Essay代写：Judicial review in the United States－r51due

下面为大家整理一篇优秀的essay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。美国的司法审查制度是既具有阶段性又具有连续性的，在长时间的发展中，美国司法审查经历了质的变化。在当代美国，司法机关的立法职能地位被更加明确的确认和接受，这也是美国现代法院的特性。如今美国的司法审查制度不再沿用传统阶段进行司法审查的那些理论和实践，主张法官既对宪法进行适用，也是对宪法进行创造。司法过程的最高境界并不是发现法律，而是创造法律，这才是现代司法审查制度的特征。

In the whole constitution of the United States, there is no provision that the federal court has the right to examine the ACTS of the legislative and executive departments as unconstitutional. 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 the judicial review system in the United States, we should explore it from the following three perspectives. The method is to balance the relationship between the judiciary and the legislature. The use of ordinary judicial departments to conduct judicial review of legislative departments is a specific means. Therefore, the common law tradition and constitutional theory is an important aspect of the study of the American judicial review system.

It is the combination of these two factors that leads to the emergence of judicial review system. The two supplement each other in the study of judicial review system. The common law tradition provides the impetus and basis for judicial review in its origin. The theory of constitutionalism provides the institutional basis for judicial review, which demonstrates that the judicial department has the right to review legislative ACTS. It makes it clear that the judicial department implements the constitution to solve the conflicts between the constitution and the application of law, and how to solve the conflicts of law and how to apply the law is the right granted by the common law tradition.

Marshall gradually established the modern American judicial review system through the "marbury v. Madison case" and a series of subsequent cases, so in a sense, Marshall's "marbury v. Madison case" is also the source of judicial review. The early judicial review was based on the basic principles of common law and basic law. Essentially, it is a political action to protect individual freedom by restricting the abuse of power by the legislature. Therefore, the initial judicial review is to review some cases that obviously violate the law and will arouse the concern or opposition of citizens. The judge only reviews the suspicious cases when conducting judicial review, which reflects the trust and respect of the judicial organ to the legislature. Legislation that is contrary to the principles or spirit of the law is usually invalidated. But after the Marshall case, a new mode of judicial review came into play. The process of logical reasoning in judicial review is to analyze the hidden spirit of law 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 mode of judicial review can be understood as: first, analyze the case to see whether it is a political issue or a judicial issue, and political issues should be excluded from the scope of judicial review. Secondly, the case should be examined according to the law, especially to fully understand the semantics expressed in the constitutional text and the legal spirit conveyed behind, and to study whether the law is in conflict and how to apply it.

In contemporary America, the legislative function of judicial organs is more clearly confirmed and accepted, which is also the characteristic of modern American courts. The modern judicial review system no longer follows the traditional theory and practice of judicial review in the traditional stage, and advocates that judges should not only apply the constitution, but also create it. Cardozo's famous quote "the highest state of the judicial process is not the discovery of law, but the creation of law" particularly accurately summarizes the characteristics of modern judicial review system.

At the turn of the 20th century, the judicial responsibility has been continuously enhanced and judges are required to continuously make laws, which is based on the legislative factors in the judicial process. At the same time, due to the impact of realism, progressivism and revisionism, the constitution of the United States has changed from sacredness to an incomplete document, reflecting the conflicts of interests of all parties. In the process of interpreting the constitution, judges or scholars usually use common law to understand the constitution, that is, judges have discretion in interpreting the constitution, that is to say, judges can carry out some judicial legislation in the judicial process. Within the legal profession, the judicial review power of judges has been recognized as an important means of implementing legislation, even if it has not been publicly recognized. Through this transformation, the judicial review system has developed into a modern judicial review system. In the transition period, this new mode of judicial review was derived, but it did not occupy the mainstream at that time. Judges take certain constitutional terms to a certain level and use them to review and regulate matters. In this process, judges participate in and make public policy and other laws or bills. The process is no longer judges applying the constitution, but creating it.

The new theoretical basis of judicial review system is formed in the process of transition to the modern stage. Before, the constitution of the United States was regarded as a sacred aura, almost all Americans blind worship, now it is different levels of criticism by different classes. The constitution is no longer a dry document on the altar. It has been constantly adapting to social development and balancing the interests of all parties, but it can no longer strictly constrain the political life of the United States. In the new century, with the development of society, the deepening of people's understanding and the continuous acquisition of new energy in judicial legislative power, a variety of factors have jointly given birth to the rise of modern judicial review and made it constantly full of new vitality.

The judicial review system is both periodic and continuous. In the long development, the judicial review in the United States has undergone qualitative changes. In the process of studying the judicial review system in the United States, we should have such cognition: the modern judicial review system in the United States that we have seen and studied is only a part and a stage in the evolution process of the system. Similarly, we should not compare the excessive worship of modern judicial review system with its universal applicability, or "deify" or "sanctify" it. The modern judicial review system in the United States is only a specific stage in the development of judicial review system, which also means that after that, it will be surpassed just like the previous three stages.

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