The constitution of 1-2 (case USA posted)

The constitution USA (established case Marbury v. Madison - judicial review system)

(selfish motivation achievement of the great cause)

After six years of anti British war of independence, American finally inIn 1783 won the independent. But the United States formally established was ratified by the states in 1787 after America federal constitution. In 1789 April, the federal government was established, the war of independence leader George? Washington (George Washington) was elected as the first president USA. Shortly after the founding of the PRC American domestic because of different interests and political differences, the Federal Party (Federalists) and the anti Federalists (antifederalist) of the Democratic Republican Party (democratic republicans) two camps. Generally speaking, the Federalists advocated the strengthening of the power of the federal government, against the French Revolution, and the Democratic Republicans maintaining state sovereignty, international sympathy for the French revolution. Although the constitution will USA federal authority explicitly listed in the constitution, the residual power and will not enumerated attributable to the States, but due to USA constitution quite concise explanation, very flexible, so who owns the right to interpret the constitution, who can be in a favorable position in the political struggle.

At the end of eighteenth Century and early nineteenth Century, USA political parties and electoral politics is not mature, the president and vice president are mixed together to elections, electoral votes for president the most, followed by the vice president. So, the Federalists John? Adams (John Adams) following George? Washington became the second president of America, while the Democratic Republican Thomas? Jefferson (Thomas Jefferson) became his vice president. In its first term expires in 1800 July, Adams appointed his Federalist friend John? Marshall (John Marshall) as secretary of state, to assist him in his campaign for re-election.

In 1800 America presidential election, Adams had 65 electoral votes, but the Republican Party of the Democratic candidates Jefferson and Alan? (Aron Burr), but the burr received 73 electoral votes. According to the provisions of the time, by the state in the house of representatives to state as a unit (vote), vote for a Jefferson and burr of the two president and another as vice president. Because of the Federal Party would vote for the corrupt and incompetent politicians burr, rather than choose in radical dangerous they appear to support the French Revolution "". So, Jefferson had 18 states, 8 votes, more than half failed to. Within a week, the house a total of 35 times to vote by secret ballot, the results are so. At this time, Alexander the Federalist leader, political opponents of Jefferson? Hamilton (Alexander Hamilton) urge he can influence the Federalist, let them control of the several states cast blank votes, so that the majority of Jefferson in a weak. In Hamilton's opinion, Jefferson is at least the upright gentlemen, and burr is no principle of speculative politicians. This is February 17, 1801, the presidential inauguration only two weeks.

In the congressional elections held at the same time, the Federal Party has suffered a major defeat. In this way, they not only lost the presidency, also lost control of Congress, then, the Federalists had hope in the federal judicial departments, so as to maintain their impact in USA in political life. A new president and Congress held before the Congress, the Federalists passed "the Judiciary Act of 1801 in February 13, 1801" (The Judiciary Act), added 5 Federal District Court and the 3 Federal Circuit Court, thereby increasing the 16 federal judge. In 1801 February 27 months, Congress also passed a Columbia SAR organization law (the District of Columbia organic Act), authorized the president to appoint the 42 term of 5 years of justices of the peace (Justices of Peace). Thus.Adams will be before the new president, appointed his Federalist to be served as the 58 new judges. Therefore, Adams is busy for half a month, until retiring before the day (March 3, 1801) at midnight before the end of all 58 judges appointed by the program, at the same time, Secretary of State Condoleezza Marshall is in the mandate all "starry night judge" (Commission) the upper cover seal. So people put the judge called"Starry night judge"(midnight judges).

Prior to the January 20, 1801,President Adams has made a surprise move, appointed secretary of state Marshall served as the chief justice of the Supreme Court. January 27th, approved by the Senate, Marshall in February 4th officially starts to. But at the end, Marshall and quit the job of secretary of state, but not with the Secretary of state salary, which lasted until March 3, 1801 of President Adams's term expires. Because it was new and old presidential handover occasion, Marshall side to the new secretary of state transition, while also taking the chief judge of the identity of an oath inauguration ceremony of the new president, busy confused and disoriented, even to take 17 copies stamped by him personallyThe CommissionTo appoint "starry night judge" hand.

The new president Jefferson on the Federalist these schemes and intrigues the evil and pain. He took office in March 4, 1801, that the 17 justices of the Peace Commission of the State Council is still stuck in, immediately that he showed hisSecretary of state James Madison?(James Madson) keep the appointment, and motioned Madison to the Commission "as the office waste paper, waste disposal". Then, the Democratic Republican controlled Congress passed legislation in March 8, 1802, abolished the "judicial regulations", and then also hit the bowl 21 federal court "starry night judge". However, the new Congress did not cancel the Columbia SAR organization law on magistrates "". In order to prevent the deposed "starry night judges to the Supreme Court against the new Congress" approach, the new Congress further to rearrange the supreme court date approaches, the temporary closure of the Supreme Court, changed two times a year for a court hearing, the Supreme Court in 1801 December ~1803 year in February closed for up to 14 month long. When the Supreme Court met again, is already 1803 years in February.

But it still can not stop the Federalists by Supreme Court against the Democratic republicans. The Supreme Court was hearing, did not get the magistrate William appointment? Marbury (William Marbury) and three other similar "starry night judge" went to the Supreme Court to prosecute Madison, writ of mandamus ( writ of mandamus) ordered Madison to hand over the appointment, to go to take office. They sued is based on "the Judiciary Act of 1789" (Judiciary Act of 1789) the provisions of thirteenth: "the scope of federal supreme court allowed in the rule of law and custom, gives orders to the federal government incumbents, order it to perform its statutory duty". This is Marshall seek but fail to get the opportunity, he immediately accepted the case. This is the famous Marbury v. Madison.

However, how to handle the case, is a great challenge for Marshall. If he supported Marbury, ordered Madison issued a warrant, Madison is likely to be refused, but the court did not by any means to the implementation of this decision. If he does not support Marbury, this is to show the Federalists had to yield to the Democratic republicans. To contemplate after the Supreme Court, Marshall and his partner has finally come up with a way to satisfy both sides,. After a careful preparation, in February 24, 1803, Marshall announced the decision of the Supreme Court, Marshall later called it "the most sensible decision the judge career". On behalf of the Supreme Court read the verdict, Marshall first put forward three questions:

First, whether the complaint men bury entitled to warrant his request?

Second, if he has the right and the right has been infringed, the government should offer the remedy for him?

Third, if the government should provide the remedy for the complainant, whether it is the Supreme Court issued a mandatory execution, to Madison will be commissioned to send Marbury?

Marshall made it clear that, for the first question: "in the opinion of this court, commission signed by the president, the appointment is made by the United States Secretary of state; a stamp seal, warrant is complete".

"Since the Commission Mr. Marbury has been signed by the president and by the Secretary of state, with the great seal of the United States, then, he has been appointed as the creation of the position; law endows the official serving for 5 years, is not subject to administrative intervention rights, so, the appointment is not irrevocable, and give the the official rights law, protection of these rights by the law of his country. "

"Therefore, the denial of his mandate, in the opinion of the court, which is not authorized legal behavior, but violates the legal rights conferred. "

On the second question, Marshall's answer is yes. He argues that : "everyone is infringed upon, the right to request a legal. A primary responsibility of government is to provide this protection. The United States government that claims to be a rule of law government, rather than the government by man. If the law does not provide for legal remedy rights conferred, it certainly is not worth this noble title. " he even exaggeration to say:" if you want to remove the stigma of our national legal system, we must start from the particularity of the case. " " therefore, we have the responsibility to find out: in our society is someone from legal investigation, or hurt the party refused legal remedy. "That is to say, Secretary of state Madison shall not be denied Marbury vested rights, the court has the responsibility to help Marbury was commissioned from Madison.

The words here, people will naturally think Marshall will immediately to Madison issued executive order, so that the Federalists to the satisfaction of all. But is beyond all expectations, Marshall did not do so, but, he answered the third question is in the negative. In his view, although the federal courts have the right to administrative officials issued a writ of execution, but in the case of Marbury, this is not the responsibility of the Federal Supreme Court, so it has no right to command Madison issued a warrant, that is to say, Marbury told the wrong place. His argument is this: whether the court has the right to send out to depend on the area under its jurisdiction. According to the provisions of the second paragraph third of the Federal Constitution America, only relates to the ambassador, minister, consular and foreign envoys or the state is a party's case, the Supreme Court has original jurisdiction (original jurisdiction). But Marbury non representative foreign envoys nor the state government, the Supreme Court on his case has no original jurisdiction. At the same time, the inherent authority Supreme Court federal constitution, did not take to the administrative officials issued a writ of execution included. Obviously.Marbury sued Madison for "the Judiciary Act of 1789" thirteenth conflict with the Constitution. Accordingly, Marshall took a sudden jump to the legitimacy of the Congress of the law. In his view, the real question is what is the Supreme Court "judicial" should comply with the regulations of article thirteenth, still follow the "Federal Constitution" to make a decision?

This part of the set becomes a root and subject of the sentence, has also become a brilliant chapter America constitutional history. Marshall points out, Congress passed the "Regulations" in the provisions of the Supreme Court of justice have the power to issue a report to government officials, it is actually the original jurisdiction of the Federal Constitution expanded. If the Supreme Court implemented "the Judiciary Act of 1789", is the court recognized that Congress can expand the constitution granted its power. But the fact is, Congress did not have the power. Because the constitution is the people's development, the great people "by the original rights", but the use of "this right should not be frequently repeated" constitution, so, once established, its basic principle is established, the principle of the authority in the constitution is considered to have "beyond all" (supreme) and the "eternal" (permanent) "nature.

Given this premise, Marshall raised obviously, problems "is the constitutional control any of its legislation inconsistent or the legislature could pass a law to change the constitution. There is no middle road between the two choice. The constitution or a supreme (superior paramount) change, can not use ordinary mode of law, or is the same with the ordinary legislation, when the legislature to change it when he can be changed. If the former, then a conflict with the constitution of the legislation is not law; if the latter, then a written constitution is only an attempt to the absurd, restricted to an essentially unlimited power "refers to the legislative power.".

Said here, the sacred constitution has troops. Then, Marshall Strike while the iron is hot., throws his final trump card, put forward clearly if law and law, and legislation and Constitutional Conflicts of the legislature, the Supreme Court must have the legitimacy of a decision, because "decide what is legal flatly belongs to the judicial authority and responsibility". Therefore, when the Constitution and a common law also applies to each case, but there is a conflict between the two, only one, the Supreme Court's decision of course has the Constitution shall prevail. If the judge does not bear the responsibility of protecting the constitutional responsibility, a violation of his due diligence of the oath, which "is tantamount to a crime". Because of this responsibility, he announced, "null and void" conflict with the constitution of the , namely "judicial regulations" article thirteenth unconstitutional.

Although Marbury's officials failed to achieve, but the Federalists and democratic Republicans contest in judicial field can gain a complete victory. Originally, in Jefferson and other democratic Republicans have made it clear that even if the Supreme Court under the executive order, they will not be executed. And to justify, to impeach Marshall and four of his Federalist judges of the Supreme Court (the Supreme Court was composed of five judges, all of the same colour Federalist). But while, smarter. Marshall to a do The Sucker, in good as Marbury name at the same time, it avoids the Democratic Republican trap, directly to the fundamental problem of the law and the constitution is more important, finally established the right of judicial review of the Supreme court.

Although the 1787 American constitution and 1789 "judicial regulations" does not have a clear explanation of the power of judicial review, but did not mention the Supreme Court can declare a congressional, state legislatures or administrative authorities act unconstitutional. But Marshall's decision is not weakness lends wings to rumours., passive water, but have a certain basis. In the famous "Federalist Papers" in the Seventy-eighth part, USA constitution one of the fathers of Hamilton stressed: "the interpretation of the laws is the court's right and proper responsibility. But the constitution is in fact, should also be the judge as the fundamental law. The power to interpret the Constitution and any legislation all the legislature should belong to the court. If between the irreconcilable differences, since the force and effect of law shall prevail. The Constitution and the law, compared with the constitution as the subject ". Look in Hamilton, the legislature must be restricted and some constraint, "such restrictions shall be performed by the court, the court must be declared unconstitutional Regulations Legislation for the invalid right". ("collection", 39293)

In Marshall's case, it is not difficult to see the shadow of Hamilton theory. However, although he insists on the Supreme Court has the right to judicial review, but did not say so in the three branches of the federal government in the Supreme Court has the final and only the power to interpret the constitution, nor that the Supreme Court review right than Congress and the president may have higher power. This may be Marshall's genius. He knew, any legal Congress will involve the rights of citizens, and as long as it is right, there is great may become judicial problems, required by the court to award in this way, the Supreme Court will have final right of interpretation of constitution in fact. At that time, Marshall's theory of judicial review also can not see its far-reaching influence, because until 1857 when the Scott case, the Supreme Court will announce second another Congress unconstitutional laws. However, later proved by the history, this is the most influence American constitutional process on a page, it is equipped with a powerful permanent legal tool for America federal judicial departments, establish a prevention at all levels of government (legislative and administrative) legal barrier against the rights of citizens. This is probably the Marbury, Madison, and even Marshall himself all unexpected.

Nevertheless, Marshall's decision is completely is the need for the party. Most scholars believe that Marshall actually stultify oneself, a decision has a place. Because of Marshall's decision to the Supreme Court has no jurisdiction is one of the first to accept the case, No. This means that it should never have to make a decision, but the case to the jurisdiction of the Federal District court. But he did not do so, but according to the "Regulations" to accept the case justice, on the other hand to it and constitutional conflict on the grounds that it is unconstitutional. However, Marshall seems to argue, he accepted the case, do not know if it has no right to accept new knowledge, have no right to accept only obtained in processing as a result of.

To a large extent is due to the ruling party struggle, finally become a milepost American constitutional history, can not be said to be an irony of history. However, human history is full of examples of selfish motivation, achievement of the great cause.