What does “public forum” mean here? Why is the White House press area a nonpublic forum? And why has this concept become so consequential in the three organizations’ lawsuit? This article takes a closer look at the doctrine under the First Amendment.

1939: Hague and the Language of Public Trust

The public forum doctrine did not emerge fully formed. Its origins are usually traced to a dispute over public assemblies in New Jersey in 1939.

In the 1930s, Jersey City had an ordinance requiring anyone wishing to hold a parade or assembly in a street or park to obtain a permit from the director of public safety. The director could refuse permission if, in his judgment, the event might lead to riots, disturbances, or disorderly assembly.

At the time, the Committee for Industrial Organization (CIO) was organizing locally, distributing leaflets and holding meetings. In 1937, Jersey City Mayor Frank Hague used municipal ordinances to prevent the CIO from meeting in public places and distributing its materials. Police broke up meetings, arrested and expelled organizers, and harassed people associated with the organization. The CIO and other plaintiffs sued the city officials.

The case reached the Supreme Court, which decided it in June 1939. The Court upheld the plaintiffs’ claims concerning assembly and expression and found the relevant ordinances unconstitutional. The case was Hague v. Committee for Industrial Organization. The Justices disagreed over the reasoning, however, and did not produce a single majority opinion. Paraphrasing Justice Roberts’s opinion:

Regardless of who holds title to streets and parks, they have always been held “in trust” for public use and have long served as places for assembly, the exchange of ideas, and discussion of public questions. Such uses have been part of citizens’ privileges, immunities, rights, and liberties since ancient times. Government may regulate them in the public interest, but it cannot use regulation as a pretext to curtail or deny them.

Roberts did not use the words “public forum.” But later decisions repeatedly returned to this passage. Over time, it became a starting point for the doctrine.

How the Concept Took Shape

Over the next four decades, waves of social movements brought the courts numerous disputes about public assembly. In the decades following the rise of the antiwar and civil rights movements, courts considered whether political advertisements could appear on public buses, whether controversial plays could be staged in municipal theaters, and whether political leaflets could be distributed on military bases. These disputes raised a common question: how far could government regulate the use of public places?

From the 1970s onward, courts began explicitly using the term public forum. The concept concerns both the character and use of a place and the government’s authority over it. Streets and parks managed by government have long served as places for public assembly and expression. Government cannot simply invoke its position as property owner to exclude expression at will. It may regulate use, but must respect the freedoms protected by the First Amendment.

The doctrine distinguishes the government’s ownership of property from the public’s right to use it for expression. It asks how much protection the First Amendment provides when government manages that property. A privately owned place does not automatically become a public forum under the First Amendment merely because the public is allowed to enter.

1983: Perry and the Three Categories

In the 1970s, two competing teachers’ unions operated in Perry Township, Indiana: the Perry Education Association (PEA) and the Perry Local Educators’ Association (PLEA). The local schools had an interschool mail system, used primarily for official school communications but also for teachers’ personal messages. Before 1977, both unions had equal access to it. After PEA won a representation election in 1977, it negotiated an agreement with the school district granting it access as the teachers’ exclusive bargaining representative and excluding other school employee organizations, including PLEA. The restriction concerned access by competing unions; teachers could still use the system individually.

PLEA argued that this distinction violated freedom of speech under the First Amendment and equal protection under the Fourteenth Amendment, and sued the relevant school district officials. The case eventually reached the Supreme Court, with PEA as the appellant. In 1983, the Court ruled against PLEA by 5–4 in Perry Education Association v. Perry Local Educators’ Association.

The Court held that the school mail system was a nonpublic forum and that the exclusive-access agreement was constitutional. Justice White set out a framework dividing government property into three categories, with different standards of review:

1. Traditional public forums: Streets, parks, and sidewalks long used for public expression. Content-based restrictions must satisfy strict scrutiny: they must be necessary to serve a compelling governmental interest and narrowly drawn to achieve it. Viewpoint discrimination is prohibited.
2. Designated public forums: Property that government voluntarily opens to public expression despite having no obligation to do so. While it remains open on that basis, it receives the same protection as a traditional public forum.
3. Nonpublic forums: Property that government reserves for particular purposes or particular users. It may impose reasonable, viewpoint-neutral restrictions and regulate use in light of the forum’s purposes.

In Perry, the Court considered the interschool mail system’s role in transmitting official school communications and its practice of selective access. It concluded that the system had not been opened to the public generally and was therefore a nonpublic forum. Giving PEA preferential access was reasonable because it was consistent with that function. As the exclusive bargaining representative, PEA had statutory duties to represent all teachers in dealings with the district, and the mail system helped it perform those duties. PLEA had no comparable official responsibilities, so the district was not required to give it equivalent access. The majority viewed the distinction as one based on the unions’ status, rather than their viewpoints, and therefore lawful.

Perry brought the doctrine into a more settled framework. It also left an important question: how should courts assess restrictions in nonpublic forums? What if government uses its management authority to suppress unwelcome views?

The Limits of Regulation in a Nonpublic Forum

Three later decisions helped define those limits.

The first was Cornelius v. NAACP Legal Defense and Educational Fund in 1985. In 1957, President Eisenhower established a fundraising campaign known as the Combined Federal Campaign (CFC), allowing federal employees to donate to charities of their choice. In 1982, President Reagan issued an executive order limiting participation to organizations providing direct health and welfare services and expressly excluding organizations engaged in political activity, advocacy, lobbying, or litigation. Under the new rules, the NAACP Legal Defense and Educational Fund and other organizations were barred from participating. The Legal Defense Fund sued. The lower courts initially ruled for the plaintiffs, but the Supreme Court reversed and remanded for further proceedings.

The majority held that the CFC was a nonpublic forum intended to raise money for health and welfare services, rather than to open a venue for public discussion. Access could be limited by subject matter or speaker identity, provided that the distinctions were reasonable in light of the forum’s purposes and viewpoint neutral. The Court did not decide whether the government’s explanation concealed an effort to suppress particular viewpoints; it left that issue for the lower courts on remand.

The second was Arkansas Educational Television Commission v. Forbes in 1998. The Arkansas Educational Television Commission (AETC), a state-owned public broadcaster, organized a televised debate for the state’s Third Congressional District election in 1992. It invited the principal Democratic and Republican candidates but excluded independent candidate Ralph Forbes, citing his limited campaign organization and public support. Forbes sued.

The Supreme Court held that the debate was a nonpublic forum because access was selective and invitations were issued individually; the broadcaster had not opened participation generally to all qualified candidates. It could make reasonable, viewpoint-neutral editorial judgments based on newsworthiness, time constraints, and programming considerations. The accepted reason for excluding Forbes was his lack of appreciable public support, independently of his political views. The decision did not give government blanket permission to exclude candidates simply because they were independents.

The third was Minnesota Voters Alliance v. Mansky in 2018. A longstanding Minnesota election law prohibited people from wearing political badges, buttons, or insignia inside polling places. In 2010, the Minnesota Voters Alliance and other plaintiffs challenged the restriction.

The Supreme Court treated the polling place as a nonpublic forum devoted to voting rather than free-ranging political debate, permitting some content-based restrictions. Minnesota’s law, however, did not clearly define what counted as “political” and lacked objective, workable enforcement standards (for example, the First Amendment could appear on a shirt, but the Second Amendment could not). The restriction therefore failed the reasonableness requirement.

Together, these decisions define the limits of government regulation in nonpublic forums. Restrictions on expression and access must be reasonable in light of the forum’s purposes and viewpoint neutral. A restriction that fails either requirement cannot survive this First Amendment analysis. Passing forum analysis does not establish compliance with other legal requirements, such as due process.

Returning to the White House Press Area

Why is the White House press area a nonpublic forum, and what restrictions can government impose there?

On the first question, the Perry framework directs attention to its function and access policies. The area primarily facilitates news gathering and is selectively available to qualified journalists. Considering those policies and its actual uses, the area has not been opened to public expression generally and is therefore a nonpublic forum.

On the second, White House credentialing policies, as a means of regulating access to that forum, are subject to the requirements of reasonableness and viewpoint neutrality. A central issue in the three news organizations’ 2026 lawsuit is therefore whether their exclusion served the press area’s particular functions and whether it discriminated against their viewpoints.

Across nearly ninety years, the public forum doctrine has developed a measure for the government’s authority within the spaces it controls. It recognizes that government may set conditions for particular uses, while requiring it to refrain from viewpoint discrimination. The White House press area’s status as a nonpublic forum permits regulation. It does not place the area beyond constitutional limits or allow officials to exclude reporters simply because they dislike their organization’s coverage.

This article accompanies episode 22 of Reasoned Talk, “Three News Organizations Sue the White House: Press Freedom and the Legal Limits of Press Credentials” . The episode examines the White House credentialing system and the decisions in Sherrill, Karem, Ateba, and the Associated Press litigation. This follow-up explores the public forum doctrine behind those cases and how courts draw limits on the government’s authority to control access to property it manages.

Principal References

• [1] Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), full opinion at Cornell LII .
• [2] Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), full opinion at Cornell LII .
• [3] Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788 (1985), full opinion at Cornell LII .
• [4] Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), full opinion at Cornell LII .
• [5] Minnesota Voters Alliance v. Mansky, 585 U.S. 342 (2018), No. 16-1435, full opinion at Cornell LII .
• [6] Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), full opinion at Cornell LII .
• [7] Christian Legal Society Chapter of the University of California v. Martinez, 561 U.S. 661 (2010), full opinion at Cornell LII .
• [8] Congressional Research Service, Constitution Annotated, “Viewpoint Neutrality in Forum Analysis,” Cornell LII .
• [9] First Amendment Encyclopedia, “Public Forum Doctrine,” article .

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.

In episode 21, we discussed the People’s Republic of China’s famous “first case” of a citizen suing the government: Bao Zhengzhao and his family v. the Cangnan County government. As mentioned there, the case earned the label “first case” because of its far-reaching historical influence, not because it was literally the first such case ever to occur.

In fact, before the Administrative Litigation Law was enacted, administrative litigation cases had already begun to appear in various places. One of them predates the Bao Zhengzhao case and was the first in which a court ruled against the public security authorities: the 1987 case of the Zhu father and son v. the Lianshui County Public Security Bureau in Huaiyin, Jiangsu. This article examines that case in detail.

The Altercation and the Detention

The two protagonists of this case, Zhu Jiacheng and his son Zhu Gongbao, were farmers from Lianshui County, Huaiyin, Jiangsu. In January 1987, their relative Zhu Xiucheng got into an argument with Chen, the Party branch secretary of his company, over a year-end bonus. When the Zhu father and son heard about it, they brought several other relatives along with Zhu Xiucheng to the company to “reason” with Chen. Another account says that the father and son had come into town for a bath, stopped by the company to visit Zhu Xiucheng, happened upon his quarrel with Chen, and were drawn into it.

Whatever the origin of the incident, the Zhu father and son did clash with Chen, and there was pushing and shoving on both sides. The local public security bureau concluded that they had disturbed the work order of the unit and imposed administrative detention of seven days on Zhu Jiacheng and ten days on Zhu Gongbao.

The father and son refused to accept the penalty. They maintained that they had only been “mediating,” had not injured anyone, and should not have been punished. Although the Administrative Litigation Law had not yet been enacted at the time, the existing laws already provided a remedy channel for precisely this situation.

Appeal First

Article 39 of the Regulations on Administrative Penalties for Public Security, adopted in 1986, provided:

A person subjected to a public security penalty ruling, or a person who was harmed, who objects to a ruling by a public security organ or a township (town) people’s government may, within five days of receiving notice, lodge an appeal with the public security organ at the next higher level, which shall render a ruling within five days of receiving the appeal; a person who objects to the higher-level organ’s ruling may, within five days of receiving notice, bring suit before the local people’s court.

This was an “appeal-first” remedy model. Anyone who objected to a public security penalty first had to appeal to the higher-level public security organ; only if still dissatisfied with that organ’s handling could they sue in court. The appeal step could not be skipped. This preliminary “appeal” procedure resembled today’s administrative reconsideration, but at the time there were no unified rules governing it.

Under the rules of the time, the Zhu father and son were required first to appeal to the higher-level public security organ, the Huaiyin Municipal Public Security Bureau, and only if they objected to the appeal ruling could they bring suit in court. As for the specifics of their appeal process, the public sources available today contain no detailed record.

Administrative Adjudication

When the case reached the Lianshui County court, the procedures for hearing it rested on the 1982 Civil Procedure Law (for Trial Implementation) and the Interim Provisions on Specific Questions of Law in the People’s Courts’ Hearing of Public Security Administrative Cases, issued by the Supreme People’s Court in 1986.

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.

This provision allowed administrative cases to borrow civil procedure. In an era when the Administrative Litigation Law had not yet appeared, it was an effective transitional measure.

Building on this, the Supreme People’s Court’s 1986 Interim Provisions set out specific hearing procedures for public security administrative cases. They provided that such cases were generally under the jurisdiction of the basic-level court where the organ that made the first ruling was located; after accepting a case, the court was to notify the public security organ that made the later ruling to respond to the suit, and that organ could designate the organ that made the original ruling to respond instead.

This “later ruling” connects with the “appeal” procedure described above. The penalty against the Zhu father and son was imposed by the Lianshui County Public Security Bureau, while the organ that made the “later” ruling, the higher-level organ that handled their appeal, was the Huaiyin Municipal Public Security Bureau. Under the provisions, then, in the court proceedings the Huaiyin bureau could respond to the suit itself or designate the Lianshui bureau to do so.

Because the judgment in this case was never made public, reports differ: some say the judgment was directed at the Huaiyin Municipal Public Security Bureau, others say the Lianshui County bureau. The accounts conflict, and this article cannot verify which is correct. But whichever organ responded, the substance of what the court had to review was the same.

Revocation

Article 4 of the Supreme People’s Court’s 1986 Interim Provisions provided:

The people’s court shall review only whether the public security organ’s later ruling conforms to the facts and is lawful, and shall accordingly render a ruling upholding or revoking it.

On this basis, the court reviewed the penalty ruling in the case at both the factual and legal levels. In the end, it held that the penalty suffered from “unclear facts, undetermined responsibility, and impropriety.” Because the judgment was never published, we cannot know the court’s specific reasoning, but the rules of the time allow some inferences.

First, “unclear facts.” The public security organ detained the Zhu father and son on the ground that they had “disturbed the order of a unit.” Under Article 19, item 1, of the Regulations on Administrative Penalties for Public Security then in force, punishing conduct that disturbs public order required that it reach the degree of “causing work to be unable to proceed normally.” In this case, the altercation between the Zhu father and son and Chen very likely never reached that degree.

Second, “undetermined responsibility.” During the altercation that day, the pushing and shoving were most likely mutual; this was not a one-sided beating of Chen by the Zhu father and son. And the dispute arose from Zhu Xiucheng’s bonus, so the father and son were not simply making trouble. In other words, both sides bore some responsibility, and it could not all be placed on the Zhu father and son.

Taken together, if the public security organ could not prove that the Zhu father and son’s conduct had reached the degree of disturbing the work order of the unit, or could not adequately establish each side’s specific responsibility in the clash, the detention penalty might lack a sufficient factual and legal basis. In the end, the court ruled to revoke the county public security bureau’s penalty.

Review and Petition

After the Lianshui County court’s judgment, the public security organ objected and applied to the Huaiyin Intermediate People’s Court for review. After reviewing the case, the Huaiyin court upheld the original ruling. The public security organ then petitioned the Jiangsu Provincial High People’s Court. Liu Tianxing, then head of the administrative division of the Jiangsu High Court, later recalled that when the case arrived at the provincial court, the administrative division reviewed it carefully, the adjudication committee discussed it, and the court concluded that the original handling was sound, and accordingly dismissed the petition.

In his recollection, Liu Tianxing also spoke of the pressure of handling the case. Other provinces’ courts, he said, telephoned to ask how revoking a public security penalty had been accomplished and whether the pressure was great. His answer was that “the pressure was great.” Some people understood such a decision as the court failing to support administrative organs in exercising their authority. The president of the provincial high court also required the case to be handled cautiously and in detail, so that the decision would withstand scrutiny. While the case was being handled, the provincial high court, as requested, sent the case file to Beijing; later it received a telephone call from the Supreme People’s Court and learned that after reading the file, Zheng Tianxiang, president of the Supreme People’s Court, also approved of the Jiangsu court’s handling.

In the end, the Lianshui County court’s revocation judgment was not overturned in the proceedings that followed. It was the court’s prudence and persistence of this kind that withstood the pressure from all sides and produced this “first case” in which the public security authorities lost.

The Judgment’s Impact

Although this case never matched the Bao Zhengzhao case in influence, it did prompt public discussion at the time. In July 1987, People’s Daily published a commentary on the case praising citizens’ growing legal awareness. The fact that a detention penalty could be reviewed by a court gave concrete usefulness to “studying the law and understanding the law.”

In April 1989, the Administrative Litigation Law was adopted. Article 3 of the original law expressly provided for the independent adjudication of administrative cases, and Article 54 provided for judgments of revocation and other forms, while allowing courts to modify administrative penalties that were manifestly unfair. The litigation rules that had been scattered across individual statutes and specialized provisions thus moved toward a unified set of rules.

As for the lives of the Zhu father and son after their victory, public sources give no complete account. Article 42 of the 1986 Regulations on Administrative Penalties for Public Security provided that where a public security penalty was erroneous, the authority should admit the error to the person punished, return fines and confiscated property, and compensate for losses where lawful rights and interests had been harmed. Whether the Zhu father and son received compensation, and whether the public security organ admitted error to them, cannot be confirmed at present.

What is certain, however, is that this lawsuit of 1987 had already demonstrated that, before the Administrative Litigation Law was enacted, China’s institution of “citizens suing officials” had already been put into practice in part. The legal professionals of that era answered history’s questions in their own way, and gave their answer in a concrete adjudication.

This article is supplementary reading for episode 21 of Reasoned Talk, “China’s ‘First Case’ Against the Government: Bao Zhengzhao v. Cangnan County Before the Administrative Litigation Law” (listen on Xiaoyuzhou ). The episode explains why the Bao Zhengzhao case came to be called the “first case”; this article focuses on the earlier Zhu father and son case and on how a court revoked a public security penalty before the Administrative Litigation Law existed.

Principal Sources

• [1] Xin Qinchang, “What Matters Is Cultivating Citizens’ Legal Awareness” (重在培养公民法律意识), People’s Daily, July 5, 1987, p. 4, public transcription .
• [2] Wang Doudou, “Thirty Years of the Rule of Law in China: The Courts’ Three Modes of Adjudication” (法治中国30年：人民法院三大审判前行足迹), Legal Daily report; Sohu reprint , July 27, 2008.
• [3] Liu Tianxing, oral account, interviewed and edited by Lu Peng, Yang Huiqi, and Dai Nuoyi, “Telling Our History: The First Public Security Administrative Case Ever Revoked in China” (讲述我们的历史｜全国第一例被撤销的公安行政案件), Jiangsu High People’s Court, February 16, 2023, full text .
• [4] Civil Procedure Law of the People’s Republic of China (for Trial Implementation), original 1982 text, Article 3, paragraph 2, historical text .
• [5] Regulations on Administrative Penalties for Public Security of the People’s Republic of China, original 1986 text, especially Articles 19, 34, 39, 40, and 42, reprinted by the Fuxin Municipal Public Security Bureau .
• [6] Supreme People’s Court, Interim Provisions on Specific Questions of Law in the People’s Courts’ Hearing of Public Security Administrative Cases, October 24, 1986, public transcription ; on which organ should respond to suit, see also the Xinhua report carried in People’s Daily, November 15, 1986, report .
• [7] Zhang Weiwei, “A Legislative Revolution Overturning ‘Officials Above the People’: The Birth of the Administrative Litigation Law” (一场颠覆"官贵民贱"的立法革命——行政诉讼法诞生录), China NPC (中国人大), No. 2, 2014, People’s Daily Online reprint .
• [8] Zhang Kuanming and Zhao Bingqing, “Those Who Contributed Quietly Behind the Scenes” (默默在幕后奉献的人), Jiangsu Courts website, March 17, 2015, full text , used only to verify the date of the intermediate court’s renaming.
• [9] Ma Huaide and Kong Xiangwen, “Achievements and Prospects of Administrative Litigation over Forty Years of Reform and Opening Up,” Peking University Law Journal (中外法学), No. 5, 2018, China Legal Studies website reprint , case passage and note 4.
• [10] Wang Hanbin, “Explanation of the Draft Administrative Litigation Law of the People’s Republic of China”; Administrative Litigation Law of the People’s Republic of China, original 1989 text, in Gazette of the Standing Committee of the National People’s Congress, No. 2, 1989, pp. 64–79, gazette scan .

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.

In episode 19, we examined the Hugjiltu case. It occurred during China’s second “Strike Hard” campaign, when the entire criminal justice system was under pressure to punish offenders “severely and swiftly.” Yet only a month before the second campaign began, the National People’s Congress had passed a revised Criminal Procedure Law, which took effect on January 1, 1997.

The second Strike Hard campaign therefore unfolded during an important transition. Campaign-style criminal policy remained in motion even as a new criminal justice system was taking shape. This article looks more closely at the two nationwide campaigns and the development of China’s criminal justice institutions.

Reconstructing the Criminal Justice System of the People’s Republic

In the early years of the People’s Republic of China, there was no comprehensive, unified Criminal Law. Provisions on crimes and punishments were dispersed among a series of stand-alone statutes, including the Regulations on Punishing Counterrevolution, the Interim Regulations on Protecting State Secrets, and the Regulations on Punishing Corruption. An independent sovereign state, however, needed a unified criminal code. Drafting one proved difficult. The Central Legal Affairs Commission began work as early as 1950, but repeated revisions and rewrites produced a thirty-third draft by 1963. The Cultural Revolution then brought the project to a halt.

In 1978, the Third Plenary Session of the Eleventh Central Committee called for strengthening the socialist legal system, giving new impetus to the drafting process. In 1979, the Legal Affairs Commission of the NPC Standing Committee produced the thirty-eighth draft of the Criminal Law. Together with a draft Criminal Procedure Law, it was adopted by the Fifth National People’s Congress and took effect on January 1, 1980. China’s criminal justice system had entered a period in which substantive and procedural law were being rebuilt together.

The 1979 Criminal Procedure Law already contained rules intended to prevent wrongful convictions. It prohibited torture to extract confessions and the collection of evidence through threats, inducements, deception, or other unlawful means. It required emphasis on evidence and investigation rather than unquestioning reliance on confessions; a defendant could not be found guilty solely on the basis of a confession unsupported by other evidence. Once a court decided to hold a trial, a copy of the indictment had to be served on the defendant at least seven days beforehand, and the defendant had to be told of the right to appoint defense counsel. A defendant dissatisfied with a first-instance judgment had ten days to appeal.

These provisions show that China did not lack criminal procedure altogether when the first Strike Hard campaign began in 1983. The policy adjustments that followed were made against an already established legal framework. The question, then, is why a Strike Hard campaign was considered necessary when the country already had unified criminal and criminal procedure laws.

Strike Hard: From Policy Campaign to Legal Arrangements

In the early years of reform and opening, population mobility increased while urban life and social administration were changing. Economic restructuring, social transition, and shifts in the distribution of interests contributed to a rise in crime. In a conversation with Ministry of Public Security officials on July 19, 1983, Deng Xiaoping discussed the growth of criminal and other serious cases, public dissatisfaction, and the inadequacy of the existing response. He called for concentrating resources to deal with serious crime lawfully, “severely and swiftly.”

On August 25, 1983, the CPC Central Committee launched a campaign to strike hard against criminal activity. On September 2, the NPC Standing Committee adopted two decisions. The Decision on Severely Punishing Criminals Who Seriously Endanger Public Security addressed the demand for severity. The Decision on Procedures for the Speedy Trial of Criminals Who Seriously Endanger Public Security addressed the demand for speed. Together, the two decisions provided the principal legal arrangements for the first Strike Hard campaign.

Under the severe-punishment decision, offenders convicted of six categories of serious crimes—including hooliganism, intentional injury, and trafficking in persons—could, in specified circumstances, be sentenced above the maximum penalty prescribed by the Criminal Law, up to and including death. This differed from the Criminal Law’s ordinary concept of heavier punishment. Ordinarily, a heavier sentence still had to remain within the statutory range. The decision instead allowed that range to be exceeded, potentially all the way to the death penalty. Through a special decision, the NPC Standing Committee thus displaced the existing statutory sentencing framework and gave direct legislative expression to Strike Hard policy.

Under the speedy-trial decision, offenders who committed murder, rape, robbery, explosions, or other crimes seriously endangering public safety and who warranted the death penalty could, when specified conditions were met, be tried without observing the Criminal Procedure Law’s ordinary service periods, while the period for appeal or procuratorial protest was reduced from ten days to three. Intended to accelerate the handling of these cases, the decision likewise created a special exception to existing procedure.

On September 2, 1983, the NPC Standing Committee also amended the Organic Law of the People’s Courts, allowing the Supreme People’s Court, when necessary, to authorize provincial-level high courts to approve death sentences in certain cases. The Supreme People’s Court issued the corresponding authorization on September 7. Under the 1979 Criminal Procedure Law, death sentences had to be submitted to the Supreme People’s Court for approval. The amendment delegated part of that authority to the high courts, producing a practice in which appeal and death-sentence review could be combined in a single proceeding.

The 1979 Criminal Law and Criminal Procedure Law and the later Strike Hard campaign therefore responded to two needs that existed at the same time. One was to restore a basic criminal legal order; the other was to deal quickly with acute public-security problems. The tension between them soon appeared in the operation of the system.

The Results and Consequences of Strike Hard

The courts handled cases on a very large scale during the first Strike Hard campaign. The Supreme People’s Court’s 1987 work report recorded that, from August 1983 through the end of 1986, courts nationwide concluded more than 1.4 million criminal cases involving over 1.721 million people. Of those sentenced during the period, 39.65 percent received terms of more than five years, life imprisonment, or death; only 0.7 percent were acquitted.

Official assessments at the time reported marked changes in several categories of targeted crime. According to the Supreme People’s Court’s work report, offenders in the “seven targeted categories” declined from 51.86 percent of all criminal defendants tried by the courts in 1984 to 32.79 percent in 1986. Violent crime fell significantly in most parts of the country, and public security was said to have broadly stabilized. These figures formed the principal basis for contemporary official assessments of the campaign’s effectiveness.

The statistics, however, establish only the scale of enforcement and the contemporaneous change in public-security conditions. They cannot by themselves prove that every change was caused by Strike Hard. Equally important was the institutional pressure created by the demand for severe and swift punishment. Case-processing periods were compressed; in some death penalty cases, appeal and death-sentence review were combined; and the space for defense and correction narrowed. Once an investigation went wrong, later proceedings had fewer opportunities to correct it in time.

The first campaign therefore left a dual legacy. On the one hand, it responded in the short term to serious public-security problems. On the other, it exposed the tension between campaign-style governance and ordinary judicial procedure. More than a decade later, the second Strike Hard campaign began almost simultaneously with a major overhaul of criminal procedure, bringing that tension into sharp focus once again.

Old and New Systems in Overlap

In March 1996, the Supreme People’s Court’s work report, reviewing the previous year, stated that public security remained poor in some places and that major violent cases continued to rise. It listed the continuation of Strike Hard and comprehensive public-security governance among the tasks for the next stage. The second Strike Hard campaign began in April, targeting serious crimes including murder, robbery, rape, kidnapping for ransom, major theft, firearms offenses, and organized crime with underworld characteristics.

The second campaign still sought to suppress serious crime over a short period. Compared with the first, however, public explanations of the policy placed greater emphasis on grassroots governance, crime prevention, and other routine work. At least in its stated policy, the campaign addressed not only concentrated punishment but also longer-term prevention and maintenance of public order.

At the same time, both the Criminal Procedure Law and the Criminal Law underwent their first major revisions. On March 17, 1996, one month before the second campaign began, the National People’s Congress adopted a revised Criminal Procedure Law, effective January 1, 1997. On March 14 of the following year, it adopted a revised Criminal Law, effective October 1, 1997.

The two 1983 decisions adopted during the first campaign were repealed in the same period. The speedy-trial decision ceased to have effect on January 1, 1997, while the severe-punishment decision was repealed from October 1, 1997. This chronology shows that legal reform and Strike Hard were not two neatly consecutive phases. For most of 1996, the campaign proceeded under the old procedural law and the 1983 special decisions. After the new laws took effect in 1997, Strike Hard and related special enforcement campaigns continued. Campaign-style policy and institutionalized reform overlapped in practice.

New legislation could not immediately reverse the policy habits of the justice system. Even after the revised law had been adopted, the longstanding emphasis on severe and swift punishment continued to shape individual cases. The Supreme People’s Court’s 1997 work report recorded that courts nationwide concluded 570,000 first-instance criminal cases in 1996, an increase of 14.97 percent over the previous year. A total of 322,400 offenders convicted of crimes seriously endangering public security received punishment; 211,900 of them, or 65.73 percent, received severe sentences.

Nevertheless, a coordinated campaign is temporary. The rules established by legislation continue to shape criminal procedure long after the campaign has ended.

Changes to the Rules of Criminal Procedure

The 1996 revision covered a wide range of matters. Changes directly concerning the prevention of wrongful convictions and the protection of individual rights can be grouped into three areas.

First, it incorporated the central requirement of the presumption of innocence. Article 12 of the revised Criminal Procedure Law provided that no one could be found guilty without a judgment lawfully rendered by a people’s court. Article 162 further required an acquittal when the evidence was insufficient to establish guilt. Together, these provisions supplied a legal foundation for moving away from the habit of entering a conviction when doubts remained. The gravity of a case or the degree of public attention could not substitute for evidence and procedure.

Second, lawyers could enter the criminal process earlier. The 1979 Criminal Procedure Law largely confined legal defense to the trial stage: a defendant was told of the right to appoint counsel only after the court had decided to hold a trial. Under the revised law, a criminal suspect could retain a lawyer during the investigation stage for legal advice, assistance with petitions and complaints, and, when the conditions were met, an application for release on bail pending trial. At the time, however, a lawyer participating during the investigation did not yet have the status later accorded to defense counsel, and the scope of participation was narrower than it is today.

Third, the revision brought custodial measures under closer regulation. By adjusting the conditions governing criminal detention and other compulsory measures, it abolished “custody and investigation,” an administrative coercive measure that had operated outside the Criminal Procedure Law. It also prohibited the “de facto detention” of criminal suspects through repeated summonses or compelled appearances. Custody and investigation had once been used in criminal investigations; it was distinct from the better-known systems of custody and repatriation and reeducation through labor. The revision retained and adjusted criminal detention while bringing the coercive measures needed for criminal prosecution more fully within the framework of criminal procedure.

The centralization of death-sentence approval, complementing these procedural reforms, would come a decade later. On October 31, 2006, the NPC Standing Committee adopted a decision amending the Organic Law of the People’s Courts. From January 1, 2007, authority to approve death sentences was exercised exclusively by the Supreme People’s Court. This was a major reform of China’s death penalty procedure after more than twenty years of delegated review.

Conclusion

Taken together, these institutional changes strengthened the protection of the parties’ rights and reduced, at the level of legal design, the risk of wrongful convictions like Hugjiltu’s. Whether the new rules could achieve their intended effect, however, still depended on their implementation throughout the justice system. The 1979 Criminal Procedure Law already instructed officials not to rely unquestioningly on confessions and required evidence for conviction, yet those requirements could still be weakened by the pressure of the 1983 Strike Hard campaign. The value of procedural safeguards lies in making opportunities to discover, question, and correct errors into rules that every authority handling a case must obey, rather than hoping that every participant will always exercise perfect judgment.

Reform of the criminal justice system did not end there. Over the following two decades, the Criminal Law and Criminal Procedure Law underwent further amendment and development. From Strike Hard to legal reform, the history of China’s criminal justice system offers a clear lesson: procedure must continue to function precisely when society most wants a case resolved without delay.

This article is supplementary reading for episode 19 of Reasoned Talk, “The Hugjiltu Case: Strike Hard Campaigns and the Reversal of a Wrongful Conviction” . The episode traces the case from the crime and original proceedings through retrial and acquittal. This article instead focuses on the two nationwide Strike Hard campaigns and changes to criminal procedure, without repeating the details of the individual case.

Principal Sources

• NPC Standing Committee, Decision on Severely Punishing Criminals Who Seriously Endanger Public Security and Decision on Procedures for the Speedy Trial of Criminals Who Seriously Endanger Public Security (September 2, 1983).
• NPC Standing Committee, Decision on Amending the Organic Law of the People’s Courts of the People’s Republic of China (September 2, 1983).
• National People’s Congress, Criminal Procedure Law of the People’s Republic of China (adopted in 1979), and Decision on Amending the Criminal Procedure Law of the People’s Republic of China (March 17, 1996).
• National People’s Congress, Criminal Law of the People’s Republic of China (revised in 1997), Article 452 and Annex I.
• Gansu Provincial People’s Congress Standing Committee, Resolution on Resolutely Implementing the NPC Standing Committee’s Decision on Severely Punishing Criminals Who Seriously Endanger Public Security (September 24, 1983).
• Deng Xiaoping, “Cracking Down on Criminal Activities,” in Selected Works of Deng Xiaoping, vol. 3, pp. 33–34.
• Zheng Tianxiang, Work Report of the Supreme People’s Court (April 6, 1987).
• Ren Jianxin, Work Report of the Supreme People’s Court (March 11, 1997).
• Supreme People’s Procuratorate, “100 Moments in Procuratorial History: The Second Strike Hard Campaign” (July 8, 2018).
• Supreme People’s Court, “The People’s Courts in Numbers: Sixty Years of Adjudication” (2009), and Decision on Matters Concerning the Unified Exercise of Authority to Approve Death Sentences (Judicial Interpretation [2006] No. 12).
• State Council Information Office, “Progress in China’s Human Rights Cause in 1996” (March 1997).
• People’s Daily, “On the Period for Appeal” (April 26, 1984, p. 4).

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.

On September 5, 1993, twelve Japanese women who had spent decades living in China arrived at Narita Airport.

They held Japanese passports and hoped to settle in Japan, but they had neither secured sponsors to receive them nor found places to live. Under the policy then in force, obtaining government assistance with travel and resettlement was difficult without a sponsor. Rather than wait any longer, they made their own way to Japan, carrying a petition addressed to the prime minister, and spent the night at the airport.

Their action became known as the kyōkō kikoku incident: a return undertaken in defiance of the usual procedures. The phrase referred to their decision to return before reception arrangements were complete. It did not mean that they had entered the country illegally.

Forty-eight years after Japan’s defeat, why did they still have to take such a step to live in their own country? The war had left all of them in China. Why, then, did war orphans gradually receive public attention while other women were long treated as people who had chosen to stay?

The Age of Thirteen

In Japanese administrative usage, Japanese people who were compelled to remain in China amid the upheaval surrounding the end of the war in 1945 are collectively known as Japanese people left behind in China.

One category is Japanese orphans left behind in China, the war orphans discussed in episode 16 of my podcast. Under the official criteria, these were people who had been separated from their guardians, or whose guardians had died, amid the chaos of war. They were generally under thirteen at the time, did not know identifying details such as their Japanese names or places of family registration, and remained in China as they grew up. Many were raised by Chinese families.

The rest were classified as women and others left behind in China. This category included not only women but also other people who did not meet the criteria for war orphans, although women made up the majority. The term “women” is retained here to reflect the administrative category used at the time.

Thirteen was not the legal age of adulthood, nor was age the only criterion for classification. Still, differences in age and knowledge of one’s identity shaped how these people were treated. Young children were seen as orphans whose relatives needed to be found. Women who were a little older, remembered their names, and had married in China were more readily assumed to have chosen to stay.

But in northeastern China in 1945, how much choice did they really have?

The Circumstances of Staying

These women had come to China for different reasons. Some had accompanied their parents as members of Manchurian settler groups. Others were settlers’ wives. Still others had responded to recruitment campaigns and traveled to northeastern China as “continental brides.”

In 1932, Japan established the puppet state of Manchukuo in northeastern China and subsequently sent a growing number of civilians to settle there. Many settlers were ordinary farmers, but the settlement program was part of Japan’s colonial policy, serving purposes of both occupation and defense. The land they received was not simply unclaimed wilderness; some of it had been farmland belonging to Chinese peasants. An account of these women’s later suffering cannot leave out that context.

Toward the end of the war, large numbers of able-bodied men in the settler communities were conscripted, leaving mostly older people, women, and children behind. On August 9, 1945, the Soviet Union entered the war against Japan, and the Red Army advanced into northeastern China. Many settler groups fled in haste. Some people died in the fighting, others during the flight, and still others from hunger, bitter cold, and disease in refugee shelters.

Those who survived first had to find a way to stay alive. Some children were entrusted to Chinese families, while some women found food, shelter, and protection by marrying Chinese men. The circumstances of each marriage differed. Some began as a means of survival in desperate conditions; some also developed into lasting bonds through years of shared life. They cannot all be described as coercion or exchange. Equally, the fact that a woman later married and had children does not establish that she originally had a free choice.

In 1953, Japan enacted the Act on Assistance for Families of Unrepatriated Persons and Others. It provided aid to families remaining in Japan and relief for some returnees. But its general definition of an unrepatriated person excluded those considered to be staying abroad of their own volition. Whether a person’s absence was deemed voluntary could therefore determine eligibility for assistance.

This did not mean that the law automatically disqualified every woman who had married a Chinese man. The real difficulty was deciding, after flight, hunger, and the separation of families, whether someone had been unable to return or unwilling to do so.

Help That Came Late

Japan and China normalized diplomatic relations in 1972. The following year, the Japanese government decided to cover travel expenses for the first temporary home visit by Japanese people left behind in China. In 1981, it began organizing group visits by war orphans to search for relatives. Television programs and newspapers carried their photographs and biographical details in the hope that someone would recognize a family member lost decades earlier.

In 1984, Japan and China exchanged diplomatic documents on the war orphans, confirming that they could return permanently if they wished, even if no relatives had been found in Japan. To put this arrangement into practice, the Japanese government introduced a resettlement sponsor system in 1985 for orphans whose identities had not yet been established.

Finding relatives, however, did not guarantee that anyone would receive them. Decades had passed. Parents might have died, and siblings had lives of their own. Some relatives feared the burden of supporting the returnees and their families and were unwilling to take responsibility for receiving them. This was a particular obstacle for women who had always known their identities.

In 1989, the government created a “special resettlement sponsor” system to find alternative sponsors for orphans whose identities had been established but whose relatives refused to receive them. It was not until 1991 that this system was extended to women and others left behind in China.

These sponsors primarily helped with preparations for return, coordination of resettlement, and everyday life. Their role was not to certify the returnees’ nationality. Such help was indeed necessary for older people who lacked housing and could not speak Japanese. But extending the system did not mean that a sponsor would immediately be found. As long as sponsors and places to settle remained unavailable, applicants had little choice but to keep waiting.

The Twelve Women Take Action

Morihiro Hosokawa’s cabinet took office in the summer of 1993. The new prime minister’s acknowledgment of Japan’s past wars of aggression led some of the women and their supporters to believe that a direct appeal might win his help. They decided to return to Japan without waiting for the government to complete the reception arrangements.

People who had long supported Japanese returnees through private aid efforts helped organize the action. The twelve women were led by sixty-nine-year-old Ms. Takekoshi. They prepared a petition to the prime minister, saying that some two thousand others in China also hoped to return and asking the government to give them the opportunity to come back to their homeland.

On September 5, the twelve arrived at Narita at their own expense. The youngest was fifty-six, the oldest eighty. They intended to petition the prime minister, but they were unable to take up their appeal with his office that day. With no accommodation arranged, they decided to spend the night in the airport lobby.

One detail needs clarification. Although the twelve are usually described collectively as “women left behind in China,” Masanobu Okitsu, a longtime supporter of returnees, has noted in his account of this history that eight belonged to that category and four were classified as war orphans. They did not all fall within the same administrative category, but all had faced difficulty securing arrangements for someone to receive them.

Maki Okubo, the Asahi Shimbun reporter who interviewed them at the airport, had been notified by a support group two days earlier. The story did not immediately become major news. The following day, however, the Asahi Shimbun and the Mainichi Shimbun gave it substantial coverage. Television news and morning programs followed, and more reporters arrived at the airport. The twelve women’s predicament quickly entered public view.

On September 6, Ministry of Health and Welfare officials took them to the Settlement Promotion Center for Japanese Orphans Repatriated from China in Tokorozawa, Saitama Prefecture. In a subsequent written response to the Diet, the government confirmed that they had entered the center and were receiving training to adjust to life in Japan. It was consulting them about their preferences and coordinating places for them to settle. Their night at the airport was over, but the question of how they would live in the years ahead remained unresolved.

Their action brought the practical barriers into sharp focus: twelve women holding Japanese passports had already arrived in Japan, yet they were still struggling to secure help with resettlement.

The State’s Responsibility

In a written response dated October 22, 1993, the Japanese government expressly denied that it regarded people as having remained in China voluntarily simply because they had been thirteen or older at Japan’s defeat. It said that thirteen was only a guideline for identity investigations and that repatriation assistance itself did not distinguish between orphans and women. Yet it continued to require resettlement sponsors, promising only to recruit more of them and arrange placements faster.

On November 9, Health and Welfare Minister Keigo Ouchi discussed the twelve women’s experience before the House of Representatives Committee on Health and Welfare. He described them as victims of history and said that the administration had to do more than speak politely: it needed to find ways to meet their requests. He also said that the state should approach the issue with a commitment to taking ultimate responsibility, including arranging sponsors and ensuring that no one was left out.

On December 15, Japan and China exchanged new diplomatic documents. The Japanese Ministry of Health and Welfare also announced a three-year plan, beginning in fiscal 1994, to receive Japanese people left behind in China who wished to return permanently as soon as possible.

On March 29, 1994, the Diet passed the Act to Facilitate the Repatriation of Japanese People Left Behind in China and Others and Support Their Self-Reliance after Permanent Return. It was promulgated on April 6 and took effect on October 1. This article uses the law’s title as originally enacted and refers to it below as the Repatriation and Self-Reliance Support Act.

Article 1 explicitly recognized that these people had been unable to return amid the upheaval caused by the war and had been compelled to remain abroad. Articles 3 through 5 set out the responsibilities of the national and local governments to facilitate their return and support their lives afterward. Subsequent provisions specified assistance with travel expenses, initial settlement grants, advice on daily life, Japanese-language learning, housing, employment, and education.

Not all of these forms of assistance were new, and the law was not the product of the twelve women’s action alone. Private support efforts, parliamentary questioning, and policy changes had been under way for years. The Narita incident made reform more urgent and helped give support that had largely depended on administrative measures a clearer statutory basis.

This was still not a law providing compensation for harm caused by the state. It established repatriation and living support; it did not resolve questions of war responsibility or damages. But it made one point clear: helping these people return and settle was a responsibility of the national and local governments, not something that could be left to relatives and volunteers alone.

After Returning

The women’s experiences are less widely known than those of the war orphans, but they were no fewer in number. As of July 31, 2026, Japan’s Ministry of Health, Labour and Welfare recorded 6,731 permanent returnees among Japanese people left behind in China: 2,557 war orphans and 4,174 women and others. These figures count the returnees themselves, excluding accompanying family members.

Changes to the system did not automatically remove the difficulties of life after return. Language, housing, income, and family relationships all required long-term support. Japan later amended the support law and introduced new pension and living-support measures in 2008. The 1994 legislation was an important step in that longer process.

We should, of course, respect people’s choices about their lives. But we must also recognize the circumstances in which those choices were made. The fact that a woman found a way to survive the war cannot justify treating the decades of separation that followed as her own responsibility.

Nor does returning to Japan erase her family and the life she built in China. Those experiences do not lose their significance when she sets foot on Japanese soil again. The freedom to return, to stay, and to continue living with family members from China: these are the choices that such long-delayed assistance should seek to protect.

People Mentioned

• Rie Takekoshi (竹越リヱ): Leader of the 1993 return, aged sixty-nine at the time. She contacted fellow participants, prepared the petition to the prime minister, and led the twelve women to Japan at their own expense.
• Maki Okubo (大久保真紀): An Asahi Shimbun reporter who interviewed the twelve women at Narita and continued to follow their lives after repatriation. Her reporting and later recollections are important sources on the incident.
• Morihiro Hosokawa (細川護熙): Became prime minister in 1993. His acknowledgment of Japan’s wars of aggression raised hopes among the women and their supporters that they might secure repatriation assistance. The twelve women addressed their petition to him.
• Keigo Ouchi (大内啓伍): Japan’s minister of health and welfare at the time. In a Diet response in November 1993, he said that the state should take ultimate responsibility for securing reception arrangements for returnees.
• Masanobu Okitsu (興津正信): A Japanese-language teacher with a long history of supporting returnees from China. In his account of the women’s history, he noted that the twelve participants comprised eight women in the administrative category of women left behind in China and four war orphans.

Laws and Concepts

• Japanese people left behind in China: Japanese people who were unable to return amid the upheaval surrounding the end of the war and were compelled to remain in China for many years. The group includes both war orphans and those classified as women and others.
• Japanese orphans left behind in China: People separated from their guardians, or whose guardians died, amid wartime upheaval, who were generally under thirteen at the time, whose identifying details were unknown, and who remained in China as they grew up. Thirteen was a guideline for identity investigations, not a legal threshold for adulthood. Subsequent identification did not remove a person from the war-orphan category.
• Women and others left behind in China: Those among the Japanese people left behind in China who did not fall within the war-orphan category. Most were women, but the category also included men. “Women” reflects the historical administrative terminology; it does not establish that those concerned had voluntarily remained in China.
• Resettlement sponsor: Known in Japanese as mimoto hikiukenin (身元引受人), a person who primarily helped with preparations before return, coordination of resettlement, and advice on everyday life afterward. Under the policy at the time, securing a sponsor was an important precondition for repatriation assistance. It was not a procedure for proving Japanese nationality.
• Special resettlement sponsor system: A system for finding alternative sponsors for people whose identities had been established but whose relatives in Japan would not receive them. Introduced for war orphans in 1989, it was extended to women and others in 1991. Wider eligibility did not mean that reception arrangements could be secured immediately.
• Act on Assistance for Families of Unrepatriated Persons and Others: Act No. 161 of 1953. Article 2 excluded people considered to be staying abroad of their own volition from its general definition of unrepatriated persons. It did not provide that marriage to a Chinese person automatically disqualified someone from assistance. See the text as originally enacted .
• Repatriation and Self-Reliance Support Act: The short title used here for the 1994 Act to Facilitate the Repatriation of Japanese People Left Behind in China and Others and Support Their Self-Reliance after Permanent Return. Articles 3–5 set out national and local government responsibilities; Articles 6–11 provide for travel expenses, initial settlement grants, advice on daily life, Japanese-language learning, housing, employment, and education. It concerns repatriation and living support, rather than compensation for harm caused by the state. See Act No. 30 of 1994 as originally enacted .
• The 2007 amendment and new support measures: Japan amended the support law in 2007 and introduced new pension, support-payment, and community-support measures in April 2008. These were later reforms and should not be read back into the original 1994 law. See the Ministry of Health, Labour and Welfare’s policy explanation .

References

The sources below are in Japanese; English titles are provided for reference.

• Maki Okubo, “The Determined Return of Japanese Women Left Behind in China: Witnessing the Power to Open a New Era” (中国残留婦人の強行帰国　時代を切り開く力を見た), Asahi Shimbun, June 2, 2013. Full text reproduced here .
• Masanobu Okitsu, “Do You Know About ‘Returnees from China’? Part 5: Japanese Women Left Behind in China” (「中国帰国者」って知っていますか？　第5回　中国残留婦人), Kazankai Foundation, March 13, 2023.
• Government of Japan, “Written Response to Questions Concerning the Permanent Repatriation of Japanese Women Left Behind in China” (中国残留婦人の永住帰国の実現に関する質問に対する答弁書), October 22, 1993.
• National Diet of Japan, Proceedings of the House of Representatives Committee on Health and Welfare, 128th Diet , November 9, 1993, response by Keigo Ouchi.
• Support and Communication Center for People Returning from China, “A Brief History of the Issue of Japanese People Left Behind in China” (中国残留邦人問題に関する略史).
• Memorial Museum for Peace: Japanese Settlers in Manchuria, “Brief Facts about the Manchurian and Mongolian Settlement Program,” with a chronology (満蒙開拓ミニ知識).
• Ministry of Health, Labour and Welfare, “Summary of Findings from the Survey of Living Conditions of Returnees from China” (中国帰国者生活実態調査結果の概要). The definitions of orphans and women and others appear at the end.
• Ministry of Health, Labour and Welfare, “Statistics on Japanese People Left Behind in China and Others” (中国残留邦人等の状況). This article uses the figures as of July 31, 2026.

Related Episode

This article offers further reading for episode 16 of Reasoned Talk, “Repatriation Was Not a Homecoming: Japan’s War Orphans and Their State Redress Lawsuits .” If you have not yet listened, the episode explores how more than two thousand repatriated war orphans used litigation to question the Japanese government’s responsibility for their return and resettlement. You are also welcome to follow my WeChat official account, 议正言辞 (Reasoned Talk), and share your thoughts in the comments.

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.

He was not a newcomer to Shaoyang. The court found that after marrying in 1996, Huang had moved there to live with his wife. They occupied a house beside the Tianjiangdu wharf, where he remained for twenty years. He made a living through casual work and street vending, while his household registration, or hukou, stayed elsewhere. The newly effective Interim Regulations on Residence Permits seemed to offer a possibility: with a residence permit, daily life, his children’s schooling, and access to employment would all become a little easier.

The police station did not issue him one. Their dispute ultimately came down to a somewhat absurd question: how could a person who had lived in one place for twenty years prove to an administrative agency that he really lived there?

Huang submitted his identity card, marriage certificate, testimony from neighbors, and a certificate issued by the village where his hukou was registered. The Interim Regulations on Residence Permits, however, required proof of an applicant’s address, employment, or enrollment in school. Huang could not produce a complete lease, property-ownership document, or proof of an employment relationship. In July 2016, the court dismissed his claim.

Few people know this case, but it is especially revealing when read after the Sun Zhigang case.

In 2003, Sun was wrongly swept into the custody-and-repatriation system because he did not have a “temporary residence permit.” Thirteen years later, Huang wanted the state to issue him a “residence permit,” only to be refused because his paperwork was incomplete. In Chinese, only one character in the name of the permit had changed. The relationship between the permit holder and the city, however, had changed with it.

“Temporary Residence” Began as Registration

Temporary-residence registration in the People’s Republic of China can be traced to the 1958 Household Registration Regulations, which remain in force today. Article 15 provides that when a citizen leaves the city or county of their permanent residence and stays in another city for more than three days, they must report for temporary-residence registration within three days and report again to cancel the registration before leaving.

What the regulations required was “registration,” not the “temporary residence permit” with which later generations became familiar. Household-registration authorities needed to know where a person came from, where they were staying, and when they left. A temporary residence permit had not yet become a document that people from elsewhere had to produce repeatedly when working, renting a home, or undergoing inspections in the city.

The regulations also contain an easily overlooked episode in Chinese legal history. The 1954 Constitution expressly guaranteed citizens freedom of residence and movement. During the drafting of the Household Registration Regulations, people asked whether registration and migration procedures would conflict with that constitutional right. The Ministry of Public Security specifically addressed the question in its explanation of the draft. The National People’s Congress website later described this legislative process as an early example in the history of the People’s Republic of conducting “constitutional review” of draft legislation.

The registration system on paper did not face its real test, however, until the period of reform and opening up.

In the 1980s, growing numbers of people left their hometowns to work in cities. Shenzhen illustrates the change particularly well. When the special economic zone was first established, Shenzhen had a registered population of only 76,200 but a permanent resident population of 314,100, which soon rose to 881,500. The city needed these builders, but it also urgently wanted to keep track of who they were.

In July 1983, Shenzhen adopted rules for issuing special-economic-zone temporary residence permits to people arriving from elsewhere. The Shenzhen Municipal Archives describes it as one of the earlier Chinese cities to implement such a permit system. Two years later, the Ministry of Public Security issued the Interim Provisions on the Administration of the Temporary Urban Population, and the temporary residence permit began to move from local experimentation toward nationwide use.

Was the Temporary Residence Permit a “Ticket into the City”?

In 1995, the Ministry of Public Security issued the Measures for the Application for Temporary Residence Permits, establishing uniform national rules for the system.

Under the measures, workers and business operators who were at least sixteen years old, had left the place of their hukou, and intended to live elsewhere for more than one month “were required to apply” for a temporary residence permit. Applicants for documents such as labor permits and business licenses had to present both an identity card and a temporary residence permit. Employers could not hire people without one. Permit holders were required to produce it when police inspected their documents. A person who still refused to register or obtain a permit after receiving notice could be warned or fined up to fifty yuan.

As originally designed, the temporary residence permit was a transitional measure through which the existing household-registration system responded to mass migration. For the first time, it allowed a rapidly moving population to be continuously recorded by urban administrative systems. It also gave people arriving from elsewhere a way to prove their identity and complete other formalities. In an era when people were pouring into cities over a short period and public services were still allocated mainly by hukou, urban administrators did need some form of transitional arrangement.

The problem was that the document gradually became more than the result of registration. It became a prerequisite for entering urban life. A person might have to show a temporary residence permit to find work, rent a home, or obtain a license. Even after living in a city for years, anyone whose hukou was elsewhere remained, in legal terms, only a “temporary resident.” Once the permit became entangled with street-level document checks, public-security campaigns, and custody and repatriation, “managing a population” could easily slide into “screening a population.”

Sun Zhigang encountered the most dangerous side of this system as it operated on the ground. Although the immediate focus of his case was the custody-and-repatriation system, the public also seized the moment to question the temporary residence permit system that had been in place for years.

The Shift from “Administration” to “Services”

The institutional turn had actually begun before the Sun Zhigang case. In 2002, Shanghai piloted a “talent residence permit.” In 2004, the city expanded the residence permit to cover more long-term residents arriving from elsewhere. The new document did more than record where a person was living. It connected the holder with specific benefits, including social insurance, compulsory education for children, professional qualification examinations, training, and public health services.

Shanghai’s pilot experience began to spread to other regions. In 2008, Shenzhen repealed its Regulations on the Household Administration of Temporary Residents in the Special Economic Zone and introduced new residence-permit measures. Guangdong implemented a province-wide residence permit in 2010. That same year, the State Council called for the gradual introduction of a residence-permit system throughout the country. Local approaches varied. Some emphasized recruiting talent, some relied on points-based administration, and some retained a strong public-security orientation. The overall direction, however, was becoming clear: the permit was to change from a simple instrument of population control into a vehicle connecting its holder to public services.

In 2014, the State Council’s Opinions on Further Advancing Reform of the Household Registration System called for the “full implementation of the residence-permit system.” One year later, the State Council promulgated the Interim Regulations on Residence Permits. In March 2018, the Ministry of Public Security formally repealed the 1995 Measures for the Application for Temporary Residence Permits. At the level of national administrative rules, the temporary residence permit had finally made its exit after more than two decades.

The principal difference between the 1995 and 2015 documents lies in the permit’s core function. The 1995 temporary residence permit was first and foremost “proof of temporary residence in another locality.” The 2015 residence permit, by contrast, was defined as proof that its holder lived in a particular place, enjoyed basic public services and conveniences there as a usual resident, and could apply to register a permanent hukou. The regulations expressly listed basic public services such as compulsory education, employment services, public health, cultural and sports programs, and legal aid. They also listed conveniences such as obtaining identity documents, registering a motor vehicle, applying for a driver’s license, and pursuing professional qualifications.

Only one Chinese character separates the names “temporary residence permit” and “residence permit,” yet the document’s main function shifted from “administration” to “services.” Applying for the permit also changed from a duty into a choice.

The old Measures for the Application for Temporary Residence Permits said that qualifying individuals “were required to apply.” The new Interim Regulations on Residence Permits provide that citizens who have lived in another city for more than six months and satisfy at least one of three conditions—lawful and stable employment, a lawful and stable residence, or continuous enrollment in education—“may apply” for a residence permit. The old measures required permit holders to produce the document during inspections and allowed authorities to fine people who refused to obtain one. The new regulations do not make the mere failure to apply for a residence permit punishable. Their penalties mainly target obtaining a permit by deception, misusing, buying, selling, or forging permits, and unlawfully confiscating another person’s residence permit.

Changing the name, of course, did not make every problem disappear. A residence permit is still not a hukou, and the public services that local governments can provide remain constrained by population size, fiscal capacity, and available resources. Points, length of residence, years of social-insurance contributions, and documentary requirements can all become barriers in practice. Huang’s case arose in precisely this gap. The court rejected his request because his materials were incomplete. As a matter of legal application, the judgment is not difficult to understand: an administrative agency issuing a permit needs standards that it can verify. Yet the case leaves a practical question behind. People who survive on casual work and live in informal housing are the least likely to have standard employment contracts and leases, even though they are often the people who need public services most.

How Much Further Must the Residence Permit Go?

In 2024, the State Council issued a five-year action plan for new urbanization. It called for closer integration between residence permits and national identity cards, with basic public services supplied by the place of habitual residence and gradually extended to everyone who actually lives there. In May 2026, the State Council issued its Opinions on Providing Basic Public Services at the Place of Habitual Residence. The document identified education for migrant children, public rental housing, enrollment in social insurance at the place of employment, health insurance at the place of habitual residence, employment services, and social assistance as priorities. It also called for electronic residence permits, more services available directly upon presentation of the permit, mutual recognition of permits across regions, and conversion of residence periods between jurisdictions.

The journey is not complete. Because local fiscal pressures are real, scarce public resources such as school places, subsidized housing, health insurance, and social assistance still remain primarily accessible through hukou. Whenever public resources are tight, decisions about reasonable eligibility thresholds—and about how to prevent a paper requirement from excluding people who genuinely live in a place—will continue to generate new legal disputes.

Yet looking back over more than four decades, the direction of change is clear.

In the 1980s, when cities confronted the sudden arrival of a vast migrant population, their first responses were registration, inspection, and the maintenance of order. Today, the policy debate is increasingly centered on a different question: can a person who lacks a local hukou but has lived in a city for years enjoy the same public services as a registered resident?

Key Institutional Milestones

• 1958, Household Registration Regulations: Established a unified national household-registration system; Article 15 required temporary-residence registration in cities.
• 1983, Shenzhen temporary-residence permit rules: An early effort to turn the administration of temporary residents into a permit system.
• 1985, Ministry of Public Security’s Interim Provisions on the Administration of the Temporary Urban Population: Extended the temporary-residence permit beyond local experimentation.
• 1995, Ministry of Public Security’s Measures for the Application for Temporary Residence Permits: Established uniform rules on who had to apply, document inspections, employment restrictions, and legal liability.
• 2002–2008, local residence-permit experiments: Shanghai, Shenzhen, and other cities gradually connected permits with education, social insurance, employment, and other services.
• 2014, State Council opinions on household-registration reform: Called for full implementation of the residence-permit system and for basic public services to cover permanent residents.
• 2015, Interim Regulations on Residence Permits: Established a national residence-permit system, effective January 1, 2016.
• 2018, Ministry of Public Security Order No. 148: Formally repealed the Measures for the Application for Temporary Residence Permits.
• 2026, opinions on basic public services at the place of habitual residence: Further promoted public services that move with people and expanded electronic permits, regional mutual recognition, and related functions.

This article is a companion to Episode 15 of Reasoned Talk. If you have not heard the episode, the full program explains how Sun Zhigang was wrongly taken into custody and how a tragedy helped bring the custody-and-repatriation system to an end. You are welcome to follow the WeChat public account “议正言辞” and to share your own memories of temporary residence permits and residence permits in the comments.

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 became the famous “first case of judicial application of China’s Constitution.” In Episode 13 of Reasoned Talk, “China’s ‘First Constitutional Case’: Qi Yuling’s Stolen Right to Education,” we told the full story. In a 2001 reply to the Shandong High People’s Court, the Supreme People’s Court wrote that Chen Xiaoqi and the other defendants had “infringed Qi Yuling’s fundamental right to education under the Constitution by means of infringing her right to a name.” That sentence later became one of the best-known texts in the history of Chinese constitutional scholarship.

But if we temporarily set aside the grand debate over the “judicial application of the Constitution,” another question deserves just as much attention: when one person steals another’s identity and takes the educational opportunity that rightfully belongs to them, how exactly should the law address that conduct?

In 2001, the law had to explain this injury through the “right to a name” and the “right to education.” Twenty years later, it had acquired a far more direct name: the “crime of identity substitution.” What happened in between?

From Qi Yuling to Chen Chunxiu

What makes the Qi Yuling case so difficult to forget is not merely the misuse of her name. If Chen Xiaoqi had done nothing more than use Qi Yuling’s name, the case would not have led to everything that followed. The reality was much more serious: the stolen name was only the means and the outward appearance; what Qi Yuling actually lost was an educational opportunity. In the 1990s, admission to a secondary technical school could also bring a rural student an urban household registration, an assigned job, and an entire set of life opportunities. Qi did not lose only her name. She lost a promising path through life.

That is why the first-instance judgment, which protected only her right to a name, seemed somehow insufficient. The Supreme People’s Court’s 2001 reply therefore expressly connected the right to a name with the constitutional right to education. In retrospect, the formulation may seem somewhat circuitous. At the time, however, it represented an effort to locate a complex injury within the existing legal framework: the means was the misuse of a name, but the result was the loss of an educational opportunity.

Nearly eight years after the Qi Yuling case concluded, Luo Caixia, who was about to graduate from Tianjin Normal University, discovered an irregularity in her identity records while handling a bank transaction in March 2009. After investigating further, she learned that her high-school classmate Wang Jiajun had used Luo’s name and college-entrance-examination information to enroll at Guizhou Normal University as early as 2004.

Luo Caixia had fallen short of Hunan’s cutoff for second-tier undergraduate admission in 2004. She repeated her final year of high school and gained admission to Tianjin Normal University the following year. Unlike Qi Yuling, therefore, Luo did not completely lose the opportunity to continue her education. Yet the other “Luo Caixia” who had assumed her identity still intruded into her real life. Because Luo had repeated a year, she encountered all kinds of problems when graduating, applying for a teaching certificate, and looking for work. Once another person had already used the same set of identity information, the real Luo Caixia was forced to prove, again and again: I am who I say I am.

The timing is especially revealing. In December 2008, the Supreme People’s Court repealed Judicial Interpretation [2001] No. 25, the reply on which the Qi Yuling case had relied. A few months later, Luo Caixia sued Wang Jiajun and others for infringing her rights to a name and to education. But because the Supreme People’s Court’s reply in the Qi Yuling case had already been repealed, the judicial route that connected the right to a name with the constitutional right to education could no longer be used in Luo’s case. The court therefore continued to classify the dispute simply as one involving infringement of the right to a name. The case ultimately ended in mediation in 2010, with Wang Jiajun’s father, Wang Zhengrong, paying Luo Caixia RMB 45,000 in compensation.

The underlying problem did not disappear. Similar incidents that continued to come to light demonstrated that using another person’s identity to attend school not only inflicts enormous harm on the victim, but also carries serious and easily underestimated social consequences. Identity substitution may look simple, but in reality it can require the coordination of examination files, household-registration information, school reviews, and relevant officials. It is usually difficult for an impostor acting alone to “become” another person completely. In these cases, the law therefore confronts a chain of fraud extending across admission, student registration, household registration, and employment.

In 2020, Chen Chunxiu’s experience brought the issue back into public view. Chen was born in Guan County, Shandong Province. She took the national college entrance examination in 2004 and scored 546 in the science track, twenty-seven points above the cutoff for first-batch junior-college admission that year. But she never received an admission notice. Believing that she had failed, she left home to work. Sixteen years later, she decided to continue her studies through the adult college entrance examination. When she checked the China Higher Education Student Information website, she was astonished to discover that “Chen Chunxiu” had already attended and graduated from Shandong University of Technology.

According to the official report, the impostor, Chen Yanping, had scored only 303 on the college entrance examination that year and did not meet the cutoff for first-batch junior-college admission. Her family used personal connections with the head of the Guan County admissions office and others to select Chen Chunxiu as the person she would replace. They printed Chen Chunxiu’s examination permit from the admissions system, intercepted the admission notice that had already been mailed, fabricated her high-school records, and obtained false household-registration documents. Multiple stages that were supposed to verify identity instead combined to create a channel for identity fraud.

In the summer of 2020, the experiences of Chen Chunxiu, Wang Lili, Gou Jing, and others entered the public eye one after another. In August, the Legislative Affairs Commission of the Standing Committee of the National People’s Congress responded that using another person’s identity to attend university not only causes irreparable loss and alters the victim’s life trajectory, but also undermines educational fairness. It expressly stated that it would study bringing such conduct within the scope of the criminal law. Two months later, the second deliberation draft of Amendment XI to the Criminal Law added a relevant provision.

Why Make Identity Substitution a Crime?

Before the “crime of identity substitution” was created, was the law really powerless to deal with the conduct? Of course not.

Before 2021, using another person’s identity to attend university was not an independent offense under that name, but the chain of fraud surrounding the substitution could still violate other criminal laws. Forging identity documents, official documents, household-registration records, or student records could constitute offenses involving the forgery or alteration of documents. Stealing or using another person’s identity documents could incur criminal liability. Admissions personnel who practiced favoritism or abused their authority could be guilty of the relevant dereliction-of-duty offenses. If favors, payments, or bribes were also involved, the conduct could further implicate the crimes of offering or accepting bribes.

The Luo Caixia case is a typical example. While helping his daughter complete the substitution, Wang Zhengrong forged documents issued by state organs. A court ultimately sentenced him to two years’ imprisonment for forging documents of state organs. Combining that sentence with a previous sentence for accepting bribes, it imposed a total term of four years’ imprisonment.

In other words, the old criminal law was not helpless against identity substitution, but it could punish only one of the discrete “acts” used to carry it out. This raised an intriguing legal question: if a person did not personally forge any documents or commit another act sufficient to constitute a separate offense, but knew they were unqualified and nevertheless took an admission place under someone else’s identity, did the act of substitution itself warrant an independent judgment under the criminal law?

On December 26, 2020, the Standing Committee of the National People’s Congress adopted Amendment XI to the Criminal Law. The amendment added Article 280-2, bringing three types of qualification within the scope of the new offense: admission to higher academic education, eligibility for civil-service employment, and employment-placement benefits. Whoever steals or falsely uses another person’s identity to take that person’s place in obtaining one of these qualifications may be sentenced to imprisonment of up to three years, criminal detention, or public surveillance, together with a fine. A person who organizes or directs another to commit the offense receives a heavier punishment. If a state functionary commits the conduct and thereby also commits another crime, the rules governing combined punishment for multiple offenses apply.

The amendment took effect on March 1, 2021. That year, when the Supreme People’s Court and Supreme People’s Procuratorate assigned names to the newly added offenses, they designated the offense under Article 280-2 the “crime of identity substitution.” As a matter of legal language, this marked a clear change. It also shifted the focus of criminal responsibility. The law would no longer punish only the forgery of documents, bribery, or dereliction of duty that happened to accompany the substitution. It would also punish the act of “taking a qualification secured by another person” itself.

Moreover, the term that recurs in the provision is not “name,” but qualification. Places in higher academic education, civil-service appointments, and employment-placement benefits all involve the allocation of opportunities. They are often limited in number and distributed through examinations, admissions, or recruitment procedures. When one person obtains such a qualification under another’s identity, the injury extends beyond personal identity to the system of fair distribution built around that qualification.

The Restraint of the Criminal Law and the Supplementary Role of the Education Law

It is worth noting that, in the field of education, Article 280-2 of the Criminal Law does not protect every kind of “admission qualification.” It is expressly limited to admission to “higher academic education.” If the Qi Yuling case were to occur today, the qualification taken from her would be for a technical secondary school, which is not a form of higher academic education. A court therefore still could not find the defendant guilty of identity substitution under Article 280-2.

This is not wordplay. It follows from the restraint of the criminal law and the principle of legality. The idea of restraint means that criminal law should serve only as the “last resort” for protecting rights. Criminal punishment includes the harshest measures the state can impose on a person, from depriving someone of liberty to taking a life. Precisely for that reason, the state must exercise extreme caution when applying the criminal law. It should ordinarily do so only when other legal means are insufficient to protect the relevant interests effectively. Put differently, criminal law should be the ballast that stabilizes the entire legal system, not an instrument to be deployed lightly.

This leads to the criminal-law principle of legality: no act is a crime, and no punishment may be imposed, unless the law expressly provides for it. Article 280-2 expressly limits the crime of identity substitution to qualifications for “higher academic education.” Under the principle of legality, a court cannot therefore treat the substitution of another person’s technical-secondary-school qualification as this offense. That is not pedantry. It is a necessary consequence of the criminal law’s restraint. No matter how morally reprehensible an act may be, the first question must still be whether the statutory elements of an offense actually cover it.

To fill the legal gap left by the restraint of the criminal law and the principle of legality, the Standing Committee of the National People’s Congress amended Article 77 of the Education Law in April 2021. It added provisions specifically addressing conduct that steals or falsely uses another person’s identity in order to replace that person and obtain an admission qualification. Unlike the Criminal Law, the Education Law does not limit “admission qualification” to higher academic education.

More importantly, the Education Law also added a distinctly restorative provision: a person whose admission qualification has been taken and whose rights have been infringed may request restoration of that qualification. This sentence performs a completely different function from the Criminal Law. The Criminal Law answers, “How should the impostor be punished?” The Education Law goes further and asks, “How can the victim be made whole?” One focuses on the wrongdoer; the other on the victim. One emphasizes punishment; the other attempts to restore an opportunity. Following the path that began with Qi Yuling, the law finally moved beyond evaluating the perpetrator and began to confront the essence of identity substitution more directly.

Reflections Beyond the Law

Of course, the law is not a time machine. For someone who has only just discovered the substitution, these remedies may still be meaningful. But for someone who learns the truth ten or twenty years later, even the restoration of an admission qualification on paper may not restore the life they could have lived. If Qi Yuling had entered Jining Commercial School at seventeen, might she later have found more stable employment? If Chen Chunxiu had walked into Shandong University of Technology at twenty, how might her life have changed? No one can know.

This is where the limits of law become clear. A court can apply the Civil Code to recognize direct and consequential losses, and it can award damages for emotional distress. The Criminal Law can convict an impostor. The Education Law can revoke a fraudulent degree and restore an admission qualification. But the law cannot create a seventeen-year-old Qi Yuling again, nor can it erase the sixteen years Chen Chunxiu spent working away from home. That may be why this kind of identity substitution provokes more anger than ordinary identity theft. What it truly steals is the most precious and possibility-filled period of a person’s life: their youth.

From Qi Yuling to Chen Chunxiu, and from 1999 to 2021, Chinese law took more than twenty years to confront the problem of identity substitution directly. The law still has many limitations when it comes to remedies for violated rights. At the very least, however, it now provides a clearly divided and intelligible path for resolving similar cases in the future. Beyond the debate over the “judicial application of the Constitution,” this may be another historical thread in the Qi Yuling case worth remembering.

Key People

• Qi Yuling (originally named Qi Yuling with a different final character, 齐玉玲) — Took the Shandong Province technical-secondary-school entrance examination in 1990 and was admitted to Jining Commercial School, but her admission notice was taken. She filed suit in 1999 and received compensation after a final judgment by the Shandong High People’s Court in 2001.
• Chen Xiaoqi (formerly Chen Hengyan) — Qi Yuling’s classmate. With the assistance of her father, Chen Kezheng, and other relevant personnel, she used Qi Yuling’s name and admission notice to enter Jining Commercial School and later obtained employment under Qi’s identity after graduation.
• Luo Caixia — Discovered in 2009 that her high-school classmate Wang Jiajun had used her name and college-entrance-examination information to enter Guizhou Normal University in 2004. The related civil case concluded through mediation in 2010.
• Wang Jiajun — The person who entered university under Luo Caixia’s identity. Her enrollment under Luo’s name caused the real Luo Caixia to encounter persistent conflicts in her identity records during graduation, qualification examinations, and job applications.
• Wang Zhengrong — Wang Jiajun’s father. He forged documents issued by state organs while helping his daughter enter university under another person’s identity and was later punished for multiple offenses, including forging documents of state organs and accepting bribes.
• Chen Chunxiu — Scored high enough on the 2004 college entrance examination to qualify for admission to Shandong University of Technology, but believed that she had failed after her admission notice was intercepted. Sixteen years later, she discovered through the China Higher Education Student Information website that another person had used her identity.
• Chen Yanping — The person who entered Shandong University of Technology under Chen Chunxiu’s identity. Her family arranged the substitution through personal connections with admissions personnel, interception of the admission notice, and the fabrication of school records and household-registration documents.

Key Concepts and Legal Provisions

• Right to a name — The right of a natural person to decide, use, change, or authorize another to use their name in accordance with law. Identity substitution first appears as the stealing or false use of another person’s name, but in educational cases the victim often also loses an educational opportunity and its associated benefits.
• Judicial Interpretation [2001] No. 25 — The Supreme People’s Court’s reply in the Qi Yuling case, which found that Chen Xiaoqi and others had infringed Qi Yuling’s fundamental constitutional right to education by means of infringing her right to a name. The reply was repealed in 2008.
• Articles 1012 and 1014 of the Civil Code — The former provides that a natural person enjoys the right to a name; the latter prohibits any organization or individual from interfering with, stealing, or falsely using another person’s name or designation.
• Article 3 of the Criminal Law (principle of legality) — Only conduct expressly defined as a crime by law may be convicted and punished. Conduct that the law does not expressly define as criminal may not be convicted or punished. The crime of identity substitution therefore cannot be expanded at will beyond the types of qualification specified in the provision.
• Article 280-2 of the Criminal Law (crime of identity substitution) — Punishes a person who 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. The prescribed penalty is imprisonment of up to three years, criminal detention, or public surveillance, together with a fine.
• Article 77 of the Education Law — Provides for administrative, public-security, and criminal liability for using another person’s identity to obtain admission, and expressly permits a person whose admission qualification has been taken and whose rights have been infringed to request restoration of that qualification. “Admission qualification” here is not limited to higher academic education.
• Supplementary Provisions (VII) of the Supreme People’s Court and Supreme People’s Procuratorate on the Designation of Offenses under the Criminal Law of the People’s Republic of China — Took effect on March 1, 2021, and formally designated the offense under Article 280-2 of the Criminal Law the “crime of identity substitution.”
• Restraint of the criminal law — Criminal punishment should serve as the last resort for protecting legally recognized interests and should be used cautiously when other legal measures cannot effectively address serious social harm. Together with the principle of legality, this concept limits the expansion of the state’s punitive power.

This article is further reading for Episode 13 of Reasoned Talk. If you have not yet listened to the episode, you can begin there for the complete story of the Qi Yuling case and the Supreme People’s Court reply that sparked more than twenty years of legal debate. If you have thoughts of your own, feel free to share them in the comments.

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

That decision can easily create the impression that freedom of speech in the United States has no limits. Nothing could be further from the truth.

For more than a century, the Supreme Court has repeatedly confronted the same question: where are the limits of free speech? It has never drawn a single, bright line. Instead, case by case, it has gradually assembled a series of legal tests. This article traces the development of several of the most important ones.

The First Question: Who Is Restricting Speech?

The First Amendment’s protection of speech is stated in simple terms:

Congress shall make no law abridging the freedom of speech.

But an easily overlooked question comes first: whom does this rule bind?

The text of the First Amendment mentions only Congress, but through the Fourteenth Amendment it also applies to state and local governments. As a general rule, the Free Speech Clause restrains the government, not ordinary private actors. If a newspaper rejects your submission, a private employer dismisses you for something you said, or a social-media platform suspends your account for violating its rules, that ordinarily is not a First Amendment violation. Private actors may still be constrained by labor law, antidiscrimination law, contracts, or their own platform rules, but those are separate questions.

Only in limited circumstances can private conduct be attributed to the government—for example, when a private entity performs a function traditionally and exclusively reserved to the state, acts under government compulsion, or acts jointly with the government.

So the next time someone says, “My freedom of speech has been violated,” the first question should be: who is restricting the speech? And is the freedom being invoked one that the Constitution actually protects in this relationship?

Free Speech and Public Order

Once that basic point is clear, the next question is: what happens when speech may threaten public order? Here, one of the most famous sayings in American law is that you cannot falsely shout fire in a crowded theater.

The phrase comes from the Supreme Court’s 1919 decision in Schenck v. United States. During the First World War, socialist Charles Schenck mailed leaflets opposing the draft to men who had been called for military service. He was prosecuted under the Espionage Act, and his case reached the Supreme Court. The leaflets were plainly “speech” within the ordinary meaning of the First Amendment, so the natural question was whether opposition to the draft during wartime fell within the constitutional freedom of speech.

Justice Oliver Wendell Holmes proposed a test: whether speech is protected depends on whether, in its particular circumstances, it creates a “clear and present danger.” His reference to falsely shouting fire in a crowded theater illustrated how context can change the legal consequences of words. No theater fire was involved in Schenck, and the metaphor is not a legal rule that can be applied independently of a concrete case.

In practice, however, “clear and present danger” could still be interpreted broadly. Schenck also arose in an era deeply hostile to antiwar activists and socialists. The Court treated the leaflets as an attempt to obstruct the draft and upheld Schenck’s conviction.

The real turning point came fifty years later. In 1969, the Supreme Court decided Brandenburg v. Ohio. Brandenburg was a member of the Ku Klux Klan. He invited a television station to film one of the group’s rallies. The footage showed robed figures and a burning cross, while Brandenburg delivered racist remarks and warned that “revengeance” might be taken if the president, Congress, and the Supreme Court continued to “suppress the white, Caucasian race.”

Was this merely abstract advocacy of violence, or had it become punishable incitement? The Supreme Court reversed Brandenburg’s conviction and reshaped incitement doctrine around the stricter standard of “imminent lawless action.” In practical terms, the government may punish advocacy of violence or illegality only when three conditions are present:

1. The speaker intends to incite or produce unlawful action;
2. The unlawful action is imminent, rather than an abstract possibility in the distant future;
3. In the circumstances, the speech is likely to incite or produce that action.

These requirements address purpose, proximity in time, and practical likelihood. Praising revolution or expressing an abstract hope that the government might someday be overthrown is not incitement. Saying “break down that door now,” to a crowd likely to obey, is much closer to the point at which punishment becomes constitutionally permissible.

From Schenck to Brandenburg, the Court ceased to accept the government’s generalized sense of “danger” as enough. It demanded evidence of a very close connection between the speech and the unlawful action.

Free Speech and the Rights of Others

Those two cases concern the relationship between speech and public order. But what if speech does not threaten public order and instead insults, threatens, or defames a particular person?

Fighting Words

In 1942, the Supreme Court introduced the category of “fighting words” in Chaplinsky v. New Hampshire. Chaplinsky, a Jehovah’s Witness, came into conflict with local officials while preaching on the street. He called the town marshal a “damned Fascist” and a “God-damned racketeer.” He was convicted. The Court reasoned that some personally abusive words addressed directly to another person are inherently likely to provoke an immediate violent response. Such face-to-face provocation may be punished.

In practice, people sometimes reduce the doctrine to the idea that all profanity may be banned. The Supreme Court corrected that misconception in 1971 in Cohen v. California. Paul Cohen entered the Los Angeles County Courthouse wearing a jacket bearing the words “Fuck the Draft” to protest conscription during the Vietnam War. The words were not directed at any person, yet a state court sentenced him to thirty days in jail simply because his expression was vulgar. The Supreme Court reversed by a vote of 5–4.

The Court’s reasoning was that Cohen had not personally provoked anyone and no actual violence had occurred. Anyone who did not wish to see the words could avert their eyes. Language conveys more than rational propositions; it also carries anger, protest, and emotional force. Speech therefore does not become “fighting words” merely because it is vulgar or offensive. In context, it must amount to a personal insult directed at another person and be likely to provoke an immediate violent response.

That leads naturally to another question: how should the law treat attacks directed at a group rather than a particular individual?

The 2011 case Snyder v. Phelps pushed that question to an extreme. Members of the Westboro Baptist Church protested near the funeral of a Marine killed in action. Their signs were profoundly offensive toward gay people, members of the military, and American society. The Marine’s father suffered severe emotional distress, and a jury initially awarded him millions of dollars in damages. The Supreme Court ultimately ruled for the church by a vote of 8–1.

The Court considered the content, form, and context of the signs and concluded that they primarily addressed matters of public concern, including war, religion, and homosexuality. The protesters had also remained on public land about one thousand feet from the church, complied with police instructions, and did not disrupt the funeral. A jury therefore could not impose tort liability merely because it regarded the expression as outrageously offensive.

Taken together, these cases establish a narrow rule: vulgarity, offense, or an attack on a group is ordinarily not enough, by itself, to constitute fighting words. Even speech directed at an individual must still be the kind of face-to-face personal abuse likely to provoke an immediate violent response. This does not mean that words cannot inflict harm. It means that courts must prevent government power from expanding so far that it damages everyone’s freedom of expression. A government granted an overbroad power to suppress racist abuse today might use the same power tomorrow to suppress a minority’s criticism of the dominant order.

True Threats

Fighting words are not the only category of unprotected expression. Another is the “true threat.” Incitement seeks to cause listeners to commit unlawful acts. A true threat, by contrast, communicates a serious expression of unlawful violence toward an individual or group and places its target in fear. The prosecution need not prove that the speaker ultimately intended to carry out the violence.

In 1969, eighteen-year-old Robert Watts said at an antiwar rally that if he were ever forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The audience laughed. Considering the statement in context, the Supreme Court held that it was crude political hyperbole, not a true threat.

The 2003 case Virginia v. Black consolidated prosecutions of three defendants. One involved cross burning at a Ku Klux Klan rally; another involved an attempt to burn a cross in the yard of a Black neighbor. The Supreme Court held that a state may, in principle, prohibit cross burning carried out with an intent to intimidate because such conduct may constitute a true threat. Virginia law, however, also provided that the act of burning a cross was itself prima facie evidence of an intent to intimidate. The Court held that this rule went too far. Depending on context, the same act might be intended to terrorize someone or to express an ideology. The government may punish true threats, but it may not skip the inquiry into context and mental state by automatically presuming an intent to intimidate.

That sounds straightforward: determine whether the expression is threatening in context, and then determine the speaker’s mental state regarding its threatening character. In practice, both inquiries are difficult. The social-media era has made the second especially so.

In Counterman v. Colorado (2023), Billy Counterman created multiple Facebook accounts and sent hundreds of messages to a female musician he had never met. She repeatedly blocked him, and he repeatedly created new accounts. Some messages referred to seeing her driving or spending time with her partner; one simply said, “Die.” The recipient became frightened, lost sleep, was afraid to go out alone, and canceled performances. Colorado courts applied a “reasonable person” test: conviction was permissible if an ordinary person would understand the messages as threats, regardless of whether Counterman himself recognized their threatening nature.

The Supreme Court vacated the judgment. It held that the government must at least prove recklessness: the defendant must have consciously disregarded a substantial and unjustifiable risk that his communications would be perceived as threats of violence. This did not mean that Counterman’s conduct was harmless or that the victim’s fear was unimportant. The Court’s concern was that if criminal punishment could follow whenever another person might misunderstand a speaker’s words, much forceful but lawful expression would be chilled.

The boundary of true threats therefore cannot be reduced to a single question. At least two matters must be examined: whether the words, in context, actually conveyed a threat of violence, and whether the speaker consciously disregarded a substantial risk that they would be perceived that way.

Defamation

Another familiar form of harm caused through language is defamation, where the boundary of free speech becomes more complicated still.

During the civil-rights movement of the 1960s, officials in Southern states frequently used defamation suits and demands for enormous damages to suppress national reporting about the movement. The most famous example is New York Times Co. v. Sullivan. Supporters of the movement placed a full-page advertisement in The New York Times to raise money for Martin Luther King Jr. and protesters in the South. The advertisement criticized police repression in Alabama but contained several factual errors—about which song students had sung, whether police had “ringed” a campus, and how many times King had actually been arrested. L. B. Sullivan, Montgomery’s commissioner of public affairs, was not named in the advertisement, yet he sued the newspaper for libel and demanded enormous damages. If the judgment stood, even an innocent mistake in reporting could expose a news organization to ruinous liability and deter it from covering the subject again.

In 1964, the Supreme Court ruled against Sullivan and established the “actual malice” standard. A public official seeking damages for a false statement concerning official conduct must prove that the defendant knew the statement was false or acted with reckless disregard for whether it was true or false—for example, by publishing despite serious doubts about its truth. “Malice” here does not mean hatred or ill will in the ordinary sense; it describes a subjective state of mind concerning truth or falsity. The Court recognized that errors are inevitable in public debate. If every innocent mistake could lead to catastrophic damages, the safest course would be to say nothing at all.

The Court later drew further distinctions in Gertz v. Robert Welch, Inc., treating public officials, public figures, and private individuals differently. Private individuals usually lack comparable access to channels of communication with which to defend themselves, and they may never have voluntarily entered a public controversy. In defamation cases involving matters of public concern, states may therefore permit private individuals to recover under a standard lower than actual malice, such as negligence, but may not impose liability without fault. Without proof of actual malice, a plaintiff generally must also prove actual injury and may not recover presumed or punitive damages.

United States v. Alvarez (2012) pushed the issue further. Xavier Alvarez falsely claimed at a public meeting that he had received the Congressional Medal of Honor. The federal government convicted him under the Stolen Valor Act. Six justices ultimately agreed that the law was unconstitutional, although they did not share a single rationale. The statute effectively criminalized almost any lie about military decorations without asking whether the speaker had sought money or another benefit, or requiring proof of concrete harm. The opinions supporting the judgment refused to treat falsity alone as the basis for a broad new category of unprotected speech. Congress responded in 2013 with a narrower law that applies to fraudulent claims about certain military decorations made with the intent to obtain money, property, or another tangible benefit. The same falsehood may therefore have a very different legal character when used for idle boasting rather than fraud.

In short, the law ordinarily punishes not falsity in the abstract, but the relationship between a falsehood and a concrete harm. Perjury damages the judicial process; fraud causes financial loss; defamation harms a particular person’s reputation; false statements to the government obstruct administration. Those additional consequences provide the firmer justification for punishment.

Expression and Incidental Conduct

So far, the discussion has concerned expression that may be punished because of its content. In real life, however, expression is often bound up with conduct: a march occupies a road, a concert creates noise, burning an object may cause a fire, and posting signs may obstruct traffic. The First Amendment protects expression, but it does not immunize every act that accompanies it.

One of the leading cases is United States v. O’Brien. In 1966, antiwar protester David O’Brien burned his draft card outside a courthouse, deliberately displaying the act to onlookers as an expression of opposition to the Vietnam War. The federal government convicted him under a law prohibiting the knowing destruction of draft cards. Two years later, the Supreme Court upheld the conviction. Draft cards were part of the Selective Service system, and the government’s interest in requiring people to preserve them was unrelated to suppressing antiwar ideas. When a regulation primarily addresses conduct but incidentally burdens expression, it must fall within the government’s constitutional power, further an important or substantial governmental interest, rest on an interest unrelated to the suppression of expression, and impose no greater incidental restriction on First Amendment freedoms than is essential to further that interest.

This provides a useful contrast with Texas v. Johnson. In a flag-burning case, the government may enforce a generally applicable fire regulation against anything burned in a no-fire zone, and it may punish damage to another person’s property. Such laws protect public safety and property rights. But if the law permits the dignified disposal of a worn flag while prohibiting only a burning that communicates political contempt, what it truly protects is not safety or property, but an officially approved attitude toward the flag.

Similar principles apply in public spaces. In Ward v. Rock Against Racism (1989), New York City sought to control the volume of concerts in Central Park by requiring performers to use sound equipment and technicians supplied by the city. The Supreme Court upheld the policy and explained the requirements for regulating the time, place, and manner of expression in a public forum: a restriction must be content neutral, serve a significant governmental interest, not be substantially broader than necessary, and leave open ample alternative channels for communication. Freedom of speech does not mean that anyone may speak at any time, in any place, and at any volume. The government may regulate the conduct accompanying expression, but it may not use that authority to suppress viewpoints it dislikes.

Prior Restraint

After considering restrictions on speech and on the conduct accompanying it, we can turn to the methods by which government restricts expression. Government may regulate speech to some extent in order to protect public order and the rights of others, but the means of regulation must themselves be constrained. Otherwise, the protection of free speech would mean very little. Of all the methods available to government, prior restraint deserves the greatest suspicion.

Near v. Minnesota (1931) involved a disreputable, antisemitic newspaper. Relying on a public-nuisance law, Minnesota obtained an injunction restricting the newspaper from publishing further “malicious, scandalous and defamatory” articles. The Supreme Court held the injunction unconstitutional and established a principle: government action that prevents expression before publication begins with a heavy presumption against its constitutional validity. Even if a publisher has defamed someone in the past, that does not entitle the government to review and suppress everything the publisher might say in the future.

Forty years later, the Pentagon Papers case, New York Times Co. v. United States, carried that principle into national security. In 1971, The New York Times and The Washington Post prepared to publish a secret government study of the Vietnam War. The Nixon administration sought injunctions, arguing that publication would damage national security. The Supreme Court ruled against the government by a vote of 6–3. The decision did not hold that the press may publish every secret without consequence. It answered a narrower question: may the government invoke “national security” in general terms and prevent two newspapers from publishing before the public can see the reporting? The Court’s answer was no. The burden rested on the government, and it was extraordinarily heavy.

The fundamental difference between subsequent liability and prior restraint is who bears the cost of error. In a later prosecution or civil action, the government or plaintiff must prove the elements of the alleged offense or tort in a concrete case. Prior restraint, by contrast, may ensure that the public never learns what was suppressed. It is not absolutely unconstitutional in every conceivable circumstance, but it bears an exceptionally heavy burden of justification.

The Central Question of Free Speech

After all these cases, one point becomes clear: the boundary of free speech in the United States is not a single bright line. It is closer to a sequence of increasingly specific questions. And the central concern of American free-speech law may be something more complicated than simply allowing more people to speak.

It reflects an institutional distrust of government power. Government unquestionably has authority to govern society, but that authority must be constrained. The boundary of free speech is therefore not merely a question of “May I say this?” It is a question of “May the government stop me from saying this?” For more than a century, that is the question the Supreme Court has continued to explore.

Cases Discussed

• 1919 — Schenck v. United States: Introduced the “clear and present danger” test and upheld punishment for anti-draft leaflets during wartime
• 1931 — Near v. Minnesota: Established a strong presumption against the constitutionality of prior restraints
• 1942 — Chaplinsky v. New Hampshire: Articulated the fighting-words doctrine
• 1964 — New York Times Co. v. Sullivan: Required public officials suing over statements concerning official conduct to prove actual malice
• 1968 — United States v. O’Brien: Established the framework for content-neutral laws that incidentally burden expressive conduct
• 1969 — Brandenburg v. Ohio: Limited punishable incitement to advocacy intended and likely to produce imminent lawless action
• 1969 — Watts v. United States: Distinguished crude political hyperbole from a true threat
• 1971 — Cohen v. California: Held that the government may not punish political expression merely because it is vulgar and offensive
• 1971 — New York Times Co. v. United States: The Pentagon Papers case, in which the government failed to justify a prior restraint on publication
• 1974 — Gertz v. Robert Welch, Inc.: Distinguished the defamation standards applicable to public figures and private individuals
• 1989 — Ward v. Rock Against Racism: Refined the requirements for content-neutral time, place, and manner restrictions
• 1989 — Texas v. Johnson: Held that the government may not punish flag burning merely because its political message is offensive
• 2003 — Virginia v. Black: Permitted states to prohibit cross burning intended to intimidate, but rejected an automatic presumption of intimidating intent
• 2011 — Snyder v. Phelps: Protected deeply offensive protest speech on matters of public concern delivered in a public place
• 2012 — United States v. Alvarez: Rejected falsity alone as the basis for a broad new category of unprotected speech
• 2023 — Counterman v. Colorado: Required at least conscious disregard of a substantial risk that speech would be perceived as threatening

Key Concepts

• State action — The First Amendment primarily restrains federal, state, and local governments; private actors are directly bound only in limited circumstances when their conduct is attributable to the government
• Imminent lawless action — To punish incitement, the government must show that the speaker intended to incite unlawful action, that the action was imminent, and that the speech was likely to produce it
• Fighting words — Face-to-face personal abuse likely to provoke an immediate violent response; the Supreme Court has confined the doctrine to a very narrow scope
• True threat — A communication that conveys a threat of violence toward an individual or group in context; the government must also show that the speaker consciously disregarded a substantial risk that the communication would be perceived as threatening
• Actual malice — A subjective defamation standard requiring knowledge of falsity or reckless disregard for truth or falsity; it does not mean hatred in the ordinary sense
• Content-neutral regulation — Government regulation of expressive conduct based on interests unrelated to viewpoint, such as fire safety, noise, or traffic; the restriction may not be substantially broader than necessary and must leave open ample alternative channels of communication
• Prior restraint — An injunction or other review mechanism that prevents expression before publication; it ordinarily bears an exceptionally heavy burden of constitutional justification

Related Reading

• Reasoned Talk 12｜Is Burning the American Flag a Crime? The Judicial Battle over the First Amendment
• Remaking America’s “Second Constitution”: The Fourteenth Amendment’s Turbulent Century
• Reasoned Talk 08｜The Supreme Court in the Cracks: The Birth of Judicial Review in the United States

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

On the afternoon of May 17, 1954, in Washington, D.C., the nine Justices of the Supreme Court filed into the courtroom. The newly appointed Chief Justice, Earl Warren, picked up an opinion and began to read.

The decision was only eleven pages long, yet it profoundly changed American history. Warren wrote:

Separating Black children from others of similar age and qualifications solely because of race creates a sense of inferiority about their place in society. That feeling may affect their hearts and minds in ways that may never be undone.

At the end of the opinion, the Court rejected in one concise sentence a policy that had endured for more than half a century:

In public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

This was Brown v. Board of Education, one of the most important decisions in American constitutional history. It destroyed the constitutional foundation of racial segregation in public schools. Of course, one judicial opinion did not make segregation disappear overnight. Southern states resisted for years afterward. But from that day on, the legal legitimacy of segregated public schools was gone.

The constitutional text supporting that decision was the celebrated Fourteenth Amendment.

I have mentioned the Fourteenth Amendment repeatedly in previous episodes because it is the foundation of birthright citizenship in the United States. Yet its significance reaches far beyond birthright citizenship. Some have called it America’s “Second Constitution,” and it was one of the most important achievements of the country’s “Second Founding” after the Civil War.

Here, we will take a broader look at how the Supreme Court used the Fourteenth Amendment to extend protections that had originally constrained mainly the federal government to the states, and how the Amendment became the basis for vital individual rights involving racial equality, free speech, and abortion.

“No State Shall”: How Individual Rights Came to Bind the States

The Fourteenth Amendment was one of the Civil War’s most important legacies. After the war, the Reconstruction Congress adopted the Thirteenth, Fourteenth, and Fifteenth Amendments, collectively known as the Reconstruction Amendments. The Thirteenth abolished slavery, the Fifteenth protected the voting rights of Black men, and the Fourteenth sought to redefine how civil rights would be protected.

The Citizenship Clause discussed in earlier episodes is only the first sentence of Section One. The second sentence is our focus here:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The subject of this sentence is “No State shall.” That wording is crucial.

The Bill of Rights, ratified in 1791 as the first ten amendments to the Constitution, originally constrained the federal government. The First Amendment, for example, begins, “Congress shall make no law.” In 1833, the Supreme Court further confirmed in Barron v. Baltimore that the Fifth Amendment’s protection of property did not apply to state governments. In other words, before the Fourteenth Amendment, ordinary citizens generally could not invoke the Bill of Rights against a state. A state could restrict certain civil liberties, and the federal courts ordinarily could not intervene on the strength of the Bill of Rights alone.

The Fourteenth Amendment changed that structure. Its subject was “No State,” not “Congress.” From then on, state legislatures, executive officials, and courts could all face federal review for infringing individual rights. The Amendment nationalized the protection of those rights and empowered federal courts to apply constitutional standards vertically throughout the states.

This is a major reason the Fourteenth Amendment is called a “Second Constitution.” The original Constitution of 1787 primarily addressed how the federal government would be formed and how powers would be divided among its institutions. The Fourteenth Amendment of 1868 answered a different question: what lines may a state government never cross in its treatment of individuals?

Writing a rule into the Constitution, however, is one thing; enforcing it is another. The Supreme Court’s cases show how this “Second Constitution” gradually became effective through litigation.

The Slaughter-House Cases: The Privileges or Immunities Clause Locked Shut

Our first decision is the Slaughter-House Cases, which created the first major obstacle to the implementation of the Fourteenth Amendment.

In 1873, only five years after the Amendment was ratified, the Supreme Court confronted a pivotal dispute. Louisiana had passed a law granting one company a monopoly over the slaughterhouse business in New Orleans. Hundreds of independent butchers sued the state, arguing that the law violated the Fourteenth Amendment’s Privileges or Immunities Clause. They claimed that the freedom to choose one’s occupation was a privilege or immunity of American citizenship that a state could not arbitrarily take away.

On its face, this seemed to be the most direct provision for protecting citizens’ rights:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The Supreme Court nevertheless rejected the butchers’ claims by a vote of 5–4. In the majority opinion, Justice Samuel Miller divided citizenship into two levels: citizenship of the United States and citizenship of a state. He reasoned that the Privileges or Immunities Clause protected only a limited set of rights arising from the federal government, the federal Constitution, or the national character of the Union—for example, access to the seat of the federal government and federal protection on the high seas. Everyday rights involving occupation, contract, and property, by contrast, generally remained matters of state citizenship.

The consequences were severe. The Court interpreted a clause that appeared to offer direct protection for fundamental rights almost out of existence. Under the American common-law tradition, Supreme Court precedent binds later cases. After Slaughter-House, an ordinary person challenging a state’s violation of fundamental rights in federal court could almost never rely directly on the Privileges or Immunities Clause.

The Fourteenth Amendment had just built a front door for individual rights. Five years later, the Supreme Court locked it. Later courts wishing to use the Amendment to constrain state governments would have to find another entrance.

Selective Incorporation: Making the Bill of Rights Binding on the States

That new entrance was the Due Process Clause of the Fourteenth Amendment:

No State shall deprive any person of life, liberty, or property, without due process of law.

The most straightforward reading treats this as a procedural rule. A government may lawfully restrict liberty, take property, or even deprive someone of life, but before doing so it must provide appropriate notice, a hearing, and an opportunity to be heard. This is what we now call procedural due process. Its primary concern is not whether the government’s ultimate decision was correct, but whether the process by which it reached that decision was fair.

Once the Slaughter-House Cases had blocked the Privileges or Immunities Clause, however, courts gradually gave the Due Process Clause additional functions. The word “liberty,” in particular, became one of the most important and controversial concepts in American constitutional law.

The rights protections developed from the Due Process Clause broadly followed two paths. The first is selective incorporation; the second is substantive due process. The two concepts are often conflated, but they address different questions.

First, selective incorporation.

To “incorporate” a right is to make a protection in the Bill of Rights—originally binding only on the federal government—applicable to the states through the Fourteenth Amendment. The right must already be expressly stated in the constitutional text. The Court asks whether it is “fundamental to the American scheme of justice” and “deeply rooted in this Nation’s history and tradition.” If so, the Court incorporates it through the Fourteenth Amendment. State and federal governments then face the same standard; there is no diluted “state version” of the right.

In 1925, Gitlow v. New York marked an early step toward incorporating freedom of speech against the states. In 1961, Mapp v. Ohio applied the exclusionary rule to them. In 1963, Gideon v. Wainwright held that indigent defendants charged with felonies have a right to appointed counsel. In 2010, McDonald v. Chicago applied the Second Amendment right to keep and bear arms to the states.

Today, most of the protections in the Bill of Rights apply to state governments through selective incorporation. The process has taken more than a century, extending federal constitutional standards across the country one right at a time.

Substantive Due Process: From Freedom of Contract to Marriage and Abortion

The Due Process Clause also opened a second, bolder, and more controversial path: substantive due process.

As we have seen, the clause provides that no state may deprive any person of life, liberty, or property without due process of law. Life and property refer to relatively concrete interests and leave less room for interpretation. “Liberty,” however, is far more open-ended. To protect rights not expressly named in the Constitution, the Supreme Court began interpreting the concept expansively, placing within it rights such as married couples’ access to contraception, same-sex marriage, and a woman’s decision to have an abortion.

The distinction between selective incorporation and substantive due process is therefore clear. The former extends to the states a right already written into the Constitution. The latter identifies, within the word “liberty,” a new kind of right not expressly enumerated in the constitutional text.

Substantive due process was first applied on a large scale in the economic sphere. In Lochner v. New York (1905), the Supreme Court placed “liberty of contract” under the Fourteenth Amendment’s protection and struck down a state law limiting bakers’ working hours. Over the following decades, the Court repeatedly invoked contractual and property liberty to scrutinize state labor protections and economic regulations. This period, during which the federal courts tended to favor business owners, became known as the “Lochner era.”

The tide began to turn during the New Deal. In West Coast Hotel Co. v. Parrish (1937), the Court held that freedom of contract was not absolute and that government could reasonably regulate economic activity to protect workers and the public interest. Economic substantive due process then gradually declined.

The doctrine next moved into marriage, family life, and personal autonomy. Griswold v. Connecticut (1965) recognized the right of married couples to use contraception. In 2015, Obergefell v. Hodges recognized the right to same-sex marriage.

Its most controversial expansion came in Roe v. Wade (1973). By a vote of 7–2, the Supreme Court held that, within certain limits, a woman’s decision to terminate a pregnancy fell within the liberty protected by the Fourteenth Amendment. The decision affected the lives of two generations of Americans and made substantive due process one of the fiercest battlegrounds in American politics.

Critics argued that the Justices appeared to be interpreting constitutional “liberty” while in fact writing their own value judgments into the Constitution. Supporters responded that if the Constitution could protect only fundamental liberties expressly named in its text and could never develop with the times, people long excluded from political power would never receive constitutional protection.

In 2022, Dobbs v. Jackson Women’s Health Organization overruled Roe. By a 6–3 vote, the Court upheld Mississippi’s abortion restriction. The majority concluded that a right to abortion was not “deeply rooted in this Nation’s history and tradition,” did not qualify as a fundamental right protected by the Fourteenth Amendment, and should be returned to the states for democratic resolution.

Dobbs did not end the debate. On the contrary, it brought a more fundamental question back to the surface: how far should courts go in protecting rights that the Constitution does not name? Is “history and tradition” an objective standard, or is it simply another interpretive method that requires value judgments?

The debate over abortion and substantive due process deserves an episode of its own.

Equal Protection: From “Separate but Equal” to Affirmative Action

After due process comes the final sentence of Section One, the Equal Protection Clause:

No State shall deny to any person within its jurisdiction the equal protection of the laws.

In 1896, Plessy v. Ferguson left a grave stain on this clause. By a vote of 7–1, the Supreme Court upheld Louisiana’s racial segregation policy, reasoning that the state could separate people by race without violating the Constitution so long as it nominally provided equal facilities for each race. This became the infamous doctrine of “separate but equal.”

Justice John Marshall Harlan was the only dissenter. He argued that the Constitution should tolerate no class distinctions among citizens. At the time, however, his view did not prevail.

It was not until Brown v. Board of Education, fifty-eight years later, that the Supreme Court formally overruled “separate but equal” in public education. Chief Justice Warren announced for the Court that separating students solely by race imposed an unequal legal status; separate educational facilities were inherently unequal.

Plessy and Brown applied the same constitutional clause but reached opposite results. This shows that equal protection does not simply require government to treat everyone identically. Government can classify people according to certain criteria and sometimes treat those groups differently. The difficult question is which classifications are reasonable and which create hierarchy and discrimination.

This problem became especially visible in affirmative action. After desegregation, the United States began adopting affirmative-action policies in the 1960s. Some universities considered applicants’ race during admissions to increase minority enrollment. Supporters regarded this as a remedy for historical discrimination; opponents argued that, whatever the purpose, government should never again distinguish among individuals by race.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), the Supreme Court invalidated the universities’ race-conscious admissions programs by a vote of 6–2 in the Harvard case. Chief Justice Roberts wrote for the majority: “Eliminating racial discrimination means eliminating all of it.”

From Plessy to Brown and then to Students for Fair Admissions, the question before the Court changed. It began as whether states could openly impose racial discrimination. Later, it became whether government could favor minority groups in an effort to remedy historical discrimination. The Court moved from permitting segregation, to opposing it, and then to limiting race-conscious affirmative action. Those shifts reflect not only the evolution of legal doctrine but also subtle changes in the political climate.

Four Doorways to Rights: The Fourteenth Amendment’s Evolution

We can now pause and look at Section One of the Fourteenth Amendment as a whole.

It provides four doorways to rights: birthright citizenship, privileges or immunities, due process, and equal protection. These doorways do not stand in isolation. After the Slaughter-House Cases sharply narrowed the Privileges or Immunities Clause, the Court shifted much of its rights protection to the Due Process Clause. Due process and equal protection also frequently work together.

The story of the Fourteenth Amendment, however, has never been written by the Supreme Court alone. Courts define the boundaries of rights in individual cases; Congress can enact implementing legislation; and the appointment of Justices, as well as the ultimate enforcement of decisions, is shaped by political and social forces.

Across more than 150 years, the Amendment has not followed a straight line of uninterrupted expansion. Its center of gravity has shifted in roughly three stages.

The first was a period of contraction. The Slaughter-House Cases drastically narrowed the Privileges or Immunities Clause, while Plessy tolerated racial segregation. Yet even during a period of overall contraction, the clauses did not all move in the same direction. As discussed in an earlier episode, United States v. Wong Kim Ark established birthright citizenship during this era.

The second was a period of expansion. Through selective incorporation, the Supreme Court extended expressly enumerated rights such as freedom of speech and the right to criminal defense counsel to the states. Through Brown, it abolished racial segregation in public schools. Through substantive due process, it protected marriage, family life, and personal autonomy.

The third is the contemporary period of reconsideration. Dobbs ended nationwide constitutional protection for abortion, while Students for Fair Admissions prohibited universities from favoring minority applicants on the basis of race. The Supreme Court is reassessing which rights should receive uniform national protection and which questions should be returned to the states.

This history also shows that the Fourteenth Amendment’s stability depends on several forces working together. Do rights not expressly written in the Constitution fall within the liberty protected by the Amendment’s Due Process Clause? American society will continue to debate these questions.

Conclusion: Where Will the Fourteenth Amendment Go Next?

Several developments will be worth watching.

First, could rights involving same-sex relationships and same-sex marriage be overturned in a future decision? As American society becomes more conservative and debate over same-sex marriage grows, whether the Supreme Court will reinterpret those rights remains to be seen.

Second, does transgender status constitute a sex-based classification, and what level of equal-protection scrutiny should apply? Disputes over transgender identity, medical care, and sports policy have intensified in recent years. The Supreme Court has begun to enter this field. In United States v. Skrmetti (2025), it upheld Tennessee’s restrictions on certain gender-affirming medical treatments for minors. In West Virginia v. B. P. J. (2026), it held that schools may determine eligibility for women’s and girls’ sports based on biological sex. Even so, major questions remain unresolved, including whether transgender status itself is a suspect or quasi-suspect classification and what standard of review should govern other policies.

Third, after Students for Fair Admissions, universities may not directly treat race as an admissions advantage, but they may consider how an applicant has been affected by racial experience. The boundary between race and individual experience remains exceedingly subtle.

The story of the Fourteenth Amendment is therefore far from over. After more than 150 years of case law, it has become part of the foundational architecture of rights protection in the United States. Yet it is not a self-executing catalogue of rights. It is better understood as an institutional language that is continually interpreted, contested, and revised.

It did not provide every answer at once. It merely opened several doors between the individual and the state. Which door can be opened, and how wide, is determined jointly by congressional legislation, social movements, and generations of judicial decisions.

In the American system, the Supreme Court is often called upon to give the final word. But it can never truly determine the direction of history.

Thank you for reading. If you have questions or thoughts about this article, or would like to hear the full story of any of these cases, please leave a comment. See you next time.

Key Cases Discussed

• 1833 — Barron v. Baltimore: Held that the Bill of Rights generally did not bind state governments.
• 1873 — The Slaughter-House Cases: Narrowly interpreted the Privileges or Immunities Clause, forcing later courts to rely more heavily on the Due Process Clause.
• 1896 — Plessy v. Ferguson: Upheld racial segregation under the doctrine of “separate but equal.”
• 1898 — United States v. Wong Kim Ark: Established a broad rule of jus soli citizenship.
• 1905 — Lochner v. New York: Struck down a labor law in the name of freedom of contract, becoming the leading example of economic substantive due process.
• 1925 — Gitlow v. New York: Marked an important early step toward applying freedom of speech to the states.
• 1937 — West Coast Hotel Co. v. Parrish: Rejected an absolute freedom of contract and signaled the end of the Lochner era.
• 1954 — Brown v. Board of Education: Overturned racial segregation in public schools and rejected “separate but equal.”
• 1961 — Mapp v. Ohio: Applied the exclusionary rule to the states.
• 1963 — Gideon v. Wainwright: Recognized the right of indigent felony defendants to appointed counsel.
• 1965 — Griswold v. Connecticut: Protected marital privacy and access to contraception.
• 1973 — Roe v. Wade: Recognized a constitutional right to abortion.
• 2010 — McDonald v. Chicago: Applied the Second Amendment right to keep and bear arms to the states.
• 2015 — Obergefell v. Hodges: Recognized the right to same-sex marriage.
• 2022 — Dobbs v. Jackson Women’s Health Organization: Returned the regulation of abortion to the states.
• 2023 — Students for Fair Admissions, Inc. v. President and Fellows of Harvard College / University of North Carolina: Severely restricted race-conscious university admissions.
• 2025 — United States v. Skrmetti: Upheld Tennessee’s restrictions on certain gender-affirming medical treatments for minors under rational-basis review.
• 2026 — West Virginia v. B. P. J.: Held that schools may determine eligibility for women’s and girls’ sports based on biological sex.
• 2026 — Trump v. Barbara: Confirmed the citizenship of children born in the United States to parents who are unlawfully or temporarily present.

Key Concepts

• Procedural due process: When government deprives a person of life, liberty, or property, it must provide notice, a hearing, and an opportunity to be heard appropriate to the interest at stake.
• Selective incorporation: The process of incorporating fundamental rights expressly stated in the Constitution into the Fourteenth Amendment and thereby applying them to the states.
• Substantive due process: The doctrine through which courts identify fundamental rights not expressly enumerated in the Constitution within the word “liberty.”
• Three tiers of equal-protection review: Strict scrutiny applies primarily to classifications based on race and national origin; intermediate scrutiny applies primarily to sex and nonmarital parentage; rational-basis review applies to ordinary economic and social classifications.

Related Episodes

• 03: How Trump Challenges the Constitution: The Legal Battle over Birthright Citizenship
• 06: U.S. Birthright Citizenship: Total Victory or Temporary Truce?
• 08: The Supreme Court in the Crevice: The Birth of American Judicial Review

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 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.

No matter which country or nation it is, it must have the common characteristics of all mankind that all countries or nations have, and also have characteristics that other countries or nations do not possess. This is the basic proposition of Marxist philosophy. In this sense, a scholar born in the United States, whose cultural customs and social structure are different from China’s, will inevitably have the unique insights of an “onlooker” who escape from China’s inherent concepts in his observations and interpretations of China, as well as inevitable misunderstandings due to language or cultural barriers. Therefore, “Governing China: From Revolution to Reform” written by Kanru Lee, a well-known expert on China issues in the United States who once held an important public position in the White House, is not a “foreigner’s work” that can be laughed off.

The Chinese version of “Governing China” was published in 2010. At that time, China was in the “golden age” of sustained economic growth, continuous improvement of social welfare, and relatively open politics. The gratifying results of reform and opening up made countless Chinese people full of confidence in the future. However, most people did not expect that just nine years later, the evil consequences of China’s system that had been accumulated for many years would begin to show. Today, faced with a series of problems at home and abroad, people are once again as confused as they were in the early 1990s. And the more it is at this time, the more we need to absorb the nutrients of “outsiders”. We might as well open this book, which was published more than 20 years ago, and see how Americans at that time viewed China’s historical development in the past century.

This book has 11 chapters in total. The first part roughly sorts out the overall characteristics of the Chinese imperial era and the history of the Republic of China. The second part introduces the history of the Republic since 1949 and discusses the governance issues faced by Mao Zedong, Deng Xiaoping, and Chinese leaders in the post-Deng Xiaoping era. Detailed analysis; the third part introduces in detail the operation model and decision-making process of China’s current political system; the fourth part analyzes the challenges that the Chinese model will face in the future and possible solutions from the perspectives of economic development, environmental protection and social governance.[①]

This article will combine the author’s own understanding of Chinese politics and culture, starting from the two perspectives of “insight” and “misreading”, to analyze the viewpoints in this book that are worthy of attention or discussion. “Articles convey the truth” has always been highly praised by Chinese intellectuals, so the analysis in this article inevitably incorporates the author’s own value judgment.

“External Confucianism” and “Internal Law”: the first division of China’s modernization pathLike most researchers of modern Chinese history, Li Kanru regards the anti-traditional trends that have arisen since modern times as “anti-Confucianism” and believes that the hierarchical order and black power left over from imperial China are all “Confucian” ideas. However, since Emperor Wu of the Han Dynasty deposed hundreds of schools of thought and only respected Confucianism, imperial China has actually been pursuing the methods of Huang Lao and Legalism. Just to maintain the legal system of “matching heaven with virtue” that had continued since the Western Zhou Dynasty, the rulers had to put a gentle Confucian cloak on the cruel ruling techniques. Although the civil servants who studied and believed in Confucianism did have some moral constraints on the emperor as a price for maintaining the legal system, the nature of imperial China, which was full of political maneuvering, military intrigue, bureaucratic decadence and social unrest from beginning to end, has not changed[②].

This is the so-called imperial tradition of “external Confucianism and internal law”. Its core is actually “internal law”, and “Confucianism” as a mere outer layer can be replaced by any other thought. No matter how hard the rulers try to package it, the cruel nature of the empire will not change just because of the change in appearance. On the one hand, Li Kanru realized that “Although Confucianism was the official ideology for most of the two thousand years of Chinese history, in practice it adopted a large number of legalist ideas.” On the other hand, he attributed the imperial model of “students obey their teachers, children obey their parents, subordinates obey their superiors, and everyone respects the emperor” to the influence of “Confucianism.” He mistakenly attributed China’s “feudal ethics” to the “influence of Confucianism” while ignoring the essence of imperial China’s “external Confucianism and internal law”.

The modern representative democracy in the West originated from the feudal system in the Middle Ages[③]. In this strictly hierarchical system, social concerns ranged from near to far, thus giving rise to the political principle of “the vassals of my vassals are not my vassals.” This system of allocating rights and obligations based on closeness and distance in social relationships coincides with the “cultivation of Qi and peace” advocated by Confucianism. The effective operation of representative democracy must be based on a community of acquaintances and local consciousness, which is precisely the natural extension of the European feudal system and Confucianism that also originated in the feudal system environment of the Western Zhou Dynasty. If “internal law” constitutes the core principle of the imperial system, then “external Confucianism” contains the foundation of the modern democratic system.

When imperial China, which had been closed off for a long time, began to passively come into direct contact with Western civilization, those Chinese who were the first to “open their eyes to see the world” were keenly aware that the social system generally followed by Westerners was highly similar to the social system envisioned in the Confucian classics they had studied with great concentration for many years. They described Western society as an ideal state in which “the top and bottom are of one mind, conduct themselves according to etiquette, and take care of the world’s affairs[④]”, and summarized the basic principles of this ideal society as “the world is for the common good.” Therefore, for a considerable period of time in the late Qing Dynasty and the early Republic of China, those intellectuals who would later be called “conservatives” were inspired by the commonalities between the democratic system and Confucian classics and began to reflect on the cruel imperial system. The reason why they were called “conservatives” by later generations of activists was precisely because they only opposed “internal law” and not “foreign Confucianism”, thus giving people the impression of “defenders of feudal ethics”.After the “May 4th” New Culture Movement, under the combined influence of a series of complex factors at home and abroad, the “progressive ideological trend” of “anti-foreign Confucianism” began to become the mainstream of China’s ideological circles. This was exactly what Mr. Li Zehou called a turning point in which “salvation overcame enlightenment.” However, what may overwhelm “enlightenment” may not be “saving the nation”, but “internal law” packaged in modernity. In sharp contrast to Confucianism, which advocated “differentiated love” and valued social relationships between near and far, Legalism advocated “undifferentiated obedience”, aiming to break the inherent social network of feudal society and closely unite atomized individuals around the ruler[⑤]. The “progressive trend of thought” regards the highly centralized nationalism of Germany and Japan as a shortcut to China’s modernization, and then shifts from “learning from Britain and the United States” to “learning from Britain and the United States through Germany and Japan” so that China will not fall too far behind in the Spencer-style “national competition”. Rather than saying that China after the May 4th Movement was one in which “national salvation prevailed over enlightenment,” it would be better to say that “internal law prevailed over foreign Confucianism,” and “Germany and Japan prevailed over Britain and the United States.”

As Li Kanru described in his book, the Kuomintang founded by Sun Yat-sen after the Second Revolution was a highly centralized “Leninist party”, while the Communist Party, which developed almost at the same time as the Kuomintang, also had a Leninist organizational style and “had similar social and political origins”**. Therefore, both the Kuomintang and the Communist Party have been practitioners of the “progressive trend of thought” since the “May Fourth Movement”, but they have serious differences on the approach to realizing modernization.

“Elite” and “Masses”: Sharp Confrontation between Two Revolutionary Subjects

The victory of the Soviet-Russian October Revolution provided the “progressive ideological trend” after the “May 4th Movement” with a new path to modernization that was different from that of Germany and Japan. Li Kanru believes that ***Marxism, as a “‘scientific’ and ‘progressive’ Western theory that predicts the collapse of the Western capitalist system in revolutionary changes,” allowed some intellectuals at the time to see the possibility of “quickly bringing China into the ranks of the vanguard of civilization defined by this theory.” With the help of the Comintern, these intellectuals formed the Communist Party of China.

Unlike Germany and Japan, which mainly promoted reform or revolution through the middle and upper classes, the main body of the socialist revolution in Soviet Russia was workers, farmers and grassroots soldiers who were widely mobilized. Li Dazhao called the victory of this revolution “the victory of the common people”[⑥]. The premise of the German-Japanese “elite revolution” is that there is a large-scale emerging aristocratic group in the country where the revolution occurs. These new aristocrats not only have social resources at their disposal that are sufficient to promote social revolution, but they are also dissatisfied with the old system. For countries like imperial Russia and imperial China, where the capitalist economy is not yet mature and the emerging aristocracy has not yet formed a revolutionary force, the German-Japanese-style elite approach may not be applicable.

The early founders of the Communist Party were aware of this. Since China at the end of the Qing Dynasty had not yet formed a bourgeoisie of a certain scale, after the success of the Revolution of 1911, the revolutionary party quickly lost control of the new regime. Although Sun Yat-sen did build an armed force after returning to Guangzhou, the success of the Northern Expedition was also inseparable from his mass line of “alliance with Russia and the Communist Party” and the reality of the separatist rule of the Chinese warlords in the north.The right-wing camp of the Kuomintang headed by Chiang Kai-shek did not agree with the Communist Party’s mass revolutionary method. They insisted on following the German-Japanese elitist line. The conflict between the two sides broke out after the death of Sun Yat-sen, who suffered almost all casualties in the “Purge Party” campaign launched by Chiang Kai-shek. It was the late 1920s, when emerging powers such as Germany and Japan were rapidly sliding towards fascism and militarism. Influenced by this trend of thought, Chiang Kai-shek began to advocate the “New Life Movement” and parted ways with the Communist Party, which advocated a mass revolutionary line. Although the “New Life Movement” has the appearance of Confucianism and Christianity, its essence is to use political high pressure to cultivate the habit of obedience among citizens. This is still a replica of imperial China’s “external Confucianism and internal law”[⑦] . In this sense, China’s modernization process has never been truly completed.

Li Kanru attributed the Kuomintang’s ultimate defeat to “three ills deeply rooted in traditional Chinese political culture”, namely “nepotism, corruption and all talk but no action.” This actually underestimates the Chinese people’s tolerance for the imperial system and the appeal of the “mass revolution” line pursued by the Communist Party. Although the Communist Party’s land policy was briefly relaxed during the Anti-Japanese War, its land revolutionary movement, which widely mobilized lower-level farmers to “attack local tyrants and divide their fields,” did effectively incorporate the peasant group, which accounted for the majority of China’s population at that time, into its own revolutionary activities. By the end of the Liberation War, China at that time had no power to resist the “revolutionary social changes of the Communist Party.”

“Orthodoxy” and “National Conditions”: Differences between the Two Revolutionary Lines and the Turbulent Thirty Years

As early as the first cooperation between the Kuomintang and the Communist Party, there were differences within the Communist Party regarding the revolutionary line: On one side were the “orthodox Marxists” headed by representatives of the Comintern and intellectuals with overseas study background in the party. They advocated using industrial workers as the main body of the revolution, seizing power through urban riots, and ultimately establishing a proletarian society. The government of class dictatorship; on the other side are the “Marxists based on national conditions” headed by China’s local farmers and traditional intellectuals. They advocate using farmers as the main body of the revolution, seizing power through peasant wars, and ultimately establishing a coalition government jointly led by the progressive class[⑧] . Although the two sides reached an agreement on correcting the “right capitulationism” of Chen Duxiu and others after Chiang Kai-shek launched the “April 12” coup, differences within the party regarding the revolutionary line have always existed. It was not until the “Orthodox faction”’s wrong command caused the entire party to suffer heavy losses in the fifth “Counter Encirclement and Suppression Campaign” and the “National Conditions faction” gained the main leadership in the party that the differences came to an end temporarily.

However, as Li Kanru said, the peasant line of the Communist Party’s “national conditions faction” made it possible that when the Communist Party seized power in 1949, “the vast majority of party members were composed of farmers.” These people “instinctively tended to oppose the cities and intellectuals.” They were “unable to master the paper work characteristic of large-scale administrations, but gained the power to occupy high positions in the political institutions that governed the country”. It was this unsuccessful transition from revolutionist to ruler that ultimately led to the historical upheaval of the first thirty years of the Republic.As the leader of the “national conditions faction” and even the entire Communist Party, Mao Zedong also had the problem of “role reversal” mentioned above. Li Kanru believed that ** as a successful revolutionary, Mao Zedong “must maintain a high degree of enthusiasm”, which was “difficult to be compatible with smooth administrative management”. Revolutionaries “tend to see complex management as an obstacle to the achievement of their goals”, while civil servants “often have to throw a damper on the enthusiasm and lack of technical expertise that underlie revolutionaries’ decision-making impulses”. It was this long-standing tension between revolutionary leaders and the bureaucracy that forced Mao Zedong to use his “philosophy of struggle[⑨]” again and again to confront the bureaucracy he had established himself. And it was this “cyclical battle against its own creation” that left the Communist leaders who took over power in 1976 with a “country exhausted by social conflict” and a “government system in which mutual distrust and factional strife have become irreversible”.

In the turbulent thirty years at the beginning of the founding of the Republic, the technocrats represented by Deng Xiaoping and Zhou Enlai objectively played a certain role in restricting Mao Zedong. Because of this, they have always been regarded by Mao as part of the “rotten and backward” bureaucracy, and they have been constantly suppressed in the power struggle. It was not until the deaths of Mao Zedong and Zhou Enlai in 1976 that Deng Xiaoping gradually came to the center of power and started the reform process of “rectifying chaos.” Although during the same period, debates about the reform route reappeared within the party, Deng Xiaoping relied on his extraordinary political skills to balance the forces of all parties and lead a confused China onto a “pragmatic” development path.

“Politics” and “Economy”: Advancement and Stagnation of Institutional Reform

In Li Kanru’s words, the reforms in the 1980s were a process of “first taking bold actions, then trying to adapt to the results and trying our best to move forward.” The main target of reform is the political and economic system based on Mao Zedong’s principles of egalitarianism and collectivism. It began in the ideological field, that is, “flexibly applying Mao Zedong Thought” to “liberate China from the shackles of dogmatism” [⑩]; it reached its peak in the economic field, saving the Chinese economy from the verge of collapse in Mao Zedong’s late period; and finally ended in the political field.

Although most people attribute China’s reforms in the 1980s to Deng Xiaoping, the “chief architect of reform”, it was Hu Yaobang, the “chief engineer of reform”, and Zhao Ziyang, who succeeded him, who actually promoted reforms at the policy level. Fierce debates about the reform route accompanied almost the entire reform process in the 1980s. On one side of the debate were the “enlightened factions” represented by Hu Yaobang and Zhao Ziyang, who were “convinced that more fundamental changes must be made in order to establish a more humane political system and market economy”; on the other side were the “conservatives” headed by the older generation of revolutionaries, who “eager to restore the time before a series of ’left’ radicalism”**.The “political turmoil at the turn of spring and summer” in 1989 announced the end of this debate that had lasted for many years. The “enlightened faction” completely lost the right to speak within the party, and the reform stalled for a time. Fortunately, Deng Xiaoping’s “Southern Talk” restarted the process of economic system reform and put the confused party and country on the road to the development of a “market economy.” The new round of institutional reforms that began in the early 1990s built the government’s legitimacy on the principle of “performanceism,” that is, all institutional reforms must serve to improve economic efficiency. This strategy has been effective until recently, with China’s economy growing at an average annual rate of nearly 10%. However, the long-term stagnation of political system reform has also cast a shadow over the deepening of economic system reform and China’s long-term development.

In 2012, former Premier Wen Jiabao called at the National People’s Congress press conference: “Without the success of political reform, economic reform cannot be carried out to the end. [⑪]” This statement pointed out a fundamental problem facing China today. Li Kanru analyzed the challenges that China will face in the economy, environmental protection and society from the perspective of the political system. The core crux is a series of fundamental contradictions that exist in China’s political system.

“Governing China” was written in the 1990s, more than 20 years ago. Although China has undergone tremendous changes in the past two decades, the fundamental problem of stagnant political system reform has not been resolved. In this sense, Li Kanru’s book is not completely outdated. As mentioned above, Li Kanru’s understanding of modern Chinese history has both insights and misunderstandings. What our generation needs to do is to carefully eliminate the misunderstood parts and absorb the parts of its insights.

In 2019, China is facing changes unprecedented in decades. At this historical turning point, we must carry out reform and opening up to the end with an open mind and a humble attitude. China’s land and people have suffered endless suffering for thousands of years. We cannot allow the painful history to repeat itself, and we cannot allow the reverse trend of the “Cultural Revolution” to occur again.

[①] Li Kanru. Governing China: From Revolution to Reform[M]. China Social Sciences Press, 2010.

[②] Xiong Yi. Spring and Autumn Days: Imperial Power and Academics in the Traditional Chinese Context[M]. Shaanxi Normal University Press, 2007.

[③] The “feudal system” here only refers to the social system of “feudal states and founding states”, not the “feudal period” as a historical form commonly referred to by Chinese academic circles, the same below.

[④] Liu Xihong. Private Notes of Yingjin[M]. Yuelu Publishing House, 1986.

[⑤] Qin Hui. “Greater Community Orientation” and Traditional Chinese Society (Part 2)[D]. Social Science Research, 1999.

[⑥] Li Dazhao. The victory of the common people[J]. New Youth, 1918, 5(5): 436-4.

[⑦] Liu Wennan. Disciplining Daily Life: The New Life Movement and the Governance of Modern Countries[J]. Journal of Nanjing University: Philosophy. Humanities. Social Sciences, 2013 (5): 89-102.

[⑧] Mao Zedong. On Coalition Government[M]. Green Apple Data Center, 2013.

[⑨] In his book, Li Kanru summarized the characteristics of Mao Zedong Thought as follows: ideological leadership, theory of the will of the people, opposition to intellectuals, contradiction analysis, and good use of mass movements.

[⑩] What this mainly refers to is “the discussion on the standard of truth.”[⑪] Frontline Reporting Team of People’s Daily Online. Wen Jiabao: Without the success of political reform, economic reform cannot be carried out to the end[EB/OL] People’s Daily, 2012.

Orwell’s Life

Like many left-wing activists from upper-class backgrounds, Orwell’s revolutionary life began with deep sympathy for the lower classes in colonial India. He graduated from Eton, the famous elite school, yet during the Spanish Civil War he resolutely gave up a comfortable life and joined the International Brigades. After witnessing the Red Terror carried out by the Republican government and the Soviet Union during the war, Orwell began to reexamine the so-called socialist revolution.

The Spanish Civil War ended with Franco’s victory. After returning to Britain, Orwell began his writing career[1]. His works largely reflect on socialist revolution and socialist systems. His best-known books, Animal Farm and Nineteen Eighty-Four, became propaganda texts for the capitalist camp during the Cold War. Some people therefore believe that Orwell changed his political position after the Spanish Civil War.

I do not think so. Reflection does not mean opposition. As an activist who had truly entered the socialist movement, Orwell understood the nature of revolution better than those “theorists” who sat in warm studies and imagined revolution with only passion and sympathy. His reflection on revolution and satire of the socialist movement were careful decisions made from the reason and conscience he inherited from the Enlightenment. They cannot be explained away by the phrase “change of position.”

The Story of Animal Farm

The plot of Animal Farm is simple. A group of animals exploited by humans start a revolution under the leadership of the pigs. After driving away the human farmer, they build an ideal society of animal equality according to Old Major’s original vision. But the good days at the beginning of the new regime vanish quickly. The revolutionary leader Napoleon, representing Stalin, drives his comrade Snowball, representing Trotsky, off the farm and begins his path toward dictatorship.

The book reaches its satirical climax at the end: the revolutionary leaders who once opposed humans completely begin walking on two legs like humans, and bring human exploitation back to the farm in even harsher form. The difference from the old human rule is that exploitation in the new society becomes more deceptive under the decoration of propaganda. Through repeated political messaging, the animals not only silently accept their renewed slavery, but also begin to feel grateful to the new exploiters[2].

This is another story of the dragon-slayer becoming the dragon: revolutionaries become new dictators after the revolution succeeds. History often cycles through this tug-of-war between autocracy and revolution. People call that cycle the historical cycle.

The Historical Cycle

Orwell and Tocqueville are affectionately called “contemporaries” by many later intellectuals[3]. This is not only because their ideas were prophetic and universal, but also because the history they experienced has not become obsolete with the passage of time. People often sigh that history is astonishingly similar, but few seriously think about history and its similarities.

In nearly four thousand years of recorded Chinese history, the cycle of autocracy and revolution has repeated again and again. Every dynastic change was accompanied by terrifying massacre and famine. In this sense, Orwell and Tocqueville, two cold thinkers far away, became China’s contemporaries through the irony of history.

On the question of how to escape the historical cycle, Mao Zedong once discussed it with Huang Yanpei. Mao gave “democracy” as the only solution[4]. Yet when we look back at history many years later, in front of repeated tragedies, Mao’s answer seems too light, and his later practice failed to answer his own words.

So we have to ask: what causes the historical cycle of autocracy and revolution? What conditions are needed to escape it? Are the commonalities among the world’s peoples enough to support the transplantation and spread of historical experience?

These questions may seem old, but they carry heavy significance for the real world. Since the second half of the nineteenth century, countries around the world have experienced their own democratization processes. Some were peaceful; others were violent. The irony of history is that violent revolution often seems to come together with dictatorship: Cromwell in the English Revolution, Robespierre in the French Revolution, Stalin in the Russian Revolution, Mussolini in the Italian Revolution.

The possible explanation is roughly this: to unite a faction and complete a revolution amid a complicated situation, there must be a leader with extraordinary execution ability and charisma. This great revolutionary leader becomes the focus of all contradictions in modern violent revolution: the process of revolution must be autocratic, while the result of revolution is supposed to be democratic[5]. In theory, escaping the historical cycle is simple: the revolutionary leader must handle the identity transition after victory.

But real history is far more complex than theory. Every country’s democratization process is accompanied by complicated ethnic relations and cultural conflict. In those relationships and conflicts, individual choice can become secondary. In this sense, it is too arbitrary to blame the historical cycle entirely on revolutionary leaders. People have self-interested instincts, and power has an instinct to expand. Blaming these instincts is useless. Thinking about how to restrain them through external institutions is the proper historical path.

Orwell’s Spirit

For those of us living today, the first step toward solving problems is to face them. Progress in life and social change always require people who dare to look directly at problems. They can smell crisis during songs and dances of peace, and return to the value of the individual when everyone else is immersed in grand narratives. Sometimes they are stigmatized; sometimes they are treated as heroes. They are Orwell, Tocqueville, and Tolstoy; Liang Qichao, Chen Tianhua, and Lu Xun. They possess rational spirit and cold conscience. They are intellectuals. Compared with passionate revolutionary youth, society needs intellectuals even more.

China’s nearly four thousand years of history are filled with violence, blood, and tragedy, including the suppression and persecution of intellectuals. To escape the historical cycle of autocracy and revolution, we cannot lightly say “democracy,” nor can we hypocritically shout “freedom.” We must truly face problems and respond to criticism with the greatest tolerance and goodwill. We must give “Orwell’s spirit” a place of its own, so that everyone can express their thoughts clearly. Only then can the ever-rising cost of stability maintenance return to improving people’s welfare, and trains to Beijing become less crowded.

[1] Duan Huaiqing. A Generation’s Cold Conscience: Orwell’s Intellectual Legacy[J]. Social Science Forum, 2006 (5): 29-41.

[2] George Orwell, translated by Sun Zhongxu. Animal Farm[J]. Contemporary Foreign Literature, 2007 (1): 103-103.

[3] Ni Yuzhen. Tocqueville’s Unique Perspective on Democracy: Democracy as a “Social Condition”[J]. Sociological Studies, 2008, 3: 79-91.

[4] Yang Jintao. Huang Yanpei and Mao Zedong Discuss the “Historical Cycle”[J]. Consultative Forum, 2013 (11): 56-57.

[5] Hannah Arendt, translated by Chen Zhouwang. On Revolution[J]. Contemporary Foreign Literature, 2007 (3): 171-171.