浅谈美国司法审判制度的起源

Abstract
In the United States, the Supreme Court is responsible for constitutional review that doesn’t originate constitutional provision .The review of the Constitution by judicial organs is the result of American judicial practice, that the judicial branch has the constitutional review power is based on the solid political basis ,the cultural basis and the legal basis. Its political philosophy is based on the separation of the three powers, and its direct origin is the case of “Marbury v. Madison”. It is very important in the history of the constitution in the United States. In the world, this case is also a precedent for creating a constitutional review. Later it became an enduring research topic for the constitutional scholars, which became a major event in the history of the constitution.
1.The Case of “Marbury v. Madison”
“Marbury v. Madison” happened in 1801, when factionalism is very fierce struggle in the America. The political competition between the Federal Party led by Adams and the Republican Party headed by Jefferson is especially subtle. In the presidential election at the end of 1800, Adams was not reelected; Jefferson won and became the third president of the United States. Before the presidential handover, Adams made great adjustments to the judiciary by using his presidential power and the Congress controlled by the Federalist Party so that quickly appointed the Federalists to serve as judges. In December 1800, Ellsworth, the chief justice of the Supreme Court of the United States, resigned. Adams nominated Marshall, one of the important leaders of the Federal Party, who was Secretary of the Adams administration at that moment. The nomination was immediately approved by Congress. At the same time, Adams quickly took the nomination of the Federalists to become a newly appointed 42 Justice of the Peace. The newly nominated judges were approved by Congress which controlled by the Federalist. After two days Jefferson took office. Therefore these judges are called “Midnight Judges”. On the last day of Adams's presidency, in March 3, 1801, he formally signed 42 Columbia's and Alexander's judges' letters of appointment and sealed. The commissions were given to the judges by Marshall who was secretary of state of the United States taking letters of appointment in March 3rd at once. However a number of judges' appointments were not delivered because of the traffic and communication conditions at that time. One of them is Ma bury. In March 4th, Jefferson took office as president and appointed Madison as secretary of state. Jefferson was very annoyed at Adams's previous action and was determined to take measures to correct it. The first way is to stop the commissions of a judge that has not yet been issued.
Marbury and several others judges have been appointed that didn’t receive commissions. They felt discontented. Therefore Mar bury filed a lawsuit to the Supreme Court, hope that the chief justice of the Supreme Court can make mandamus to request Madison giving the commissions. The legal basis is the thirteenth article of the “Judicial Law”, which was passed by the United States in September 24, 1789. It stipulates that the Supreme Court of the United States has the admissibility of the exclusive jurisdiction of American officials and can give a mandatory order to US government officials.
Jefferson detests the “Midnight Judge” from political perspective, which from the constitutional theory that the Supreme Court does not have the right to impose such coercion on his government. Therefore, he instructed Madison to refuse to appear in court, and refused to explain the reason why he did not send the commissions to Ma bury and others. Marshall was in a dilemma after receiving the lawsuit. He explicitly knew that though the Supreme Court agreed with Madison's request, he issued an mandamus which forced Madison to send a judge's commissions to Ma bury, Madison would be refused to execute it. And then the country would lead to a constitutional crisis.
2.Judge Marshall's Adjudication
Marshall finally made a decision on “Mar bury v. Madison” and rejected Marbury’s request. And his theoretical basis is the three issues of the case.
The first issue is that the application if has a right to get the commission he demands. Marshall answered the question affirmative. He said that the Commission had been signed by the president, which proved the appointment had been made. The Secretary of state had been covered with a seal which proved the commission had been made. Marbury had already been formally appointed. The legal rights of Marbury are protected by American law. The Supreme Court held that the act of hindering his appointment was no legal basis and an act of violation of the legal rights. This analysis indicates that Marbury's appointment to a judge is the right given to him by law.
Then Marshall put forward and answered the second question, which is, if he has a right, and that right has been violated, do the laws of his country afford him a remedy? He said that the essence of civil rights is that every citizen has the right to request legal protection when the citizen is infringed. The first duty of the government is to give this protection. It is emphasized that the US government should be “a government of laws and not of men”. Marshall also made an affirmative answer to the second question, saying that the rights of the judge were violated, and he had the right to ask for legal remedies. The law should also give him relief.
Finally, Marshall put forward and answered third questions: if they do afford him a remedy is it a mandamus issuing from this court? This is also the most critical issue in the case. Marshall made a negative answer to this. According to the provisions of the thirteenth article of the judicial law of 1789, the court has the right to order any executive officer. In accordance with the request of Mar bury, the Supreme Court should issue the mandamus. However, Marshall believes that if a mandatory order is issued to Madison in accordance with this rule, which violated the provisions of the constitution of the United States. The third article of the constitution of the United States stipulates that in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. Marshall thought that the legal request of Marbury is clearly the other cases referred to in the constitution. That is to say, the Supreme Court only has jurisdiction of appeal and no trial jurisdiction. Marshall said that the Supreme Court directly issued a mandatory order and requested the Secretary of state to send the appointment to Mar bury, which was equal to the exercise right of the trial jurisdiction. On the contrary, Marbury should not look for the Supreme Court directly.
Marshall then put forward a valuable constitutional question -- whether a lawless constitutional Congress legislation can became a valid law? He thought that the constitution was formulated by the people, which have the highest legal effect. Contrarily the power of the legislature is limited. He said, “The constitution is either the supreme law, which cannot be changed by common methods. Or the constitution is just like ordinary legislation, so that legislature can do whatever they want to do. Besides, there is no way for the constitution. If you are agree with the former, the law which is contrary to the Constitution by the legislature is not valid law; if you are agree with the latter, then the written constitution is a ridiculous and doesn’t have anything meaning. For citizens, the attempt to restrict power is in itself unlimited.” He thank that people are intended to make the constitution as the fundamental law of the state and the supreme law, therefore, any government theory inevitable thought that if the law by the legislature which is contrary to the constitution. That is invalid. He believed that this is a basic principle and must be insist.
Since the law is invalid in violation of the constitution, it is not suitable for the law; then we will think over another basic problem, which have the right to recognize what is valid law? What is the invalid law? Marshall believes that power belongs to the judicial branch. He thought that the person who applies the established rules to a particular case is bound to explain this rule. If the two laws contradict each other, the court must decide which law to apply. If a law is unconstitutional and the law and constitution are applicable to the same case, the court must ignore the constitution, apply the law, or ignore the law and apply the constitution. He thought this is the essence of justice. Obviously, he thought the constitution was supreme and respected. The court could only obey and apply the Constitution, and the judge was required to swear allegiance to the Constitution when he was commissions. As a result, he concluded that the “1789 judicial law” was unconstitutional, ineffective and could not be applied to the case, thus rejected the request of Ma bury.
Obviously, Marshall didn’t directly make judgment of the case about “Marbury v. Madison”. He wants to clarify his constitutional theory by means of the case, which advocates judicial review to unconstitutional legislation. Marshall's verdict is quite common for people to accept in recent two hundred years in the United States. To a large extent, people still believe in it. Marshall’s claim to judicial review is in line with American constitutional theory. He reason why Marshall was able to establish judicial review, and to accept it for people, proved that his constitutional theory had a common basis for the Americans thought. The Constitution and politics of the United States are based on the separation of the three powers. The separation of the three powers, the balance of the three powers, and the mutual restraint between the three powers are the goals pursued by the American constitutionalism. Marshall proposed that the judicial branch have the right to review the unconstitutional legislation, which coincides with this theoretical goal. Prior to the formal entry into force of the 1787 Constitution, the Federalists, headed by Hamilton, had repeatedly discussed the theory of the separation of three powers. It is particularly worth mentioning that he also spoke directly to the question of judicial review of the constitution. Hamilton said, “The court must have the right to declare the invalid law that is in violation of the provisions of the constitution. Without the power, the provisions for the reservation of specific rights and privileges will exit in name only.” He believes that the constitution stipulated the legislative restrictions; we must to give an agency the power to carry out the legislative restrictions. The agency is judicial branch. In his court verdict, Judge Marshall argued that the constitution clearly stipulated that congress must not make retroactive laws. This is the legislative power of clear restrictions. It is unconstitutional to make a retroactive law. Hamilton also believed that the court is the most appropriate national institution to restrict the legislative authority. He believed that in the three major institutions of legislation, administration, judiciary, the judiciary is weakest sectors. The Justice Department has neither military nor financial power, nor does it govern social strength or wealth, nor does it take any active action. Therefore, we can assert that the judicial department has little threat the constitution comparing to the legislature and executive branch. Hamilton made it clear: “In fact, the constitution intends to make the court an intermediary between the people and the legislature in order to supervise the latter's actions within its power. The interpretation of law is the justifiable and unique responsibility of the court. The constitution, in fact, should also be regarded as a fundamental law by the judge. So the right to construction any law enacted by the Constitution and other legislature law should belong to the court. If there are irreconcilable differences between the two laws, the laws that are the most effective should prevail. That’s to say, the constitution is compared with the law, and the constitution is the criterion; the people are compared with their representatives, and the will of the people is the criterion.
Hamilton’s view and Marshall's verdict is the most classic theory to implement the judicial review in America. Hamilton theoretically pointed out that the United States should implement a constitutionalism divided by three powers, which the power of the three powers should be balanced as far as possible. But in fact, the judicial department is the weakest among the three powers, so it can exercise the constitutional review. He also realized that the constitution is formulated by people, and is the fundamental law. The law is formulated by the representatives elected by the people. The people's representatives must obey the people, the law must obey the constitution, and the constitution is the embodiment of the people's will. The law formulated by the people's representatives may violate constitution that had been formulated by the people, and the law should be ineffective. He also believes that the legislative power should be limited, not unlimited. the restrictions on the legislative power also can not expect only the legislature restrict themselves, and we must have an national institution to limit it, he thinks the judicial branch is suitable to exercise such restrictions and supervision legislative branch.
3.The Controversy of Marshall's Adjudication
Of course, after the verdict of Madison, he caused a strong reaction in the United States. That means a lot, Marshall It stands to reason. smart people, but his case also There are plenty of people who oppose. The opposition to him is roughly divided into four points of view. The first kind of person agrees with the judicial review and agrees with Marshall, but does not agree with him. They think Marshall's judgment is sensible, but Marshall is using this case to capture the power of judicial review. They believe that there are many alternatives for rejecting masked's request. For example, the committee's role is not effective until it is served. Therefore, it has no right to claim its rights to the court. It is also straightforward to say that this is a matter to be solved by the administrative department. The judicial department does not ask, and does not have to mention the relationship between the 1789 law and the constitution. As a big judge, we should try to avoid the constitutional and constitutional disputes. Marshall used Marbury case of ulterior motive, between the three rights system had become a review of judicial review, for repeated demonstration. But for the people of Marshall this criticism was put forward from the angle of party. It can not hinder the establishment of Marshall's theory of judicial review.
Second but may recognize that the Constitution and legislation conflicts, such as the two conflict, of course, is higher than that of constitutional legislation. But they think it should not be declared by the judiciary that it is unconstitutional. Judicial power has only the right to explain and apply the law and does not declare the right to be invalid. There is no constitutional basis for judicial power not to be overriding the supremacy of legislative power.
The third dispute is that if the judiciary should clarify and examine what is a violation of the constitution, the law. Then, is there a limit to the right of the judicial review? Where is the limit? It is clear that Marshall has not answered the question. No one can accurately delineate the boundary in the United States today.
The fourth view is that the judiciary has the right to explain the constitution, and the legislature has at least the same interpretation of the constitutional right. Do not explain how the Constitution can make specific laws according to the spirit of the Constitution? If the legislature has the possibility of misinterpreting the constitution, the judiciary can not avoid this possibility. Therefore, the legislative organs can not be required to obey the interpretation of the judicial organs, nor the judicial organs should be required to comply with the interpretation of the legislative organs. This theory is also irrefutable.
Of course, there are fourth kinds of views, many American scholars think that Marshall on the decision of this case was merely a product of partisan politics, and the ruling also is contradictory, because in accordance with the constitution the Supreme Court in this case is not the jurisdiction of first instance, Marshall as a federal judge will not deal with the case to make any judgment, but should the court has jurisdiction to deal with the case.
4.Conclusion
Though there are many controversies in this case, Americans still agree with the decision of mark berry, and the fact that the “Marbury v. Madison” case established the right of judicial review in the United States is the beginning of the right to judicial review in the United States and an indisputable fact. After so many years of perfection, the right of judicial review in the United States is quite mature.
According to this classic case, the judicial review right of the federal court has been established gradually. Firstly, the federal court is the final arbiter of the constitutionality of the legislation and behavior of the federal legislative and administrative departments; Secondly, the federal court is the final arbiter of the constitutionality of the legislation and conduct of the state legislature and the executive branch; Thirdly, the federal court, in particular the federal supreme court, has the power to review state court criminal and civil procedure regulations to determine whether they comply with the requirements of the federal constitution.
Though the “Marbury v. Madison” case, Marshall, on the one hand, strengthened the federal judiciary to compete with the other two government departments, so that the judiciary began to stand up with the legislative and administrative departments, on the other hand, enhanced the prestige and reputation of the federal supreme court as a government agency, make the supreme court as the final interpreter of the constitution.. After a century later, Benjamin N. Cardozo, the Supreme Court justice, praised, “Marshall has deeply branded his ideology on the U.S. constitution. Our constitutional law become today’s form because Marshall exercised it in the flame of his strong faith while it was still resilient and malleable. If George Washington created the United States, John Marshall established the United States system.” said Jane Smith, author of Marshall’s biography.