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Judicial review in the United States

2018-10-16 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Judicial review in the United States,供大家参考学习,这篇论文讨论了美国的司法审查制度。司法审查制度已成为世界上最具影响力的宪法监督制度之一,是美国法治的基石。在整个美国宪法中,都不能找到联邦法院有权对立法机关、行政部门的行为进行违宪审查的条文。美国司法机关所享有的违宪审查权,它的创设并没有来自宪法体系中的明文规定,而是来自于联邦最高法院的自我授予,通过宪法判例的形式阐明了联邦司法机关可以在宪政实施过程中对立法机关、行政机关的权力运作进行违宪监督,并在之后通过一系列的宪法解释和判例裁判对这样权力进行强化和巩固。

Judicial review,美国司法审查制度,essay代写,paper代写,作业代写

Throughout the U.S. constitution, there is no provision for a federal court to have the power to conduct an unconstitutional review of the actions of the legislature and the executive branch. America's judicial organs shall enjoy the right of unconstitutional censorship, its establishment is not came from enshrined in the constitution system, but from the Supreme Court granted - in the form of a constitutional case illustrates the federal judicial authority can be in the process of implementation of the constitutional government legislative authority and administrative authority of constitution supervision power operation, and then through a series of constitutional interpretation and case the referee to strengthen and consolidate such power, judicial review system to form.

To study the origin of American judicial review system, we should explore from three perspectives: firstly, we should guarantee individual freedom and rights, which is the goal; Balancing the relationship between the judiciary and the legislature is the way; It is a concrete means to use ordinary judicial departments to conduct judicial review of the ACTS of legislative departments. Therefore, common law tradition and constitutional theory are important aspects of the study of American judicial review system.

It is the combination of these two factors that leads to the emergence of judicial review system. The two are complementary to each other in the study of judicial review system: the common law tradition provides the impetus and basis for judicial review on its origin, and it also innovates a new judicial review mode, i.e. the incidental review conducted by the general court; The constitutionalism theory provides the system foundation for judicial review, which demonstrates that the judicial department has the right to examine the legislative ACTS. It clarifies that the implementation of the constitution by the judiciary is to resolve the application of conflicting constitutions and laws, while the resolution of legal conflicts and how to apply the law is the right given by the common law tradition.

Marshall gradually established the modern American judicial review system through "marbury v. Madison" and a series of subsequent cases, so in a sense, Marshall's "marbury v. Madison" is also the source of judicial review. Early judicial review was based on the basic principles of common law and the fundamental principles contained in the basic law. In essence, it is a political action to guarantee individual freedom by restricting the abuse of power by the legislature. Therefore, the initial judicial review is to review some cases that are clearly against the law and will arouse the attention or opposition of citizens. When conducting judicial review, the judge only reviews the suspicious circumstances, which shows the trust and respect of the judiciary for the legislature. Legislation that is contrary to principles or the spirit of the law is usually invalidated. But in the wake of the Marshall case, a new model of judicial review came into play. The logic reasoning process of judicial review is to analyze its hidden legal spirit from the text of written constitution. At the same time, excluding political disputes, judges should be neutral and have judicial independence, and not be influenced by political parties. This new judicial review mode can be understood as: first, analyze the case first, and see whether political issues or judicial issues, political issues should be excluded from the scope of judicial review. Secondly, the case should be examined in accordance with the law, especially to fully understand the semantics expressed in the constitution and the legal spirit conveyed behind, and to study whether and how the law is applied.

In contemporary America, the legislative function status of the judiciary is more clearly confirmed and accepted, which is also the characteristic of modern American courts. The modern judicial review system no longer follows the theory and practice of judicial review in the traditional stage. Cardozo's famous quote "the highest state of the judicial process is not the discovery of the law, but the creation of the law" is a particularly accurate summary of the characteristics of modern judicial review.

At the turn of the 20th century, judicial responsibility was continuously strengthened, and judges were required to make laws continuously, based on the legislative factors in the judicial process. At the same time, the American constitution, because of the impact of realism, progressivism and revisionism, has changed from being sacrosanct to an incomplete document, reflecting the conflict of interests of all parties. In the interpretation of the constitution, the judge or scholar usually USES the common law to understand the constitution, that is, the judge has the discretion to interpret the constitution, that is, the judge can carry out some judicial legislation in the judicial process. Within the legal profession, the judicial review power of a judge has been recognized as an important means of conducting legislation, even if not publicly recognized. Through this transformation, the judicial review system has developed into a modern judicial review system. This new model of judicial review grew out of the transition, but it did not dominate the mainstream. The judge sublimes certain constitutional terms to a certain height and then USES them to examine and regulate certain matters. In the process, judges participate in and enact public policy and other laws or bills. The process is no longer about judges applying the constitution, but creating it.

The new theoretical foundation of judicial review system is formed in the course of development from the transition stage to the modern stage. The constitution, once seen as sacrosanct and admired by almost all americans, is now criticized in varying degrees by different classes. The constitution is no longer a boring document on the altar. It goes down the altar to constantly adapt to social development and balance the interests of all parties. In the new century, with the continuous development of the society, the deepening of people's understanding and the new energy of judicial legislative power, these various factors jointly gave rise to the rise of modern judicial review and gave it new vitality.

The judicial review system has both the stage and the continuity, in the long time development, the American judicial review experienced the qualitative change. In the process of studying the judicial review system of the United States, we should have the recognition that the modern judicial review system of the United States we have seen and studied is only a part of the evolution process of the system, a stage, we cannot generalize the whole system, and use this stage to represent the whole system. Similarly, we should not regard the modern judicial review system as overly admired, which is universally applicable and widely used for comparison, as "deification" or "sanctification". The modern American judicial review system is only a specific stage in the development of judicial review system, which means that later, it will be surpassed just like the previous three stages.

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