The text is written for a long time, is the National Day this year our homework.

The name is "USA constitutional process: 25 judicial case" America, Ren Dong Lai, Chen Wei, Bai Xuefeng. Talking about the content before, first of all say it is well written, not boring, and the case background, the book is accompanied by long notes and on some literature reviews, the author's intention remarkable, worthy of recommendation.

Read this book before, there are all kinds of misunderstanding and doubt about the USA Federal Supreme court. On the one hand, we thought that the law is supreme court should be just and stern, is a particularly tight logic, is not particularly clear black and white people; on the other hand, the Supreme Court has supreme authority, once wielded the stick, let alone the president orders, even the Congress can override, and they never return, that once they are out the problem, who to supervision? More important, what is the rule of law? How to realize the rule of law in Chinese? The latest reading is the experience of some of these problems at the beginning of shallow.

One, the power of the Supreme Court is not the supreme

From the historical point of view, in the beginning of the founding of the America constitution, the Supreme Court is be of little, it even a decent separate buildings have not; at the beginning of nineteenth Century, Saji Ayushu, Ohio, and President Andrew Jackson have against justice Marshall's judgment; in 1935 the implementation of Roosevelt's new deal, also had to restructure the Supreme Court threat, forcing the change of position.

From the system arrangement, the Supreme Court justices to the presidential nomination, and confirmed by the Senate; and Congress can impeachment and recall of judges. The Supreme Court Interpretation and judgment of the constitution, Congress can pass a constitutional amendment to deny (of course this through is not easy, need three houses a two-thirds majority, and the 3/4 approved within the specified time).

More importantly, the Supreme Court itself is not an actuator, speaking ability to use, in the power of three is the weakest.Whether a judicial judgement to be respected and implemented, to a considerable extent, still depends on the judgment itself is the basic justice, depends on the government administrative departments and public the main interest groups on the judicial decision to accept and obey the degree, depending on the society and the public is not widely believe that the government must according to the decision of the court.So, in the words of Tocqueville, the Supreme Court's power is "public opinion support power. As long as the consent of the people to obey the law, they force is infinite; and if people ignore the law, they are incapable of action." Their noble power origin, just like some people indulge in elaborating on it by justice Marshall a person of an inspired passage, but by two hundred years the Supreme Court justices on the self restriction of judicial power, while maintaining the basic fairness and conform to development of times, which won the people and other government departments on it respect.

The basic justice of the Supreme Court is the necessary condition to ensure their lofty power.

Two, the primary goal of the Constitution and the rule of law is the public power constraints

The relationship between the rulers and the ruled is a mutual commitment contract relationship. The embodiment of the constitution is the contract relationship.The rule of law in order to prevent the rulers and the law enforcement defy laws human and divine, do evil all kinds of evils, but not with severe law severely and promptly punished the violation of the criminal law of the common people.

The law is to restrict the power of the method. Early in the middle of the thirteenth Century, justice Blackton king Henry III era puts forward, "the king should not be subject to any man, but he should be subject to God and the law, because the law made the king." Only by the will rather than the legal rule, does not comply with the people's convention, no king. This Chinese traditional Confucian requirements and follows its path is communicated with the.

In 1866, the Supreme Court ruled in Milligan lawsuit against Ex parte Milligan, the military not to wartime reason, rely on the military court, depriving the civilian justice due to constitutional rights. In the judgment, judge Davies said: "American constitution is the rulers and common people to obey the law, whether in peacetime or wartime, is true. At all times, in all cases, all the people are protected by the constitution of the shield."

In 1868, the Fourteenth Amendment to the Constitution in force, ensure the personal freedom and rights without state intervention: "any state, shall make or enforce any law limiting the privileges or immunities of citizens of the United States; without due process of law, no person shall be deprived of life, liberty or property in the state jurisdiction; nor deny to any person, in the equal protection of the laws."

But in order to exclude the Chinese, California's parliament in 1873 1884, the introduction of 14 known as the "laundry ordinances" law, through the design of a precise and complicated licensing system, and gives law enforcement officials are basically arbitrary power, to manage the laundry service. In 1886, the Supreme Court in Yi and V. Hopki Yick Wo v. Hopkins points out: "although the act itself is fair, but also avoid leaning to either side, on the surface, if the public sector with malicious eyes and implement and apply them to the unequal way...... Still, is a violation of the Fourteenth Amendment to the constitution, constitution of the equal protection of the rights of."

In June 14, 1943, the Supreme Court in West Virginia Department of education is Ca Barnett West Virginia State Board of Education v. Barnette (also known as the flag salute second case) of more than 6 to 3 ruling, refused to salute the flag lawful act. The judge Jackson in opinion pointed out: the salute to the flag "is a kind of expression form." "If a compulsion to salute the flag of words, we must illustrate the" bill of rights "-- to ensure that man said that he wanted to say right -- allowing the public power to force the man said he didn't want to say." This is a clear violation of the principle of freedom of speech. "" bill of rights "is the fundamental purpose of change, some basic rights away from political disputes caused by the There's no telling, placed them in a majority of people and officials could not reach, and the legal principles established by the court to deal with them. The life, liberty, property rights, freedom of speech, freedom of belief and the freedom of association rights and other basic rights can not be resorted to vote, they do not depend on any election results." "If there is a change of the stars in our constitution of the star, that is,Whether in politics, nationalism, religion, or other public opinion on the issue, there is no official, regardless of their position, have no right to decide what is right, but also the right to use words or actions to compel citizens to express their beliefs."

In June 25, 1962, the Supreme Court in Engel v. Vitale Engel v. Vitale case verdict, prohibit the introduction of pre class religious prayer in public schools. Justice Black wrote in the majority opinion, review a government behavior or whether the law violates the "prohibit the establishment of religion" clause, does not depend on whether the government "forced" people believe in a religion or denomination, as long as the government in its power, prestige and financial support to a religion or sect, constitutes a "" indirect influence on other religious organizations, and make them at a disadvantage in religious affairs. Similar behavior must be resolutely banned.

In March 18, 1963, the Supreme Court in Gideon v. Wainwright Gideon v. Wainwright case to a unanimous verdict of 9 than 0, the most basic content determine the lawyer right belongs to a fair trial, should be included in the Fourteenth Amendment to the constitution of the "due process of law" protection list. The court shall provide the lawyer and please because of the poor can not afford a lawyer of the accused. Because, if a long-term social ignore the protection of the legitimate rights of criminal suspects the poor class, one-sided emphasis on the evil for evil, to black to black, severeness and speed, then the court and prison there are likely to be poor curse the darkness of society unfair, develop antisocial and violent acts of destruction and the classroom.

In March 9, 1964, the Supreme Court in the famous "New York Times" Co. v. Sullivan New York Times Co. v. Sullivan case to a unanimous verdict of 9 than 0, to determine the "New York Times" libel ruling in violation of the first amendment to the constitution. The Supreme Court held that, let the news media that each news reports are true no fault, is impossible. "If forced to critics of official regulations ensure true the whole situation, otherwise easily is convicted of libel, sentenced to unlimited compensation, it may lead to 'self check news'. If requested by the defendant bear the burden of proof, substantiated the situation, the imprisoned will not just rhetoric...... The officials, the critics were. Even if they believe their criticism is not false, also because they are not sure whether they will prove in court that is the case, or that can't afford to pay the cost of litigation, and in his speech will most likely 'away from illegal forbidden area'. The regulations are hindering public debate of strength, limit the breadth of public debate."Public officials to make the crime of defamation, must prove that the news media of false reports, and a true malicious (Ming Zhi false, or make nothing of it is false), and indeed on their own specific damage caused.

In 1966, the Supreme Court ruled narrowly 5 than 4 in Miranda v. Arizona Miranda v. Arizona case, Fifth Amendment right against self incrimination citizens (whoever, nor shall be compelled in any criminal case to be a witness against himself) is applicable not only to the formal court trial, but also any program and occasions applicable to the outside of the courtroom. Thus was born the common USA movie series, "Miranda warned:" you have the right to remain silent; all you said, they can and will be in court as against you in a court of law; judge before, you have the right to speak to an attorney, get a lawyer to help and advice; you have the right to an attorney in the presence of your interrogation; if you want but can't afford to hire a lawyer, the court will appoint an attorney for you." The court stressed that, police mandatory detention and interrogation environment, forming a huge pressure on the crime suspect. In order to prevent the emergence of torture to extract confessions or intimidated into action, judicial procedure should be from the beginning of the suspect's constitution to be effective protection. Because in the depths of USA history and culture, deep distrust of the government, to the extreme fear of police abuse, to alert the judicial corruption. Government officials and police to do bad things, or "good bad" ability, definitely better than the criminal society much.Even a democratically elected government, democratic principles governing also can not simply rely on "majority" or "referendum".Legal loopholes in the court of the phenomenon is not terrible, because it is the premise of legal recognition, legal challenges in the framework of judicial procedure, and really terrible is the law, Zhifafanfa, power generation and defy laws human and divine. Another famous judge Holmes said: criminals unpunished and government mean illegal behavior compared with iniquity, a much smaller. In fact, after the establishment of the right of silence, American police will gradually focus and energy transferred to the criminal investigation and collection of evidence by high-tech means, not only to promote the enforcement of scientific and civilized, more effectively curb torture to extract confessions and other irregularities, but also greatly reduce the workload of the police. Now, American police has become the implementation of "Miranda warned of" actual support.

In 1989 March, the Supreme Court in Texas v. Johnson Texas v. Johnson, narrowly 5 than 4 decision flag burning. Justice Brennan in opinion points out, the flag has its special status, but the burning of the flag is a kind of "expression", "as it was intended to convey a specific information". The government cannot because the social sense of some radical concept or can not accept, can simply banning its expression. Justice Kennedy wrote in the additional comments: "the flag has always expressed America shared beliefs -- on law, peace and maintain the human spirit of freedom of belief. The case decided to force us to admit that adhere to these beliefs have to pay a price. A painful but the basic fact is: the flag protection those who despise it ". The Congressional decision to the Supreme Court by a motion of censure, and passed "the flag Protection Act", prohibiting any form of the desecration of the flag. But the Supreme Court in June 11, 1990 in American v. Eichmann United States v. Eichman case again to 5 than 4 decision "flag Protection Act" as unconstitutional and invalid, reiterated its flag burning innocent stance. Congress has since been trying to pass a constitutional amendment to protect the national flag, but can not get enough votes in the Senate (according to Gallup's research, in high school and high school the following cultural degree of respondents, 86% supported amending the flag; and in a university degree in the crowd, while 60% oppose it).

In October 3, 1995, allegedly in the famous football star Simpson murder, the jury verdict suspect Simpson not guilty because of insufficient evidence. The police get various defects in the process of evidence becomes the key to the case. America judicial attention to procedural justice and conclusive evidence of the extent, far more than for the facts of a case and the criminal restrain by law. The core of the whole America constitutional and legal system, is to prevent the "tyranny is fiercer than tigers", is to pay attention to protecting the rights of citizens and follow appropriate procedures. Supreme Court justice Douglas pointed out: "the vast majority of the bill of rights provisions and procedures, it is not nothing. Is the program determines the most differences between rule of law and the rule of arbitrary or play fast and loose. Firmly abide by strict legal procedures, we can achieve is the main guarantee of equality before the law".In many cases, pay attention to the procedure does not always lead to a fair trial results. But the government abuse of power and corruption in the judiciary overall harm to the state and society caused, far more than the ordinary criminals.

In order to prevent the government with the hands of privilege, endless arbitrary persecuted people American, provisions of the fifth amendment to the constitution, no one may harm for the same offence two suffering life and body. In criminal cases, the jury's acquittal decision cannot be changed.

The importance of constitution lies in its public trust, and trust fully established in the Constitution can restrain government, constraints represent public opinion most of the parliament, and the maintenance of personal freedom and rights of people.

Three, the law is not absolute or simply to the logic to judge is not

First, the judge should be influenced by his personal background, experience, elected him president, public opinion, political pressure, the judgment is not completely consistent, so in many controversial issues on the Supreme Court does not have a unified judgement;

Second, the law should accord with the development of society. In a lot of time,The law is in fact to the existing social habits, the standardization and validation.Famous judge Holmes said: "the law contains the winning party ideological confrontation in the faith". That is to say,The concept of society to promote the progress of the progress of the legal confirmation, the Supreme Court only accelerated this process in the final phase(but the legal opinions, judges or even as a dissenting opinion, minority also changes in public opinion and ideas played a big role). On the other hand, the development of the evolution of the times and society, also need the legislative, administrative and judicial departments have been adjusting scope of protection of civil and political rights and the strength of social justice, otherwise, it is impossible to;

Third, revealed as Scott case, right in law and logic, but the lack of public support for the decision of the Supreme Court, finally often not implemented, will damage the Supreme Court's authority, and even lead to the turbulence of the whole society. The Supreme Court then avoid release too subversive ruling did not reach consensus on major issues. Nearly 100 years later, in 1954, the Supreme Court in the famous Brown v. Management Committee of Topeka education Brown v. Board of Education of Topeka case, determine the apartheid inequality, chief justice Earl Warren had taken almost the opposite of measures to safeguard the constitutional authority, but also proved once againThe law must consider all aspects of political, social and other. Holmes famously said: "the life of law is not logic, but rather experience". Jefferson also stressed: "USA constitution belongs to the living, not to the dead."

Four, maintain the basic American constitutionalism is the whole society to respect the rule

So, what makes the Supreme Court from a small room in Houses of Parliament, go to today as one of the three rights to live up to one's name. In my opinion, runs through the whole society, American, especially the power and respect for the rule of the elite and compromise is the most impressive strength. This power has not only affected the Supreme Court, and the impact of administrative, legislative departments, maintain the entire American.

For example, 1950 in the Eisenhower administration, the nomination of former California governor Earl Warren as chief justice. Did not expect, the period of World War II to actively implement the president orders, to California about 100000 Japanese nationals and Japanese Americans sent to concentration camps have become politicians, advocated ethnic minority Americans civil rights and the right of the accused to the daring vanguard. Eisenhower regret unceasingly, said the appointment of Warren "is my life the most stupid mistake" (Eisenhower's "second serious mistake" is appointed William Brennan as a judge of the Supreme Court). However, when the Warren Court desegregation, black and white, decision, Eisenhower still firmly implement, maintain the authority of law. In 1957 September, the governor of Arkansas National Guard blocked the use of Little Rock Central High School, stop 9 Black students lawful admission, Eisenhower was willing to use the US Army's 101 airborne division famous, escort these 9 Black students at the white school, safeguard the constitutional government tradition.

The reason is not complicated: America not the origin of national or history, the country was founded on the contract. If we don't respect the contract, respect for the rules, America division and confusion is inevitable. Due to the split of the civil war is an example of this. In this process the biggest loss that is powerful and elite. So even if the temporary rules on their own damage, in the long run to build respect for rules of the consensus is greatly beneficial to the individual, but also conducive to the country. (by contrast, China's vested interest stratum need wisdom on the increase to see this point.) Freedman said: only when we reaffirm our loyalty to the legal system, even if it is to our disadvantage, system can forever, and summing up the lessons in failure.

This is like the play, always in order to out ah foul ah such things quarrel or fight, so we decided to ask the referee. The referee selection criteria prior to negotiate, as far as possible the neutral. But even so, error will occur. If people only in a play to their advantage to respect for the referee, once the adverse chased the referee, then nobody when the referee, the ball is played not continue; on the other hand, if the referee does not do justice, his collection of black money blow whistle, this work also smashed.

If there is no identity and the influence of the whole nation and the basic national spirit, if not the tradition of rule of law in the formation of long-term operation of the constitutional process as well as the people of the judicial authority and obedience, if enforced no government administrative departments of the court, the supreme authority of the court may only be useless.

In 1945, Hayek went to the United States tour, propaganda and the famous "the road to serfdom". Take a taxi in April 12th, Hayek heard the news of the death of President Roosevelt on the radio. The taxi driver praised the remarkable achievements of President Roosevelt and great personality, has expressed strong feelings of sadness, but at last he adds: "but the president should not intervene in the Supreme Court, he should not do this thing".

Only when the institutional and legal evolution, precipitation for ordinary people's belief and social norms of behavior, constitutionalism and rule of law can be implemented. Otherwise, the Constitution and the design of the system is again good, just write it on a piece of paper and empty.

Five, USA law and system is improved through long-term twists and turns

The formation of both the demands of society and the environmental conditions of a system, also needs the political culture and legal thought nourishment. So, no social progress, expect a mighty storm like movement took China into constitutional law, is very naive. On the contrary, the large-scale movement of contempt for the rules and destroy, which often lead us farther from constitutional government, rather than the more recent.

In 1787 USA constitution, delegates neither worker masses, also rejected the scholar intellectuals of petty bourgeois ideology and radical and divorced from reality, ambitious. In the eyes of our ideas, which is how did not represent the group representative! Are they right square accounts in every detail created in human history, the most popular constitution. In contrast, we present how many lawmakers is not know nor care about their vote to approve the law is what?

After the constitution was the anti Federalist attack, the lack of protection of basic public freedoms and rights clause. In order to let the states by the constitution, the Federal Party personnel agreed to immediately after the adoption of the constitution, amendments added to the ten amendment, also called the "bill of rights".

1789 entry into force of the America constitution allowed slavery. The third constitution provided for in the second paragraph first: when according to state population distribution congressional seats in the house of Representatives and federal taxes, a slave is equal to 3/5 of white "freeman". (this clause is not admit slaves owned 3/5 of the rights of citizens, but to the house has a large number of slaves in quantity balance Southern seats and compromise). The provisions in the ninth paragraph first of the first, in 1808, Congress shall make no law to ban the import of the slave trade. The third constitution provided for in the second paragraph fourth, fled to foreign (non slave states) slaves, was arrested after must to its origin owner, to work as a slave.

In 1857 March, the Federal Supreme Court ruled in 1820 "the Missouri compromise" unconstitutional, defend slavery from the height of the constitution. The case led to the northern states public resistance to adjudication and enforcement of the federal courts, greatly damaged the judicial authority. The constitutional function complete failure, the Southern States declared independence.

Lincoln became president in 1861. In order to safeguard national unity, and not the liberation of black slaves or free human rights, he began to have eleven states of the Confederate war. In 1861, Lincoln during a congressional recess, beyond the constitutional constraints, even despite the Supreme Court against, by executive order, ordered to suspend some unstable regions of the right to habeas corpus, which allowed the military does not pass through the normal procedure is detained. In August 22, 1862, Lincoln wrote:"If not the liberation of a slave can save federal, I have not a put". In 1863 January, in order to destroy the southern war will and war potential, Lincoln to wartime measures form promulgated the "Emancipation Proclamation", announced the emancipation and federal against southern slaves (because these areas are not under federal control, that is to say, in fact even a slave nor free). In order to win the war, the federal troops to total war cruel, "not only against the hostile forces, but also to attack a hostile people", a plurality of South City into a scorched earth. The visible is not everything in the world conflicts can be solved through the constitutional procedure. Even if is regarded as a constitutional democracy paradigm American, was also the major issues of principle to the national unified killed to shed blood like water.

The south, the vast majority of free blacks in the "in addition to freedom is nothing" dilemma. Moreover, Congress passed the Fourteenth Amendment soon after, also approved the implementation of racial segregation in the public school system in Washington. In 1896, USA Supreme Court in Plessy v. Ferguson Plessy v. Ferguson case, determine the Louisiana states have passed laws in the train will be black and white isolation is unconstitutional, established the "separate but equal" principle, that the constitutionality of the apartheid system in south. In order to get the equal position, southern blacks continue to struggle to struggle for one hundred years. Until USA Congress in 1964, 1965 and 1968 through three are collectively referred to as the "second Emancipation Proclamation" Civil Rights Act, was legally ended racial segregation and racial discrimination system.

The 1876 presidential election, the Democratic candidate Tilden than the Republican opponent Heisdo won 250000 votes, 184 to 165 lead in the electoral votes, only one step away from winning 185 votes. But because both sides in the near South Reconstruction of resort to deceit, the remaining four, only through the 15 member election committee ruled that judge Hayes, finally won the four state's electoral votes. Behind it, the south by not against Hays was elected as the condition, for the latter end reconstruction, the withdrawal of federal troops commitment. The Hays office, immediately ordered the evacuation of the responsible for the protection of the black vote in the south of the federal army right. The real victims of bipartisan compromise is southern blacks, write the actual implementation of all the fourteenth and fifteenth amendments to the Constitution guarantees, delay of three generations of.

In May 6, 1882, Congress passed the Chinese Exclusion Act USA, and in 1892 was extended for 10 years, and the cancellation deadline in 1902. The bill will all Chinese workers refuse to American, deprived of the Chinese American nationality, and banned Chinese immigration in America after leave again. The bill until 1943 was "Magnuson act" abolished. Until today, USA title code eighth seventh chapter is still "exclusion" (Exclusion of Chinese), this is the eighth article (aliens and nationality) 15 chapter only completely for a specific nationality or ethnic sections. In October 6, 2011 and June 18, 2012, the Senate and the house of Representatives respectively by American apology case, the "Chinese Exclusion Act" to the Chinese in the United States.

In 1942, Roosevelt ordered California to 112000 Japanese Americans (70000 of them is American citizens) from the west coast of forced migration to inland in the detention camp. In December 18, 1944, the Supreme Court in Korematsu v. United States v. American is loose in the ratio of 6 to 3 ruling in the case, the Japanese forced migration to the detention camp, although the basic principles and America discrepancies, but for military needs, can be used as part of the war the provisional measures. This seriously undermine the public free case until 40 years after the ordinary correction, is loose and the other survivors were each given $20000 in damages.

Asked the government officials announced their property, personal income and source, so that the broad masses of the people supervising this belongs to the basic moral norms "sunshine" is legal, until 1978 by Congress formally adopted by the.

In 1972, Congress passed the equal rights amendment to the constitution. However, the deadline to 1982 June law, the bill only to win approval from 35 states, 37 states require just one step away. Feminists and their supporters to ten years of hard efforts to waste all the previous efforts.

The American constitutional and judicial of the stain on the history, not for the fifty step smiles hundred steps, but rather to illustrate,A good system of social progress and the need of time to improveWe must have patience.