Translating the classic papers of Harvard Law Review is also obvious to help China readers understand the American Constitution, so I won't go into details. In fact, this is the main purpose of this collection and the main criterion for selecting documents. After all, it is aimed at China readers, so we should serve China readers and help China readers understand the origin, history and present situation of American constitutionalism. Two types of articles are mainly selected in this series. One is the classic works that have an unshakable historical position and lasting influence on the development of the American Constitution, such as the above two articles and Professor Che Fei's comments on freedom of speech; The other is the summary of the development of American constitution (science) by famous scholars who are active in today's stage recently. Although some of them may only reflect one point of view, people can still get the latest overview of the American Constitution from some aspects. Generally speaking, the standard of the former is higher. Time washes people's memory like a big wave, eroding the influence of thoughts. For general papers, the longer the age, the weaker the influence; Only real classics can play a more and more mellow role with the help of time, just like an altar of old wine. What kind of more recent works belong to depends on our eyesight and nature. In our view, they represent the milestone of constitutional theory at the present stage, although they may be covered by higher monuments in the future.
Harvard Law Review Association published the Collection of Constitutions in 1967, and collected more than ten representative papers at that time. We adopted four of them. Although the rest is a phased summary of a certain field, it doesn't seem to have that great significance today, so it must be replaced by a newer synthesis. We mainly searched the papers in several major fields of the Constitution from Lexis-Nexis, and put them into this collection which we think has the potential to become a classic (after all, this is something that needs time to test). At present, it constitutes eight articles.
one
These provisions are all related to judicial review. The United States was the first country to discuss this issue, and its history began at least with the case of Marbury v Madison in 1803. In this landmark case, the Federal Supreme Court led by Marshall established the right of judicial review for itself without the explicit authorization of the Constitution. This practice immediately triggered a debate in which almost all "legal persons" participated, and it continues to this day. The Origin and Scope of American Constitutional Theory published by Professor Searle 90 years after the verdict is obviously not the first paper to question and define this power, but it is undoubtedly the most authoritative and representative one. In fact, perhaps because judicial review has become a fait accompli, Searle does not question the constitutional basis of this power, but limits the scope of this power on the basis of reluctantly acknowledging its existence. This is also the thinking adopted by most skeptics in modern times. After all, this system has existed for two centuries; Except for some "extremists", few people will categorically deny the legitimacy of judicial review today. The focus of debate has always been how and within what scope judges should exercise this extraordinary power. Searle's thesis systematically expounds strict constitutional hermeneutics, making it an important school of American judicial philosophy. Although some judgments may not explicitly quote his article, from the judgment thinking, it is obvious that this paper is almost everywhere.
Professor wexler is more or less on the other side, at least it seems so. First of all, he demonstrated that judicial review is actually based on terms. This is also different from most people's beliefs. Most people, like J. Hand, think that judicial review is a power that is not stipulated in the constitution but is necessary to safeguard the authority of the constitution. Wexler has convincingly proved that although the Constitution does not explicitly mention judicial review, this inherent power can be logically read from the structure stipulated in the Constitution. Therefore, wexler is an active advocate of judicial review. In fact, otherwise, he went on to argue that judicial review must follow some kind of "neutrality principle". The constitution authorizes the court to conduct judicial review, but this does not mean that the court can exercise this power at will and mix its own values, ideas and political opinions into the constitutional text at will; If this is done, the judge will "cross the line". wexler cited many examples of American judges "crossing the line" in the judgment process, including the case of "Brown v. Board of Education", which has great social influence and has been praised by the people so far. It is no exaggeration to say that this is by far the most constructive paper on this subject and an insurmountable milestone in this field. On the one hand, it represents a summary of the academic debate since Marbury's judgment, on the other hand, it clearly points out a new starting point, a new direction and a new way of thinking. Since then, academic discussions on judicial review and judicial functions have been based on this paper, so it is not surprising that its citation rate is so high.
The Pandora's Box of Judicial Review was first opened by Chief Justice Marshall, so there is not an article about him in this book that is inappropriate. Frankfurter allgemeine zeitung is a paper specially written to commemorate the bicentennial of Marshall's birth, and it is also the only article in this book from the field of judicial practice. For readers in China, wieners is not a name that sounds so familiar. If Marshall, Holmes, Blake or Douglas are all famous for being unconventional, then Frankfurt is a judge who is famous for his strictness and moderation, and strictly abides by the neutrality and low profile that a judge should have. In this sense, he is more representative of American judges than those famous politicians, and his evaluation of Marshall is therefore more fair. Although under the American constitutional culture, judicial review may be a constitutional system that will appear sooner or later, it should be no exaggeration to say that Marshall changed the history of the American constitution through the Marbury case. Of course, the Marbury case is only a starting point; By interpreting a series of milestones in the history of constitutional precedent, Judge Frankfurt further explored the essence of judicial function, and once again warned the possibility of judicial overstepping, which is quite in line with the gist of the first two papers.
two
If the above three papers are devoted to judicial review, then the other papers in this book discuss the same issue from a more specific perspective. Professor Ackerman's article is for "beyond" 1938 Caroline product case, or more accurately, it is one of the footnotes-the famous "Footnote 4". Don't underestimate that it is just a footnote. Its influence on the American Constitution is really significant. Even if the American Constitution is so concise, you may not know some of its less important provisions, but you can't help but know this footnote. If an American law student doesn't know what this footnote means, then he will definitely fail the final exam of constitutional law. Why? Because in this footnote, Chief Justice Si Tong explained when the court can or should strengthen the review of legislation. What time? When democracy and the rule of law "fail". In the "fourth footnote", the magistrate of Hiragi listed several situations, one of which was that the interests of "scattered and isolated minorities" were discriminated by law. As we know, democracy means procedural majority rule: if the democratic process goes on normally, then most voters in society will choose the candidate who can best represent their own interests or views to enter the parliament; Most parliamentary representatives pass laws, so that laws can most effectively reflect the interests and views of the majority. But what if some interests or opinions of the majority are not so innocent-what if they infringe on the basic interests of the minority? In a democratic country ruled by law, you have no hope unless you can arouse the support or sympathy of most people; For example, you and your kind only account for one-tenth of this society, and you are likely to find that most people are on your head and discriminate against you wantonly, and in the name of sacred "law"! In American history, racial discrimination was imposed on blacks and other colored people in the form of laws, and these laws were formulated through democratic procedures.
In this case, since democracy can't help you, you have to rely on the court, that is, I hope the court will declare that this kind of law violates the equal protection of all people in the fourteenth amendment to the Constitution; Of course, if this society is full of discrimination, the court may not be able to help you, but it doesn't hurt to rely on one more. This is what Justice Si Tong means: It is when democracy and ordinary rule of law cannot reliably achieve the results required by the Constitution that the court should and can play its unique role-this should be because the victims of discrimination cannot rely on elected political institutions such as parliament or president, so the court is duty-bound before the Constitution; Yes, because the elected institutions cannot effectively play their constitutional functions, the court is not suspected of being offside. It has been noticed that the Caroline product case was pronounced in 1938. Just after President Roosevelt's New Deal, the prestige of the court fell to the lowest point after Dred Scott. In fact, the Supreme Court clearly believed in judicial moderation in this case and completely withdrew from judicial intervention in legislation and administration. However, the "fourth footnote" laid the groundwork for judicial revival: after all, in some cases, this country still needs judicial intervention. Through this footnote, the judicial officer in Hiragi clarified the judicial function of modern courts in a democratic society, further developed the American theory of political checks and balances, and made theoretical preparations for the courts to play a great role in eliminating political and legal discrimination in the United States in the future. Race is finally judged as "suspect classification", and the court will look at the legislation involving race with a "strict in theory but fatal in practice": once any racial discrimination is involved, the law will face "death penalty". In American history, there are only a handful of cases that have played this role, which shows the important role of the "fourth footnote".
Of course, the "fourth footnote" is only a footnote after all, and it is impossible for the Hiragi sheriff to make all the questions clear here. This also triggered the challenge of Professor Ackerman. He does not question the starting point of the "fourth footnote": in the case of "failure" of democratic political institutions, the judiciary can play a greater role, but he questions the accuracy of the footnote: Are "obvious and isolated" minorities really powerless in a democratic society? If ethnic groups are not like this today, the judiciary will continue to give them special protection, while other groups that really need judicial protection are ignored, which is tantamount to "admitting the wrong object." By clarifying the conceptual misunderstandings one by one, Ackerman pointed out that the wording of the "fourth footnote" is misleading: it is not the "obvious and isolated" minorities that need special protection, but the "hidden and scattered" minorities, such as women, the poor and homosexuals-sometimes even the majority, because their collective actions face huge obstacles in organizational costs. Through this paper, Ackerman not only challenged or "surpassed" the Caroline product case, but also updated the significance of the "fourth footnote" in modern society.
three
Note that all the above discussions have a premise: "If the democratic process goes on normally", but this premise is obviously not automatically established. What if this premise is not established? We know that in today's world, almost all countries call themselves "democracy", but not many countries have a good democratic process, and many countries have serious bribery and fraud. If it is only a paper rule, and the "elected" members do not actually represent the interests and positions of the majority of the society, then the social effects of the laws they have enacted can be imagined. How to prevent this from happening and ensure that democratic procedures are carried out according to law? This is something that democracy itself cannot do, because at the moment of the election, the elected political institutions have actually disintegrated, so it is impossible to guarantee that the new candidates meet the constitutional requirements. The democratic process must be guaranteed by the rule of law, otherwise it is doomed to be false democracy; In order to ensure the rule of law in the democratic process, the court must play its due role. In fact, this is a continuation of the proposition of "the fourth footnote". The "fourth footnote" does mention that legislation restricting political procedures should be subject to stricter judicial review. If the law prohibits some people from participating in the election process, then they certainly cannot expect to protect their rights and interests through elections and legislation. In this case, the court has reason to conduct a more rigorous review of such legislation; In this way, the court not only does not conflict with democratic principles, but also helps democracy "operate" in the system.
Professor Peters' paper covers a wider range. The election process may not only be restricted by laws (such as racial restrictions in the United States about half a century ago), but also be distorted by various factors, such as uneven population distribution in constituencies, irregular shape of constituencies, and legal control of campaign funds. In addition, although there is nothing wrong with the legal provisions themselves, there may be various problems in the actual operation process, such as high-tech problems such as misreading or ignoring some valid votes by the machine that automatically recognizes votes. The American presidential election in 2000 is the most appropriate example. What should the court do if there is a dispute over the counting of votes in a key constituency? Election is a political process, but it is not a "political issue" that the court cannot interfere with. For such a problem, the court can be said to be the most qualified: compared with other institutions (such as Congress, the president himself is obviously not allowed to intervene, especially as a candidate in the 2000 general election), the independence and impartiality of the court are more reliably guaranteed. The question is what limits the court should respect and what principles it should follow when dealing with such problems. If the standard of judicial review is not appropriate, then nothing can guarantee that judges are more fair or objective than ordinary people. The so-called judicial decision is just the result of a few people voting according to their own subjective ideas. (In the "Gore v. Bush" judgment triggered by the 2000 presidential election, this situation may have really happened. ) Professor Peters has made an in-depth study of this kind of problem. Previously, he co-edited the book "Democratic Law: Legal Structure of Political Process", which can be said to be a collection of various precedents and theories in this field. In his recent article "The Constitutionalization of Democratic Politics", he combed, summarized and judged the cases of the Supreme Court in recent years, further expounded the vivid theme of democracy being constitutionalized through justice, and formulated a set of standards for determining the legitimacy of judicial review, which was refreshing to read.
Of course, democracy depends on a series of institutional guarantees, and judicial guarantee alone is far from enough. Justice is the most direct and final obstacle to democracy and all constitutional rights, but what kind of government can we expect from such "democracy" without freedom of speech and press, full and free debate and exchange, and accurate information of voters and candidates? If we wait until election day to care about the legitimacy of the whole process, I'm afraid the autocratic uncooked rice will be cooked. This is why freedom of speech and publication is so important to democracy and why freedom of political speech is so important. In fact, the two reflect the same proposition: freedom of speech is important and cannot be controlled and interfered by the government at will, precisely because it plays an irreplaceable role in a democratic society. This is the great idea expounded by Judge Holmes and Judge J brandeis in a series of objections between the two world wars. Article 1 of the Federal Constitution stipulates: "Congress shall not deprive freedom of speech and the press." What does such a short sentence mean? They understand it as speech is generally uncontrolled, unless it will produce "clear and real danger"; Courts should strictly review laws that restrict speech to prevent them from placing an excessive burden on freedom of speech. The idea was systematized by Professor Chefie. In the book Freedom of Speech in America (194 1), he provided a theoretical basis for the constitutional standard of "clarity and danger" and promoted this standard to be gradually accepted by the majority as a minority opinion.
However, there are at least two completely different interpretations of the "clear and dangerous" standard. One explanation is that it requires the court to balance the social consequences of speech and then decide whether the government can restrict speech. Another explanation is that the path of "balance" is too subjective and uncertain, giving judges too much discretion to provide effective protection for this vital freedom; In fact, during the period between and after the two wars, the majority opinion of the Supreme Court was based on Judge Holmes' standard of "clarity and danger", which "balanced" the defendant's freedom to express anti-war speech. Therefore, in order to ensure that freedom of speech is not controlled or deprived by the government, the court should take an "absolute" protection path: any speech within the scope of constitutional protection is not interfered by the government, as simple as that. Although only a few people take the seemingly extreme second road, there are many excellent people among them. Among the judges is J Black, and among the scholars is Professor michael john, Chef's teacher. The latter closely linked freedom of speech with democratic autonomy and systematically developed the theory of absolute protection of freedom of speech. But "I love my teacher, especially the truth". In this essay, Professor Chefie defends himself and Judge Holmes, and accuses his teacher of being "biased". This is about the confrontation between the two factions of freedom of speech. Right and wrong, the reader has his own judgment after reading it.
four
Like Professor Peters' article, Professor Post's paper is also the latest judgment and summary of the Federal Supreme Court. Every year, Harvard Law Review invites a well-known scholar (usually in the field of constitutional law) to write a preface, reviewing and sorting out the progress of cases in the past year and looking forward to the judicial achievements in the new year. 2002 was an extraordinary year, because the Supreme Court ruled several cases of great significance in an unexpected way, which fundamentally changed the previous attitude of the state government to stand by and watch homosexual illegal activities, and clearly affirmed the constitutionality of "affirmative action" on university campuses. "Corrective action" is sometimes called "reverse discrimination": it is a kind of legal discrimination, but contrary to general discrimination, it "discriminates" not against minorities or politically disadvantaged groups, but against the powerful groups themselves who make legal policies, with the aim of compensating the discrimination and unfair treatment suffered by minorities or disadvantaged groups in history and promoting their early strength, which is enough to be protected through democratic political procedures. For example, the University of California Medical College has clearly reserved admission places for ethnic minorities such as African Americans or Hispanics. This kind of course caters to the needs of ethnic minorities, but its obvious consequence is to harm the interests of some white candidates. How to deal with this "discrimination"? There are still quite a few judges in the Supreme Court who believe that there is no difference between "reverse discrimination" and general discrimination, and both belong to the "classification of suspects", so strict review standards are applied. If the magistrate in Hiragi is still alive, he may refute this indiscriminate practice, because the object of "reverse discrimination" is not "scattered and isolated", so he does not need special judicial protection. However, in the actual application process, it seems that most judges' review standards for corrective actions are not so strict. Generally, universities are allowed to stipulate admission policies that are beneficial to ethnic minorities for the sake of "diversity" on campus, but the number of places cannot be clearly stipulated. However, whether "diversity" can provide a constitutional basis for correction has been an unresolved case since the Supreme Court first touched on this issue in the mid-1970s. In 2002, the admission policy of the University of Michigan once again provoked a social storm, and both sides of the debate actively created momentum through the media. The Supreme Court issued a compromise judgment, continuing to deny the constitutionality of rectification actions such as quota system, but clearly affirming that "diversification" can be used as the constitutional basis for rectification actions. Conservatives don't feel too "disadvantaged", while liberals claim that this is an epoch-making "victory".
At first glance, this judgment seems a bit unexpected, because the US Supreme Court is now dominated by conservatives, and the elderly Chief Justice rehnquist is its representative. The verdict of 5:4 in the 2000 presidential election case clearly shows the court composition of * * * and the slight advantage of the party. Although people agree with Professor wexler's "neutrality principle" in theory, it doesn't matter what ideology a judge believes in, but "should" belongs to it. In fact, as we all know, judges cannot be absolutely neutral. Especially in cases involving political and policy positions, judges' judgments are bound to be influenced by their ideology. In this way, how to understand the great "victory" of liberals in the rectification movement and gay litigation in 2002? Professor Post tried to explain these seemingly incomprehensible sentences from a cultural perspective. In his view, the judge's interpretation process is not as independent as generally imagined, but is influenced and restricted by social culture. In fact, the judge's task is to interpret the understanding of the constitution with the mainstream ideology of society. It is through the cultural interpretation of the court that the abstract constitution gains the authority of positive law in specific cases. Perhaps it is through the cultural constraints on judges that the "neutrality principle" becomes possible.
Finally, Professor Chabo's paper represents some differences in the legal field. With his good knowledge of mathematics and physics, he tried to show the essence and social function of judicial process by using modern physics principles such as relativity and quantum mechanics. It is true that courts are bound by society, but in turn, judicial activities actively change and even shape society. Just as traditional physics separates the relationship between objects and observers, traditional jurisprudence also separates the relationship between the court as a judge and the part of society being tried. Modern quantum mechanics reveals that the observation process will change the observed object, although this change is very small at the macro level. Similarly, the judicial decision has also changed the facts to be decided. The judge must understand that in the "curved" (not as straight as traditionally thought) constitutional space, his judgment will affect his cognition of the case itself and change the society affected by the judgment. Judges must clearly realize that they are "intertwined in a complex network of meaning" with society, and that judgment is not only a passive "observation" but an active "behavior" that shapes society. Only in this way can the judicial process gain the sense of responsibility it deserves.
The course of American constitutionalism: 25 major judicial cases affecting the United States
Introduction to the main author of this book
foreword
order
Supreme court of the United States
chapter one
The conservative American revolution produced a long-term effective federal constitution.
chapter two
Defenders of the constitutional rule of law in the United States: nine protectors of the Supreme Court
chapter three
The English Common Law Origin of the American Constitution
chapter four
Who gave the supreme power of the Supreme Court?
-Marbury vs Madison (1803)
chapter five
The sacred principle of contract and the tradition of university autonomy
-Dartmouth College v. Woodward (18 19)
Chapter vi
The principle of federal supremacy and the power of constitutional acquiescence
-Makalo v. Maryland (18 19)
Chapter VII
Break local protectionism
-gibbons v Ogden (1824)
Chapter VIII
Judicial decisions that triggered the American Civil War
-Scott Sanford (1857)
Chapter 9
President or Supreme Court?
-From merriman lawsuit to milligan lawsuit.
Chapter 10
From Victim to Winner: The Contribution of China Litigation to American Law
-Ikh v. Hopkins (1886)
Bankruptcy reorganization protection
The first shot of American antitrust in the 20th century.
—— Northern Securities Company v. United States (1904)
Chapter XII
Fighting for labor rights and interests has a long way to go.
-Several cases involving labor rights and interests.
Chapter 13
When patriotism meets freedom of religion and speech
-Three cases involved national flag salute and pledge of allegiance.
Chapter 14
Public freedom and race in wartime
-Japanese-Americans were detained during World War II.
Chapter 15
Blow the horn to end apartheid.
—— Brown v. Topeka Education Management Committee (1954)
Chapter 16
Campus Prayer and the "Wall"
-Engel v. Vitale (1962)
Chapter 17
Equal voting rights in "political thorns"
-Baker v. Karl (1962)
Chapter 18
Fair trial and judicial assistance to the poor
—— Gideon v. Huai Neureiter (1963)
Chapter 19
A Challenge to Press Freedom: Defamation or Supervision by Public Opinion?
-The New York Times Company v. Sally Copywriting (1964)
Chapter 20
Diligent admonition and the rights of criminal defendants
-Miranda v Arizona (1966)
Chapter 21
The long-term contest between the right to choose and the right to life
-Luo v wade (1973)
Chapter 22
Self-impeachment of "Imperial President"
-United States v Nixon (1974)
Chapter 23
Who discriminates against whom in America today?
—— Board of Directors of the University of California v. Baki (1978)
Chapter 24
The star-spangled banner protects those who burn it
-Texas v Johnson (1989)
Chapter 25
The dilemma between freedom of the press and fair trial
Rodney? Kim v. LAPD (1992)
Chapter 26
Procedural Justice and "Trial of the Century"
-Soccer star Simpson is suspected of murder (1995)
Chapter 27
The judicial battle caused by the president's dystocia
-Bush v. Gore (2000)
Chapter 28
Why does the US government always have a hard time with Microsoft?