt, the question is whether the prosecution has supplied sufficient evidence. If it has not, the defendant is legally not guilty. Whether the actual perpetrator is someone else does not materially change the outcome of that case. This places a greater demand on investigators: the evidence supporting a conviction must be reliable and sufficient. That standard does not fall because the public wants to see the “real killer” brought to justice, or because someone voluntarily confesses.

Justice Delayed

Thirty years have passed since the Hugjiltu case began. China’s criminal procedure has developed considerably during that time. Authority to approve death sentences for immediate execution has been brought back under the Supreme People’s Court. Subsequent revisions to the Criminal Procedure Law established rules excluding illegally obtained evidence and, for the first time, expressly prohibited compelling anyone to incriminate themselves.

On that evening of April 9, 1996, eighteen-year-old Hugjiltu tried to help by reporting a crime and instead suffered an irreversible injustice. Our justice system took eighteen full years to correct its mistake. For a shattered family, delayed justice could not restore a loved one’s life. For Chinese legal history, however, the case remains a warning close at hand. What has passed cannot be undone, but what lies ahead can still be changed. Everyone who works in law should remember these cases. They remind us how difficult justice is to achieve.

Timeline

• 1979–1980: The first Criminal Procedure Law is adopted and enters into force. It requires emphasis on evidence rather than unquestioning reliance on confessions and prohibits torture and other unlawful evidence-gathering methods.
• September 1983: The NPC Standing Committee adopts a decision allowing expedited trials for specified serious crimes, reducing the period for defendants’ appeals and procuratorial protests from ten days to three. An amendment to the Organic Law of the People’s Courts allows the Supreme People’s Court to authorize high courts to approve certain death sentences.
• March 17, 1996: Amendments to the Criminal Procedure Law are adopted, taking effect on January 1 the following year. Hugjiltu’s original proceedings remain governed by the 1979 law.
• April 9, 1996: Hugjiltu discovers a murdered woman in a public toilet in the woolen mill’s residential compound and asks a colleague to help report the crime. He is placed under custody and investigation on April 12 and formally arrested on May 10.
• May 17, 1996: The Hohhot Intermediate People’s Court convicts Hugjiltu of intentional homicide and hooliganism and imposes a combined death sentence.
• June 5 and June 10, 1996: The Inner Mongolia Autonomous Region High People’s Court dismisses his appeal, upholds the judgment, and approves the death sentence. He is executed five days later, sixty-two days after the crime.
• October 23, 2005: Zhao Zhihong is arrested and subsequently volunteers a confession to the public-toilet murder. After learning of it, Hugjiltu’s parents petition judicial authorities and approach the media.
• From March 2006: The regional Party Political and Legal Affairs Commission forms a group to re-examine the case. Roughly six months later, it concludes that the original evidence was plainly insufficient and recommends judicial review and a retrial. The case nevertheless remains outside retrial proceedings for years.
• From 2007: Wang Zhenyu helps the family petition for redress. Miao Li later recommends that the Supreme People’s Court take over the case or assign a retrial elsewhere. Xinhua journalist Tang Ji continues writing internal reports to draw attention to the case.
• November 19, 2014: The Inner Mongolia High People’s Court orders a retrial on the written record.
• December 13 and December 15, 2014: The retrial judgment is issued and subsequently served on and read to the family, acquitting Hugjiltu.
• December 30, 2014: The court awards approximately 2.0596 million yuan in state compensation, including one million yuan for emotional distress. The family receives payment on February 3, 2015.
• February and April 2015: Zhao’s trial and appeal both find that he committed the public-toilet murder. The courts impose and uphold a death sentence.
• January 31, 2016: Authorities announce the accountability findings in Hugjiltu’s case: twenty-seven people are held responsible, while Feng Zhiming is handled separately for suspected offenses in public office.
• October 18, 2016: Feng is sentenced at first instance to eighteen years’ imprisonment for four offenses, including accepting bribes. The judgment does not impose criminal liability for Hugjiltu’s wrongful conviction.
• July 2019: The Supreme People’s Court approves Zhao’s death sentence but does not confirm four of the alleged criminal incidents, including the public-toilet murder. Zhao is executed on July 30.

Key People

• Hugjiltu: An eighteen-year-old factory worker at the time of the crime, executed in 1996 and acquitted on retrial in 2014.
• Li Sanren and Shang Aiyun: Hugjiltu’s parents. They persistently sought redress after learning of Zhao’s confession in 2005 and later became the claimants for state compensation.
• Yang: The victim of the public-toilet murder. This episode follows the anonymized identification used in court materials.
• Zhao Zhihong: Arrested for a series of serious crimes, he voluntarily confessed to this murder. The trial and appellate courts found that he had committed it, but the Supreme People’s Court did not confirm that finding during death-sentence review.
• Tang Ji: A journalist with Xinhua’s Inner Mongolia bureau who wrote six internal reports on Hugjiltu’s case.
• Wang Zhenyu and Miao Li: Lawyers involved in seeking redress and reopening the case, through assistance with petitions and written recommendations respectively.
• Feng Zhiming: Head of the original investigative team and then deputy head of the Xincheng branch of the Hohhot Public Security Bureau. He was later convicted in separate proceedings of bribery and other crimes.
• Zhaoligetu: Hugjiltu’s older brother, who publicly expressed dissatisfaction with the accountability findings.

Relevant Decisions and Institutional Background

• Original Hugjiltu proceedings: Hohhot Intermediate People’s Court judgment （1996）呼刑初字第 37 号; Inner Mongolia Autonomous Region High People’s Court ruling （1996）内刑终字第 199 号.
• Hugjiltu retrial: Inner Mongolia Autonomous Region High People’s Court judgment （2014）内刑再终字第 00005 号, setting aside the original judgment and ruling and entering an acquittal.
• State compensation for Hugjiltu’s family: Inner Mongolia Autonomous Region High People’s Court decision （2014）内法赔字第 00001 号, awarding a total of 2,059,621.40 yuan.
• 1979 Criminal Procedure Law: The law governing the original proceedings. It already required emphasis on evidence rather than unquestioning reliance on confessions and prohibited unlawful evidence gathering.
• 1983 Decision on Procedures for the Speedy Trial of Criminals Who Seriously Endanger Public Security: Adjusted service periods and the deadlines for appeals and procuratorial protests in serious cases meeting specified conditions. It is central to understanding the procedural setting of severe and swift punishment.
• Changes to death-sentence approval: From 1983, high courts could approve some death sentences under authorization from the Supreme People’s Court. From 2007, approval of death sentences for immediate execution was exercised exclusively by the Supreme People’s Court.
• The 1996 and subsequent criminal procedure amendments: The 1996 amendments expressly provided for acquittal where evidence was insufficient. Later amendments further established the exclusion of illegally obtained evidence and the prohibition on compelling anyone to incriminate themselves.

Main References

The following materials are drawn from the Chinese manuscript for further reading. English renderings of source titles are provided for convenience.

• Judicial decisions: Retrial criminal judgment （2014）内刑再终字第 00005 号; Supreme People’s Court, “Typical Cases Marking the Thirtieth Anniversary of the Promulgation of the State Compensation Law” (May 15, 2024), including the principal points of the compensation decision in this case.
• Retrial and case history: People’s Court Daily, “Inner Mongolia High Court Acquits Hugjiltu on Retrial” and “Reopening a Long-Dormant Case: How Hugjiltu Was Acquitted on Retrial” (December 16, 2014); the special account “The Reversal of Hugjiltu’s Wrongful Conviction” in the 2015 Inner Mongolia Yearbook; China Law website, “The Hugjiltu Case: A Full Account.”
• Review of Zhao’s death sentence: Supreme People’s Court, “Strict Adherence to the Standard of Proof and Adjudication According to Law: Questions and Answers on the Review of Zhao Zhihong’s Death Sentence” (July 30, 2019).
• Compensation and accountability: People’s Daily, “Compensation for Emotional Distress in the Hugjiltu Case Complies with the Rules” (January 6, 2015); Xinhua, “Inner Mongolia Announces Accountability Findings in the Hugjiltu Case” (January 31, 2016); “Hugjiltu’s Family Refuses to Accept Accountability Findings” (February 1, 2016); “Hugjiltu’s Parents Cannot Accept Accountability Findings” (February 2, 2016).
• Feng Zhiming’s separate conviction: Xinhua, “Hugjiltu’s Mother Responds to Feng Zhiming’s Eighteen-Year Sentence: Accountability Still Falls Short”; The Beijing News, “Hugjiltu Investigative Team Leader Feng Zhiming Sentenced to Eighteen Years at First Instance” (both October 19, 2016).
• Legal and statistical background: The 1979 and 1996 Criminal Procedure Laws and related amendments; the 1983 expedited-trial decision; amendments to the Organic Law of the People’s Courts; the Supreme People’s Court’s 1997 work report. The figures cited for cases and people sentenced in 1996 are annual totals, not simply the results of a single campaign. The figures for severe sentences include death sentences with a reprieve.

Related Episodes

• 15 The Sun Zhigang Case: How Custody and Repatriation Came to an End : Another examination of how institutions correct errors through the experience of an individual. “Custody and investigation” in Hugjiltu’s case was a different measure from “custody and repatriation” in Sun Zhigang’s case.
• 10 You Have the Right to Remain Silent: How Miranda Warnings Changed American Justice : Further discussion of confessions, interrogation procedures, and individual rights.
• 16 Returning to a Country Is Not Coming Home: Japanese War Orphans’ State Compensation Lawsuits : A different historical setting in which to consider what state compensation can address and what it leaves unresolved.

This is the transcript of episode 18 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 July 1, 1997, the day Hong Kong returned to Chinese sovereignty, two girls born in mainland China boarded a bus in Shatoujiao, Shenzhen, bound for Hong Kong. They entered without passing through an immigration control point. Three days later, they went to the Immigration Department, identified themselves as the children of a Hong Kong permanent resident, and asked to exercise their right of abode in Hong Kong.

The sisters were Ng Ka Ling and Ng Tan Tan, born in 1987 and 1989 respectively. Their father had arrived in Hong Kong in 1976 and had lived there continuously for more than seven years. Under the Hong Kong Basic Law, which had come into force just days earlier, children in their position should have qualified as permanent residents.

The Immigration Department, however, refused to recognize their right of abode because they had not entered through the prescribed legal procedures and did not hold a mainland-issued Permit for Proceeding to Hong Kong and Macao, commonly known as a “one-way permit.” The department arrested the sisters and subsequently released them on bail.

This was the beginning of the famous Ng Ka Ling case. What started as a question about two children’s status grew into a dispute over the interpretation of the Basic Law and prompted government fears of large-scale immigration. Eventually, at the Hong Kong government’s request, the Standing Committee of the National People’s Congress—the NPCSC—intervened with an interpretation intended to settle the controversy.

In this episode, we begin with the Ng sisters and consider how, after the handover, two legal systems met within the constitutional framework of a single country.

The Right of Abode and Approval to Enter: Two Provisions Intersect

To understand the sisters’ position, we need to return to 1984, when China and Britain signed the Sino-British Joint Declaration. In it, the Chinese government set out its basic policies regarding Hong Kong and undertook to incorporate them into the Basic Law. The National People’s Congress subsequently enacted the Basic Law of the Hong Kong Special Administrative Region under Article 31 of the Constitution, establishing Hong Kong’s constitutional foundation after the handover.

Section XIV of Annex I to the Joint Declaration provided that Chinese nationals born in Hong Kong, Chinese nationals who had ordinarily resided there continuously for at least seven years, and the children of Chinese nationality born outside Hong Kong to people in those two categories would be Hong Kong permanent residents.

This provision became the basis for Article 24(2) of the Basic Law. That paragraph lists six categories of permanent residents. This episode concerns the first three:

1. Chinese citizens born in Hong Kong;
2. Chinese citizens who have ordinarily resided in Hong Kong continuously for at least seven years;
3. Children of Chinese nationality born outside Hong Kong to residents in the first two categories.

The Ng sisters claimed eligibility under the third category.

It is useful here to explain the “right of abode” in Hong Kong law. Inherited from the British legal tradition, it is not quite the same as what we usually mean by “permanent residence.” A US green card or permanent residence for a foreign national in China is an immigration status obtained through government approval. Hong Kong’s right of abode places greater emphasis on an existing legal entitlement: its holders may enter Hong Kong and remain without limits on the length or conditions of their stay. In other words, if someone is already a Hong Kong permanent resident under Article 24(2), the relevant documents should, in principle, provide evidence of that status rather than create the right itself. This distinction would become central to the dispute.

But the Basic Law contains another relevant provision. Article 22(4) states:

People from other parts of China must apply for approval to enter the Hong Kong Special Administrative Region. The number entering for settlement is to be determined by the competent central government authorities after consulting the Hong Kong government.

Under this provision, mainland residents wishing to settle in Hong Kong must apply to the mainland public security authorities for a one-way permit before they can lawfully enter Hong Kong.

That raises a question. Which provision applies to people like the Ng sisters, who live on the mainland but claim that they are already Hong Kong permanent residents? Should their right of abode under Article 24(2) be recognized first, or must they first comply with the approval requirements in Article 22(4)?

To give these arrangements more detailed effect, Hong Kong enacted two immigration amendment ordinances shortly after the handover. The No. 2 Ordinance, passed on July 1, 1997, required at least one parent to have held the right of abode at the time of a child’s birth for a child of Chinese nationality born outside Hong Kong to qualify under the third category. The No. 3 Ordinance, passed on July 10, introduced a “certificate of entitlement” requirement. This certificate was a document issued by the Immigration Department to establish the holder’s status. Under the rules then in force, a mainland applicant’s certificate had to be affixed to a one-way permit. Hong Kong’s verification of status was thus tied to the mainland’s system of approval for departure.

In the Immigration Department’s view, the Ng sisters could not exercise the right of abode in Hong Kong without both a one-way permit and a certificate of entitlement. The sisters argued that local legislation could not use additional documentary requirements to turn a right already conferred by the Basic Law into a benefit requiring government approval.

Many other mainland applicants faced similar difficulties. Some, like the sisters, had entered without approval. Others had arrived on valid documents and then overstayed. In still other cases, a parent had completed seven years of residence only after the child was born. These applicants brought proceedings against the Immigration Department and eventually appealed to Hong Kong’s Court of Final Appeal.

Ng Ka Ling and Chan Kam Nga: The Court of Final Appeal’s Judgments

On January 29, 1999, the Court of Final Appeal delivered its judgment in Ng Ka Ling. All five judges agreed, and Chief Justice Andrew Li delivered the judgment. The court decided another important case, Chan Kam Nga, that same day. The two cases are often discussed together in accounts of the right-of-abode controversy, but their central issues were not identical.

Let us begin with Ng Ka Ling. The Court of Final Appeal principally addressed two questions.

The first was: Do Hong Kong’s courts have authority to interpret the Basic Law? The judgment held that their judicial authority derived from the Basic Law. Under Article 158, the NPCSC authorizes Hong Kong’s courts to interpret provisions within the limits of the Region’s autonomy when adjudicating cases. Where a case requires the interpretation of provisions concerning affairs administered by the central government or the relationship between the central authorities and the Region, and that interpretation will affect the judgment, the Court of Final Appeal must seek an NPCSC interpretation before delivering a final judgment that cannot be appealed.

This created a procedural difficulty. Article 24 concerned the status of Hong Kong residents, a matter within the Region’s autonomy that Hong Kong’s courts could interpret themselves without a referral. Article 22, however, appeared in the chapter on relations between the central authorities and the Region. If the conditions in Article 158 were met, a referral to the NPCSC would be required. With both provisions involved, should the court seek an interpretation?

The Court of Final Appeal held that the answer depended on which provision the case predominantly required it to interpret. In its view, these cases were fundamentally about the right of abode protected by Article 24, rather than the entry procedures prescribed by Article 22. Hong Kong’s courts could therefore interpret the provisions themselves without referring the matter to the NPCSC. This conclusion later became a major point of contention.

The second question was: What method should Hong Kong’s courts use to interpret Article 24? The judgment adopted a “purposive approach”: understanding a provision’s meaning by reference to its intended legislative purpose. Since Article 24 was principally intended to protect the fundamental rights of Hong Kong residents, it should receive a generous interpretation that afforded those rights the fullest protection.

Following this reasoning, the court held that the right of abode included the right to enter. A person who was already a Hong Kong permanent resident could not also be classified as someone “from other parts of China” under Article 22 and subjected to approval requirements when entering Hong Kong. Local legislation making a one-way permit a prerequisite for exercising the right of abode therefore contravened Article 24.

The court did not, however, deny the Immigration Department’s authority to verify a person’s status. The government could investigate claims to the right of abode and require claimants to obtain certificates of entitlement. It simply could not make a mainland one-way permit a prerequisite for recognizing that right. The court thus distinguished Hong Kong’s checks on entry from the mainland’s administration of departure.

The central logic of Ng Ka Ling was now clear. The Court of Final Appeal considered the department’s insistence that the sisters produce one-way permits inconsistent with the purpose of Article 24(2). As permanent residents in the third category, the sisters’ entry into Hong Kong should not be restricted by those entry formalities.

Now consider Chan Kam Nga. This case raised a different question. What if a parent had not acquired the right of abode when the child was born, but completed seven years of continuous residence afterward? Could the child still qualify as a permanent resident under the third category?

The Court of Final Appeal answered yes. It held that Article 24 did not impose a requirement concerning when a third-category child must have been born. Nor was it consistent with the purpose of maintaining family unity to protect only children born after their parents acquired the necessary status while excluding those born earlier. The additional restriction tied to the time of birth was therefore declared invalid.

To put the distinction simply, Ng Ka Ling addressed whether third-category children needed one-way permits; Chan Kam Nga addressed the significance of when they were born.

The Dispute over Review Powers and the Clarification Judgment

There was, however, a more fundamental issue. Both cases concerned immigration amendment ordinances enacted by the Provisional Legislative Council shortly after the handover. The establishment of that body rested on a series of decisions by the National People’s Congress, its Standing Committee, and the Hong Kong Preparatory Committee operating under them. To rule on whether these ordinances contravened the Basic Law, the court also had to examine the legality of the Provisional Legislative Council itself. This brought it to a more sensitive question: If that council owed its existence to decisions made by the central authorities, could Hong Kong’s courts review acts of the NPC and its Standing Committee?

The Court of Final Appeal held that Hong Kong’s courts could examine whether acts of the NPC and its Standing Committee were consistent with the Basic Law and declare them invalid if they were not. Such an interpretation might make sense within a common-law context. In China, however, the NPC and its Standing Committee occupy the highest level of state power. Viewed through that hierarchy, the idea of a regional court in Hong Kong reviewing decisions of the central authorities was quite extraordinary. This became the spark that ignited the wider controversy.

It is important to recognize that the court ultimately upheld the legality of the Provisional Legislative Council in these cases. It did not actually invalidate any decision of the NPC or its Standing Committee. What provoked the strong reaction was the judgment’s broad declaration of judicial authority.

After the judgment appeared, some mainland participants in the drafting of the Basic Law and legal scholars publicly criticized it, arguing that it effectively placed Hong Kong’s courts above the NPC. Others in Hong Kong supported the judgment as a serious attempt to discharge the courts’ responsibility to uphold the Basic Law. A dispute about a passage in a judgment quickly became a dispute about the entire constitutional order.

On February 24, 1999, the Director of Immigration applied to the Court of Final Appeal for clarification of the passages concerning the NPC and its Standing Committee. Courts do not ordinarily return to explain a judgment once it is final. The Court of Final Appeal itself acknowledged that entertaining this application was exceptional.

On February 26, the court issued a short clarification judgment. It reiterated that Hong Kong’s judicial authority came from the Basic Law and that final authority to interpret that law belonged to the NPCSC. The courts could not question the Standing Committee’s authority to issue interpretations under Article 158, nor could they question the authority of the NPC and its Standing Committee to act in accordance with the Basic Law.

The clarification nevertheless left the original outcome unchanged and did not withdraw the earlier discussion of review powers. For the Hong Kong government, the judgments also posed a more immediate question: how many people would now qualify to come to Hong Kong?

1.67 Million People and the Government’s Four Options

The Court of Final Appeal’s judgments greatly expanded the scope of the third category of permanent residents. If one parent was a Hong Kong permanent resident, a child would automatically become a permanent resident regardless of when the child was born or whether a mainland one-way permit had been obtained. This raised the prospect that immigration previously constrained by entry policy could surge almost overnight.

In April 1999, the Hong Kong government presented survey findings to the Legislative Council. Applying the court’s interpretation, the potential number of eligible third-category permanent residents over the following decade or more could reach 1.67 million. Hong Kong’s entire population at the time was only a little over six million. For a city that had just experienced the Asian financial crisis, the figure was alarming: it suggested pressure on employment, education, housing, health care, and much else.

On May 18, 1999, the government submitted a paper to the Legislative Council entitled Right of Abode: The Solution. It set out four possible responses.

The first was to admit everyone who qualified. But, as discussed above, Hong Kong’s social resources could not bear immigration on that scale.

The second was to wait for the Court of Final Appeal to reverse its position in a future case. There was no guarantee, however, that a suitable case would arise soon, or that the court would change its mind even if one did. More fundamentally, the common-law commitment to stability in precedent meant that merely identifying problems with an earlier judgment was not sufficient reason to overturn it. If the court reversed itself within months under pressure from circumstances, its authority could suffer instead.

The third was to amend Article 24. That presented several difficulties. The power to amend the Basic Law belonged to the NPC, whose next annual session would not take place until the following March. Large numbers of migrants would inevitably seek to enter before then. Article 24 also originated in the annex to the Sino-British Joint Declaration, so amending it could create diplomatic problems. And casually changing a constitutional document that had been in force for less than two years would hardly promote stability and unity in the Region.

The fourth option was to ask the NPCSC to interpret the Basic Law. The Hong Kong government described this as the most decisive, rapid, and comprehensive solution available. Interpretation, it argued, was not amendment: it merely clarified the original legislative intent. The power to interpret the Basic Law already belonged to the Standing Committee.

The paper also acknowledged the risks: an NPCSC interpretation might be viewed by some countries and individuals as undermining the rule of law in Hong Kong, depriving the courts of final adjudication, interfering with judicial independence, and weakening the Region’s autonomy. The government recognized that perception but argued that the Court of Final Appeal had already accepted, in its February 26 clarification, that the Standing Committee’s interpretive authority could not be questioned. Seeking an interpretation was therefore part of the existing constitutional structure.

On May 20, the Hong Kong government formally asked the State Council to seek an interpretation. The State Council subsequently submitted a motion to the NPCSC. On June 26, at its tenth meeting, the Standing Committee of the Ninth NPC adopted an interpretation of Articles 22(4) and 24(2)(3). This was its first interpretation of Hong Kong’s Basic Law.

The First NPCSC Interpretation: Procedure, Eligibility, and Effect

The interpretation began by stating that the Basic Law provisions relied on in the Court of Final Appeal’s judgments concerned affairs administered by the central authorities and relations between the central authorities and the Region. The court should therefore have sought an interpretation under Article 158(3) before judgment, and its own interpretation did not conform to the original legislative intent. After consulting the Basic Law Committee, the Standing Committee issued its interpretation under Article 67(4) of the Constitution and Article 158(1) of the Basic Law.

Its substantive content had three main elements.

First, “people from other parts of China” in Article 22(4) meant people from the provinces, autonomous regions, and municipalities directly under the central government. This included children of Chinese nationality born on the mainland to Hong Kong permanent residents. They had to obtain approval from the relevant authorities in accordance with the law and hold valid documents to enter Hong Kong. Simply claiming to meet the conditions for permanent residence did not exempt them from that process.

Second, the relevant parental qualification for third-category permanent residence had to exist when the child was born. More precisely, at least one parent had to meet the conditions in Article 24(2)(1) or (2) at that time. Acquiring the right of abode after the birth did not enable a parent to pass that eligibility on to the child.

Finally, the interpretation addressed its legal effect. Hong Kong’s courts were to follow it when applying the relevant provisions in the future. But the right of abode already acquired by the parties to the cases decided on January 29, 1999, would remain unaffected. The Ng sisters’ victory was preserved, while the original judgments’ interpretations of the one-way permit requirement and the time-of-birth condition could no longer serve as a basis for others to obtain the same result.

Lau Kong Yung: Applying the NPCSC Interpretation

What, then, of people who had arrived before the interpretation and were already asserting rights on the basis of the Court of Final Appeal’s judgments? That question soon arose in Lau Kong Yung.

Lau Kong Yung and sixteen other mainland residents were children within the Basic Law’s third category of permanent residents. None held a one-way permit or certificate of entitlement, but all had arrived before January 29, 1999, the date of the court’s judgments. Five had at least one parent who was already a permanent resident when they were born. The parents of the other twelve acquired the relevant status only afterward.

In February 1999, the Immigration Department issued removal orders against them. They sought judicial review and eventually appealed to the Court of Final Appeal. While the proceedings were underway, the NPCSC issued its June 26 interpretation.

The court delivered judgment on December 3. It unanimously confirmed that the NPCSC had authority to interpret the Basic Law, that this authority did not depend on a referral by the Court of Final Appeal, and that its interpretations bound Hong Kong’s courts.

As to its effect over time, the court held that the interpretation explained what the relevant provisions had meant since the Basic Law came into force. In other words, those provisions were to be understood in accordance with the NPCSC interpretation from July 1, 1997, onward. The applicants could not be exempted merely because they had arrived before the interpretation was issued.

The judgment did not, however, mean that all seventeen people were immediately removed. The Immigration Department had undertaken to the court that it was reconsidering whether to rescind their removal orders, and that it would refrain from detaining or removing the relevant individuals pending their commencement of further proceedings within the specified period. The court expressly preserved the effect of those undertakings.

The case therefore established the interpretation’s binding force and its temporal effect without ordering the indiscriminate, immediate removal of everyone who failed to qualify for the right of abode. Further litigation followed over who counted as a protected party and what promises the government had previously made.

How Final Adjudication and Final Interpretive Authority Coexist

We can now return to the fundamental question. On one side stands Hong Kong’s Court of “Final” Appeal; on the other, the NPCSC holds “final” interpretive authority. How can the two coexist?

The constitutional provisions do distinguish between final adjudication and interpretation. Final adjudication determines where a case ends. Under the Basic Law, a case ends at Hong Kong’s Court of Final Appeal, with no further appeal to a mainland court. Nor does the NPCSC act as a higher court rehearing the evidence and facts of an individual case. Interpretive authority, by contrast, determines which reading of the Basic Law ultimately binds Hong Kong’s courts when its meaning is disputed.

Hong Kong’s courts also retain authority to interpret provisions within the Region’s autonomy when deciding cases. They do not have to obtain the NPCSC’s views every time. The Court of Final Appeal is required to seek an interpretation only when specified conditions are met.

But distinctions on paper cannot remove every practical tension. A judgment determines the immediate parties’ success or failure, yet it also provides a basis on which others organize their lives and assess their rights. If the executive can initiate a separate interpretive process after losing a case, and that interpretation applies to earlier events, reliance on judicial precedent may be affected even if the original litigants keep their victory. Supporters see this as precisely the allocation of powers established in advance by the Basic Law. Critics worry that the timing and procedures for initiating an interpretation may unsettle judicial decision-making and public expectations. The dispute is therefore about more than whether interpretive authority exists; it is also about how that authority should be exercised.

Later practice showed that this relationship would require continued adjustment. In 2011, in a case involving the state immunity of the Democratic Republic of the Congo, the Court of Final Appeal decided to seek an interpretation under Article 158(3). The NPCSC issued an interpretation that August, after which Hong Kong’s courts continued the adjudication of the case. This was the first time the Court of Final Appeal had itself sought an NPCSC interpretation.

The 1999 interpretation did not create an interpretive power out of thin air. It brought a mechanism already provided for in the Basic Law into a concrete and acute conflict, making the scope of that power, the ways it could be initiated, and its effect over time unavoidable questions for the future.

Families on Either Side of the Border

Finally, let us return to the Ng sisters. They were among the small number of people specifically protected by the June 26, 1999, interpretation. They could remain lawfully in Hong Kong and live with their father.

Others in similar circumstances did not obtain the outcome they wanted. After the interpretation, their prospects became more complicated. Some met the revised understanding of the eligibility rules but still had to wait for approval. Others no longer qualified under the third category because their parents had acquired the relevant status too late, and had to look for other lawful routes to Hong Kong. Still others continued litigation over existing judgments and government undertakings.

People waiting for the same thing—family reunion—ended up on different paths because of when they were born, how long their parents had lived in Hong Kong, or even when they entered litigation. Countless families between Hong Kong and the mainland have lived this way: one parent goes to Hong Kong first, the children remain on the mainland, and family life is divided by a border crossing. For them, “one country, two systems” is a daily reality. Who has authority to interpret the law may sound like an abstract question of constitutional theory. For a particular family, it can determine when children are finally able to live with their parents.

ShowNotes

Key Timeline

• 1990-04-04: The NPC adopts the Hong Kong Basic Law, to take effect at the handover on July 1, 1997. On the same day, it decides to establish the Basic Law Committee, which is to be consulted before the NPCSC interprets the Basic Law under Article 158(4).
• 1993: The Sino-British Joint Liaison Group reaches an understanding on Article 24(2)(3): at least one parent must have held the right of abode at the time of the child’s birth. This becomes an important piece of background material in the 1999 dispute over original legislative intent.
• 1996-08-10: At its fourth plenary meeting, the Preparatory Committee for the Hong Kong Special Administrative Region adopts its Opinions on the Implementation of Article 24(2) of the Basic Law, retaining the understanding tied to the time of birth. The 1999 interpretation identifies these opinions as an expression of the original legislative intent.
• 1997-07-01 and 07-10: The Provisional Legislative Council passes the Immigration (Amendment) (No. 2) Ordinance and Immigration (Amendment) (No. 3) Ordinance, introducing the parental-status-at-birth requirement and the certificate of entitlement scheme for third-category children. The No. 3 Ordinance takes effect retrospectively from July 1.
• 1997-07-04: Ng Ka Ling and Ng Tan Tan’s claims to the right of abode are rejected by the Immigration Department. They are arrested and released on bail. Other mainland-born applicants are also refused around this time.
• 1999-01-29: The Court of Final Appeal delivers its judgments (FACV 14, 15, and 16/1998), declaring restrictions in local legislation—including the time-of-birth requirement, exclusion of children born outside marriage, one-way permit prerequisite, and retrospective provisions—unconstitutional. The judgment also asserts that Hong Kong’s courts can, in principle, review acts of the NPC and its Standing Committee.
• 1999-02-24 and 02-26: Following the Director of Immigration’s application, the court issues a clarification judgment (FACV 14A/1998), accepting that it cannot question the NPCSC’s authority to interpret under Article 158.
• 1999-04-28: The government reports Census and Statistics Department survey findings to the Legislative Council. Under the judgments’ interpretation, the potentially eligible population over the following decade or more could reach 1.67 million.
• 1999-05-18 to 05-20: The government submits Right of Abode: The Solution, setting out four options. The Legislative Council passes a supporting motion by a substantial majority, and the government formally asks the State Council to seek an interpretation.
• 1999-06-26: The Standing Committee of the Ninth NPC, at its tenth meeting, adopts an interpretation of Articles 22(4) and 24(2)(3)—its first interpretation of the Basic Law.
• 1999-07-16: The Legislative Council passes a resolution amending Schedule 1 to the Immigration Ordinance. The resumption of certificate of entitlement application procedures is subsequently gazetted.
• 1999-12-03: In Lau Kong Yung and the related appeal involving seventeen applicants (FACV 10 and 11/1999), the Court of Final Appeal holds that the interpretation is constitutional, binding on Hong Kong’s courts, and effective from July 1, 1997, and upholds the removal orders.
• 2011-08-26: Following a referral by the Court of Final Appeal in the Congo case, the NPCSC interprets Articles 13(1) and 19. This is the first use of the judicial referral procedure under Article 158(3).

Key People

• Ng Ka Ling and Ng Tan Tan — The principal litigants: sisters born on the mainland in 1987 and 1989, whose father settled in Hong Kong in 1976. They arrived on July 1, 1997, and their claims to the right of abode were refused. The 1999 interpretation expressly preserved the right of abode they had acquired. They belonged to the category of parties to the relevant judgments; that protection did not automatically extend to everyone who had claimed the right of abode.
• Chan Kam Nga — A litigant in the case bearing that name, decided by the Court of Final Appeal on January 29, 1999, alongside Ng Ka Ling. The central question was whether a child could qualify under the third category of permanent residents when a parent acquired the right of abode only after the child’s birth. The court answered yes, but the subsequent NPCSC interpretation required the relevant parental status to exist at birth.
• Lau Kong Yung — One of seventeen mainland applicants in the case bearing that name. All had arrived before the January 29, 1999, judgments without one-way permits or certificates of entitlement and later challenged their removal orders. On December 3, 1999, their case led the Court of Final Appeal to confirm the NPCSC interpretation’s binding force and temporal effect, while preserving the Immigration Department’s earlier undertakings to the court.
• Andrew Li — Hong Kong’s first Chief Justice of the Court of Final Appeal after the handover. He wrote both the January 29 judgment and the February 26 clarification, with all five judges agreeing.
• Tung Chee-hwa — The Chief Executive at the time. In May 1999, he decided to seek assistance from the central authorities and submitted a report under Articles 43 and 48(2), leading the State Council to request an interpretation.
• Regina Ip — The Secretary for Security at the time. On July 16, 1999, she moved the amendment to Schedule 1 to the Immigration Ordinance in the Legislative Council and explained the Immigration Department’s approach following the interpretation.

Key Concepts

• Right of abode — A permanent resident’s right to enter Hong Kong, remain without conditions of stay, and be free from removal. The Court of Final Appeal described it as a core right of permanent residents, inherently including entry.
• The third category of permanent residents — Article 24(2)(3): children of Chinese nationality born outside Hong Kong to residents in categories (1) and (2). The central disputes concerned whether the parent had to hold the necessary status when the child was born and whether exercising the right of abode depended on mainland approval.
• One-way permit and certificate of entitlement — A one-way permit is issued by the mainland public security authorities to authorize departure for settlement in Hong Kong. A certificate of entitlement is issued by Hong Kong’s Director of Immigration to verify permanent resident status acquired by descent and must be affixed to a one-way permit or another relevant travel document.
• Original legislative intent — The interpretive basis advanced by the NPCSC and the Hong Kong government: a provision’s meaning was established when it was enacted, as reflected in its drafting background—the Joint Declaration, Joint Liaison Group understanding, and Preparatory Committee opinions. Interpretation merely clarifies that original meaning. In 1999, this approach came into direct conflict with the common-law tradition of textual interpretation.
• Final adjudication and final interpretive authority — Article 158(1) vests the power to interpret the Basic Law as a whole in the NPCSC. Paragraphs (2) and (3) authorize Hong Kong’s courts to interpret it in adjudication and require referrals in specified circumstances. The division established after these cases was that adjudication ends in Hong Kong, while final interpretation of the Basic Law rests with the NPCSC.
• Parties to the relevant proceedings — Those whose acquired rights were preserved by the 1999 interpretation: the parties to the January 29 judgments. The boundaries of this category generated further litigation.

Key Cases

• Ng Ka Ling and Ng Tan Tan (represented by their father as next friend) v Director of Immigration (Court of Final Appeal, FACV 14/1998, heard together with FACV 15 and 16/1998, January 29, 1999) — The Court of Final Appeal interprets the Basic Law for the first time, declares relevant restrictions in the local immigration amendment legislation unconstitutional, and explains Hong Kong’s judicial power to review local legislation for consistency with the Basic Law. Note: the two applicants’ Chinese names appear in the official Chinese-language case compilation. The Chinese names of the other applicants were not found in the official Chinese materials checked when preparing the original text and were therefore omitted from its narrative.
• Ng Ka Ling and Others v Director of Immigration (No. 2) (Court of Final Appeal, FACV 14A/1998, February 26, 1999) — An exceptional clarification after judgment, accepting that the court cannot question the NPCSC’s authority to interpret under Article 158. It leaves the substantive outcome of the January 29 judgment unchanged.
• Lau Kong Yung and Others v Director of Immigration (Court of Final Appeal, FACV 10 and 11/1999, December 3, 1999) — The court first confirms that the June 26 interpretation is constitutional, binds Hong Kong’s courts, and applies from the Basic Law’s commencement. Removal orders against seventeen applicants who arrived before the January 29 judgments—five of whom had a parent with permanent resident status at birth—are upheld because they lacked one-way permits and certificates of entitlement.

Key Provisions and Legal Documents

• Article 24(2)(3) of the Hong Kong Basic Law (adopted April 4, 1990; effective July 1, 1997) — Defines the third category of permanent residents, at the center of the litigation and interpretation.
• Article 22(4) of the Hong Kong Basic Law — Requires people from other parts of China to obtain approval to enter Hong Kong, with settlement numbers determined by the competent central authorities after consulting the Hong Kong government. The 1999 interpretation confirms that this includes mainland-born children of permanent residents.
• Article 158 of the Hong Kong Basic Law — Allocates interpretive authority: paragraph (1) vests it in the NPCSC; paragraph (2) authorizes the courts to interpret provisions within the Region’s autonomy; paragraph (3) requires referrals by the Court of Final Appeal for provisions concerning central affairs or central–regional relations in the specified circumstances, while preserving judgments previously rendered; paragraph (4) requires prior consultation with the Basic Law Committee.
• Article 67(4) of the Constitution — Gives the NPCSC authority to interpret laws. Together with Article 158(1), it provides the legal basis for the 1999 interpretation.
• The NPCSC Interpretation of Articles 22(4) and 24(2)(3) of the Basic Law (June 26, 1999) — The first NPCSC interpretation: confirms that mainland-born children must obtain approval to enter and limits third-category eligibility to children with at least one parent meeting category (1) or (2) at birth. It preserves the right of abode acquired by the parties to the January 29 judgments.
• Immigration (Amendment) (No. 2) Ordinance and Immigration (Amendment) (No. 3) Ordinance (Provisional Legislative Council, 1997) — Tie third-category eligibility to parental status at birth and establish the certificate of entitlement scheme. Several provisions are declared unconstitutional on January 29, 1999. The system is restored following the Legislative Council’s July 1999 resolution amending Schedule 1 to the Immigration Ordinance.
• Opinions on the Implementation of Article 24(2) of the Basic Law (fourth plenary meeting of the Preparatory Committee for the Hong Kong Special Administrative Region, August 10, 1996) — The text identified in the 1999 interpretation as embodying the original legislative intent.

Related Episodes

• 13 China’s “First Constitutional Case”: Qi Yuling’s Stolen Right to Education — Continues the discussion of how constitutional rights can be realized through adjudication. Qi Yuling concerned whether mainland courts could apply the Constitution directly. This episode asks how Hong Kong’s constitutional review powers coexist with the NPCSC’s final interpretive authority. The two paths share a structural difficulty.
• 08 A Supreme Court Caught in the Middle: The Birth of Judicial Review in America — An institutional comparison: in Marbury, the US Supreme Court asserted the power of constitutional review through an individual case. Hong Kong’s Court of Final Appeal derives its review authority from express authorization in the Basic Law, while final authority to interpret that law belongs separately to the NPCSC.

This is the transcript of episode 17 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 morning of October 28, 1977, more than two thousand Hong Kong police officers and members of their families gathered at Police Headquarters in Wan Chai to demonstrate. They submitted a petition signed by over 11,000 officers, demanding that the Commissioner of Police press the government to halt the Independent Commission Against Corruption’s investigations into corruption within the force.

By noon, more than one hundred officers had arrived at the headquarters of the ICAC Operations Department in Hutchison House, Admiralty. They smashed the glass doors of the ICAC offices, forced their way inside, and assaulted ICAC staff. Someone called the police, but the officers involved had dispersed before investigators arrived. Five ICAC officers were injured and left bleeding, while the incident sent shock waves and fear through Hong Kong society.

This was the famous “Police–ICAC Confrontation” in Hong Kong history. The police and the ICAC were both government law-enforcement bodies that ordinarily should have cooperated with and checked each other. A direct clash as intense as the one in 1977 was exceedingly rare.

What caused this confrontation? What institutional problems lay behind it? In this episode, we will take a close look at those questions.

“Tea Money” and the Failure of Internal Police Anti-Corruption

To understand the real cause of the Police–ICAC Confrontation, we need to go back more than a decade, to Hong Kong in the 1960s. Hong Kong was then a British colony governed by the colonial administration. For various historical reasons, large numbers of people from mainland China had moved into the city, placing public resources under acute strain. In this setting, public officials who controlled scarce resources began extracting rents on a broad scale, and serious corruption took hold throughout the government.

At the time, ordinary people could be asked for bribes when applying for public housing, seeking a place at school, going to a hospital, or even calling the fire brigade. These payments were known as “tea money.” Ambulance workers might demand tea money before taking a patient to hospital; firefighters might demand it before turning on their hoses. For ordinary Hong Kong residents, these public services were already funded by taxes. Now they had to pay extra simply to receive them. Over time, public resentment inevitably mounted.

Among government bodies, corruption was most severe in the Hong Kong Police Force. On the one hand, the force maintained public order for the colonial government and had been granted the title “Royal” by the British monarch. On the other, its powers were often used to exploit residents, and some officers even protected vice, gambling, and drug operations. Certain police officials amassed enormous fortunes through corruption and lived in extreme luxury. Much of the disorder portrayed in Hong Kong films was inspired by this period.

The colonial government had in fact enacted the Prevention of Corruption Ordinance as early as 1948. Yet the body responsible for enforcing it was the police force’s own Anti-Corruption Office. Corruption within the force was so entrenched that a sufficiently thorough investigation of one officer might implicate the investigator as well. Internal police anti-corruption efforts therefore had very limited effect. For various reasons, many officers accommodated themselves to the corrupt system and joined in giving and taking bribes.

This was a principal reason corruption became so serious within the police. When it came to corruption, the force was both player and referee. There was no independent outside body to supervise it.

Godber’s Escape and the Collapse of Institutional Trust

In 1971, seeking to intensify its fight against corruption, the Hong Kong government secured passage of the Prevention of Bribery Ordinance in the Legislative Council. That same year, the police Anti-Corruption Office received a tip from Canada about a suspicious remittance of C$12,000 from Hong Kong. The recipient was Peter Godber, then a chief superintendent of police.

Godber was British. He had served in the Royal Navy during the Second World War and came to Hong Kong in 1952 as a probationary police officer. He performed well, received repeated commendations, and rose through the ranks to chief superintendent. Over many years, he used his position to accumulate a large fortune through corruption, yet he kept a low profile and cultivated an outwardly frugal image. He opened a Canadian bank account under an assumed name and even invented a diplomatic identity for himself.

After receiving the tip, the Anti-Corruption Office began investigating Godber under the codename “Havana.” The inquiry stalled for lack of further leads. As noted above, however, an investigation conducted within the police could not be kept entirely secret from a chief superintendent. Godber soon learned that he was under investigation. In January 1972, he applied for early retirement on the ground that he and his wife were in poor health. Remarkably, the police approved the application.

In April 1973, less than three months before Godber was due to retire, the Commissioner of Police received another tip alleging that Godber was transferring large sums overseas. With the assistance of prosecutors from the Legal Department, the Anti-Corruption Office spent days making inquiries at all 480 licensed banks in Hong Kong. It eventually found that Godber had sent about HK$650,000 abroad over the preceding five years—nearly the whole of the salary he had earned during more than two decades in the force.

Although the police did not yet have enough evidence to prove that Godber had accepted bribes, his retirement and departure from Hong Kong were drawing near. The police and the Legal Department decided to act first. In June 1973, the Attorney General signed warrants to search Godber’s home and car. The searches uncovered a large collection of documents detailing bribes he had received from criminal organizations. According to those records, he held unexplained deposits in several countries worth as much as HK$4.37 million—six times his total earnings from the police.

At the same time, the police invoked section 10 of the Prevention of Bribery Ordinance for the first time, requiring Godber to account within seven days for the source of his assets and explain why they were “disproportionate to his official emoluments.” Before the ordinance was enacted, convicting an official with vast unexplained wealth required the prosecution not only to prove that the person possessed assets disproportionate to their income, but also to connect those assets to specific acts of corruption. The evidential burden lay entirely with the prosecution. Section 10 changed that position. Once the prosecution established the necessary foundational facts, the accused official had to provide a satisfactory explanation for the lawful source of the assets or could still be convicted. In this way, part of the burden that had previously fallen on the prosecution shifted to the defense, strengthening the law against corruption.

The police planned to arrest Godber formally when the seven-day period expired and alerted airport control points to watch for him. Yet there was still a gap between completing the investigation and taking action. On June 8, 1973, Godber used an airport security pass issued to police officers to flee through Singapore to Britain.

All Hong Kong now witnessed the irony: a chief superintendent under investigation had used privileges available inside the police to escape the city. Students and residents began gathering in Victoria Park with a single slogan: “Fight Corruption, Arrest Godber.” In the public’s eyes, years of relying on the police to investigate themselves had produced nothing. Even if the government enacted a new law, the old institution was still responsible for enforcing it. Nothing fundamental had changed.

Godber’s escape brought this longstanding institutional failure to the center of public attention. The government finally realized that as long as the anti-corruption body remained inside the police force, the public would no longer believe that it was serious about fighting corruption.

The Creation of the ICAC and Godber’s Return

Under mounting public pressure, Governor Murray MacLehose formally proposed to the Legislative Council in October 1973 that Hong Kong establish an independent anti-corruption body. It would report directly to the governor and specialize in investigating corruption. In February 1974, the Legislative Council enacted the Independent Commission Against Corruption Ordinance. The ordinance took effect two days later, formally establishing the ICAC, and the work and files of the police Anti-Corruption Office began to be transferred. The Commissioner of the ICAC was appointed by and answerable to the governor. The Commission had independent investigative powers but no power to prosecute; decisions on prosecution remained with the Attorney General, acting on the evidence and the law.

Under the ordinance then in force, ICAC investigators could arrest a suspect without a warrant when they had reasonable grounds for suspicion, but could not detain the suspect at the ICAC for longer than forty-eight hours. Together with powers under the Prevention of Bribery Ordinance and other laws, investigators could conduct searches, seize evidence, and obtain government records.

Once the ICAC was established, its first priority was to bring Godber back to face justice and demonstrate the government’s resolve to fight corruption. Britain, however, had no offense equivalent to Hong Kong’s law on assets disproportionate to official emoluments, and at first the Hong Kong government could not secure Godber’s extradition. The British government then indicated that it could cooperate if a witness was prepared to testify that Godber had taken bribes in Hong Kong.

Before long, Ernest Hunt, a former expatriate police superintendent then serving a prison sentence for corruption, told the ICAC that he was willing to provide evidence against Godber. On the basis of his testimony, the ICAC established that in March 1971 Godber had accepted a HK$25,000 bribe from a subordinate superintendent in exchange for helping him obtain the post of divisional superintendent in Wan Chai. Armed with that testimony, the ICAC formally requested Godber’s extradition. British police arrested him in April 1974. After months of hearings and appeals, he was finally extradited to Hong Kong in January 1975.

On February 25, 1975, a Hong Kong court convicted Godber of one count of conspiracy and one count of accepting a bribe, sentencing him to four years’ imprisonment. The sentence was limited to four years because the evidence then available could establish only the HK$25,000 bribe. Even so, bringing a man who had fled to Britain back to face justice represented a major advance for Hong Kong at the time.

After judgment was delivered, Godber was placed in a prison van and taken away to serve his sentence. Large crowds gathered along the route, requiring additional police to maintain order. This was the first major case solved after the ICAC’s creation and a milestone in Hong Kong’s anti-corruption history. From then on, the Commission gradually built authority and public trust. In its first ten months alone, it received more than 5,900 reports of corruption.

The Yau Ma Tei Fruit Market Case and Syndicated Corruption

The ICAC had made its name, but catching a single retired expatriate senior officer was not enough to transform Hong Kong’s culture of corruption. It therefore turned its attention to the syndicated corruption that had long existed within the police. The case that ultimately triggered the Police–ICAC Confrontation was the sensational Yau Ma Tei Fruit Market Case.

Beginning in March 1975, a drug syndicate operated around the Yau Ma Tei Fruit Market. To evade police searches, its members concealed drugs at scattered locations and gave buyers coded instructions for collecting them. The transactions appeared highly discreet. Yet no operation could survive for long in such a busy district unless the police responsible for enforcing the law agreed to look the other way.

The syndicate therefore bribed local officers regularly. These payments were known as “squeezes.” Some officers collected the money themselves, others received it through intermediaries, and some even introduced their replacements to the traffickers before being transferred. In this way, the protective arrangement survived changes in personnel, and the two sides gradually formed a stable network of shared interests.

In August 1976, the police Narcotics Bureau raided twenty-three locations in Kowloon and the New Territories and arrested the leaders and principal members of the drug syndicate. During the searches, officers also found several ledgers recording more than 2,600 illicit payments totaling over HK$700,000. Measured against prices at the time, the syndicate was paying an average of about HK$10,000 a day to bribe law-enforcement officers.

The drug trial concluded in May 1977. Three participants in the trafficking operation agreed to become accomplice witnesses and identify the officers who had taken illicit payments. For several months, ICAC investigators went to the prison and recorded more than four hundred pages of statements. They then used the dates, amounts, and nicknames in the ledgers to identify the corresponding officers one by one. They arranged photographic identifications and cross-checked what different witnesses said against bank records and the ledgers.

This was the crucial difference between syndicated corruption and an ordinary bribery case. An ordinary case usually seeks to prove that a particular person took money on a particular occasion. In the Fruit Market Case, the ICAC had to prove the existence of an entire protection network that operated continuously. One person collected payments, another passed on warnings, and another let the traffickers through during patrols. They might not have dealt with one another directly, but together they sustained the same illegal network.

After months of investigation, more than one hundred ICAC investigators assembled at the Operations Department before dawn on September 19, 1977. Divided into more than fifty teams, they simultaneously made arrests at police stations and police quarters. The ICAC conducted a second operation two days later. Across the two operations, it arrested 87 police officers suspected of accepting bribes. By October, the Commission had identified 262 serving or former civil servants, of whom 119 had been arrested and 84 interviewed.

It is important to note that these people were subjects of investigation; that does not mean they were all ultimately convicted in court. For the police force, however, the scale of the inquiry was already deeply unsettling. The ICAC was no longer pursuing one fugitive chief superintendent. It had begun dismantling a far-reaching corruption network that remained embedded inside the force.

The Police–ICAC Confrontation and the Partial Amnesty

The mass arrests quickly provoked a fierce backlash inside the police. Many officers believed that the ICAC’s investigative methods were too aggressive and that testimony from convicted prisoners was unreliable. Still more alarming was the fact that the Commission was investigating not just a handful of officers, but informal practices that had taken root in the force decades earlier. If the inquiry continued, no one knew how far it would reach.

Some officers drafted a petition demanding that the Commissioner of Police press the government to end the ICAC investigation of the force. Hong Kong had about 17,000 police officers at the time, and more than 11,000 of them signed. In other words, over 60 percent of the force—whether or not they were implicated in corruption—expressed opposition to the ICAC’s approach.

On October 28, 1977, the Police–ICAC Confrontation reached its climax in the incident described at the beginning of this episode. For the colonial government, ending the investigation then would have destroyed the ICAC’s independence and credibility. But if it made no concession, growing antagonism within the police might jeopardize Hong Kong’s most basic public order.

In the days after the confrontation, the colonial government held a series of emergency meetings. On November 5, it finally announced a policy that became known as the “partial amnesty”: as a rule, the ICAC would no longer investigate corrupt conduct that had occurred before January 1, 1977.

The word “amnesty” did not mean that every officer’s past conduct was wiped clean. Legally, the measure was closer to an administrative directive from the governor ordering the ICAC to narrow the scope of its investigations into old cases. The Commission could continue investigating people who had already been interviewed and clearly confronted with suspected offenses, people for whom arrest warrants had been issued, and people who were outside Hong Kong on November 5. If a case was exceptionally serious, the ICAC could also proceed after obtaining the governor’s approval.

Even so, the partial amnesty had an immediate effect. The ICAC terminated 83 active investigations, and 55 subjects in the Yau Ma Tei Fruit Market Case were no longer pursued. Their cases never entered the judicial process, so it cannot be said either that they were guilty or that they were innocent. What can be said is that, through an administrative decision, the government drew a line under a substantial number of historical cases.

From an anti-corruption perspective, this was unquestionably a retreat. Some suspected corrupt acts would now never be prosecuted. From the government’s perspective, however, it was also an exercise in political damage control: by abandoning part of the historical caseload, it allowed the police to resume normal operations while preserving the ICAC itself. The old accounts could be set aside for the moment, but from that point forward, new corruption would not receive the same tolerance.

Accountability and Oversight After the Amnesty

Morale within the ICAC initially sank after the partial amnesty was announced. Investigators had spent months organizing ledgers and taking statements, then risked a complete rupture with the police by carrying out the arrests. Now they had to watch as the government halted some of their cases. Yet many members of the public also called or wrote to the Commission, urging it to continue investigating corruption. For an organization still in its infancy, this outside support mattered enormously.

Nor did the partial amnesty bring the Fruit Market Case to a complete end. The ICAC continued gathering evidence against people who had already entered the investigative process and were therefore outside the amnesty. In 1978, the Legal Department charged twenty-four serving or former police officers and two officers from the Commerce and Industry Department with conspiracy to pervert the course of public justice. Ultimately, eighteen were convicted and received prison terms ranging from nineteen months to five years, although one was later released on appeal. Files on another 162 people were sent to the civil service authorities to determine whether disciplinary or other administrative action was warranted. This point is important: criminal prosecution is not the only anti-corruption tool. A government can also respond through internal discipline.

At the same time, the ICAC began adjusting its relationship with the police. When the Commission was first established, most senior investigators in its Operations Department came from law-enforcement agencies outside Hong Kong, while local investigators were few. After the confrontation, the ICAC gradually recruited more local investigators, and Hong Kong began improving complaint and oversight mechanisms for the Commission itself so that anti-corruption powers would not go unchecked.

From Settling Old Accounts to Building Institutions

After the partial amnesty, Hong Kong’s anti-corruption work gradually shifted from settling old accounts to the day-to-day work of institution building. Today, the ICAC is not simply an agency that arrests people. It follows a “three-pronged approach”: the Operations Department investigates cases; the Corruption Prevention Department examines procedures within government departments and public bodies and advises private organizations on preventing corruption; and the Community Relations Department handles public education and outreach. In other words, the Commission responds to corruption that has already occurred, identifies institutional vulnerabilities, and teaches residents what they can do when someone solicits a bribe.

Recent figures also illustrate this change in role. In 2025, the ICAC received 1,780 non-election corruption complaints, 14 percent fewer than the year before. In recent years, about two-thirds of complaints have concerned the private sector rather than government departments. The Commission also completed 67 corruption-prevention review reports for government departments and public bodies. Its work has expanded far beyond the “tea money” and protection payments once found within the police to cover commercial transactions, building management, public works, elections, and other fields. In the ICAC’s 2024 annual survey, 98.7 percent of respondents said that they had not personally encountered corruption in the preceding year, while 93.1 percent believed the Commission deserved their support. At the very least, these figures show that Hong Kong society remains willing to use and support its anti-corruption system.

The ICAC did not build that system alone. Higher civil-service pay, improved government procedures, scrutiny by the courts and the prosecuting authorities, and changing public attitudes all played a part. The Commission’s real institutional legacy is the combination of independent investigation, corruption prevention, and public education, while leaving prosecution decisions to the Legal Department and subjecting the ICAC itself to oversight by several committees. Remove any one of these mechanisms, and anti-corruption powers may lose public credibility.

The Police–ICAC Confrontation of 1977 therefore forced Hong Kong to answer an enduring question: when unlawful conduct has become routine within an organization, who investigates it, and who in turn restrains the investigators? Half a century later, corruption has not disappeared, but society’s default expectations have changed. When Godber escaped, people saw how an institution could allow one man to get away. The ICAC’s deeper influence today is that most people receiving a public service or conducting a business transaction no longer have to ask: Will I need to pay “tea money” this time?

Perhaps the greatest success of an anti-corruption agency comes not when it arrests the largest number of people, but when bribery is no longer treated as an ordinary fact of life.

Key Timeline

• 1948: The Prevention of Corruption Ordinance is enacted, with anti-corruption work entrusted to an office within the police force.
• May 14, 1971: The Prevention of Bribery Ordinance takes effect. Section 10 requires public servants to explain assets that are manifestly disproportionate to their income.
• June 8, 1973: Police Chief Superintendent Peter Godber escapes through Singapore to Britain, prompting mass public protests.
• October 1973: Governor Murray MacLehose proposes an independent anti-corruption body in the Legislative Council.
• February 15, 1974: The ICAC is formally established, and the work and files of the police Anti-Corruption Office begin to be transferred.
• January 1975: Godber is extradited to Hong Kong. The following month, he is convicted of conspiracy and accepting a bribe and sentenced to four years’ imprisonment.
• September 19 and 21, 1977: The ICAC conducts mass arrest operations in connection with the Yau Ma Tei Fruit Market Case, detaining 87 police officers.
• October 28, 1977: More than two thousand officers and family members petition at Police Headquarters. Some officers then go to Hutchison House, where a confrontation with ICAC staff takes place.
• November 1977: MacLehose issues the partial amnesty, generally halting new investigations into corrupt conduct committed before 1977 while preserving several exceptions.
• 1978: Proceedings connected with the Fruit Market Case are heard in three trials. Twenty-six people are charged with conspiracy to pervert the course of public justice; eighteen are convicted, although one is later released on appeal.

Key Figures

• Peter Godber: A chief superintendent in the Hong Kong Police Force who fled to Britain while under investigation for possessing vast unexplained wealth. After being extradited to Hong Kong, he was sentenced to four years’ imprisonment for conspiracy and accepting a bribe.
• Murray MacLehose: Governor of Hong Kong during the 1970s. He drove the creation of the ICAC and later made the political decision to issue a partial amnesty after the Police–ICAC Confrontation.
• Sir Alastair Blair-Kerr: Head of the commission of inquiry into the Godber case. His report concluded that it would be difficult to restore public trust as long as the anti-corruption body remained inside the police force.
• Louis Cheung Wah-pong and Tony Lui Shu-tung: ICAC investigators in the Yau Ma Tei Fruit Market Case who helped take witness statements, analyze ledgers, and organize photographic identifications.

Key Laws and Concepts

• Section 10 of the Prevention of Bribery Ordinance: When a public servant’s standard of living or assets are manifestly disproportionate to their official income, the law requires a satisfactory explanation of the source. The prosecution must still first prove foundational facts, including the defendant’s status, control of the assets, and the manifest disproportion between those assets and official income.
• Independent Commission Against Corruption Ordinance: The 1974 ordinance that established the ICAC and conferred functions relating to investigation, arrest, search, and corruption prevention. The Commission investigates; the prosecuting authorities decide whether charges should be brought.
• Accomplice witness: A person who participated in or was implicated in an offense and later gives evidence for the prosecution. Cooperation does not automatically make such testimony reliable; it ordinarily still requires corroboration from ledgers, bank records, or other independent evidence.
• Syndicated corruption: A system in which multiple people receive illicit payments according to rank and function, collectively maintaining an unlawful network by providing protection, allowing activities to proceed, or passing on warnings.
• Partial amnesty: The governor’s 1977 administrative directive that, as a rule, ended ICAC investigations of corrupt conduct committed before 1977. It was neither a judicial acquittal nor a blanket amnesty for every old case.

This is the transcript of episode 16 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.

Tokyo, January 31, 2007. About one hundred elderly people repatriated from China gathered outside Japan’s Ministry of Health, Labour and Welfare. Carrying placards and handing out leaflets, they fiercely condemned the Japanese government for evading its responsibility for the war. Most were already in their sixties. Although they had lived in Japan for ten or twenty years and obtained legal status there, many still spoke limited Japanese. Even so, they raised their voices, hoping to win the support of Japanese society.

These elderly people were Japanese war orphans who had grown up in China. When Japan was defeated in 1945, thousands of Japanese children failed to evacuate with other Japanese civilians. They remained in China and were raised by Chinese families. Many years later, some returned to Japan and reunited with relatives. Yet language barriers and difficulty finding work left most of them in poverty.

To hold the Japanese government responsible for the war and to secure their legal rights, more than two thousand repatriated orphans living in Japan sued the state for damages. The day before the gathering, on January 30, the Tokyo District Court had dismissed every claim brought by the first group of Tokyo plaintiffs. The “heartless” judgment ignited their anger. The next day, these elderly plaintiffs took to the streets and made their voices heard.

Among them was a woman in her sixties named Sumie Ikeda, the leader of the Tokyo plaintiffs. But “Sumie Ikeda” was not her only name. Over the course of a long and difficult life, she had three. Her experience came to embody that of Japan’s repatriated war orphans. To understand their years-long struggle for redress, we must begin with her story.

Three Names and a Fifty-Two-Year Search for Family

Sumie Ikeda was born in 1944 and was not yet one year old when Japan was defeated. The Soviet Red Army entered northeastern China and launched a full-scale offensive against Japan’s Kwantung Army. Ikeda’s biological father, a junior officer in the Japanese military, was captured. Her mother fled with the family’s five children. Exhausted and unable to produce enough milk, she entrusted the youngest, ten-month-old Ikeda, to a local Chinese family. Ikeda was separated from her biological parents and became a war orphan raised in China. Her foster father’s surname was Xu, so she was named Xu Ming—the first name of her life.

In public interviews, Xu remembered her childhood through the concrete details of life in a Chinese family. Her foster parents were merchants. When the family was prosperous, they bought her beautiful clothes. Whenever her foster mother took her out, she worried that the girl might fall or get lost. The family later lost its money and her foster father was imprisoned. Xu and her foster mother were left to depend on each other amid hunger and deprivation.

At first, Xu did not know that she was Japanese. When she was seven, her school showed the students an anti-Japanese film. Angered by the invading Japanese army’s atrocities on screen, some children turned that anger against her. One classmate pointed at her and called her a “little Japanese devil.” Furious and terrified, she hid beneath a seat and cried. A teacher came to her defense, pulled her out, and told the class that Xu Ming was only a child: the crimes of the Japanese army had nothing to do with her. It was the first time Xu understood her national identity. Inspired by the teacher, she resolved to help others in the same way.

As a young woman, Xu entered Mudanjiang Normal School. After graduation, she was assigned to teach at an elementary school run by a forestry bureau. She applied to join the Chinese Communist Party but was not admitted because she was Japanese. In 1972, Japanese prime minister Kakuei Tanaka visited China and relations between the two countries began to normalize. With support from both governments, Japanese orphans remaining in China began searching for relatives in Japan. Xu’s foster parents did not stand in her way; instead, they helped her ask around.

In 1980, an elderly man in Hokkaido contacted Xu and said that she might be his biological daughter. The following year, she traveled to Hokkaido with her three children to search for family. Further testing showed that the two were not father and daughter. Xu and her children were stranded in Japan without even enough money for flights back to China when the Chinese consulate in Hokkaido offered assistance. With help from several quarters, she reached Tokyo and supported herself through temporary work. In 1982, a family-court ruling enabled her to enter a Japanese family register. She borrowed the surname of an interpreter and took the character for “Ming” from Xu Ming to form the given name Akiko. She became Akiko Imamura, the second name of her life.

Through her own efforts, Imamura later found work at a law office. Her main responsibility was helping other repatriated war orphans obtain places in Japanese family registers. By 1994, she had almost abandoned hope of finding her own family. Then, at a public family-search event, she happened to meet her biological sisters. Seventeen months of identification work finally confirmed their relationship. She was already fifty-one and both biological parents had died. In the family register she found the name she had been given at birth: Sumie Ikeda, the third name of her life.

From Xu Ming to Sumie Ikeda, she spent fifty-two years and three names completing the long search for her family. More than 2,500 repatriated orphans in Japan lived through similar experiences. They grew up indebted to Chinese foster parents while also encountering varying degrees of discrimination and injustice. Yet when they chose to return to Japan—to a “homeland” they scarcely knew—the first half of their lives seemed to be erased once again. They had to learn Japanese from the beginning, find work, and struggle to adapt to an unfamiliar society. Inevitably, they asked: Who had caused their suffering? Who should answer for their shattered lives?

The Colonial Background of the War Orphans

Sumie Ikeda’s story can make the war orphans seem like victims of an accidental family separation. Pull back the frame, however, and it becomes clear that they were not created by a single chance event.

The Japanese government later called them “Japanese orphans left behind in China.” The usual administrative definition covered people who had been under thirteen in 1945, had been separated from their parents, had remained in China for many years, and did not know their true identities. Their actual experiences were far more complicated. Some grew up knowing nothing of their origins. Some knew they were Japanese but did not know their Japanese names. Others, like Ikeda, obtained Japanese nationality long before they found their biological families.

Why had they been in China at all? The answer begins with Japan’s colonial policy in northeastern China. After the Mukden Incident in 1931, Japan occupied the region and established the puppet state of Manchukuo. The Japanese government then began sending large numbers of civilians there to form state-sponsored Manchurian settler groups. Most of the migrants were unarmed civilians, but they were unmistakably part of Japan’s colonial system. To the people of northeastern China, the settlers themselves were invaders.

Near the end of the war, the main forces of the Kwantung Army were repeatedly transferred to other fronts. The Japanese government knew that the Soviet Union might enter the war, yet it neither gave settlers in northeastern China adequate warning nor organized a reliable evacuation in advance. In July 1945, the Kwantung Army carried out what was called a “root-and-branch mobilization,” conscripting large numbers of working-age men from the settler communities. Those left behind in the villages were mainly older people, women, and children.

Soviet forces entered northeastern China on August 9. The settler groups quickly fell into chaos. Some people died in combat; others succumbed to hunger, disease, or bitter cold while fleeing. Faced with the prospect that neither they nor their children would survive, some mothers entrusted their youngest children to nearby Chinese families. For the children, it was a forced separation. For the Chinese people who took them in, it meant assuming a burden of care that had never been theirs, even as they themselves endured invasion and poverty.

This history therefore requires us to hold two facts in view. Japanese children were victims of the war, but the Manchurian settler groups were not ordinary migrants detached from the history of aggression. From birth, these war orphans carried a complicated identity and history. The Japanese government of the time unquestionably set this tragedy in motion.

On one side, the Japanese government was the principal force behind colonial aggression in northeastern China. Without the Mukden Incident and the creation of Manchukuo, there would have been no Manchurian settler groups and nowhere near so many war orphans. On the other, even when defeat was plainly approaching, the government failed to take effective measures to evacuate its own nationals safely. Large numbers of families were separated and, even after some people returned to Japan, they remained without meaningful support for years.

The suffering of these Japanese orphans was caused by the government’s prewar policies and, on that account, should have been the government’s responsibility. Yet even decades after the war, Japan had provided no effective compensation. Worse, a succession of government policies deepened the difficulties confronting those who tried to return.

A Delayed Return and Policy Barriers

For many years after the war, Japan and China had no formal diplomatic relations. Without normal channels between the two governments, organizing family searches and repatriation on a large scale was genuinely difficult. That obstacle disappeared after diplomatic relations were normalized in 1972. Japanese organizations began publishing photographs and information about the orphans and searching for relatives through newspapers and television. In March 1981, the first group of forty-seven orphans traveled to Japan to look for family; twenty-four confirmed relationships. More orphans followed.

The process was not very effective. By 1999, 2,116 people had visited Japan to search for relatives, but only 673 had confirmed their identities—a success rate below 32 percent. Some were recognized on their first trip. Others returned repeatedly without finding anyone. Still others, like Sumie Ikeda, experienced a false identification and did not find their real families until they had lived in Japan for more than a decade.

Finding relatives did not mean that an orphan could immediately settle in Japan. Early repatriation policies often required a relative in Japan to file the application, guarantee the applicant’s identity, and bear the cost of the journey. Orphans who had found no family could scarcely meet those conditions. Even those who had located relatives remained outside the country if the relatives were unwilling to receive them.

Only after Japan and China exchanged documents in 1984 did Japan begin accepting the permanent return of orphans whose identities had not yet been confirmed. The route appeared open, but procedural barriers remained. Orphans who had established their identities but could not secure the cooperation of relatives were required to find a special guarantor outside the family who would agree to receive them.

The government explained that these people entered on Chinese passports, so their identities had to be verified and someone had to help them settle after arrival. Allowing large numbers of people who spoke no Japanese to enter in a short period, without relatives or guarantors to assist them, could create new problems.

From the orphans’ perspective, however, Japan had abandoned them in a foreign country at the end of the war and, decades later, demanded proof and guarantees before allowing them to return to their own homeland. Rather than healing the original injury, this policy inflicted a second one. To the government, requirements involving relatives and guarantors were arrangements for reception and resettlement. To the orphans, they were yet another barrier the state had placed in their path.

The obstacles to repatriation were only the beginning. Life after returning proved even more difficult.

Poverty and Gaps in Support After Repatriation

According to a 2007 Ministry of Health, Labour and Welfare statistic, Japanese nationals left behind in China were an average of 51.67 years old when they returned. For most people, that is an age when work and family life have begun to settle. For the repatriated orphans, it meant learning Japanese, searching for employment, and rebuilding daily life from the beginning. Qualifications and experience acquired in China were often difficult to use in Japan. People who had been teachers, technicians, or skilled workers found themselves limited to low-paid manual labor.

Mitsuo Hatsuta was one example. Born in 1943, he was two years old at Japan’s defeat and was raised by Chinese foster parents. During the Cultural Revolution, he was persecuted because of his Japanese ancestry. Hatsuta returned to Japan in 1987 at the age of forty-four. He spent years doing manual labor. When he retired at sixty, his Employees’ Pension paid only 50,000 yen a month. To supplement it, he collected aluminum cans on the street.

Japan’s pensions are tied to years of contributions. Returning late in life sharply limited the years the orphans could accumulate, while low wages and irregular employment restricted their participation in the Employees’ Pension Insurance system and their ability to build earnings-related benefits. A vicious cycle followed: without regular work, they received meager pensions; because their pensions were meager, they had to continue doing low-paid work merely to survive.

A 2003 survey found that only 38.4 percent of the repatriated orphans could conduct everyday conversations without difficulty. Just 13.9 percent were working, while 44.2 percent had never worked in Japan. Their hardship was therefore not principally the result of insufficient effort. The Japanese government had failed to provide an effective transition that gave them a realistic opportunity to adapt.

The government did take some measures. It established special settlement centers offering Japanese-language instruction and guidance in daily life, along with job placement, housing assistance, lump-sum resettlement payments, and basic livelihood support. The problem was that most programs were designed to move people into employment as quickly as possible. Several months of intensive instruction might help someone in their twenties. It could not repair the lost first half of life for a person in their fifties who spoke no Japanese and had both children and elderly relatives to support.

From Coordinated Litigation to the State Redress Act

Together, these conditions produced the repatriated orphans’ hardship. Beginning in 2002, their organizations filed state redress suits around Japan to protect their legal rights. This was not a single nationwide class action covering every plaintiff. It was a series of coordinated, multi-plaintiff cases filed and tried separately in different jurisdictions. A victory in one place therefore did not automatically benefit plaintiffs elsewhere. Each district court had to decide its own case on its own facts. That was the crucial difference from a class action.

According to the Ministry of Health, Labour and Welfare’s figures in May 2007, 2,233 returnees were litigating in thirteen district courts and five high courts across Japan. By that point, the overwhelming majority of the orphans who had returned were participating in the movement.

Their claims rested on article 1, paragraph 1 of Japan’s State Redress Act. Under that provision, when a public employee exercising public authority intentionally or negligently commits an unlawful act and causes loss or damage to another person, the state must compensate the injured person. The crucial word is “unlawful.” A disappointing government program does not necessarily create a claim for state redress. A court must identify a sufficiently specific legal duty, find that a public employee could have performed it but failed to do so, and determine that the unlawful conduct caused the plaintiff’s injury.

The plaintiffs asked the courts to order the Japanese government to pay each repatriated orphan 33 million yen. Their case rested principally on three contentions:

1. The government had failed to investigate their identities and organize their return at an earlier date.
2. It had imposed unreasonable policy conditions that unlawfully obstructed their repatriation.
3. After they returned, it had failed to discharge adequate duties of settlement and support for self-sufficiency.

The same arguments under the same law nevertheless produced almost opposite answers in different courts.

Kobe: A Limited Recognition of State Responsibility

Begin with Kobe. On December 1, 2006, the Kobe District Court decided the state redress claims of sixty-five plaintiffs. Sixty-one won partial relief, and the court awarded a total of 468.6 million yen. It was the most important plaintiff victory in the nationwide litigation. Yet the word “victory” can mislead. The court did not accept all three claims, nor did it hold Japan responsible for every loss caused by its colonial war.

On the first claim—whether the government had a duty to enable each orphan to return sooner—the Kobe court remained cautious. It acknowledged that the Japanese government bore a grave political responsibility to rescue the orphans. State redress, however, required additional proof that if the government had taken a particular measure in a given year, an individual plaintiff would have returned at that time. The plaintiffs differed in the identity information available to them, their family circumstances, and their desire to return. The court concluded that precise timing and causation could not be established uniformly. It therefore declined to recognize a general “duty to realize early repatriation” owed to everyone.

The second claim—obstruction of repatriation—was what truly distinguished Kobe from the other courts. It examined one by one the requirements for guarantees from relatives, applications for travel expenses, and special sponsors. The government knew that these people were Japanese children separated from their relatives by war. Yet it still treated them like ordinary foreign nationals, requiring family cooperation or guarantees not expressly mandated by law. Such conditions might serve a resettlement purpose for ordinary entrants. Applied to the orphans, they turned the very thing they lacked into a precondition for coming home.

The court ultimately found that seventeen plaintiffs had been subjected to unlawful restrictions on repatriation and calculated nonpecuniary damages according to the months of delay. Some earlier injuries nevertheless fell outside the twenty-year exclusion period then applied under the Civil Code. Civil law commonly imposes an ultimate deadline on tort claims to preserve the stability of legal relationships and to avoid the evidentiary problems created by the passage of time. Once the deadline has expired, compensation may be unavailable even when the underlying injury is real.

The plaintiffs’ third claim concerned support for self-sufficiency after repatriation. The Kobe court reasoned that earlier policies and procedures had delayed their return for years. By the time they arrived, they had missed crucial periods for learning Japanese, building careers, and accumulating pension rights. In these exceptional circumstances, the state could not provide brief training and then demand immediate economic independence.

The judgment invoked the legal concept of jōri—general principles of reason and justice. Even if no statute specified the content of support word for word, the government’s own earlier conduct had created a special disadvantage. From that condition and basic principles of fairness, the court could derive a concrete duty.

To show the level of support that duty required, the court compared the treatment of Japanese citizens abducted by North Korea. After returning to Japan, they could receive livelihood protection, Japanese-language instruction, and employment support for five years. Their experiences were not identical to those of the repatriated orphans. The comparison nevertheless showed that the state was capable of designing a complete period of reconstruction for citizens who had lived abroad for many years. The orphans likewise should have been able to spend the first five years after repatriation learning the language and receiving vocational training without immediately struggling to survive.

The Kobe judgment therefore granted part of the plaintiffs’ claims within carefully limited boundaries. It recognized state responsibility for particular administrative barriers and deficiencies in support, but it did not attempt to price the entirety of war, separation, and a lifetime rebuilt after repatriation.

Tokyo: Total Defeat Under Judicial Restraint

Two months later, the Tokyo District Court reached the opposite conclusion in a nearly identical case. On January 30, 2007, it dismissed every claim brought by the first group of Tokyo plaintiffs. The court acknowledged a historical connection between migration to Manchuria, Japan’s defeat, and the creation of the orphans. It also accepted that the orphans faced language barriers, unemployment, and poverty after coming back. Those facts, however, were not enough to support state redress.

On prewar policy, the Tokyo court reasoned that neither the State Redress Act nor the current Constitution had yet taken effect. Evaluating prewar policy under postwar law raised profound difficulties. Compensation for losses caused by war was therefore not well suited to judicial resolution and was better left to the political process.

On repatriation procedures, Tokyo again differed from Kobe. It acknowledged that applications by relatives and guarantee requirements made return more difficult. Yet the government had to coordinate diplomacy, verify identities, and arrange settlement after arrival. These complex tasks required a broad sphere of administrative discretion. Because the procedures also served legitimate purposes of reception and resettlement, the court was unwilling to find them unlawful merely because they caused delay.

Finally came support for self-sufficiency. The Tokyo court listed the settlement centers, Japanese-language instruction, employment placement, housing assistance, and livelihood protection the government had already provided. Its conclusion was that these policies might be less than ideal, but without an express statutory command they could not yet be called unlawful. A court could decide only under existing law; it could not create a new social-security program in the legislature’s place.

The difference between Kobe and Tokyo was therefore not simply a matter of individual judicial preference. Both judgments reflected serious legal considerations.

By the end of May 2007, courts had decided eight of the cases. The government had prevailed in seven; only the Kobe plaintiffs had won. Most courts declined to recognize a general duty of early repatriation or to find manifest unlawfulness in the existing support programs. Had the litigation continued, the Supreme Court might eventually have reconciled those differences. The cases never reached that point. Before the judiciary produced a uniform answer, politics changed course.

From Divided Judgments to a Political Settlement

The Tokyo judgment had been issued the day before. On the day of the ruling, Prime Minister Shinzo Abe instructed the health minister to put aside the legal issues and the outcome in court and reconsider the support program in light of the repatriated orphans’ exceptional circumstances. The following day, Sumie Ikeda and other plaintiffs continued petitioning the prime minister’s office, the Diet, and the ministry. That afternoon, Abe met their representatives.

The shift cannot be credited entirely to the hundred or so people who demonstrated in Tokyo. The Kobe judgment had already been delivered. Lawsuits were pending across the country. Lawyers, researchers, support organizations, and legislators from multiple parties had worked for years. Still, the events of those two days placed legal and political responsibility side by side. The government could argue in court that it had not acted unlawfully. Politically, it had to acknowledge that its measures might nonetheless be inadequate.

The Ministry of Health, Labour and Welfare established an expert council, and the parties began negotiating a new solution. On November 28, 2007, the Diet enacted Amending Act No. 127. The new system took effect in April 2008.

The program first addressed pensions. For eligible first-generation returnees, the state made a special lump-sum payment covering contributions to the National Pension so that they could receive a full basic pension. If the pension and other household income still fell below a specified threshold, supplementary support benefits were available. Those benefits covered living expenses, housing, medical care, and nursing care. Local governments were also required to provide Japanese-language instruction, interpretation, and support for community life.

This was not the state redress demanded in the lawsuits, nor did the legislation recognize legal responsibility for the war. In essence, it remained a system of individual relief. For some plaintiffs, it resolved the immediate problem of subsistence. For others, it still left the central question unanswered.

Mitsuo Hatsuta refused to apply for the new support benefits. He did not refuse because he had no need for the money. He refused because he would not accept the reframing of state responsibility as individual welfare. In his view, “receiving relief because one’s income is inadequate” and “receiving compensation because the state caused an injury” were fundamentally different.

Even so, the new policy brought the orphans’ legal movement to an end. After the law was enacted, plaintiffs around the country gradually withdrew their cases, and the dispute never reached the Supreme Court. The Diet, rather than the courts, ultimately fashioned the political settlement for their economic security.

Two Homelands and an Old Age Still Unfolding

The story of the repatriated orphans did not end there. The day after the 2008 Wenchuan earthquake, Sumie Ikeda began contacting representatives of orphan groups across Japan to raise money for the disaster area. They collected 17.5 million yen, most of which helped build a Sino-Japanese friendship elementary school in Sichuan. For elderly people who still had little money of their own, the contribution was no small burden. They believed that they had survived the war only because Chinese families and communities had raised them. When disaster struck China, they felt obliged to do something concrete.

The networks formed during the coordinated litigation survived as well. In 2008, Ikeda and her companions founded the Association of Returnees from China and for Japan–China Friendship. It organized Japanese classes, tai chi, dance, and other activities, giving returnees scattered around the country a place to meet and talk. Members also formed “gratitude delegations” that traveled repeatedly to China to visit foster parents and tell the orphans’ stories. In September 2025, more than eighty association members and relatives traveled to Harbin once again. By then, even the youngest orphans were over eighty years old.

Their problems have gradually shifted from employment and pensions to medical care, nursing care, and loneliness in old age. Some use retirement and care facilities offering services in Chinese. Others still speak limited Japanese and need interpreters to accompany them to medical appointments. At Lunar New Year in 2026, Sumie Ikeda, then in her eighties, still attended the association’s celebration. She watched her companions perform dances and tai chi and finally joined them in singing the Japanese song “Furusato” (“Hometown”). In a recent interview, she said that they had at last reached a relatively peaceful old age.

Looking back, the coordinated lawsuits brought by the repatriated orphans lost far more judgments than they won, yet they materially improved the conditions of the plaintiffs’ lives. The courts never fully recognized the Japanese government’s entire responsibility. The litigation nevertheless forced Japanese society to acknowledge that the orphans’ hardship was not merely a collection of private misfortunes and could not be resolved through individual welfare alone.

Sumie Ikeda once had three names. Xu Ming connected her to the Chinese family that raised her; Sumie Ikeda connected her to the Japanese family into which she was born. In the end, she and the other orphans did not make an either-or choice between two homelands. Their lawsuits sought the right to live as Japanese citizens. Their donations after the Wenchuan earthquake and repeated journeys to China honored the debt they felt toward the other land that had raised them. Law answered only part of the question of how they would survive. Their lives continued to answer the longer question: Who am I?

Key Timeline

• After 1931 — Japan occupied northeastern China and established the puppet state of Manchukuo, then promoted settlement in the region as a matter of national policy. The Manchurian settler groups formed the colonial background of the orphan issue.
• August 9, 1945 — The Soviet Union entered the war against Japan and invaded northeastern China. Evacuation among the settler groups collapsed, and large numbers of children were separated from their families amid combat, hunger, and flight.
• September 1972 — Japan and China normalized diplomatic relations, and public family searches, identity investigations, and negotiations over repatriation gradually began.
• March 1981 — The first group of forty-seven Japanese orphans left behind in China traveled to Japan to search for relatives; twenty-four confirmed family relationships.
• 1984–1985 — After Japan and China exchanged documents, Japan began accepting the permanent return of orphans whose identities had not yet been confirmed and introduced a system of sponsors responsible for receiving them.
• December 20, 2002 — The first forty Tokyo plaintiffs filed their state redress action. Most repatriated orphans around the country later joined the broader litigation movement.
• December 1, 2006 — The Kobe District Court granted partial relief to sixty-one of sixty-five plaintiffs, the first judgment in this litigation to recognize state redress liability.
• January 30–31, 2007 — The Tokyo District Court dismissed all claims brought by the forty plaintiffs. The next day, they continued petitioning, and Prime Minister Shinzo Abe met representatives of the returnees.
• November 28, 2007–April 2008 — The Diet enacted Amending Act No. 127, and the new support system took effect. Plaintiffs around the country subsequently withdrew their cases.
• May 2008 — Sumie Ikeda organized repatriated orphans to raise funds after the Wenchuan earthquake, using most of the money to help build a Sino-Japanese friendship elementary school.
• October 2014 — A support program for certain spouses of first-generation returnees took effect.
• 2025–2026 — The repatriated orphans had generally reached their eighties. Support increasingly focused on medical care, nursing care, interpretation, and the prevention of social isolation.

Key Figures

• Sumie Ikeda (Xu Ming; Akiko Imamura) — Leader of the Tokyo plaintiffs. Born in northeastern China in 1944, she was entrusted to a Chinese foster family at Japan’s defeat. She traveled to Japan in 1981 to search for relatives and happened to meet her biological sisters in 1994. After seventeen months of identification work, she confirmed her origins at the age of fifty-two.
• Mitsuo Hatsuta — Leader of the Hyogo plaintiffs. Left in China at the age of two, he returned permanently to Japan at forty-four. His meager pension and need to collect aluminum cans in old age illustrated the connection among late repatriation, limited employment, and inadequate pension rights.
• Shinzo Abe — A Japanese politician who served as prime minister from 2006 to 2007 and again from 2012 to 2020. On the day the Tokyo District Court dismissed the plaintiffs’ claims, he instructed the health minister to set the legal questions and the court’s decision aside and reconsider support in light of the returnees’ exceptional circumstances. The ministry then heard from returnees and convened an expert council, and the Diet enacted the amending law later that year.
• Chinese foster parents — Chinese families who raised Japanese children amid war and poverty. Their circumstances and conduct varied, but their labor of care is indispensable to understanding the orphans’ identities and their later “gratitude visits” to China.

Key Concepts

• Japanese orphans left behind in China — In Japanese administration, the term generally referred to Japanese children who had been under thirteen in 1945, were separated from their parents in China, did not know their identities, and remained there for many years. Actual experiences did not fit a single pattern.
• Coordinated litigation — Often described in news reports as a “class action,” the movement actually consisted of state redress cases filed in different courts by local groups of plaintiffs working through coordinated legal teams and support organizations. A judgment in one jurisdiction did not automatically apply elsewhere.
• Unlawfulness under the State Redress Act — An inadequate policy or an unfair outcome does not automatically create liability. A court must identify a sufficiently specific legal duty breached by a public employee and determine whether the unlawful conduct caused the plaintiff’s injury.
• Jōri — The principles of reason and justice on which the Kobe District Court based the duty to support self-sufficiency. Even when no statute spelled out the content of support, the court could derive a concrete duty from fairness and the special disadvantage created by the state’s earlier conduct.
• Administrative discretion — The Tokyo and other courts reasoned that repatriation procedures and livelihood support required choices involving diplomacy, immigration, public finance, and social-security design. Administrative bodies therefore enjoyed a broad sphere of judgment unless policy clearly exceeded lawful bounds.
• Twenty-year exclusion period — The Kobe judgment applied the then-prevailing interpretation of the final clause of article 724 of Japan’s Civil Code and denied relief for some older injuries. That was the legal position at the time and does not represent every aspect of how the same provision is understood under current Japanese law.

Key Cases

• Kobe District Court Japanese Orphans Left Behind in China State Redress Case (Japan, Heisei 16 (Wa) No. 835 et al., December 1, 2006) — Sixty-one of sixty-five plaintiffs won partial relief totaling 468.6 million yen. The court found some restrictions on repatriation unlawful and recognized a duty to provide five years of support for self-sufficiency after return.
• Tokyo District Court Japanese Orphans Left Behind in China State Redress Case (Japan, January 30, 2007) — The court dismissed every claim brought by the first forty Tokyo plaintiffs, emphasizing the political character of postwar compensation and administrative discretion in repatriation and resettlement policy.

Key Laws and Legal Documents

• Article 1(1) of Japan’s State Redress Act (effective 1947) — When a public employee exercising public authority intentionally or negligently causes loss or damage through unlawful conduct, the state or public entity assumes responsibility to compensate. This was the principal legal basis of the orphans’ claims.
• Final clause of former article 724 of Japan’s Civil Code — At the time, courts understood this clause to extinguish a tort claim twenty years after the tortious act under an exclusion period. The Kobe judgment used it to deny some claims.
• Act on Measures on Expediting of Smooth Return of Remaining Japanese in China and for Assistance in Self-Support after Permanent Return to Japan, and Amending Act No. 127 of 2007 — Through special National Pension rules, support benefits, and local assistance, the legislation improved pensions, housing, medical care, and nursing care for first-generation returnees. Support for certain spouses was added beginning in 2014.

Related Episodes

• 04 How Did the Japanese Come to Terms with Defeat? A 32-Year Fight Against the Government — Another story of victims using litigation, public opinion, and legislation to pursue a political solution when courts could not directly recognize the full responsibility for war.

This is the transcript of episode 15 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.

At ten o’clock on the evening of March 17, 2003, twenty-seven-year-old Sun Zhigang left the place where he was staying and set out for a nearby internet café. Sun was from Huanggang, Hubei. Two years earlier, he had graduated from Wuhan Institute of Science and Technology, now Wuhan Textile University. Less than a month before, on February 24, the Daqi Garment Company in Guangzhou had hired him. He moved from Wuhan to Guangzhou, shared a rented room with friends, and settled into the ordinary routine of a young office worker.

On his way to the internet café, police stopped Sun and asked to see identification. He had been in Guangzhou for only a little over twenty days and had not yet obtained a temporary-residence permit. He did have a national identity card, but happened not to be carrying it that evening. Because officers could not verify his identity on the spot, they took him to the nearby Huangcun Street Police Station. Roughly an hour later, Sun called the friend with whom he lived and asked him to bring the identity card and some money.

The friend arrived with another colleague close to midnight. They delivered the identification, but could not take Sun home. The next day, he was transferred to the Guangzhou Custody-and-Repatriation Transit Station. One day later, he was sent to a medical center for people held under the system. At noon on March 20, Sun died there under suspicious circumstances.

Less than three days passed between his arrival at the police station on March 17 and his death in custody on March 20. News organizations pursued the story and it soon reverberated across the country. It became known as the Sun Zhigang case. The case triggered an intense debate over whether an administrative regulation could violate the Constitution, and legal scholars jointly petitioned the Standing Committee of the National People’s Congress to begin constitutional review. Exactly three months after Sun’s death, the State Council promulgated a new regulation and announced that the custody-and-repatriation system, then twenty-one years old, would be abolished on August 1.

How could a criminal case arising from wrongful detention acquire such force? The answer begins on March 17, 2003, with the phone call Sun made to his friend.

Wrongful Detention and Death in the Medical Center

After Sun arrived at the Huangcun Street Police Station, staff recorded basic information about him. The registration form later made public classified him as a person with “three noes”: no fixed residence, no means of support, and no valid identification. A station supervisor signed the form and approved Sun for custody and repatriation.

The stated basis was the Guangdong Provincial Regulations on Custody and Repatriation. Under article 9, paragraph 6, a person who had “no lawful identification, no normal residence, and no legitimate means of support, and who was living on the streets” was subject to custody. Sun, however, had both an identity card and a stable place to live. His employer could prove that he had worked there as a graphic designer since February 24. He bore virtually no resemblance to the supposed category of a person with “three noes.” His only irregularity was the absence of a Guangzhou temporary-residence permit. As the Guangdong legislature’s legal-affairs body later explained, that omission alone was not enough to justify custody. Even before reaching the later constitutional controversy, the handling of Sun’s case was deeply problematic under Guangdong’s own rules at the time.

On March 18, Sun was taken to the Guangzhou Custody-and-Repatriation Transit Station. He called his friend from inside. The friend later remembered that Sun was “stammering a little, speaking very quickly, and seemed extremely frightened.” The friend contacted the owner of Sun’s company. A colleague first tried to secure Sun’s release but was told that the paperwork was incomplete. Once the documents were assembled, the owner went to the transit station himself. It was nearly closing time, however, and staff told him to return the following day.

When the friend called the transit station on March 19, he learned that Sun had already been transferred again. Nursing records disclosed later showed that Sun had been delivered to the Guangzhou Medical Center for Persons in Custody at about 11:30 p.m. the previous night. The “medical center” was in fact the Jiangcun inpatient unit of the Guangzhou Psychiatric Hospital. Under the ordinary custody-and-repatriation process, the transit station should have been followed by repatriation to Sun’s home in Huanggang, Hubei. For reasons outside the normal process, however, he was sent to the hospital before reaching that stage.

His friends and colleagues tried to see him, only to be refused once more. This time they were told that only a family member could visit him in the hospital. At noon on March 20, the friend called again. The hospital said that Sun was dead. Its first explanation was a sudden heart attack. The nursing record gave the time of death as 10:25 that morning, but the record itself raised questions. Sun had been conscious when admitted and no abnormality was recorded. For a long period afterward, the notes merely said that he was “sleeping.” Only at 10 a.m. on March 20 did a nurse find him pale, silent, motionless, breathing weakly, and with no measurable blood pressure. A doctor attempted resuscitation and stopped treatment at 10:25.

For Sun’s family back in Hubei, the news was devastating. They immediately traveled to Guangzhou. His parents could not accept the hospital’s “heart attack” explanation. Instead of allowing an immediate cremation, they demanded an autopsy. The Forensic Identification Center at Sun Yat-sen University examined Sun’s body on April 3. Its opinion, issued on April 18, concluded that extensive soft-tissue injuries had caused fatal traumatic shock.

The autopsy documented massive subcutaneous bleeding around the waist and back, while other vital organs showed no obvious disease. Sun had not died of a sudden heart attack. He had been beaten to death. What the hospital chart described as prolonged “sleep” may in fact have been the manifestation of traumatic shock.

The court later found that Sun was deeply angered by being taken to a police station without cause and then placed in custody and repatriation. After arriving at the hospital, he protested loudly and repeatedly, provoking staff member Qiao Yanqin. On the night of March 19, Qiao instructed other detainees to beat him. Sun was assaulted twice before dawn on March 20 and died from traumatic shock later that morning.

On April 25, one week after the autopsy result, Southern Metropolis Daily published a lengthy investigation titled “The Death of Detainee Sun Zhigang.” The Beijing Youth Daily, People’s Daily Online, Xinhua, and other outlets quickly republished or followed the story. Their reporting and commentary turned the case into a national public event.

The SARS epidemic then dominated national news. Even so, the Sun Zhigang case spread rapidly. Large numbers of people who had left their hometowns to study or work in cities recognized themselves in his experience. A university graduate only two years out of school, who met none of the conditions for custody, had been passed from one institution to the next and died in agony within three days. The incident had become more than an ordinary criminal case. Public anger increasingly focused on the custody-and-repatriation system itself.

How Relief Became Control

What kind of system was custody and repatriation?

Its origins in China dated to 1951. A product of the planned economy, it began as a welfare measure intended to assist people arriving in cities without shelter. After reform and opening, economic development brought much greater movement across regions and more people living on urban streets. In May 1982, the State Council issued the Measures for the Custody and Repatriation of Urban Vagrants and Beggars. From that point, relief was no longer the system’s only objective. Article 1 stated:

These Measures are formulated to provide relief, education, and placement for urban vagrants and beggars, and to preserve urban public order and social stability.

The phrase “preserve urban public order and social stability” reveals an emerging public-security function. As population mobility accelerated and officials confronted worsening public-order concerns without a better management tool, that function grew stronger. The system became more coercive as a result. Article 6 required people in custody to “submit to” custody and repatriation. Although the institution retained the language of welfare, its supposed beneficiaries had no right to decline the assistance. Relief and control were already in tension; more control necessarily meant less relief.

The 1982 Measures still applied only to “urban vagrants and beggars.” In 1991, however, the State Council issued an Opinion on Reforming Custody and Repatriation. It formally introduced the category of people with “three noes”—no lawful documents, no fixed residence, and no stable income—and expanded the system’s reach. Custody and repatriation became a device for removing migrants from cities, and its public-order purpose grew more explicit. By then, the original relief function had largely receded.

Some scholars describe this process as institutional “alienation”: a system that began as social welfare gradually changed function through the combined effects of the urban-rural divide, administrative power without adequate supervision, and poorly trained enforcement personnel.

The pattern was clear in local practice. The Guangdong Provincial Regulations on Custody and Repatriation, issued by the provincial legislature in 2002 and invoked in Sun’s detention, expressly made people with “three noes” a target of custody. Sun did not fit that description; his detention resulted from an error by frontline authorities. Yet public anger extended beyond a single enforcement mistake to the institution that had been transformed in this way.

By 2003, the system had operated for twenty-one years and dissatisfaction had accumulated for a long time. The most direct and severe criticism was that the system may have been constitutionally defective.

Statutory Reservation and Two Review Proposals

Consider the law then in force.

Article 37 of the 1982 Constitution provides that “the personal freedom of citizens of the People’s Republic of China shall not be violated” and that no citizen may be arrested except with the approval or decision of a people’s procuratorate or the decision of a people’s court, followed by execution by a public-security organ. Article 9 of the 1996 Administrative Penalties Law provided that an administrative penalty restricting personal liberty could be created only by a statute. Article 8 of the 2000 Legislation Law provided that coercive measures and punishments restricting personal liberty could be governed only by statutes.

“Statute” here meant a law enacted by the National People’s Congress or its Standing Committee. If custody and repatriation was treated as an administrative penalty, it directly confronted the reservation in the Administrative Penalties Law. Even without that classification, it remained a coercive measure restricting liberty and therefore fell within the Legislation Law’s statutory reservation. By 2003, the State Council’s 1982 Measures faced a serious conflict with the Constitution, the Administrative Penalties Law, and the Legislation Law.

On May 14, twenty days after the Southern Metropolis Daily investigation, three Peking University–educated doctors of law submitted a review proposal to the NPC Standing Committee. Citing articles 88 and 90 of the Legislation Law, they recommended review of the State Council’s 1982 Measures. Five other scholars filed a second proposal on May 23. Relying on article 71 of the Constitution, they asked the Standing Committee to establish a special inquiry into the Sun Zhigang case and the custody-and-repatriation system.

The State Council had issued the Measures on May 12, 1982, while the current Constitution was not promulgated until December 4 of that year. The present Constitution therefore did not yet exist when the Measures appeared. The legal environment changed profoundly afterward. The Administrative Penalties Law in 1996 and the Legislation Law in 2000 imposed stricter requirements on the legal source of authority to restrict personal liberty. The old Measures had become increasingly difficult to reconcile with the new framework.

From Custody and Repatriation to Social Assistance

By the time of the Sun Zhigang case, the system was clearly nearing its end. As national debate intensified, Wu Bangguo, then chair of the NPC Standing Committee, forwarded relevant materials to Premier Wen Jiabao on June 4 with a written work suggestion. He proposed that the responsible State Council departments study the matter and that the NPC Legislative Affairs Commission could participate. On June 18, the State Council executive meeting adopted the new Measures for Assisting Vagrants and Beggars with No Means of Support in Cities. Wen signed State Council Order No. 381 on June 20, promulgating the new Measures and setting August 1 as their effective date. The 1982 custody-and-repatriation rules were abolished on that same date. After more than two decades, custody and repatriation gave way to a new system of social assistance.

Article 11 of the new Measures provides:

An assistance station shall advise a recipient to return to the recipient’s residence or work unit and may not restrict the recipient from leaving the station. If an address has been ascertained, the station shall promptly notify the recipient’s relatives or work unit to take the recipient home. If the recipient is homeless, the people’s government of the place of household registration shall make proper arrangements.

The new regime abandoned coercive custody and returned to the gentler objective of social relief.

It also reassigned the role of the police. When officers encountered vagrants or beggars, their principal responsibility was to inform and guide them toward assistance stations. Government budgets would fund assistance. Stations could not charge recipients, relatives, or work units, nor could they organize recipients to perform productive labor. The Measures expressly prohibited staff from confining or covertly confining, beating, physically punishing, or abusing recipients.

The State Council thus ended a potentially unconstitutional system by repealing the old regulation and replacing it with a new one. Once the promulgating authority itself had terminated the system, further formal review was no longer practically necessary. The preceding episode discussed the end of American vagrancy law. In 1972, the U.S. Supreme Court used judicial review to invalidate Jacksonville’s vagrancy ordinance, affecting the entire tradition of old-style vagrancy law. That authority had developed over more than a century: in deciding a case, the Supreme Court could review the constitutionality of the legal provision before it. China addressed a related problem through a gentler path that more closely fit its own institutional setting.

Returning to the management of people living on the streets, China and the United States differ enormously in political institutions and legal tradition. Yet their governments face a similar underlying tension. Local authorities need some capacity to maintain public order, but that management can itself violate individual rights. The Sun Zhigang case was an extreme example. Institutional defects, insufficiently supervised administrative power, and poorly trained personnel converged during an era of rapid economic growth to produce an irreversible tragedy.

Criminal Trials and Accountability

On June 5, 2003, the Guangzhou Intermediate People’s Court publicly tried the case arising from Sun Zhigang’s fatal beating. Twelve defendants stood trial: four hospital orderlies and eight other people in custody. The court found that orderly Qiao Yanqin, angered by Sun’s loud pleas for help, arranged to move him to another ward and instructed Li Haiying and other detainees there to beat him. Li then organized and directed the assault. Another orderly, Lü Erpeng, not only participated in the planning but struck Sun with a plastic baton after Sun reported the first beating. Before dawn on March 20, Sun was assaulted twice and died from extensive soft-tissue injury and traumatic shock.

Why did the court convict the defendants of intentional injury rather than intentional homicide? Intentional homicide requires an intent to deprive another person of life. The court found that the defendants directly intended to beat and injure Sun, while death was the grave consequence of that assault. Under the Criminal Law, intentional injury causing death may likewise be punished by at least ten years’ imprisonment, life imprisonment, or death.

The court announced its first-instance judgment on June 9. Qiao Yanqin was sentenced to immediate execution and deprivation of political rights for life. Li Haiying received a death sentence with a two-year reprieve. The other defendants received terms ranging from three to fifteen years, or life imprisonment. All twelve appealed. On June 27, the Guangdong High People’s Court rejected the appeals and affirmed the judgments. Acting under authority delegated by the Supreme People’s Court, it approved Qiao’s death sentence. She was executed that day.

Six other responsible personnel were prosecuted separately for dereliction of duty. They included an officer from the Huangcun Street Police Station, the deputy director of the Jiangcun inpatient unit of the Guangzhou Psychiatric Hospital, and the head of the medical center. On June 9, the Tianhe and Baiyun district courts found that the six defendants’ failures had caused Sun’s wrongful custody and exposed him to the fatal abuse. Each received a sentence of two to three years. Five appealed. On June 27, the Guangzhou Intermediate People’s Court rejected the appeals and affirmed the judgments.

Beyond the criminal cases, twenty-three people received Party or administrative discipline. They ranged from responsible leaders in the Guangzhou public-security, health, and civil-affairs departments to personnel at the Tianhe Public Security Sub-bureau, Huangcun Street Police Station, transit station, and medical center. Two officers who processed Sun’s case were expelled from the Party and dismissed from public employment. The head and deputy head of the police station were removed from their positions. Other managers received warnings, demerits, major demerits, or removal.

Accountability therefore operated on three levels. Those who organized or carried out the beatings were convicted of intentional injury. Those whose serious failures in custody, medical care, and supervision enabled the death were convicted of dereliction of duty. Other people with managerial or leadership responsibility received Party or administrative discipline.

“Assistance Bridge,” “Reform Pavilion,” and a Family

Before the criminal trial, the special case team, acting on behalf of the responsible departments, signed a state-compensation agreement with Sun’s family. Most of the people who directly participated in the beatings had little money, making a damages award difficult to collect, so the family abandoned a civil claim attached to the criminal case. Their lawyer did not disclose the amount in the agreement. Sun’s father, Sun Lusong, later told an interviewer that the Guangzhou authorities paid a total of 500,000 yuan.

Sun Lusong attended the first-instance judgment in Guangzhou on June 9. He had spent more than eighty days there seeking the truth about his son’s death. After the judgment, he took Sun Zhigang home to Huanggang, Hubei, and buried him in Xingfu Village, Taodian Township, less than one hundred meters from the primary school Sun had attended.

The father designed the gravesite himself. A small “Assistance Bridge” stands before the grave and a “Reform Pavilion” behind it. On either side are two sweet-osmanthus trees that he transplanted from the old family home because his son had loved their blossoms. The gravestone records the entire path from wrongful custody and forensic identification to media reporting and repeal of the old system. Its final inscription reads: “Sun Zhigang—a man worth remembering, who advanced China’s rule of law at the cost of his life.”

For years after the case, migrant workers who had once been held under custody and repatriation found the family’s phone number and called Sun’s parents to express their sympathy. A decade later, Sun Lusong still told reporters that he hoped his son’s case would help preserve institutions that benefited ordinary people and abolish those that harmed them. The family gradually withdrew from public view and returned to daily life.

Recording and Review After Sun Zhigang

The broader effect of the Sun Zhigang case did not end with the repeal of custody and repatriation.

Amendments to the Legislation Law in 2015 and 2023 made the relevant procedures clearer. Article 11 of the current law still expressly reserves restrictions on personal liberty to statutes. Article 12 goes further: even when the National People’s Congress or its Standing Committee authorizes the State Council to legislate provisionally, the authorization may not extend to measures restricting personal liberty. The line of authority implicated by the Sun Zhigang case remains written into law.

The current Legislation Law also regulates constitutional and legality review in greater detail. In 2019, the NPC website opened an online portal for review proposals, removing the need to submit by fax as the three legal scholars had done. After receiving a proposal, an NPC Standing Committee working body conducts an initial examination. If a possible constitutional or legal defect appears, the matter can proceed to further review. The reviewing body may issue a written opinion to the promulgating authority, which has two months to say whether it will amend or repeal the rule. If it refuses to correct the problem, the reviewing institutions may submit a motion or recommendation for annulment to the Council of Chairpersons, which decides whether to place the matter before the NPC Standing Committee. Once review concludes, the citizen or organization that made the proposal is to receive feedback.

In practice, most issues are first discussed between the reviewing body and the promulgating authority, after which the latter amends or repeals the rule itself. Formal annulment remains the last resort. The pattern resembles the State Council’s self-correction in the Sun Zhigang case, but today’s process is more proceduralized and transparent than it was in 2003.

In 2025, the NPC Standing Committee received 6,705 review proposals from citizens and organizations: 1,420 by post and 5,285 online. One proposal challenged local rules requiring a person registering a motorized wheelchair to hold permanent household registration in that city. The Legislative Affairs Commission regarded the requirement as unnecessary differential treatment. It issued a review opinion to the authorities responsible for the local legislation and referred the related local-government rules to the bodies responsible for supervising them.

The example echoes the Sun Zhigang case in a subtle way. Both involved migration and household-registration controls. The difference is that citizens today need not wait for a death before bringing a problem into the recording-and-review process. A local rule that unreasonably restricts rights can be reexamined and changed because of a proposal submitted online.

Yet the story should not romanticize Sun’s death. He did not choose to sacrifice himself for legal reform. On the night of March 17, 2003, he simply wanted to use an internet café after work. The case ultimately received an institutional response, but Sun’s life still ended at twenty-seven.

Courts can punish perpetrators after a tragedy. Governments can abolish a defective system. The Legislation Law can continue to improve its procedures of supervision. The more important purpose of the rule of law, however, is to use clear limits on power and binding procedures to prevent such errors before they happen. That is the final lesson of the Sun Zhigang case: law must do its work before tragedy occurs.

Key Figures

• Sun Zhigang — A young man from Hubei, born in 1976, who had recently begun work in Guangzhou. Because he was not carrying his identity card and had not yet obtained a temporary-residence permit, he was wrongly placed in custody and died three days later. He was unrelated to the government official of the same name.
• Qiao Yanqin — An orderly at the Guangzhou Medical Center for Persons in Custody. The court found that, angered by Sun’s shouting, she instructed other detainees to beat him. She was sentenced to immediate execution, the judgment was affirmed and approved on appeal, and she was executed on June 27, 2003.
• Wu Bangguo — Then chair of the NPC Standing Committee. The work suggestion made public later shows that the Standing Committee’s leadership was monitoring the case internally and transmitting the matter to the State Council; it did not amount to a formal constitutional judgment by the Standing Committee.
• Wen Jiabao — Then premier of the State Council. He signed State Council Order No. 381 on June 20, 2003, promulgating the new Assistance Measures. The regulation was adopted by the State Council executive meeting and issued as a State Council order; the State Council, rather than the premier personally, was the lawmaking authority.

Key Concepts

• Statutory reservation — Matters including restrictions on personal liberty must be prescribed by statutes enacted by the National People’s Congress or its Standing Committee; an administrative regulation of the State Council cannot create them on its own. The principal provisions in 2003 were article 8, item 5, and article 9 of the Legislation Law then in force.
• Review requirement and review proposal — Article 90 of the 2000 Legislation Law called a formal submission by specified state bodies a “requirement” and a submission by other bodies, organizations, or citizens a “proposal.” The submission by the three legal scholars belonged to the latter category.
• Recording and review — The system through which competent authorities supervise administrative regulations, local legislation, and other norms for constitutional and legal defects.
• Administrative self-correction — The State Council, which had promulgated the old Measures, used a new administrative regulation to abolish them directly.

Key Laws and Legal Documents

• Measures for the Custody and Repatriation of Urban Vagrants and Beggars (State Council; issued May 12, 1982; repealed August 1, 2003) — Article 1 combined relief and public-order purposes, while article 6 required submission to custody and repatriation, directly expressing the coercive character of the old system.
• Article 37 of the Constitution of the People’s Republic of China — Protects citizens’ personal liberty and supplied the fundamental-rights basis cited in the three scholars’ proposal.
• Administrative Penalties Law of the People’s Republic of China (1996 text, articles 9 and 10) — Article 9 reserved the creation of administrative penalties restricting liberty to statutes, and article 10 barred administrative regulations from creating such penalties. This line of argument applies directly only if custody and repatriation is first classified as an administrative penalty.
• Legislation Law of the People’s Republic of China (2000 text, articles 8, 9, 88, and 90) — Governed statutory reservation for measures restricting liberty, prohibited provisional State Council legislation on those matters, granted the NPC Standing Committee annulment power, and established procedures for review requirements and proposals. The current article numbers have changed and should not be used to describe conduct in 2003.
• Measures for Assisting Vagrants and Beggars with No Means of Support in Cities (State Council Order No. 381; promulgated June 20, 2003; effective August 1) — Defined the new regime as temporary social assistance, guaranteed public funding, prohibited fees and productive labor, barred restrictions on departure, and repealed the old Measures in article 18.

Related Episodes

• 13 China’s “First Constitutional Case”: Qi Yuling’s Stolen Right to Education
• 14 Could Being Jobless Be a Crime? America’s Constitutional Reckoning with Vagrancy Laws

This is the transcript of episode 14 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.

Executive Order 14321

On July 24, 2025, President Donald Trump signed Executive Order 14321, titled “Ending Crime and Disorder on America’s Streets.” Shortly before it appeared, the latest official figures had shown a marked rise in homelessness in the United States.

The 2024 count found that roughly 771,000 people were experiencing homelessness nationwide, an increase of about 18 percent from the previous year. Approximately 274,000 of them were sleeping on streets, in parks, or in other places not meant for human habitation. These figures were a snapshot of a single night, not the total number of people who experienced homelessness at any point during the year. Even so, the total was the highest recorded since the count began.

There are many reasons why the number was so high. Rising housing costs and prices, stagnant or falling wages, layoffs, and the lingering effects of the pandemic may all have contributed. The Trump administration’s order, however, connected homelessness and unsheltered living with public disorder, drug use, and mental-health crises. Executive Order 14321 emerged from that framing.

Its central provisions can be reduced to two broad moves. First, it encouraged local governments to enforce restrictions on sleeping outdoors, loitering, and squatting, and instructed federal agencies to consider prioritizing grants for states and cities that did so. Second, it called for civil-commitment and treatment measures for certain people with serious mental illness who posed a danger to themselves or others, or who were living on the streets and unable to care for themselves. Put simply, the administration sought to use federal funding and policy direction to make local governments more aggressive in clearing encampments, enforcing public-order laws, and moving some unsheltered people into treatment or institutional settings.

The order did not itself create a nationwide crime of vagrancy, nor did it directly command local police to arrest everyone sleeping outdoors. Its main instruments were federal grants and policy guidance. Yet section 3 was expressly titled “Fighting Vagrancy on America’s Streets.” A phrase that seemed to belong to a nineteenth-century statute had returned in a twenty-first-century federal policy document.

But the Supreme Court had declared the old style of vagrancy law unconstitutional more than half a century earlier. Why, then, did “vagrancy” again become an object of presidential policy in 2025? Do today’s camping and loitering bans punish identifiable conduct, or do they offer a new way to single out people whom society would rather not see?

Four Young People Charged with “Prowling by Auto”

To understand those questions, we need to return to 1969.

Early one Sunday morning in Jacksonville, Florida, a car traveled along a main city road. Four young people were inside. They had eaten dinner at a nearby restaurant and were driving to a nightclub for the second stop of their evening. The police pulled them over on the way. Officers later explained that the car had briefly stopped near a used-car lot where several break-ins had recently occurred. No burglary took place that night, however, and there was no evidence that the four occupants intended to commit one.

Under the ordinary logic of criminal procedure, suspicion alone does not permit police to arrest someone without probable cause. Jacksonville, however, still enforced a local Vagrancy Ordinance. Anyone whom the police classified as a “vagrant” could be arrested, fined, and jailed. The ordinance defined that status through sweeping categories that included “common night walkers,” “habitual loafers,” and people “wandering or strolling around from place to place without any lawful purpose.” The police classified the four people in the car as “prowling by auto.”

They were far from the ordinance’s only victims. Similar cases were common across the country. Under such laws, an officer who thought someone looked suspicious could select a label from an assortment of vague categories, call that person a vagrant, and make an arrest. The Supreme Court case that became known as Papachristou joined the convictions of eight defendants. Besides the four people in the car, four others had been arrested and convicted on similarly nebulous grounds.

Among them were Jimmy Lee Smith and Milton Henry. Their encounter took place on a cold weekday morning. Smith worked part time in the produce business and as an organizer for a Black political organization. Henry was an eighteen-year-old high-school student. They were waiting downtown for a friend to lend them a car so they could seek work at a produce company. Smith had no coat, so the two stepped inside a dry-cleaning shop to get warm. When the shop asked them to leave, they immediately did so. They then walked back and forth two or three times along a two-block stretch, looking for their friend.

Nearby merchants called the police. Officers found no weapons when they searched the two men, but arrested them anyway. The officers said that Smith and Henry had no identification and that their story seemed suspicious, making them “vagabonds” under the ordinance.

The eight defendants eventually brought their cases to the Supreme Court in Papachristou v. City of Jacksonville. On February 24, 1972, the Court ruled 7–0 that Jacksonville’s Vagrancy Ordinance was unconstitutionally vague. On its face, the case merely invalidated a municipal law. At a deeper level, however, it posed a fundamental question: if the state no longer has to prove harmful conduct and may convict a person on an officer’s subjective impression, how much personal liberty remains?

From the Black Death to the Black Codes

American law grew from English law, so the history of Jacksonville’s ordinance begins in fourteenth-century England.

The Black Death had swept through the country and killed a vast number of agricultural workers. The resulting labor shortage gave surviving workers greater bargaining power. They could demand higher wages or leave their manors to seek better opportunities elsewhere.

Landowners and the Crown moved quickly to contain that change. The Crown issued the Ordinance of Labourers in 1349, and Parliament followed with the Statute of Labourers in 1351. The measures required able-bodied people without other means of support to work on legally prescribed terms, capped wages, and restricted movement in search of higher pay. Refusing to work on those terms or leaving an employer could lead to punishment. Their purpose was not public safety in the modern sense; it was control of the labor market.

From the sixteenth century, Tudor law increasingly divided poor people into two groups. Able-bodied people without recognized work who wandered or begged were marked for punishment; the “deserving poor” were eligible for relief. The law did not simply punish everyone without work. It first classified them: who deserved aid, who had to labor, and who should be penalized.

The Settlement Act of 1662 tied responsibility for poor relief to a person’s place of lawful settlement. If a parish feared that a newcomer who lacked settlement rights would become a financial burden, it could send that person back to the parish where he or she legally belonged. Settlement might be acquired by birth, marriage, long-term employment, or apprenticeship. The system principally allocated local fiscal responsibility, but it also constrained ordinary people’s freedom of movement.

The Vagrancy Act 1824 brought begging and sleeping in the open without a satisfactory explanation into summary criminal proceedings. Vagrancy law began to resemble modern street policing, merging judgments about status, conduct in public, and preventive law enforcement.

North America developed its own vagrancy regimes from this English foundation. After the Civil War ended in 1865, Southern states enacted the Black Codes. Their vagrancy provisions had an explicit racial purpose. Mississippi’s 1865 law, for example, allowed adult freedpeople without “lawful employment or business” to be deemed vagrants and subjected to fines or forced labor. In the postwar South, vagrancy law became one route from slavery into other forms of coerced labor.

From the late nineteenth century through the first half of the twentieth, American codes accumulated labels such as people “without visible means of support,” “common thieves,” “common drunkards,” “habitual loafers,” and those unable to explain their purpose. When police lacked evidence of a specific crime, they could assign a person to one of these categories. Vagrancy law thus combined inchoate offenses, status crimes, and disobedience of police commands. Punishment reached beyond demonstrated harm to encompass whatever dangers an officer imagined might occur.

By the mid-twentieth century, local governments were using such laws to remove people they disfavored. The targets varied by time and place: Black civil-rights organizers, labor organizers, gay men and lesbians, sex workers, antiwar activists, and nonconforming young people could all find themselves within the vagrancy net.

By the 1960s, just before Papachristou, vagrancy laws had long ceased to apply only to people in poverty. The four people arrested in the car included a teacher, college students, a veteran, and people with steady work. What united them was the police power to decide first that someone looked suspicious and then search a broad ordinance for a charge.

FBI figures showed roughly 100,000 vagrancy arrests in each year from 1968 through 1970, in addition to approximately 70,000 to 90,000 arrests categorized as based on “suspicion.” Justice William O. Douglas reproduced the figures in the Court’s opinion to show how common both old-style vagrancy enforcement and arrest on suspicion remained.

How Vagueness Enlarged Police Power

Jacksonville’s ordinance listed more than a dozen categories of supposed vagrants. Among them were:

• “Rogues and vagabonds,” a label with no conduct element and no objective way to determine when a person became a “rogue.”
• “Dissolute persons who go about begging,” in which “dissolute” supplied another highly subjective judgment.
• “Common gamblers” and “common drunkards,” which did not require proof of a particular act of illegal gambling or public intoxication. The law never said how often conduct had to occur before it became “common.”
• “Common night walkers,” even though walking at night is not itself harmful.
• “Habitual loafers,” treating unemployment or leisure as a crime in itself.

These labels carried real criminal penalties. At the time of the defendants’ arrests, a conviction could result in up to ninety days in jail, a $500 fine, or both.

The Supreme Court invalidated the provisions because they were unconstitutionally vague. A criminal law cannot be written so obscurely that ordinary people must guess at its meaning. Jacksonville’s categories had no workable boundaries. What counted as “habitual” or “common”—three times a week, or twice a month? What was a “lawful purpose”? Did only work and shopping qualify, or did a walk at sunset count as well?

More important, a vague law not only leaves the public uncertain; it also fails to constrain law enforcement and thereby expands police power. Douglas wrote that the ordinance cast a broad net and enlarged the police arsenal without giving courts a clearly defined offense to adjudicate. Some innocent actions may sometimes accompany crime. A person lingering on a street may be scouting a robbery, and someone stopping near a used-car lot may be seeking a target. That possibility does not allow the state to convict everyone who does the same thing. Legislatures may define concrete offenses involving attempted theft, trespass, or unlawful weapons. They may not use the possibility of future crime as the true basis for punishing a person under a vagrancy label.

When ordinary activities become subject to criminal punishment, they create a chilling effect. If vague rules reach walking, socializing, or political organizing, people may curtail their freedom to avoid arrest. Douglas linked strolling, walking at night, nonconformity, dissent, and personal independence, and invoked figures including Walt Whitman, Vachel Lindsay, and Henry David Thoreau. They might all have seemed unconventional to their neighbors. Treating them as criminals for that reason would go far beyond the legitimate reach of law.

Some rules can retain a degree of linguistic flexibility. Commercial regulations, for example, often apply to a narrower subject and a more specialized audience, so courts may tolerate greater uncertainty. Criminal law demands more precision. Jacksonville’s ordinance governed the general public and could lead directly to arrest, imprisonment, fines, and stigma. It could not be measured by the same forgiving standard.

The opinion also explained that arrest requires probable cause under the Fourth and Fourteenth Amendments. Ordinarily, the law first defines a crime and police then ask whether concrete facts establish probable cause to believe it occurred. The Vagrancy Ordinance reversed that sequence. Police began with a sense that someone was suspicious and demanded an explanation of identity and purpose. If the answer failed to satisfy them, “no lawful purpose” or “vagabond” became the offense and supplied an apparent basis for arrest. This invitation to arbitrary enforcement was central to the Court’s conclusion that the ordinance violated due process.

A “Freedom to Stroll” and the Power to Stop

The case is sometimes said to have created a constitutional freedom to stroll, as though Americans acquired the right to wander down a street only after Papachristou. That overstates what the Court held.

The opinion focused on the ordinance’s vagueness and did not identify an independent fundamental right called a freedom to stroll. Its language nevertheless carried a strong sense of substantive liberty. Douglas described walking at night, strolling, and wandering as ordinary activities that, although not mentioned word for word in the Constitution, nurture the independent and creative spirit of modern society.

Later decisions did not establish harmless loitering as an independent fundamental right supported by a majority of the Court. In City of Chicago v. Morales in 1999, Justice John Paul Stevens wrote in a four-Justice plurality that the freedom to loiter for innocent purposes fell within the liberty protected by the Fourteenth Amendment’s Due Process Clause. That portion of the opinion did not command five votes; the judgment invalidating the ordinance rested on vagueness. Papachristou therefore did not deliberately create a discrete “freedom to stroll.” Its rule centered on vague law and unconstrained police discretion. In that respect, it resembled Miranda: both decisions limited the authority of frontline police officers.

Critics argued that abolishing the Vagrancy Ordinance would weaken or even eliminate police power to question people on the street. That concern did not follow from the law as it then stood.

Four years before Papachristou, the Court had recognized a lower-intensity form of police intervention in Terry v. Ohio. Even without probable cause to arrest, an officer could conduct a brief investigative stop on the basis of reasonable suspicion grounded in specific, articulable facts. If the officer also reasonably believed that the person was armed and dangerous, the officer could conduct a limited frisk for weapons.

Papachristou did not overrule Terry or deprive police of all power to stop and question. Its change was more precise: police could no longer use a sweeping vagrancy offense to convert suspicion directly into arrest and conviction. When there was only reasonable suspicion, police were limited to a lower-intensity intervention and had to point to facts that made the suspicion reasonable. A formal arrest required probable cause to believe the person had committed a defined crime. That was the decision’s principal significance for criminal procedure.

After the Old Vagrancy Laws

In 1972, the Florida Legislature repealed the old state vagrancy statute that had served as a model for municipal ordinances and enacted a new loitering-and-prowling law. Under the replacement, the state had to prove that the defendant’s conduct was unusual for law-abiding people in its time, place, or manner. The surrounding circumstances also had to warrant justifiable and reasonable alarm or immediate concern for the safety of people or property nearby. The statute offered examples, such as flight upon seeing police, refusal to identify oneself, or an attempt to conceal oneself. Even those circumstances did not automatically permit arrest. Unless flight or another circumstance made inquiry impracticable, an officer first had to give the person an opportunity to explain. In State v. Ecker in 1975, the Florida Supreme Court further construed the law to require concrete circumstances threatening public safety. An officer’s subjective suspicion alone could not establish the offense.

The replacement did not eliminate all room for selective enforcement. Phrases such as conduct “not usual for law-abiding individuals” and “justifiable and reasonable alarm” still involve judgment. Whether such words meaningfully restrain street-level enforcement depends on the officer’s assessment at the scene and on later judicial review.

Several later Supreme Court cases gave the constitutional boundary greater definition.

In Kolender v. Lawson in 1983, a California statute required a person detained on reasonable suspicion for loitering or wandering to provide “credible and reliable” identification. But what made an identification credible and reliable? The statute supplied no standard and left the answer to individual officers. The Court held the law unconstitutionally vague because it vested virtually complete discretion in the police.

In City of Chicago v. Morales in 1999, Chicago’s gang-loitering ordinance allowed an officer who reasonably believed that at least one person in a group of two or more was a gang member, and who regarded the group as remaining in a public place with “no apparent purpose,” to order everyone to disperse. Refusal brought punishment. The Supreme Court held the ordinance invalid. “No apparent purpose” was too vague and allowed officers on the beat to draw the line between innocent conduct and crime.

Papachristou did not single-handedly remake the entire American law of criminal offenses. Its immediate effect was to accelerate the disappearance of old-style vagrancy laws and require public-order offenses to use more definite conduct elements and enforcement standards. The justice system had to turn its attention from labels attached to suspects toward their conduct, the circumstances at the scene, and dangers that could be proved. In that way, the case helped regularize American criminal justice.

Status and Conduct in Grants Pass

It would be easy to draw an overly optimistic conclusion: once the old vagrancy laws disappeared, so did the police power to remove people from the street arbitrarily. The history is more complicated.

Police historian Sarah Seo has observed that, in the constitutional case law, the 1972 judgment was a victory for individual liberty. In the history of policing, however, the same period also saw the growth of proactive street policing, Terry stops, and enforcement of minor public-order offenses. Papachristou constrained the forms through which police exercised discretion; it did not remove discretion from the street.

Legal historian Lissa Goluboff asks a related question: why did the old vagrancy laws survive for so long? In her account, those laws often cared less about what a person had done than about whether that person occupied the place society assigned to him or her. A Black person in an unwelcome neighborhood, a worker leaving an employer, gay people gathering openly, or young people rejecting conventional life could all be treated as out of place. Challenges brought through the civil-rights movement, labor organizing, gay-rights activism, the antiwar movement, and youth culture therefore shared a claim: the state could not dictate in advance what identity each person should possess and where that identity was permitted to appear.

Together, these accounts locate Papachristou more precisely. The case ended an overt form of status-based enforcement, but it did not end subjective judgment by police. Statutes were less likely to declare a “vagabond” or “common night walker” criminal by name. Similar judgments could instead migrate into rules governing camping, sleeping in public, or disorderly conduct.

That is why the controversy persists. To understand its modern form, we need to separate two constitutional lines. The first is the void-for-vagueness problem represented by Papachristou. The second concerns status crimes under the Eighth Amendment: may the state punish a person for a condition or status without regard to conduct? The issues often appear together in debates over homelessness, but they ask different legal questions. Vagueness concerns whether a rule has intelligible boundaries. The status-conduct distinction asks whether the state is punishing who a person is or what that person has done.

City of Grants Pass v. Johnson brought that distinction back to the Supreme Court in 2024. Grants Pass, Oregon, prohibited camping on public property and defined camping to include the use of bedding. On its face, the rule applied to everyone. A person experiencing homelessness, a backpacker passing through town, and a student participating in a protest encampment were all subject to it. Their practical positions differed, however. Backpackers and students could usually choose to go elsewhere; a person without housing might have no indoor place to sleep. If sleep is unavoidable, did punishing outdoor sleep regulate conduct or merely punish homelessness by another name?

The Court ruled 6–3 for Grants Pass. The majority reasoned that the ordinances punished conduct—camping on public property—not the status of being homeless. Because they applied to people regardless of status, they did not violate the Eighth Amendment rule against criminalizing status itself. Justice Sonia Sotomayor, joined by two other dissenters, took the opposite view. For a person with no indoor shelter option, she argued, sleep was not a voluntary behavior that could simply be abandoned. Punishing that person for sleeping outside was functionally close to punishing the condition of homelessness.

Importantly, Grants Pass did not overrule Papachristou. It addressed the Eighth Amendment status-crime theory, not vagueness under the Due Process Clause. The majority also acknowledged that laws directed at conduct could raise other constitutional problems if they were selectively enforced against a disfavored group. Due process and selective-enforcement claims, however, were not before the Court in that case.

The boundary drawn by Grants Pass was therefore limited. A government cannot simply announce that homelessness itself is a crime, but it may punish certain conduct such as camping in public. Whether the conduct rule is sufficiently clear, selectively enforced, or used as a proxy for excluding a class of people remains subject to other constitutional doctrines.

That distinction also clarifies Executive Order 14321. The order did not overturn Papachristou or restore the old offense of vagrancy. It used federal funding and related policy tools to encourage enforcement of restrictions on camping, loitering, and open drug use while expanding certain civil-commitment measures. Old vagrancy laws attached a criminal label directly to a “vagrant.” Modern rules more often define conduct such as sleeping outdoors or loitering. Yet the question left in 1972 remains: are those rules sufficiently clear, and do they target a demonstrable danger or a disfavored person?

From Papachristou to Sun Zhigang

For a Chinese audience, this history inevitably calls to mind another name: Sun Zhigang.

In 2003, the twenty-seven-year-old Sun was detained in Guangzhou because he was not carrying identification and had not obtained a temporary-residence permit. Authorities wrongly treated him as a person eligible for custody and repatriation. He was beaten inside a custody-and-repatriation facility and died three days later. In fact, Sun had both a job and a place to live; he did not fit even the system’s category of an indigent migrant or beggar.

The incident has sometimes been called China’s Papachristou. The comparison is imperfect. The social structures, legal mechanisms, and paths to reform were very different. The two events nevertheless leave a similar question: when a person has committed no concrete act of harm, may an official deprive that person of liberty merely because he “looks suspicious”?

Why Sun Zhigang’s death helped bring the custody-and-repatriation system to an end, and how legal scholars’ review proposals and public opinion influenced that change, will be the subject of the next episode.

From the Ordinance of Labourers enacted in 1349 to control labor, through the Supreme Court’s invalidation of Jacksonville’s Vagrancy Ordinance in 1972, to present disputes over camping, loitering, and public order, the language of law has continually changed while the same problem returns. It has no final answer. Whenever law prepares to restrict a person’s liberty because of a status attached to that person, we should ask the question again.

Key Figures

• Jimmy Lee Smith: A part-time organizer for a Black political organization who was arrested while waiting for a friend downtown and carrying no identification.
• Milton Henry: An eighteen-year-old high-school student arrested with Smith while they waited for a friend.
• William O. Douglas: Associate Justice of the U.S. Supreme Court from 1939 to 1975 and author of the Court’s opinion in Papachristou.

Key Cases and Concepts

• Papachristou v. City of Jacksonville: The Supreme Court ruled 7–0 that Jacksonville’s Vagrancy Ordinance was unconstitutionally vague. Criminal law must tell ordinary people what conduct is prohibited and constrain law enforcement; it cannot make “who looks suspicious” an element of crime.
• The Due Process Clause of the Fourteenth Amendment: Requires state and local criminal laws to satisfy a minimum standard of clarity and provided the constitutional basis for Papachristou.
• The void-for-vagueness doctrine: The ordinance failed both to give fair notice and to supply standards for law enforcement, inviting arbitrary arrests and convictions. The threat to ordinary activity and the higher clarity demanded of criminal rules reinforced the Court’s conclusion.
• The Vagrancy Act 1824: A major point in the development of modern English criminal vagrancy law, listing categories such as idle and disorderly persons, rogues, and vagabonds.
• The Black Codes: Racial laws enacted by Southern states during Reconstruction. Their vagrancy provisions helped channel emancipation into new forms of forced labor.
• Terry v. Ohio: Permits a brief investigative stop based on reasonable suspicion arising from specific, articulable facts. Papachristou did not disturb that rule.
• Kolender v. Lawson: Invalidated California’s vague identification requirement because it gave police nearly complete discretion, providing one of the clearest later expressions of Papachristou’s concern with constraining police power.
• City of Chicago v. Morales: The Supreme Court invalidated Chicago’s gang-loitering ordinance 6–3 because the phrase “no apparent purpose” was impermissibly vague.
• City of Grants Pass v. Johnson: The Court ruled 6–3 that generally applicable public-camping ordinances regulated conduct rather than the status of homelessness and therefore did not violate the Eighth Amendment.
• Executive Order 14321, “Ending Crime and Disorder on America’s Streets”: Directed federal agencies to consider prioritizing support for states and cities enforcing restrictions on camping, loitering, and open drug use, while promoting expanded civil-commitment measures within existing law.

Related Episodes

• 10 You Have the Right to Remain Silent: How the Miranda Warning Transformed American Justice

This is the transcript of episode 13 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.

At the end of 1998, in Tengzhou, Shandong, a woman in her twenties named Qi Yuling had a strange encounter. A bank employee she had never met came to congratulate her. Qi was baffled. When she pressed for an explanation, she learned that another person at the bank had exactly the same name: “Qi Yuling.”

Qi later saw a photograph of this other “Qi Yuling.” The woman was Chen Xiaoqi, a former classmate from Tengzhou No. 8 Middle School. Eight years earlier, the two had attended the same school. Now Chen was working at a bank under Qi’s name.

Chen’s father, Chen Kezheng, then the village Party secretary, sent someone to offer Qi 5,000 yuan to settle the matter privately. Qi refused. Chen Kezheng and others then harassed and intimidated her family. Qi later told the media that she felt her life had been “stolen.”

She eventually chose to sue. In January 1999, Qi filed a complaint with the Zaozhuang Intermediate People’s Court in Shandong. For the first time, an identity substitution concealed for almost a decade entered a courtroom. No one expected the case to reach the Supreme People’s Court and become known as “China’s first case of judicial application of the Constitution.”

Episode 8 discussed the birth of judicial review in the United States through Marbury v. Madison, the ingenious decision in which the U.S. Supreme Court claimed authority to interpret the Constitution. After that episode, a listener asked me privately: Can China’s Supreme People’s Court interpret the Constitution? Does China have its own Marbury v. Madison?

The Qi Yuling case is often compared with American judicial review. Some call it the first Chinese case in which a court invoked the Constitution to protect a citizen’s fundamental rights. Others regard it as no more than an individual judicial reply whose significance was exaggerated. Seven years later, the reply was repealed, seemingly returning everything to where it began.

But was it really so simple? Why did a one-sentence reply from the Supreme People’s Court provoke years of debate? Why was it quietly repealed seven years later? Behind the reply lies a revealing period in which the Chinese judiciary explored whether the Constitution could be used in deciding an individual case.

Eight Stolen Years

The story began in the spring of 1990.

That year, Shandong held a province-wide entrance examination for technical secondary schools. Seventeen-year-old Qi Yuling attended Tengzhou No. 8 Middle School. She passed the preliminary selection, sat for the examination, and scored 441—above the admission threshold for the accounting program at Jining Commercial School. At the time, admission to such a school could transform a rural girl’s prospects: it could bring urban household registration and an assigned job after graduation.

Qi never received her admission notice.

Chen Xiaoqi had been in the same year at Tengzhou No. 8 Middle School. She failed the preliminary selection and was not eligible to take the entrance examination. Yet, through arrangements made by her father and with the cooperation of personnel at the schools and local education authority, Qi’s admission notice from Jining Commercial School ended up in Chen’s hands.

This was not simply a matter of taking someone else’s letter. To enroll Chen under Qi’s identity, the participants falsified school records, medical forms, and identity information. They facilitated the substitution at multiple stages, including admission review and the transfer of student files.

In the autumn of 1990, Chen entered Jining Commercial School as “Qi Yuling.” She graduated in 1993 and later found work at a bank under Qi’s identity.

The real Qi had never been told her examination score or the qualifying score for a sponsored placement. Without an admission notice, she believed that she had failed. She worked in agriculture and repeated a year of study. In 1993, she paid a 6,000-yuan surcharge to obtain urban household registration and enrolled in a labor technical school. In 1996, she was assigned to the Shandong Lunan Ferroalloy Factory, but was soon laid off during restructuring. She survived by selling breakfast food and simple meals.

Admissions administration in the 1990s depended on paper files and manual review. China had no nationwide online student-record system and no electronic identity verification. A stolen admission notice, altered file, and assumed identity could be difficult to detect. Rural students such as Qi had limited access to policy information and often did not know where to verify a result or file a complaint.

As a village Party secretary, Chen Kezheng possessed more information and had access to school and education officials. A grassroots official used institutional information asymmetry and personal connections to engineer the substitution.

The case therefore posed a basic question: if an ordinary person did not even know that someone had stolen her educational opportunity, how could the law protect her? Qi’s encounter at the bank in late 1998 changed the course of her life again. She learned the truth, rejected a private settlement, and went to court.

From the Right to a Name to the Right to Education

Qi filed suit in January 1999. On May 31, the Zaozhuang Intermediate People’s Court issued its first-instance judgment. It found that the defendants had falsified records so that Chen could enroll under Qi’s identity and had therefore infringed Qi’s right to her name. But the court held that there was insufficient evidence for her claim that her right to education had been violated. The judgment characterized the right to education as part of a citizen’s general personality rights, yet stated that the evidence showed Qi had “in fact given up the opportunity” to pursue a sponsored placement. Because she did not contact a sponsoring institution or pay the relevant fee, the court reasoned, she had not proved an infringement of her right to education.

The Shandong High People’s Court later found no evidence that Tengzhou No. 8 Middle School had told Qi either her examination score or the qualifying score. Although she had indicated before the examination that she would accept a sponsored placement, she did not know she had been admitted. How could she contact a sponsoring institution or pay a fee for an admission she did not know existed?

The first-instance court ordered Chen to stop infringing Qi’s right to her name. It also ordered Chen, her father, Jining Commercial School, Tengzhou No. 8 Middle School, and the local education authority to apologize and pay 35,000 yuan for emotional distress. It rejected Qi’s remaining claims for economic loss and additional damages.

Qi appealed to the Shandong High People’s Court.

The appeal presented a crucial procedural problem. Had the defendants infringed only Qi’s right to her name? Or, by using that infringement as their means, had they violated a more fundamental right—the constitutional right to education? If so, could conduct that formally violated the right to a name but substantively violated a constitutional right generate civil liability?

This was not an abstract exercise in wording. The civil law then in force expressly protected the right to a name: Article 99 of the General Principles of the Civil Law prohibited the appropriation or false use of another person’s name. But it contained no corresponding provision on the right to education.

That right appeared in the Constitution. Article 46 states: “Citizens of the People’s Republic of China have the right as well as the duty to receive education.” Could judges invoke such a constitutional-rights provision in a civil case? Chinese judicial practice had no clear answer.

The Shandong High People’s Court did not decide the matter on its own. Acting under the Organic Law of the People’s Courts, it requested guidance from the Supreme People’s Court. Its central question was whether a person who used infringement of the right to a name as the means of violating the constitutionally protected right to education should bear civil liability.

A One-Sentence Reply

The request remained at the Supreme People’s Court for almost two years. Its Adjudication Committee adopted a reply in June 2001. The document was formally published on July 24 and took effect on August 13 as Judicial Interpretation [2001] No. 25.

The substantive reply was one sentence long:

By infringing the right to a name, Chen Xiaoqi and the others infringed Qi Yuling’s fundamental right to education as enjoyed under the Constitution and caused specific harmful consequences; they shall bear the corresponding civil liability.

That sentence provoked years of controversy in Chinese legal scholarship and practice.

It mattered for three reasons.

First, a formal judicial interpretation expressly referred to a “fundamental right enjoyed under the Constitution” and used it in determining civil tort liability. That was a significant departure in Supreme People’s Court practice.

Second, it recognized that infringement of a constitutional right could trigger civil liability. Constitutional rights were not wholly unavailable in a concrete civil dispute—at least not in this case.

Third, it supplied a framework for legal characterization. The conduct appeared to infringe only the right to a name, but in substance it violated the more fundamental right to education. Moving from form to substance gave lower courts a possible model for similar disputes.

One qualification is essential. The reply did not grant ordinary courts authority to review legislation for constitutionality. It said that infringement of the constitutional right to education could create civil liability; it did not invalidate a statute or regulation. The case remained within the framework of civil tort liability. It was not an exercise of constitutional review.

Later media accounts and academic commentary often described the case as the first time a Chinese court used the Constitution to decide a case, or as the beginning of judicial application of the Constitution. Those descriptions have some basis, but they can mislead unless one distinguishes invoking constitutional reasoning from exercising constitutional review.

The reply located Qi’s right to education in Article 46 of the Constitution and held that the defendants’ identity substitution had violated it. It neither reviewed another legal rule for constitutionality nor issued a formal, abstract constitutional interpretation. Yet whether giving a constitutional right consequences in an individual civil case already amounted in substance to interpreting and applying the Constitution became the heart of the later dispute.

Some scholars called the method an “indirect application” of the Constitution: constitutional values and rights supplied the foundation, while civil tort liability delivered the remedy. Others argued that the Shandong High People’s Court went beyond value guidance by listing Article 46 directly among the grounds for judgment. Whether the case directly applied the Constitution or indirectly protected a constitutional right through civil law has never had a universally accepted answer.

The Final Judgment and Belated Compensation

After receiving the reply, the Shandong High People’s Court issued its final judgment on August 23, 2001. It changed important parts of the first-instance result. The court held that the defendants’ conduct “appeared in form as an infringement of the right to a name, but in substance infringed Qi Yuling’s fundamental right to education under the Constitution.” Relying on Article 46 of the Constitution, the Education Law, the General Principles of the Civil Law, the Supreme People’s Court reply, and the Civil Procedure Law, it partially vacated and modified the earlier judgment.

The damages had three components. The first was 7,000 yuan in direct economic loss, covering expenses such as repeated schooling, the urban-registration surcharge, and litigation. The second was 41,045 yuan in indirect economic loss, calculated from wages Chen received under Qi’s name between 1993 and 2001 after deducting necessary living costs. The third was 50,000 yuan for emotional distress, the maximum under the Shandong High People’s Court’s standard at the time. The total was 98,045 yuan. Jining Commercial School, Tengzhou No. 8 Middle School, and the local education authority bore joint and several liability for the relevant sums.

From 35,000 yuan at first instance to almost 100,000 yuan on appeal, and from a finding that Qi had given up the opportunity to an acknowledgment that her constitutional right had been violated, Qi won the lawsuit in an important sense. Even so, no one could call the award an equivalent return for eight stolen years.

The judgment also exposed systemic failures in admissions administration. Jining Commercial School failed to prevent an impostor from enrolling. Tengzhou No. 8 Middle School and the local education authority failed at stages including delivery of the admission notice, review of student files, and later handling of records. Multiple parts of the local education system failed at once.

The case drew intense media attention. Before internet access was widespread, newspapers and television turned school-admission identity substitution into a major public issue. Many similar revelations in later years showed that Qi’s experience was not an isolated anomaly.

For Qi, the final judgment ended the lawsuit. For Chinese law, the controversy surrounding the Supreme People’s Court reply was only beginning.

Three Views of Constitutional Application

The first position can be called the constitutional breakthrough view. It treats the Qi Yuling case as the first Chinese case in which a court used a constitutional provision to protect a citizen’s fundamental rights. Huang Songyou, then chief judge of the Supreme People’s Court’s First Civil Division, wrote that the case had “created a precedent for judicial application of the Constitution.” Media accounts quickly labeled it “China’s first case of constitutional judicialization.”

On this view, the Constitution should not remain a declaration on paper. If courts cannot even acknowledge a constitutional right when it is violated, what practical meaning does that right possess? The reply was a positive signal: in a concrete case, courts could and should attend to constitutional protection of citizens.

The limitation is that this view may exaggerate an individual case. A reply to a specific request is not the same as an institutionalized mechanism for constitutional application. Calling the case the beginning of constitutional judicialization can imply that Chinese courts acquired something like American judicial review. The reply did no such thing.

The second position is the civil law is sufficient view. It regards Qi’s loss as an ordinary civil tort that required no constitutional intervention. The identity substitution plainly infringed her right to a name and might even have involved criminal conduct, but compensation could still be handled within civil and criminal law.

This is a pragmatic position. The General Principles of the Civil Law already protected the right to a name and imposed tort liability, while the later Civil Code provides still more complete rules. There is no need to enter a grand and difficult dispute about applying the Constitution if ordinary law supplies a cause of action.

Its weakness is that it overlooks the constitutional character of the interest asserted. Qi lost more than control over her name. She lost an education, a fundamental right expressly guaranteed by the Constitution. Civil law at the time left a gap in protecting that interest; the constitutional provision was introduced precisely to fill it.

The third position is the institutional overreach view. It argues that direct reliance on the Constitution by the Supreme People’s Court could conflict with the constitutional authority of the Standing Committee of the National People’s Congress. Article 67 empowers the Standing Committee to interpret the Constitution and supervise its enforcement. If courts at every level could directly invoke and interpret the Constitution in judgments, that allocation of authority would be disrupted.

The concern has force. But the opposite rule produces its own problem: if courts are wholly prohibited from considering constitutional provisions, where can a citizen seek relief when a constitutional right is violated and ordinary legislation happens not to cover it? That dilemma is real.

The Horizontal Effect of Fundamental Rights

A deeper issue lies beneath these three positions: whether constitutional rights bind private actors. Constitutional theory calls this the “third-party effect” or “horizontal effect” of fundamental rights.

Traditionally, fundamental rights constrain the state. The government may not arbitrarily invade freedom of expression or the right to education. This is a vertical relationship between the individual and the state. But Chen Xiaoqi and Qi Yuling were both private individuals. Could a constitutional right affect the private tort relationship between them? If it could, would the right operate directly, or indirectly through civil-law provisions?

German law recognizes theories under which fundamental rights influence private relationships indirectly through the general clauses of civil law. The United States has judicial review, but the state-action doctrine ordinarily prevents constitutional rights from binding purely private conduct. Different systems have developed different routes for bringing constitutional rights into private relationships; none can simply be transplanted into another.

One can understand the Supreme People’s Court reply as follows: the court invoked the Constitution, but the final judgment still imposed civil damages. The Constitution did not directly regulate the relationship between the private parties. It supplied guidance in principle, while civil law directly governed the tort. This partly resembles the German idea of third-party effect. The comparison remains tentative, however, because the reply did not articulate that logic—and the reply itself was repealed only seven years after taking effect.

Repealed Seven Years Later

In December 2008, the Supreme People’s Court Adjudication Committee adopted a decision repealing Judicial Interpretation [2001] No. 25. Seven years after it had been hailed as the opening of constitutional judicialization, that path ended. The official explanation consisted of only four Chinese characters: “application has ceased.”

The repeal triggered another wave of debate. Because the Supreme People’s Court offered no substantive explanation, scholars looked to the institutional background. Some argued that the Court lacked authority to issue a formal constitutional interpretation and therefore had to stop the practice. Others believed that, as civil legislation developed, an individual-case reply had become unnecessary. There is no authoritative answer as to which explanation is closest to the truth.

Repeal did not invalidate the final judgment in Qi’s case. But courts could no longer rely on the reply in later disputes. In 2016, the Supreme People’s Court’s rules on the preparation of civil judgments further specified that the Constitution could not be cited directly as a ground of decision, although its principles and spirit could be discussed in the court’s reasoning. Constitutional provisions could inform explanation, but not serve directly as adjudicative grounds.

The repeal reflects a deeper institutional tension. On one side, the Constitution is the fundamental law and guarantees citizens’ rights; those rights require some route from paper into practice. On the other, constitutional enforcement in China operates through the people’s congress system. Record-filing review, constitutional review, and authoritative legal interpretation are led by the people’s congresses. The role courts may play has always been limited.

The Qi Yuling reply was an experiment within that limited space. Without creating a system of judicial review, it sought a channel through which constitutional rights could enter civil adjudication. Its repeal at least shows that the channel did not receive sustained institutional support.

If the Case Happened Today

More than two decades later, how would Chinese law handle the same events today?

The 2001 reply has been repealed, but later legislation responds to the failures exposed by the case in several ways.

First is civil law. The Civil Code took effect in 2021. Its Book on Personality Rights systematically protects the right to a name and prohibits interference with, appropriation of, or false use of another person’s name. Its tort rules provide liability for infringement of civil rights and interests. A victim today could sue directly for infringement of the right to a name and seek cessation of the infringement, an apology, and damages. Even so, present law offers no simple, uniform method for valuing a lost educational or employment opportunity or proving causation.

Second is criminal law. Amendment XI to the Criminal Law, effective in 2021, created the offense of identity substitution in admissions, now Article 280-2 of the Criminal Law:

Whoever steals or falsely uses another person’s identity to take that person’s place in obtaining admission to higher academic education, eligibility for civil-service employment, or employment-placement benefits shall be sentenced to imprisonment of not more than three years, criminal detention, or public surveillance, and shall also be fined.

The new offense followed concentrated media exposure of university-admission substitution cases between 2018 and 2020, including the Gou Jing case in Shandong. In July 2020, a group of lawyers submitted a proposal to the Standing Committee of the National People’s Congress. They wrote that taking another person’s university place “uses infringement of the right to a name as the means of infringing the constitutionally protected right to education”—language drawn directly from the 2001 reply. The legal framing of the Qi Yuling case still shaped legislative discussion two decades later.

The criminal offense applies, in the education context, to admission to higher academic education. Qi’s case involved admission to a technical secondary school. If the same conduct occurred today, Article 280-2 ordinarily would not apply directly. Whether conduct also constituted an offense involving forged or altered official documents would depend on the particular facts and could not be assumed categorically.

Third are the Education Law and administrative controls. Article 77 of the Education Law, as revised in 2021, specifically provides legal consequences for stealing or using another identity to take an admission place. It refers generally to an “admission qualification,” not only higher education, and can therefore reach technical secondary schooling. Student-record systems and identity-verification mechanisms have also made substitution more difficult. A victim may ask education authorities to investigate. Where legal requirements are met, she may seek administrative reconsideration or bring administrative litigation against a specific administrative act or a failure by an agency to perform its lawful duty.

If the Qi Yuling case happened today, the victim could use the Civil Code to sue for infringement of the right to a name and request cessation, apology, and damages. She could report the matter to police for investigation of any suspected offense. She could ask education authorities to act and, in an appropriate case, pursue administrative reconsideration or litigation. Ordinary law now provides more avenues of relief than it did in 2001. That does not mean every loss can easily be made whole.

A deeper question remains. Can better ordinary legislation fully replace protection of constitutional rights? Once legislation becomes detailed enough, is there no longer any need to advance judicial application of the Constitution?

I do not think so.

Ordinary legislation answers whether a victim has a specific legal provision on which to rely. A constitutional right carries a more fundamental commitment. It tells every person in the country that the right to education is not a temporary gift from an ordinary statute, but a basic right recognized and protected by the Constitution. Ordinary law depends on that underlying commitment.

The Qi Yuling case still matters not merely because it is called a “first case,” but because it poses an unresolved question: how should a right stated in the Constitution be protected and realized in a dispute between private parties?

There is no standard answer. The reply in Qi’s case briefly opened a door. That route is now closed, but the question has not disappeared.

Returning to Qi Yuling

After the final judgment, Qi received a little over 98,000 yuan. It was a substantial sum in 2001, but money could not restore the education she lost or the path her life might have taken. In 2013, media coverage of other admissions-substitution cases revisited her “stolen life.” Since then, reliable public reporting about her personal life has been scarce. The person herself has gradually receded from the constitutional case debated in her name.

Nor do public sources provide complete and reliable accounts of what later happened to Chen Xiaoqi, Chen Kezheng, or the other responsible individuals.

The case left more than a repealed judicial interpretation or a passage in a constitutional-law textbook. It left the life of a specific, ordinary person—a life altered beyond repair, and one that therefore forced the public to reflect on institutions.

More than thirty years after the substitution, the Qi Yuling case remains a mirror of one advance and retreat in Chinese adjudication. Law does not operate in a vacuum. People make it, and it ultimately serves people. It is repeatedly contested, repaired, and rewritten among competing values. The Qi Yuling case is only one point on that long road. Perhaps it is through the accumulation of such points that society moves a little closer to justice.

Key Figures

• Qi Yuling (originally named Qi Yuling with a different final character, 齐玉玲) — A rural woman from Tengzhou, Shandong. After finishing middle school in 1990, a classmate assumed her identity and enrolled in a technical secondary school. Her name and identity were used for eight years. She sued in 1999 and received more than 98,000 yuan after the Shandong High People’s Court’s final judgment in 2001. Her case prompted the Supreme People’s Court reply on the constitutional right to education and became known in scholarship and the media as “China’s first case of constitutional judicialization.”
• Chen Xiaoqi (formerly Chen Hengyan) — Qi’s classmate at Tengzhou No. 8 Middle School. After failing the preliminary selection in 1990, she obtained Qi’s admission notice through arrangements involving her father and others, enrolled at Jining Commercial School under Qi’s identity, graduated, and found employment.
• Chen Kezheng — Chen Xiaoqi’s father and then a village Party secretary. He played a central role in arranging his daughter’s enrollment under another identity. Media reports state that, after Qi discovered the truth, he offered 5,000 yuan for a private settlement and Qi’s family later faced violent harassment.
• Huang Songyou — Then chief judge of the Supreme People’s Court’s First Civil Division. After the reply was published, he wrote that it had pioneered judicial protection of fundamental rights enjoyed under the Constitution. He became a leading advocate of the constitutional-breakthrough interpretation.

Key Concepts and Legal Documents

• Article 46 of the Constitution — “Citizens of the People’s Republic of China have the right as well as the duty to receive education.” The Supreme People’s Court reply recognized Qi’s right to education under the Constitution, and the Shandong High People’s Court expressly cited the article in its final judgment.
• Judicial Interpretation [2001] No. 25 — The Supreme People’s Court reply adopted on June 28, 2001. Its one-sentence answer held that Chen and the other defendants had used infringement of the right to a name as the means of infringing Qi’s constitutional right to education, causing concrete loss and giving rise to civil liability. It was repealed in December 2008 because its “application had ceased.”
• Judicial application of the Constitution — The use of constitutional norms in judicial proceedings or judicial remedies for constitutional rights. Some scholars regarded the reply as a precedent, but it did not confer constitutional-review authority on courts. Whether it represented direct or indirect application remains disputed.
• Constitutional review — The power to determine whether legislation or exercises of public authority conform to the Constitution and to impose consequences for inconsistency. In China, authority to interpret the Constitution belongs to the Standing Committee of the National People’s Congress, while supervision of constitutional enforcement is led by the National People’s Congress and its Standing Committee. Ordinary courts do not possess American-style judicial review, and the Qi Yuling reply did not create it.
• Horizontal or third-party effect of fundamental rights — The question whether constitutional rights influence relations between private parties. The Qi Yuling case asks whether the constitutional right to education can have legal effect in a private tort committed by Chen against Qi.
• Article 99 of the General Principles of the Civil Law (1986) — It protected citizens’ right to decide, use, and lawfully change their names, and prohibited interference, appropriation, or false use. The first-instance court relied on it to find infringement of Qi’s right to her name.
• Articles 1012 and 1014 of the Civil Code — Article 1012 recognizes a natural person’s right to a name. Article 1014 prohibits interference with, appropriation of, or false use of another person’s name. The Civil Code was enacted in 2020 and took effect on January 1, 2021.
• Article 280-2 of the Criminal Law — Added by Amendment XI, it criminalizes taking another person’s place in obtaining admission to higher academic education, civil-service eligibility, or employment-placement benefits. Its education branch is limited to higher academic education and does not directly cover the technical secondary school involved in Qi’s case.
• Article 77 of the Education Law — It specifies consequences for stealing or using another person’s identity to obtain an admission place, including cancellation of admission or credentials, disciplinary measures, and other legal responsibility. “Admission” is not limited to higher education.
• The 2008 cleanup of judicial interpretations — Judicial Interpretation [2008] No. 15 repealed 27 judicial interpretations, including the 2001 reply. The official reason was only that its “application had ceased.” Scholars have proposed institutional limits on constitutional interpretation and the development of ordinary legislation as possible explanations.
• Rules for citing legal authority in judgments — After the 2001 reply was repealed, it could no longer serve as a ground of decision. The 2016 Rules on the Preparation of Civil Judgments further specified that the Constitution could not be cited directly as adjudicative authority, although its principles and spirit could be discussed in judicial reasoning.

Related Episodes

• 08 The Supreme Court in a Tight Corner: The Birth of Judicial Review in the United States
• 09 The End of the Chinese Legal Tradition: How Late-Qing Reforms Reshaped the Rule of Law

This is the translated transcript of episode 12 of my podcast Reasoned Talk (议正言辞). Listen on Xiaoyuzhou or Apple Podcasts . The episode audio is in Chinese; this transcript has been translated into English.

On August 22, 1984, the Republican National Convention was under way in Dallas, Texas. President Ronald Reagan was about to receive his party’s nomination for a second term. Outside the convention, more than one hundred demonstrators protested the Reagan administration and the policies of several local corporations. Some lay down in the street to simulate the aftermath of nuclear war; others spray-painted walls and knocked over planters.

Among the demonstrators was a young man named Gregory Lee Johnson. He took an American flag from another protester. When the procession reached Dallas City Hall, Johnson unfurled the flag, soaked it in kerosene, and set it on fire.

As the flames rose, the demonstrators chanted: “America, the red, white, and blue—we spit on you.” No one was injured, although several witnesses later testified that the burning deeply offended them. After the protest ended, one witness quietly gathered the charred remains of the flag and buried them in his backyard.

Texas charged Johnson under section 42.09 of its penal code with desecration of a venerated object. He was sentenced to one year in prison and fined $2,000.

The case traveled all the way to the U.S. Supreme Court and became one of the most controversial decisions in American constitutional history: Texas v. Johnson.

Is Flag Burning “Speech”?

Thirty-seven years after the 1989 decision, the controversy remains unsettled. The political left and right continue to fight over it, and both Congress and the Supreme Court have been drawn into the struggle. As recently as 2025, President Donald Trump signed an executive order that sought a path around the ruling.

The central question is easy to state and extraordinarily difficult to answer: when someone burns a flag to express a political view, may the government imprison him because he has wounded public sentiment?

The question begins with the First Amendment to the U.S. Constitution:

Congress may not establish a religion or prohibit its free exercise; abridge freedom of speech or of the press; or deny the people the right to assemble peacefully and petition the government for redress.

Everything therefore turns on whether burning a flag falls within the amendment’s protection of “speech.”

During the 1984 demonstration in Dallas, Johnson damaged no property and caused no disorder apart from burning the flag. Other demonstrators painted walls and overturned planters, but Johnson alone was criminally charged, and his only charge was desecration of a venerated object. That detail matters. Texas did not prosecute him for disorderly conduct or arson. The sole issue was the nature of the act of flag burning itself.

Johnson’s conviction rested on section 42.09(a)(3) of the Texas Penal Code:

A person commits an offense if he intentionally or knowingly desecrates a state or national flag.

Subsection (b) further defined desecration:

“Desecrate” means to deface, damage, or otherwise physically mistreat the object in a way the actor knows will seriously offend one or more persons likely to observe or discover his action.

The law contained an unusual element: the actor had to know that the conduct would cause serious offense. Merely damaging a flag did not necessarily constitute the crime. The state also had to prove that the defendant knew his treatment of the flag would seriously offend someone likely to witness or discover it.

In other words, the law did not target the physical consequences of the act. It targeted the audience’s response to the message conveyed by the act: you expressed contempt for the flag, the audience was offended, and therefore you committed a crime. In substance, the statute imposed a content-based restriction. It punished the offensive message carried by the burning.

Two Decisions in the Texas Courts

The trial court convicted Johnson under this law. He appealed to the Texas Fifth Court of Appeals, which affirmed the conviction in 1986. The court acknowledged that Johnson intended a political message, but concluded that Texas’s interest in preserving the flag’s symbolic meaning outweighed his right to express it. The flag’s exceptional status, in the court’s view, justified a limit on expression.

Johnson appealed again. In 1988, the case reached the Texas Court of Criminal Appeals, the state’s highest criminal court. This time, the result changed.

The court held that Johnson’s burning of the flag was expression protected by the First Amendment. It relied on the Supreme Court’s 1943 decision in West Virginia State Board of Education v. Barnette. During the Second World War, West Virginia required all public-school students to salute the flag and recite the Pledge of Allegiance. Jehovah’s Witnesses refused because they regarded the salute as a form of idolatry forbidden by their faith. The students were expelled, and their parents faced criminal prosecution.

The Supreme Court ruled for the families by a vote of 6–3. One passage became a foundation of American free-speech law:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, may prescribe what is orthodox in politics, nationalism, religion, or other matters of opinion, or compel citizens to profess their faith by word or act.

The government, in other words, may not compel patriotism. Patriotism must be voluntary; loyalty manufactured by force is not genuine loyalty.

The Texas Court of Criminal Appeals built on Barnette. A law against desecrating venerated objects, it reasoned, prescribed the “correct” attitude toward the flag: a person could treat it only with respect, never with contempt. That amounted to compelling respect for the flag and declaring one approved belief about a national symbol.

The court also noted that no violence or disorder had actually occurred. No one was hurt or threatened with physical injury. Serious offense is not the same as incitement to violence. Texas already had public-order laws for genuine threats; it did not need to punish offensive expression to preserve the peace. In 1988, the Texas Court of Criminal Appeals reversed Johnson’s conviction.

The Supreme Court’s Three-Step Analysis

Texas petitioned the U.S. Supreme Court for review. The Court accepted the case in late 1988. On June 21, 1989, the justices voted 5–4 to affirm the Texas Court of Criminal Appeals’ judgment overturning Johnson’s conviction.

It was another sharply divided decision.

Two members of the majority were especially striking. Justices Antonin Scalia and Anthony Kennedy, both Reagan appointees commonly regarded as conservatives, did not side with the defense of national dignity. They instead joined the judgment protecting Johnson’s freedom of expression. Why?

Justice William Brennan wrote the majority opinion. Its central logic can be divided into three steps.

First: did Johnson’s act of burning the flag qualify as “speech”?

Speech under the First Amendment does not mean only words spoken aloud. The amendment protects expression, including conduct that communicates.

In the 1974 case Spence v. Washington, the Supreme Court articulated an important approach to expressive conduct. Did the actor intend to communicate a particular message? And, in the surrounding circumstances, was the audience likely to understand it? When conduct is meant to convey a message that observers can grasp, it can become symbolic speech protected by the First Amendment.

Johnson burned the flag during the Republican National Convention, in a demonstration against the Reagan administration. The political meaning of his action was unmistakable. He used conduct to communicate.

Second: what, precisely, did the Texas statute seek to punish?

The Court concluded that the statute punished the content of expression. Its critical element—knowledge that the act would seriously offend others—focused not on physical danger, but on how observers reacted to the message. Burning a worn-out flag for disposal could be lawful; burning the same flag to protest the government could be a crime. The law distinguished between the attitudes expressed by the two acts.

Put plainly, Texas was not protecting the flag’s physical integrity. It was protecting the flag’s symbolic dignity. That was exactly the kind of rule the First Amendment forbids. The government may not punish expression merely because it offends.

Third: could the flag’s symbolic importance outweigh an individual’s freedom of speech?

The Court held that the government could not imprison a speaker merely because his message might anger those who saw it. Otherwise, the most outraged audience would acquire a practical veto: by displaying enough anger, spectators could force the government to suppress a view they disliked.

Brennan’s answer was that the flag’s special place should be preserved by persuading those who disagreed, not by punishing them. The response to a bad idea was more speech, not compelled silence.

He went further. The government could not “consecrate” the flag through punishment, because doing so would weaken the freedom the flag represents. The flag deserves respect precisely because the country it symbolizes permits a person to burn it. If that country imprisons someone for burning the flag, it has betrayed the value the flag is supposed to embody.

The argument was powerful. It was also deeply uncomfortable.

Justice Kennedy understood this better than anyone. He wrote separately to explain why, despite hating flag desecration personally, he voted to protect it.

Sometimes judges must make decisions they do not like. They do so because those decisions are right: under their understanding of the Constitution and the law, no other conclusion is possible.

Kennedy acknowledged that the ruling would anger many Americans and appear to defy public feeling. That burden was part of a judge’s duty. Personal preference could not stand above the Constitution. Sometimes the Constitution requires us to accept the very thing we find most difficult to accept emotionally.

Why Four Justices Dissented

Chief Justice William Rehnquist wrote the principal dissent. His central claim was that the flag is not an ordinary prop for expression. Across more than two centuries, the American flag had carried the nation’s unity and common ideals. It was a unique national symbol, and the government was entitled to protect it from public desecration.

Burning the flag before a crowd while chanting insults, he argued, was different from publishing an article criticizing the government. The former was a direct attack on a national symbol, and the state could prohibit it.

Justice John Paul Stevens wrote a separate dissent comparing the flag to an “intangible national asset.” It represented the country’s history and unity and possessed exceptional value. The government therefore had reason to protect it against overt contempt. Stevens emphasized that the Texas law prohibited flag mistreatment of the most obvious kind, not every misuse or improper handling. Ordinary citizens, he thought, could understand the boundary: one could not deliberately burn the flag in public to humiliate the country.

Both dissents carried emotional force. Rehnquist appealed to history and sacrifice; Stevens to national symbolism and public feeling. They also explain why the case remains so divisive. The majority’s reasoning was internally coherent, but it demanded acceptance of a profoundly unsettling result.

Scalia and Kennedy, the two conservative justices in the majority, chose the Constitution over their personal reactions. That choice followed from what they understood judicial duty to require.

Congress Responds with Legislation and Amendment

When Johnson’s conviction was overturned, public opposition surged.

Polling after the decision suggested that most Americans rejected the result. Members of both parties in Congress denounced the Court. President George H. W. Bush called flag burning “dead wrong” and urged a constitutional amendment that would overturn the rule established by the decision.

Congress acted quickly. In 1989, only months after Johnson, it passed the Flag Protection Act by overwhelming majorities. The law made it a federal crime knowingly to mutilate, deface, physically defile, burn, or trample a flag, except when disposing of one that had become worn or soiled.

This time Congress omitted language such as “casts contempt” and avoided the Texas statute’s requirement that the actor know the conduct would cause serious offense. It attempted to prohibit the objective act of damaging a flag and thereby make the law content neutral.

The Supreme Court was not persuaded.

Soon after the Flag Protection Act took effect, protesters in Washington, D.C., and Seattle burned flags to challenge it. One group set several American flags alight on the steps of the U.S. Capitol. The cases reached the Supreme Court together, most famously as United States v. Eichman.

On June 11, 1990, the Court again voted 5–4, holding the Flag Protection Act unconstitutional. Congress argued that the statute no longer depended on the protester’s political viewpoint and was therefore content neutral. The Court found the same defect that had doomed the Texas law: the act permitted burning a worn or soiled flag, yet prohibited burning a flag to communicate political dissatisfaction.

What the government truly protected was not the flag’s physical integrity in every setting. It protected the flag from an insulting message. That distinction showed that the law cared not about the objective act of burning, but about what the burning communicated. A statute that punished conduct expressing disrespect while permitting conduct expressing respect remained a content-based restriction.

Brennan restated the governing principle in Eichman:

The government may not prohibit an idea merely because society finds the idea itself offensive.

Congress did not give up. If ordinary legislation could not overcome the First Amendment, it would try to amend the Constitution.

Congress repeatedly proposed amendments authorizing a ban on flag desecration. Amending the U.S. Constitution requires a two-thirds vote in each house of Congress followed by ratification in three-fourths of the states. No flag-protection amendment has crossed that threshold.

The closest attempt came in 2006. The Senate voted 66 in favor and 34 against—one vote short of the required two-thirds majority. Almost every Republican senator supported the amendment, while Democrats divided. Since then, members of Congress have occasionally introduced similar proposals, but none has approached the same momentum.

The 2025 Executive Order and the Carey Case

On August 25, 2025, President Trump signed Executive Order 14341, directing the federal government to intensify investigation and prosecution connected to flag burning.

The order did not create a new crime. Instead, it instructed the Justice Department to prioritize enforcement of existing, content-neutral laws when flag burning accompanied some independent offense. Arson, property destruction, violence, or a separate hate crime could be prosecuted under the relevant statute. Possible violations of local open-burning rules, disorderly-conduct laws, or property protections could be referred to state or local authorities.

Another provision attracted even more attention. It directed the secretaries of state and homeland security and the attorney general, acting within existing law, to consider revoking visas, ending residence or naturalization proceedings, denying other immigration benefits, or removing foreign nationals who burned the flag. The order itself could not strip anyone of citizenship or immigration status. The government would still need a specific basis in existing law.

The order faced a direct challenge on the day it was signed. Jay Carey, an Army veteran, went to Lafayette Square near the White House, set an American flag on fire, and openly declared that he was protesting the new order.

Carey was arrested and later charged with two federal misdemeanors: lighting a fire in an undesignated area of a national park and damaging park property. Prosecutors did not charge the act of flag burning itself. They relied on a content-neutral National Park Service fire rule—the enforcement route contemplated by the executive order.

Carey argued that his conduct was a political protest protected by the First Amendment. In March 2026, the Justice Department dismissed both charges without publicly explaining why. Once the prosecution ended, the courts had no occasion to review the case, and this challenge would not carry the executive order to the Supreme Court.

The episode exposed the order’s legal dilemma. The government may punish an offense independent of a message without violating the First Amendment. But if conduct that ordinarily goes unenforced suddenly draws severe punishment only because the object burned is a flag, supposedly content-neutral enforcement may itself come under First Amendment scrutiny.

Why the Constitution Protects Uncomfortable Expression

Thirty-seven years later, many people still cannot accept the result. To them, a flag is not an ordinary piece of cloth. It carries national history, shared identity, and the meaning of countless sacrifices. Yet its importance is precisely why the Court had to answer a harder question: when collective reverence conflicts with individual expression, may the government use its power to suppress the latter in order to protect the former?

The Supreme Court’s answer was that the Constitution stands with freedom of expression. Once the government is permitted to create a speech exception for one “sacred” symbol, it may create another exception for the next sacred object.

Johnson’s decision to set fire to a flag was crude and profoundly offensive in virtually any cultural setting. You are free to think that Johnson was an asshole. The point of a constitution, however, is that it protects even an asshole’s right to speak.

If constitutional protection extended only to speech that made people comfortable, no constitution would be necessary. The First Amendment matters most for speech that leaves the majority angry, offended, or unsettled.

The closing thought of Brennan’s 5–4 opinion still echoes:

Painful though it may be, the flag protects those who hold it in contempt.

Key Figures

• Gregory Lee Johnson — The protester who burned an American flag during the 1984 Republican National Convention in Dallas. He was the criminal defendant and the respondent before the Supreme Court. Initially sentenced to one year in prison and fined $2,000, he ultimately prevailed.
• William Brennan — Associate justice of the U.S. Supreme Court from 1956 to 1990 and author of the majority opinion in Texas v. Johnson. He was known for his defense of freedom of expression.
• Antonin Scalia — Associate justice from 1986 to 2016, a Reagan-appointed conservative known for textualism and originalism. He joined Brennan’s majority opinion in Johnson without writing separately.
• Anthony Kennedy — Associate justice from 1988 to 2018, a Reagan appointee generally regarded as moderately conservative. He joined the majority and wrote a separate concurrence.
• William Rehnquist — The sixteenth chief justice of the United States, serving from 1986 to 2005. He wrote the principal dissent and argued that the flag was a unique national symbol.
• John Paul Stevens — Associate justice from 1975 to 2010. His separate dissent compared the flag to an intangible national asset.

Key Cases and Concepts

• Texas v. Johnson — The Supreme Court held 5–4 that politically motivated flag burning in this case was expression protected by the First Amendment. The government could not impose criminal punishment merely because the public found the message offensive.
• Symbolic speech — Conduct used to communicate a political or social message. The approach associated with Spence v. Washington considers the actor’s communicative purpose and the likelihood that observers will understand the message.
• Content-based restriction and neutral regulation — A law aimed at a message, such as one punishing offensive expression, faces the most demanding constitutional review. Rules governing fire, property, or the time, place, and manner of conduct without regard to a message may be treated differently.
• West Virginia State Board of Education v. Barnette — The decision establishing that government may not compel citizens to salute the flag or profess a prescribed political belief. It became a foundation of protection for symbolic expression.
• United States v. Eichman — The Supreme Court again voted 5–4 to invalidate the Flag Protection Act of 1989, reaffirming that the government could not use protection of the flag’s physical integrity as a pretext for suppressing a political message.
• Executive Order 14341 — The order directing the Justice Department to enforce existing content-neutral laws against independent offenses accompanying flag burning and instructing federal officials to consider immigration measures against foreign nationals where authorized by law.
• The Carey case — Jay Carey burned a flag near the White House to protest Executive Order 14341. Prosecutors charged two misdemeanors under National Park Service rules, then dismissed both charges in March 2026.

Related Episodes

• 08 The Supreme Court in a Tight Corner: The Birth of Judicial Review in the United States
• 10 You Have the Right to Remain Silent: How the Miranda Warning Changed American Justice

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 The Xu Yuanqing Revenge Case: Tang Law and the Rites–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｜The Xu Yuanqing Revenge Case: Tang Law and the Rites–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.