Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
Two things happened in China exactly three decades ago: the peaceful democracy movement and the bloody massacre. All democracies in the world initially condemned the massacre in Beijing’s Tiananmen Square, excoriated the Chinese dictators, and supported Tiananmen activists in jail or in exile. As the 1990s went on, however, Western leaders, spurred by commercial interests, again welcomed the People’s Republic of China’s butchers and dictators with their red carpets, eager hugs, and state banquets.
In the United States, leaders of both major political parties sought to avoid a breach with Beijing. Only 17 days after student-led protests were put down by government forces, with a death toll in the thousands, President George H.W. Bush sent a secret letter to Deng Xiaoping and then dispatched a secret envoy to meet with Deng later.
By 1991, the first Bush administration had eased or eliminated many of the Tiananmen-related sanctions placed on China. In 1994, under President Bill Clinton, the U.S. government renewed China’s most-favored-nation status, delinking trade from the Chinese government’s human rights record. In 2001, the United States extended permanent normal trade relations status to China, which was at that time allowed to join the World Trade Organization. Then, China was given the opportunity to host the Olympic Games (the 2008 Summer Olympics in Beijing), the World Expo, a meeting of the Asia-Pacific Economic Cooperation forum, and the G20.
Not a single country boycotted these games or events. China has repeatedly been voted in as a member of the United Nations Human Rights Council despite the fact that its human rights situation is among the worst in the world, and that the Chinese government has arrogantly manipulated the council and undermined U.N. human rights norms as established in the 1948 Universal Declaration of Human Rights.
China has shocked the world at least twice in the course of the past 30 years. The first time was the 1989 Tiananmen democracy movement and the ensuing repression, which made the world aware of the ruthlessness of the Chinese Communist Party. The second time was China’s “economic miracle.” In 2010, with the phenomenal growth of its economy, China became the second largest economy by nominal Gross Domestic Product. In 2014, it surpassed the United States, achieving purchasing power parity.
In fact these two—the extinguishing of the democracy movement and the flowering of the economic miracle—are closely linked. Without the massacres of June 3 and 4, 1989, there would be no Chinese miracle. “What’s most ironic is that the economic reforms of elite privatization that China carried out after June 4 were undoubtedly the most shameless and deplorable in moral terms, but also probably the most effective and likely to succeed. The Tiananmen massacre completely deprived people of their right to speak, and the lack of public participation and supervision in China’s privatization process allowed a minority of officials to treat public assets as their personal property. Officials instantly became capitalists, and privatization reforms attained their goal in a single step. Added to that, the relatively stable investment environment created by suppressive policies attracted a large amount of foreign capital.”
Rampant Miscarriages of Justice
It was believed that China’s embrace of the market economy and globalization would promote domestic freedom and democratization, but they did not; on the contrary, China is more totalitarian today than it was in 1989. Economic power and high technology have greatly strengthened the CCP’s control. China is quickly moving toward fascism with Chinese characteristics.
There are various explanations for the “China miracle,” but few understand or admit that China’s “low human rights advantage,” in the words of the well-known Tsinghua professor Qin Hui, is one of the main reasons for its “success.” Components of this include abundant cheap labor, low wages, low welfare, poor working conditions, no environmental protection, no collective bargaining, no right to strike, no independent labor unions, no free press, no freedom of demonstration and assembly, and no judicial independence.
No competitor of China’s that respects human rights, basic welfare, and democracy can replicate this advantage. And therefore it is no wonder, as Qin Hui once said, that “Goods made in China flow into the whole world, and capital from the whole world flows into China.” It is ridiculous that the Chinese government has attributed this achievement to the so-called “China model” and peddled it around the world, since if all countries adopted the “China model,” there would not be any “China miracle”; rather, the world would be remade in China’s image through a race to the bottom.
People are interested in talking about the rise of China, but in reality, what has been astonishingly rapid and violent has been the rise of the CCP since the party’s founding in 1921. People living in China do not have access to Google, Facebook, Twitter, or YouTube; nor do they have the right to protect their houses or land. They do not have freedom of expression, religious freedom, or the right to vote. Even the book Winnie the Pooh was banned.
Chinese people lack access to fresh air and clean water. Ten of thousands of human rights defenders, lawyers, dissidents, and journalists have been thrown into prison. Political prisoners have died in custody, including the Nobel Laureate Liu Xiaobo in 2017. The family members of rights activists are targeted. Rights NGOs are shut down. Torture, enforced disappearance, forced eviction, and miscarriages of justice are pervasive and rising to a crescendo.
Since 1999, more than 4,000 Falun Gong practitioners have been tortured to death in detention. And 153 Tibetans self-immolated to protest the persecution against them. The CCP is demolishing churches, burning Bibles, and has now sent at least 1.5 million Uyghurs and other Turkic Muslims to concentration camps in Xinjiang. This is not a “China miracle” or “China dream” but a China nightmare.
The low-tech CCP thuggery has now morphed into what I have called high-tech totalitarianism. The CCP utilizes its lead in Artificial Intelligence to make ts total control of Chinese society even more total. China’s Great Firewall, social media, Big Data, e-commerce, and modern telecommunications make it easier for the CCP to keep people under a surveillance akin to Jeremy Bentham’s panopticon, in which nobody knows if or when they are being watched, but it is always a possibility. The Internet has been used by the CCP as an effective tool for censorship, propaganda, and brainwashing. Facial recognition, voiceprint recognition, gait recognition, DNA collection, and biometric tags have all systematized the CCP’s growing control.
In Shandong Province, virtual reality (VR) was used to test party members’ level of loyalty to the CCP. The market-research firm IDC recently predicted that China’s public surveillance-camera network will keep growing, with some 2.76 billion units slated to be installed by 2022. For every Chinese citizen, then, there will be two surveillance cameras, not counting those on their personal devices that can be digitally commandeered at any time by the CCP. Considering China’s networked stability-maintenance, social credit system, secret police, party stoking of nationalist sentiment, expanded control of the media and Internet, mass arrests of rights activists, and cult of personality around Xi Jinping, what we have seen is an unprecedented high-technology totalitarianism, an advanced version of George Orwell’s 1984.
Taiwan the Next Hong Kong?
Moreover, China has become more and more aggressive on the international stage. Its extraterritorial laws and the long arm of enforcement stretch in many different ways: for example, its abduction of refugees overseas, including booksellers, Uyghurs, and legitimate businessmen. Its theft, bribery, and propaganda are institutionalized through the Asia Infrastructure Investment Bank, the multi-trillion dollar Belt and Road Initiative, the Confucius Institutes, the creation of islands in the South China Sea for military purposes, international cyber attacks and espionage, and the “Thousand Talents Program.”
China can’t be trusted to uphold its agreements with other countries. It increasingly violates the “one country, two systems” promise for Hong Kong, which means it is breaking the commitments it made in the Sino-British Joint Declaration of 1984. Sadly, the British, in their thirst for more business, do not seem to care much about the citizens of Hong Kong, which the United Kingdom ruled from 1841 to 1997. Taiwan could turn into the next Hong Kong at any time, for China has interfered in Taiwan’s politics through trade discrimination, disinformation, media infiltration, and repeated threats to launch a military invasion. As a reprisal against Canada’s December arrest of Huawei’s chief financial officer Meng Wanzhou, Chinese authorities detained two Canadian citizens, and suddenly changed a sentence of a Canadian man convicted of drug trafficking from 15 years to the death penalty.
Overseas activists and dissidents do not succeed in evading the CCP’s control. Their family members back in China are intimidated, arrested, or detained. Dozens of family members of at least six Uyghur journalists working for Radio Free Asia have been detained in China as retaliation for their reporting. In Mexico, Argentina, India, Thailand, Canada, and the United States, Tibetans, Falun Gong practitioners and Chinese dissidents have been harassed and physically attacked by people hired by the Chinese embassy.
China scholar Anne-Marie Brady of New Zealand, after writing a prominent report on China’s political interference, encountered the theft of her computer from her home in Christchurch in February 2018, and her car tires deflated in November. Her colleagues in China were taken in for questioning. Wang Bingzhang, a leading pro-democracy activist and a permanent U.S. resident, was abducted in Vietnam in 2002 and later sentenced to life imprisonment in China. Gui Minhai, a publisher with a Swedish passport, was kidnapped in Thailand by Chinese secret police on October 17, 2015. Gui’s partner, Lee Po, a Hong Kong resident with a British passport, was kidnapped in Hong Kong on December 30, 2015.
The CCP has proven that it only seeks its own power, and is now trying to extend that power globally through thuggery, lies, bribes, and threats up to and including the threat of nuclear war.
CCP Learned a Lesson from 1989
The world used to be hopeful that China was improving. It embraced a version of a market economy, entered the WTO, allowed its elites access to the Internet through Virtual Private Networks, and ratified dozens of international human rights treaties. How is it, then, that the Chinese people have found themselves in Orwell’s scenario rather than in a liberal democracy?
When talking about the current state of China’s politics, we should keep this in mind: The CCP does not represent the interests of China or the Chinese people. Its first priority is to perpetuate its one-party rule and the interest of those who are thereby privileged.
Since the 1980s, China’s economic growth, global market, legal professions, and the Internet and social media, have provided space for activist groups and empowered civil society. But at the same time the Chinese government has never loosened its censorship, surveillance, or dominance. If there is a lesson that the CCP learned from 1989, it is that it must maintain one-party rule by any and all means. When the party sensed that civil society had begun to gain more and more resources and influence, it moved to elevate its control. But over the past decades, the so-called “China model,” which as I said amounts to kleptocracy plus high-tech totalitarianism, has been pushing the country toward a comprehensive crisis. It has brought massive official corruption, conflicts between officials and citizens, ecological disasters, religious persecution, and ethnic hatred and violence in Tibet and the mass detention camps in the western region of Xinjiang.
Most importantly, it is beginning to look as if the economic dividends that China harvested from favorable demographics, cheap labor, and globalization are no longer accumulating but starting to dwindle. GDP growth is slowing down. The solution for the political, social, and economic crisis is either relaxation of control, and the building of rule of law and democracy, or yet heavier repression. The CCP, without hesitation, has opted for the latter.
And there is another lesson the CCP has learned from the Tiananmen democracy movement of 30 years ago: It needs to fear the influence of Western ideology as a threat to one-party rule. That is why, besides information-control in China, it also tries to control the overseas Chinese communities. The Chinese Students and Scholar Associations, Confucius Institutes, Townsmen associations, chambers of commerce, and other such organizations, are all controlled or directed by the Chinese embassies and consulates around the world or by the government’s United Front Work Department.
Americans need to be on notice that Beijing has eliminated almost all independent Chinese-language media outlets in the United States. This is even more the case in Europe, Asia, Africa, and Oceania. The Chinese government has worked hard to peddle its narratives. Its effort to block criticism of human rights issues in United Nations forums is quite effective. The CCP has always made friends around the world by being an important and sincere supporter of every dictatorial regime there is. The CCP has been exporting its repressive technology, experience, and control model to autocrats globally. All these policies serve the CCP’s refusal of democracy to the Chinese people.
Making the World Safe for the CCP
The party’s goal is to maintain its rule inside China at all costs, and so it sets about making the world safe for the CCP. Thus has its high-tech Orwellian state become an increasingly urgent threat to other countries and to universal values. Prior policies of engagement with China have been recognized by many scholars and experts as failures. Continued engagement in the name of changing China must now be seen for what it is: appeasement and enabling. Fueled by a pure profit motive that ignores a balance with universal values, Western companies and countries have indulged the CCP’s expansion and brutality. Some examples:
- Cisco provided equipment and training to help set up and strengthen China’s Great Firewall. Nortel Networks, Microsoft, Intel, Websense, and other technology companies also played a role in facilitating the Great Firewall.
- Upon the request of China’s state security agency, Yahoo provided its clients’ information, confirming the identity of at least four Chinese writers. This became key evidence to convict them.
- In order to move back into the Chinese market, Google designed a search engine, called Project Dragonfly, that censors everything that the CCP doesn’t like.
- Many Western banks hired the family members of top Chinese officials as full-time consultants. This is just the tip of the iceberg in Western companies’ corrupt dealings with the oppressive regime.
With the help of Western engagement, money, and technology, the CCP not only survived a short global isolation and sanctions after the Tiananmen massacre, but established an increasingly powerful and brutal totalitarianism that is metastasizing globally. Now, China is demanding a rewriting of international norms, attempting to create a new international order in which the rule of law is manipulated, human dignity is debased, democracy is abused, and justice is denied. In this international order, atrocity and corruption are ignored, perpetrators are immune, and dictatorial regimes are united and smugly complacent.
A New Symbol: Tank Man
Forty days before the People’s Liberation Army mobilized to snuff out the protests that had been building in the spring of 1989, Deng Xiaoping allegedly said that the regime would be willing to “kill 200,000 people in exchange for 20 years of stability!” The CCP did kill a lot of people with tanks and machine guns, in a deliberate massacre, one that has made the Chinese live ever since in what I have called the “Post-Tank Syndrome.” Anger and fear turned into silence, silence into indifference, and indifference into cynicism. Brainwashing, a distorted market economy, and corrupt politics have created an atmosphere of consumerism and instilled a widespread nationalism and social Darwinism in China.
People admire and support those who have power and money. Increasingly indifferent to universal values and morality, people forget, marginalize, and mock freedom fighters and prisoners of conscience. Here we see a paradox of history: The survivors have become the accomplices of the killers.
Yet we also know that Tank Man, one of the most influential images in the 20th century, represents the courage and hope of the Chinese people. When students and citizens were killed in 1989, I was at the time only a brainwashed high school student; but after seeing the footage of this moment, I was inspired and eventually became a lawyer and freedom fighter. Because of my work promoting human rights and democracy in China, I was disbarred, banned from teaching, and fired by my university. I was kidnapped by secret police and severely tortured during my detention. My home was ransacked, my passport confiscated, and my NGO shut down. My family was harassed and prevented from leaving China. The strength that has helped me overcome all these hardships largely came from the moment when I realized I was a survivor of the Tiananmen massacre.
The CCP’s efforts to realize the Orwellian state have encountered and will continue to encounter resistance. However, once a high-tech totalitarian state is completed, any resistance will be easily wiped out. From what has transpired since that man stood in the road in front of a line of tanks, the West should have learned that human rights are not to be sacrificed for economic or political gains. For those who do not want to see the victory of a high-tech totalitarian state, there is still time to fight back, but not much left.
 Official estimates at the time were anywhere from 800 to 3,000 civilian deaths; but a British government document declassified in 2017 indicates upwards of 10,000 civilian deaths.
 “The Costs of International Advocacy: China’s Interference in United Nations Human Rights Mechanisms,” Human Rights Watch, September, 2017.
 Hu Ping, “The Massacre and the Miracle,” Radio Free Asia, September 2, 2008.
 Teng Biao, “The Shadow of the ‘China Miracle,’ ” PoliQuads Magazine, April 6, 2019.
 “China’s Influence and American Interests: Promoting Constructive Vigilance,” edited by Larry Diamond and Orville Schell, report of the Hoover Institution on War, Revolution, and Peace, Palo Alto, California, November 29, 2018.