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首先,本文提出内战前后美国宪政观念流变的核心命题,即维系共和。宪政实践为共和的维系提出了两个难题,其一是司法审查和共和政治的潜在张力,其二是地域派系与共和国家的直白对抗。坦尼法院因不够审慎、未能化解两大难题而被看作引发内战的罪魁祸首。其次,通过治安权和地方事务的内在关联,治安的权力和地域派系产生了密切联系。通过利用十四修正案,联邦最高法院试图界定治安权、调整联邦与州关系,通过屠宰场案可以发现,这一通过司法审查解决地域派系的努力最终深化了共和的危机。再次,联邦最高法院介入治安权问题虽然能够消解派系效应,却强化了司法审查和共和政治的冲突。由于战后国家治理的单中心化的加深,共和病在共和制中暴露了。最后,本文以联邦最高法院的“最后一个辉格党人”哈伦大法官为例,展示立宪时曾占主导地位的辉格党思想的消弭。共和主义的宪政解读融贯于哈伦大法官的意见中,但他常以异议者身份出现。他对共和政治的乡愁,暗示出战后宪政观念的变迁和共和传统的解体。
First of all, this paper puts forward the core proposition of the change of the concept of constitutionalism in the United States before and after the civil war, that is, maintaining the republic. Constitutional practice poses two problems for the maintenance of republicanism. One is the potential tension of judicial review and republican politics, and the second is the straightforward confrontation between the regional factions and the republican countries. The Court of Tenoni, being cautious enough and unable to resolve the two major problems, was seen as the culprit in the civil war. Second, through the inherent relationship between public order and local affairs, the power of public order and local factions have been closely linked. Through the use of the Fourteen Amendment, the Federal Supreme Court tried to define the right of the public security and to adjust the relationship between the state and the state. Through the slaughterhouse case, the efforts to resolve the geographical factions through judicial review eventually deepened the republican crisis. Thirdly, the intervention of the Supreme Court of the People’s Republic of China on Public Order of Security, although able to dispel the factional effect, has strengthened the conflict between judicial review and republican politics. Republicans became exposed in the republic because of the single centering of post-war state governance. Finally, this article uses the example of the Supreme Court of the United States, “Last Whig” and “Lord Harlan,” to show the disappearance of the Whigs ideology that once dominated the Constitution. Republican constitutional interpretation reads in the opinion of Justice Harlan, but he often appears as dissident. His nostalgia for republican politics hinted at the changes of the concept of constitutional government after the war and the dissolution of the republican tradition.