American unconstitutional review

To talk about unconstitutional review, we should first mention the famous Marbury v Madison case.

Detailed:

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 3rd. 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".

Jefferson, the new president, hated these schemes and intrigues of the Federalists. After he took office on March 4, 180 1, he learned that 17 was still stranded in the State Council, and immediately told his secretary of state James? James Madsen detained these letters of appointment and instructed Madison to "dispose of them like waste paper and office garbage". Then, the new Congress controlled by Democrats passed new legislation, and on March 8 1802, the judicial regulations were abolished, which further smashed the jobs of 2/KLOC-0 "starry night judges" in the federal court. However, the new Congress did not abolish the provisions on magistrates in the Organic Law of the District of Columbia. In order to prevent the dismissed "starry night judge" from suing the new parliament in the Supreme Court, the new parliament further temporarily closed the Supreme Court by rescheduling the opening date, and changed it to twice a year, so that the Supreme Court was closed from 180 1 year for 65,438 years. When the Supreme Court reconvened, it was already February 1803.

But this practice still can't stop federalists from using the Supreme Court to fight back against democracy and Republicans. William, a sheriff who just opened the Supreme Court and didn't get a letter of appointment? Marbury and three other "starry night judges" in the same situation went to the Supreme Court to sue Madison and asked the Supreme Court to order Madison to hand over the power of attorney in order to take office. They were prosecuted on the basis of article 13 of the 1789 judicial act: "The Federal Supreme Court has the power to order current federal government officials to perform their legal obligations within the scope permitted by legal principles and customs". This was the opportunity Marshall wanted, and he accepted the case at once. This is the famous Marbury v Madison case.

However, how to deal with this case is a great challenge for Marshall. If he supports Marbury and orders Madison to issue a power of attorney, Madison will probably refuse to implement it, and the court will have no way to enforce this judgment. If he doesn't support Marbury, it will undoubtedly show the world that the Federalists have surrendered to democracy and Republicans. After thinking hard, Marshall and his Supreme Court partners finally came up with a way to kill two birds with one stone. After careful preparation, on February 24th, 1803, Marshall announced the decision of the Supreme Court, which Marshall later called "the wisest decision in his career as a judge". When reading the verdict on behalf of the Supreme Court, Marshall first raised three questions:

First, does the complainant Marbury have the right to obtain the agency he requested?

Second, if he has this right and this right has been violated, should the government provide him with relief?

Third, if the government should provide relief to the complainant, should the Supreme Court issue an enforcement order, asking Madison to assign the agency to Marbury?

Marshall made it clear that for the first question: "We believe that once the president signs the power of attorney, the appointment will be made; The power of attorney shall be completed when the Secretary of State seals the seal of the United States ".

As the power of attorney of Mr. Marbury has been signed by the President and sealed by the Secretary of State, he is appointed; Because the law establishing this post gives officials the right to serve for five years without interference from administrative organs, this appointment is irrevocable and gives officials various legal rights protected by their own laws. "

Therefore, refusing to issue his power of attorney, in our view, is not an act authorized by law, but a violation of the legal rights granted. "

Marshall's answer to the second question is yes. He argued: "Everyone has the right to ask for legal protection when they are infringed. One of the main responsibilities of the government is to provide such protection. The American government has been declared a government ruled by law, not by man. If its laws do not provide remedies for infringement of the legal rights granted to it, it certainly does not deserve this lofty title. " He even said: "If we want to get rid of this shame of our country's legal system, we must proceed from the particularity of this case." "Therefore, it is our responsibility to find out whether anyone in our society is exempted from legal investigation or the injured party is deprived of legal relief." In other words, Secretary of State Madison may not deprive Marbury of his vested rights, and the court has the responsibility to help Marbury obtain Madison's agency.

At this point, people will naturally think that Marshall will immediately issue an execution order to Madison in order to please the federalists. Surprisingly, Marshall didn't do this. His answer to the third question wasno. In his view, although the federal court has the right to issue administrative orders to administrative officials, in Marbury's case, this is not the responsibility of the federal Supreme Court, so it has no right to order Madison to issue a power of attorney, that is to say, Marbury sued the wrong place. His argument is this: whether the Supreme Court has the power to issue execution orders depends on its jurisdiction. According to the second paragraph of Article 3 of the Federal Constitution of the United States, the Supreme Court has the jurisdiction of first instance only if the cases involving foreign envoys or state governments such as ambassadors, ministers and consuls are parties. Marbury is neither a foreign envoy nor a representative of the state government, so the Supreme Court has no jurisdiction over his case. At the same time, as far as the inherent authority of the Supreme Court stipulated in the federal constitution is concerned, it does not include issuing administrative orders to administrative officials. Obviously, article 13 of the judicial provision 1789 on which Marbury sued Madison is in conflict with the Constitution. On this basis, Marshall jumped the question to the legality of congressional laws. In his view, the real question is whether the Supreme Court should abide by article 13 of the judicial regulations or comply with federal compliance in making its decision.

This part of the discussion became the basis and subject of this judgment, and also became a colorful page in the history of American constitutionalism. Marshall pointed out that when the judicial regulations passed by Congress stipulated that the Supreme Court had the right to file a complaint with government officials, it actually expanded the original judicial power stipulated in the federal constitution. If the Supreme Court implements the judicial provisions of 1789, it is equivalent to the Supreme Court's recognition that Congress can expand the power explicitly given to it by the Constitution. But the fact is that Congress does not have this power. Because the constitution is formulated by the people, it is a great application of the people's "original rights", but the application of this right "cannot and should not be repeated frequently". Therefore, once the constitution is formulated, its basic principles are established, and the authority generated by these principles is considered to be "supreme" and "permanent" at the time of constitution-making.

After giving this premise, Marshall raised an obvious question "whether the Constitution controls any legislation that is inconsistent with it, or whether the legislature can change the Constitution through a common law. There is no middle way between these two options. The constitution is either the supreme law and cannot be changed by ordinary means, or like ordinary legislation, it can be changed when the legislature is willing to change it. If it is the former, then a legislation that conflicts with the constitution is not a law; If it is the latter, then the written constitution is just some absurd attempts made by people to limit an essentially unrestricted power (referring to legislative power). "

At this point, the sanctity of the constitution is vividly portrayed. Then, while the iron was hot, Marshall threw out his last trump card, making it clear that if a law conflicts with the legislation and constitution of the legislature, the Supreme Court must rule on the legality of one of them, because "judging what a law is must be the authority and responsibility of the judicial department". Therefore, when the Constitution and a common law are applied to a case at the same time, and there is a conflict between them, only one of them can be implemented, and the ruling of the Supreme Court is of course subject to the Constitution. If a judge does not assume the responsibility of upholding the Constitution, it will violate his due diligence oath, which is "tantamount to a crime". Out of this responsibility, he declared that "laws that contravene the Constitution are invalid", that is, Article 13 of the judicial regulations is unconstitutional and invalid.

Although Marbury's career failed to come true, the contest between federalists, Democrats and Republicans in the judicial field was a great victory. Initially, Jefferson and other Democrats and Republicans made it clear that even if the Supreme Court issued an injunction, they would not enforce it. And intends to impeach Marshall and his four federalist Supreme Court judges on this ground (the Supreme Court at that time was composed of five judges, all of whom were federalists). But the Tao is one foot high, and the devil is ten feet high. Marshall took advantage of this slow road. While clearing Marbury's name, he avoided the trap set by democracy and party member, pointed to the fundamental question of which is more important, the law or the constitution, and finally established the judicial review power of the Supreme Court.

Although the US 1787 Constitution and 1789 Judicial Regulations do not explicitly state the right of judicial review, they do not mention that the Supreme Court can declare the actions of Congress, state legislatures or administrative organs unconstitutional and invalid. However, Marshall's judgment is not groundless, but has a certain basis. In Article 78 of the famous Federalist Collection, Hamilton, one of the fathers of the American Constitution, emphasized: "It is the legitimate and exclusive duty of the court to interpret the law. In fact, the Constitution is and should be regarded as the fundamental law by judges. The power to interpret the Constitution and any laws enacted by the legislature belongs to the courts. If there are irreconcilable differences between the two, the more effective and effective law shall prevail. Compared with the law, the Constitution shall prevail. " . In Hamilton's view, the legislature must be subject to certain restrictions and constraints. "This restriction must be enforced by the court, so the court must have the right to declare the legislation that violates the explicit provisions of the Constitution invalid." (Selected Works of Mao Zedong, pp. 392-93)

In Marshall's judgment, it is not difficult to see the shadow of Hamilton's theory. However, although he insisted that the Supreme Court has the power of judicial review, he did not explicitly indicate that the Supreme Court has the final and sole power of constitutional interpretation among the three departments of the federal government, nor did he emphasize that the power of review of the Supreme Court is higher than that of Congress and the President. This may be Marshall's genius. He knows very well that any law in Congress will eventually involve the rights of citizens. As long as it is a right issue, it is very likely to evolve into a judicial issue that needs a court ruling. In this way, the Supreme Court naturally has the final power of constitutional interpretation in fact. At that time, Marshall's theory of judicial review did not show its far-reaching influence, because it was not until the Scott case of 1857 that the Supreme Court declared another congressional law unconstitutional for the second time. However, the later historical development proved that this was the most influential page in the history of American Constitution, which equipped the federal judicial department with a powerful permanent legal tool and established a legal barrier to prevent governments at all levels (legislative and administrative) from infringing on citizens' rights. This was probably unexpected by Marbury, Madison and even Marshall himself.

Nevertheless, Marshall's judgment itself is entirely out of the need of partisan struggle. Most scholars even think that Marshall's judgment is actually contradictory. Because one of the bases of Marshall's judgment is that the Supreme Court has no original jurisdiction over the case and has no right to accept it. This means that it should not make a judgment at all, but submit the case to the competent federal district court. However, he didn't do it. On the one hand, he accepted the case according to the judicial provisions, and on the other hand, he declared it unconstitutional on the grounds of violating the Constitution. But Marshall seems to be able to argue that when he accepted the case, he didn't know that it had no right to accept it, but that the right to accept it was only a result of the new understanding gained in the process of accepting it.

This judgment based on the needs of partisan struggle, to a great extent, eventually became a milestone in the history of American constitutionalism, which cannot but be said to be a historical irony. However, there are too many such examples in human history, and selfish motives have made greatness.

Comparison of three global unconstitutional review modes

Feng Luo, a special contributor to the International Herald Tribune, reported that unconstitutional 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 the unconstitutional review system in various countries, it is not difficult to find that there are three main modes of unconstitutional review system in the world at present:

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's Patriot Act, some of which violated the First and Fifth Amendments of the US Constitution.

It is reported that the earliest unconstitutional review in the United States occurred in the case of 1796 Hilton v. the United States. At that time, American judges Patterson and Wilson exercised their right to judge that a bill in 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.

Britain implements a constitutional system of "Parliament is supreme", in which the Cabinet and the courts are produced by and accountable to Parliament, which can enact, amend and repeal 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. The main responsibility of the French Constitutional Council is that "before the promulgation of the organic law and the implementation of the rules of the two houses of parliament, it must be submitted to the Constitutional Council, which will make a ruling on whether it is 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 judges in the Federal Court is that the procedure of passing the new immigration law by the Federal Senate on March 22 this year 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 declared that "different public schools of different races" (that is, the practice that blacks and whites must branch schools) violated the 14 amendment to 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.