What is an unconstitutional case?

Unconstitutionality is an important concept in constitutional science, which refers to illegal acts that violate the constitution. So do you know what is unconstitutional? The following is what I sorted out about what is unconstitutional, I hope you like it!

Brief introduction to unconstitutional

Unconstitutional behavior is the highest illegal behavior. However, the connotation of unconstitutionality is quite rich, mainly including the following aspects: First, the subject of unconstitutionality is state organs and their staff, because state organs and their staff are the subject of constitutional obligations. Second, unconstitutionality violates the Constitution, constitutional laws and even constitutional conventions. Third, violation of the constitution will also produce legal responsibility, which is generally realized through the review mechanism of violation of the constitution.

Constitutional review mode

Constitutional review is a basic error correction mechanism in the will of state power. Like any other error correction mechanism, it is a necessary guarantee for the normal operation of the Constitution. Therefore, unconstitutional review is not mysterious. From the development and operation of unconstitutional review systems in various countries, it is not difficult to find that there are three main modes of unconstitutional review systems in various countries around the world:

The first mode is that the judicial organ, namely the court, exercises the power of constitutional supervision, and the typical representative is the United States. Any ordinary court can exercise the right of unconstitutional review by accepting citizens' lawsuits. In this mode, because the judiciary is an independent part of the separation of powers, it has the power to independently review legislation. Moreover, many cases in this model are adapted to the case law system. The initiative to start the unconstitutional review procedure is always in the hands of citizens. They can file a lawsuit in any ordinary court through individual cases and shelve unconstitutional legislation; You can also persuade members of parliament to amend the constitution and overturn unconstitutional judgments in the parliamentary corridor. Recent cases include June 26, 2004, 65438+ US District Judge Audrey. Collins sentenced President Bush? Patriot Act? Part of it violates the First and Fifth Amendments to the US Constitution. It is reported that the earliest unconstitutional review in the United States took place in 1796? Hilton sued the United States? In this case, then American judges Patterson and Wilson exercised their rights and ruled that a bill of Congress was unconstitutional. John, the fourth chief justice of the United States? During Marshall's term (180 1 ~ 1835) and 1803, the Supreme Court explicitly declared for the first time that it had the right to conduct judicial review of laws passed by Congress, and ruled that a federal law was unconstitutional for the first time. Since then, this unconstitutional review mechanism based on ordinary courts has been established. However, the problem of this model is that it is difficult for judicial activities to ensure an absolutely objective and neutral process, and the subjectivity of judges often interferes with their accurate expression of constitutional intentions.

The second mode is that the legislature exercises the right of unconstitutional review, such as Britain. The history of constitutional review in Britain is longer than that in the United States. Although Britain is one of the three countries without a written constitution in the world, as early as the establishment of the constitutional monarchy, the Petition of Rights and the Bill of Rights clearly stipulated that the law should be applied independently by ordinary courts and equity courts. The British Constitution "The Law of Succession to the Throne" clearly stipulates that English laws are the birthright of the British people, and the monarch and his ministers must approve and confirm them. Implemented in the UK? Parliament is supreme? The constitutional system, cabinet and court are produced by parliament and are responsible to it. Parliament can enact, amend and abolish any laws, including various constitutional documents; If any law is unconstitutional, Parliament has the right to amend or repeal it. The biggest advantage of this supervision mode lies in its authority and effectiveness, so as to ensure that the laws formulated by the legislature can be implemented and enforced more effectively. But the problem is that the legislature censors itself, and sometimes it loses the meaning of censorship.

Third, the power of unconstitutional review is exercised by specialized agencies, such as the Constitutional Council of France and the Constitutional Courts of Germany, Russia, Italy, South Korea and other countries. What are the main responsibilities of the French Constitutional Council? Before the promulgation of the organic law and the implementation of the regulations of the two houses of parliament, they must be submitted to the Constitutional Council, which will decide whether they are constitutional? . A famous case is that in February 2002, the Second Trial Chamber of the German Federal Constitutional Court rejected the new immigration law which will take effect in June 2003 by a majority. The opinion of the majority of the judges in the Federal Court is that the procedure of passing the new immigration law by the Federal Senate on March 22, 2002 violated the provisions of Article 78 of the German Constitution, because Brandenburg failed to pass it unanimously, but it was counted as a yes vote. The problem of this model is that specialized agencies are inevitably influenced by policies and have strong political tendencies, so it is difficult to ensure objective and fair supervision.

In different countries, the departments of unconstitutional review are different, but the same thing is the specialization and independence of unconstitutional review institutions: they specialize in hearing cases in which the government or legislature infringes on citizens' rights, independent of ordinary courts and administrative organs, and they all pay attention to the legitimacy of the process. Judging from the means of unconstitutional review, there are two ways for modern countries to review the constitutionality of laws and legal documents. First, prior review, that is, constitutional review before laws and legal documents are promulgated and take effect. Once they are confirmed to be unconstitutional, the laws and legal documents shall not be promulgated and implemented; The second is the ex post review, that is, the constitutional review after promulgation and implementation. The implementation after unconstitutional review is the basis of legal protection in all countries of the world. The famous case was in 1957, when the US Supreme Court announced? Different races, different public schools? (that is, the practice that black and white people must set up branch schools) violates the amendment to Article 14 of the Constitution. At that time, many people opposed the Supreme Court's decision, the most famous of which were two leaders. One is President Eisenhower, and the other is Governor of Arkansas. However, when the governor of Arkansas tried to resist the Supreme Court decision, General Eisenhower ordered the army to enter Arkansas to enforce the Supreme Court decision, so as to protect blacks and whites from going to school together.

Unconstitutional case

After six years of war against British independence, the United States finally won its independence at 1783. However, the formal establishment of the United States of America was after 1787 when the states adopted the federal constitution of the United States. 1789 in April, the federal government was established, and the leader of the war of independence, George? George Washington was elected as the first president of the United States. Shortly after the founding of People's Republic of China (PRC), due to different interests and political differences, two camps emerged in the United States: federalists and anti-federalists, and democratic Republicans. Generally speaking, federalists advocated strengthening the power of the federal government and opposed the French Revolution, while Democrats and Republicans advocated maintaining the independent status of the States and sympathized with the French Revolution. Although the American Constitution clearly lists the powers of the Federation in the Constitution, the remaining unlisted powers belong to the states, but because the interpretation of the American Constitution is quite concise and flexible, whoever has the power to interpret the Constitution will be in a favorable position in the political struggle.

At the end of 18 and the beginning of 19, the political parties and electoral politics in the United States were still immature. The president and the vice president were elected together, and the president got the most electoral votes, followed by the vice president. So, John the Federalist? John adams succeeded George? After Washington became the second president of the United States, Thomas of democracy and republicanism? Thomas Jefferson became his vice president. 1800 In July, when his first term was about to expire, Adams appointed his Federalist friend John? John marshall was the Secretary of State and helped him run for re-election. In the US 1800 presidential election, Adams only got 65 electoral votes, while the Democratic Party and its candidates Jefferson and Allen? However, Alan Burr received 73 electoral votes each. According to the regulations at that time, States voted state by state (one vote) in the House of Representatives to elect Jefferson and Burr as presidents and the other as vice presidents. Because the federalists would rather vote for the corrupt and incompetent politician Burr than choose the "dangerous radicals" who supported the French Revolution in their view. As a result, Jefferson only got 8 votes in 18 States, but failed to get more than half. Within a week, the House of Representatives voted by secret ballot 35 times, with the same result. At this time, the leader of the federalists and Jefferson's political enemy Alexander? Alexander hamilton urged the federalists he could influence to let the states they controlled vote blank, so Jefferson was elected by a narrow majority. Because in Hamilton's view, Jefferson was at least a gentleman, while Burr was an unprincipled speculative politician. It was 180 1 February 17, and there were only two weeks left before the inauguration ceremony of the president.

In the parliamentary elections held at the same time, the Federalist Party also suffered a major defeat. In this way, they not only lost the presidency, but also lost control of Congress. Therefore, the Federalists put their hopes on federal justice to maintain their influence in American political life. Before the new president took office and the new Congress was convened, the federalists in Congress passed the judicial bill on February 180 13, adding five federal district courts and three federal circuit courts, thus increasing the number by 16. 1801On February 27th, Congress passed the Organic Law of the District of Columbia, authorizing the President to appoint 42 justices of the peace in the District for a term of five years. In this way, Adams can appoint his federalists to 58 new judge positions before the new president takes office. For this reason, Adams was busy for half a month, and it was not until midnight the day before he left office (180 1 March 3, 2008) that the appointment procedure of all 58 judges was completed. At the same time, Secretary Marshall stamped the national seal on all the letters of appointment of Judge Starry Night. Therefore, people call these judges "midnight judges".

Prior to this, 180 1, on June 20, 65438, President Adams made a surprising move and appointed Secretary of State Marshall as the Chief Justice of the Supreme Court. 65438+1October 27th, with the consent of the Senate, Marshall officially took office on February 4th. But Marshall did not resign as Secretary of State at this time, but did not receive the salary of Secretary of State. This situation continued until Adams' term of office expired on March 3, 180 1. Because it was the handover of the old and new presidents, Marshall had to move to the new Secretary of State and preside over the swearing-in ceremony of the new president as Chief Justice. He was too busy to send his personally stamped 17 power of attorney to the designated "starry night judge".