Chapter 2 How to dial a thousand catties in four taels

1. The Most Humble Servant In the summer of 1793, Secretary of State Thomas Jefferson, entrusted by President Washington, wrote to the justices of the Supreme Court of the United States in the name of the executive branch of the federal government, asking them to propose the twenty-nine legal issues facing the executive branch in foreign affairs. Opinion.For example, whether the neutral foreign policy of the United States should be promulgated by Congress or by the President. A few days later, President Washington received a reply signed by five of the six justices.The note was so interesting that it deserves to be reproduced here in full:

Philadelphia August 8, 1793 Your Mightiness: We have considered the issues raised by the Secretary of State in his letter to us on the 18th of last month at your instruction. The considerations that the Constitution draws a line of demarcation between the three branches of government which are to some extent interdependent, and that we are judges in a court of last resort, give us strong reasons for thinking that involuntary participation beyond It is inappropriate to make decisions on the question of the powers of the courts; furthermore, the power given to the President by the Constitution to summon the heads of departments for advice is clearly and deliberately limited to the executive departments.

We deeply regret everything that may have caused difficulty to your branch of the administration; but we have the consolation to believe that your judgment will tell right from wrong, and that your usual prudence, resolution, and firmness will overcome all obstacles to serve the United States. Preserve rights, peace and dignity. With deep respect, we have the honor of being your most obedient and humble servants john jay james wilson john blair Jay Elidel Vi Patterson It is generally believed that the independent status and authority of the U.S. Supreme Court was truly established after Justice Marshall won the "judicial review power" for the Supreme Court in the judgment of "Marbury v. Madison" in 1803 .In fact, when the justices, led by John Jay, who participated in the writing of "The Federalist Papers", wrote back to President Washington and refused to provide advice on government affairs, the judicial branch quietly celebrated its bar mitzvah.Since then, the court has become truly independent.Since then, American judiciary has completely got rid of the birthmark of "the court is the king's court and the judges are the king's judges" inherited from the United Kingdom.

In establishing such a position for the Court, Justice John Jay expended admirable thought and effort in drafting his reply to President Washington in the fall of 1793.The justices distinguished their status as public servants serving the country from their identities as representatives of the judicial branch. In order to establish the independence of the judicial branch, they refused the president's invitation to give advisory opinions on state affairs.The reason is very simple. If the judicial branch participates in the advisory opinion, then it establishes a certain relationship with the other two branches of the government. If the judicial opinion is different from the legislative and administrative opinions, the judicial branch will be in a very disadvantageous position because it has no real power. , or even reduced to a vassal of legislation or administration, it has lost its independence above other branches when it needs to make corresponding judgments on cases and lawsuits.

Conversely, the refusal to accept the President's invitation to issue an advisory opinion asserts the constitutional independence of the courts and preserves the authority to adjudicate cases and proceedings in the courts.When making judgments, judges don't have to worry about the views of legislative and administrative officials. They only need to interpret the law according to the Constitution and judge cases according to the law.With this kind of independence and authority, they have no worries, only one standard: "Compared with the constitution and the law, the constitution shall prevail (Hamiltonian language)."

2. The anti-majority nature of the Supreme Court and its response The most notable power of the U.S. Supreme Court is to interpret the Constitution, that is, when adjudicating appeals, it can conduct "judicial review" of statutes passed by Congress or measures of executive branches.If it is determined to be unconstitutional, the statute or executive order is declared invalid, regardless of whether it has the support of the majority of public opinion at the time.This kind of judicial review case of the Federal Supreme Court has become the most traceable footprint of American social progress along with the continuous and great social changes in the two hundred years since the founding of the People's Republic of China.The changes in the American social system and concepts are almost all related to the classic cases of the Federal Supreme Court.

However, the Supreme Court overturned the statute on the grounds of unconstitutionality in the "judicial review". Logically, a handful of nine justices have the power to overturn the legislation made by the majority of elected representatives in Congress.Members of Congress are regularly and democratically elected by the people, and their task is to express the wishes of the people. Congressional proposals, debates, and voting procedures, including lobbying in congressional offices and mass gatherings outside the Capitol, are nothing more than an open political process whose core is the idea that sovereignty rests with the people.The Supreme Court has done just the opposite.The justices are not elected by the people, and they are never required to be accountable to the people.While the one-hour Supreme Court hearings per case are open, other Supreme Court operations are behind closed doors.The justices live in seclusion and keep a certain distance from the outside world. There is a certain gap and insulation, and it is difficult for the public to influence the justices.

Such an arrangement has unique considerations.The problem is that the judicial review that the Supreme Court has the power to overturn the legislation of the Legislative Assembly is undoubtedly an anti-majority system.Since democracy is "majority rule", judicial review by the Supreme Court is a power that can prevent majority rule.Therefore, some scholars have suggested that the Supreme Court is an "anti-majority" thing, its essence is "anti-democratic", and it may become "judicial tyranny". Here we are faced with a theoretical paradox.If the Supreme Court intervenes insufficiently, insufficiently to check the tyranny of the majority through the legislative and executive branches, the most innocuous branch of the judiciary becomes the most useless.Democracy is effectively undermined when the Supreme Court interferes so excessively that the popularly elected executive and legislative branches are frustrated from expressing and enforcing the will of the majority.

It is impossible for the American jurisprudence circle and the court itself not to see this criticism.Some people have been thinking about how to respond to such criticism. In 1893, James Bradley Thayer published The Origin and Scope of the Ameri can Doctrine of Constitutional Law.This is the first time anyone has proposed restrictions on judicial review by the Supreme Court.This paper has extremely important significance, and its influence has continued to the present justice. Thayer believes that the judicial review jurisdiction of the Supreme Court should be strictly "judicial" and distinct from the political branch of government.The judicial branch must fully respect the decisions made by other branches within their constitutional powers.

That is to say, for the Supreme Court, a written law can be declared unconstitutional "only when those who have the power to legislate have made mistakes, and made obvious mistakes" (The Rule of Clear Mistake).The constitution is not a document like a title deed, just read it carefully.The Constitution is not a technically finalized document, but a complex enabling instrument of government, left to the test of future complications.Moreover, the understanding of its text may be different for different people. The Constitution leaves room for future generations to choose and judge.Therefore, in the written law, "a reasonable choice is a choice that conforms to the Constitution", and the Supreme Court has the final ruling power on what is reasonable and permissible when exercising the power of judicial review.But, so far, the Supreme Court does not address policy options beyond this.

Justice Frank Furter later said that courts "are not representative institutions, and they were not created to reflect well the will of a democratic society".Therefore, the rule of "obvious error" is to limit the field of involvement of the judicial branch, so that the affairs it intervenes are completely different from the legislative field. Only in this way, the intervention of the judicial branch is justified. In 1958, Judge Learned Hand (Learned Hand) proposed in a lecture at Harvard Law School that the judicial review power of the Supreme Court is to prevent the failure of the government's existing functions (The Rule of Successful Opera tion of the Venture at Hand).He pointed out that in a government with separate functions, there must be a force to ensure that the state governments, Congress, president, etc. operate within the scope of their intended functions.The court is the most suitable force, and only the court is suitable for such a heavy responsibility. In 1959, Herbert Wechesler proposed the neutral principle (TheRuleoftheNeutralPrinciple).He said: The main constitutional basis of the judicial process is that it must be strictly purely principled, and that every step in arriving at a decision is based on analysis and reasoning that go beyond what the decision led to. of immediate consequence. Regarding this issue, the most influential in the history of the Supreme Court is the so-called No. 4 Note, which starts from the Lochner era. 3. The Lochner Era and Commentary No. 4 A famous Supreme Court case was Lochner v. New York in 1905.Lochner was the owner of a small bakery in New York.At the time, progressive legislation in New York State enacted restrictions on the working hours of bakery employees, a popular piece of legislation that Lochner believed violated his "freedom to contract."The concept of freedom of contract was derived from the "equal protection" clause in the 14th Amendment to the Constitution, so this legislation violated his 14th Amendment rights.He appealed the fine and lost 3-2 in the New York State Supreme Court, 4-3 in the Federal Court of Appeals, and 5-4 in the Federal Supreme Court, overturning New York State's minimum labor hours law. number legislation. After the Lochner case, from 1905 to 1937, the Supreme Court rejected a series of state legislation based on the same principles, such as minimum wage laws, child labor restrictions, banking laws, insurance laws, transportation industry management laws, and so on.This series of legislation was produced due to the strong demands of the people during the progressive movement at that time, but was rejected by the Supreme Court one by one at the implementation stage.The economic system reform plan proposed by President Roosevelt to restore the vitality of the national economy, that is, the "Roosevelt New Deal", a series of bills were ruled unconstitutional by the Supreme Court and had to be suspended.In American judicial history, this period is known as the Lochner era. The Lochner era is considered by later generations to mean that the Supreme Court did not strictly confine itself to interpreting the law, but overly participated in policy making.Justice Holmes pointed out that this is the Supreme Court's preference for one aspect of government functions at the expense of other aspects.In other words, the Supreme Court paid attention to its own "anti-majority" function, while sacrificing the "majority rule" function of a democratic government.During the decades of the Lochner era, the Supreme Court partly blocked progressive social and economic reforms of the time.The Lochner case thus became a model of insufficient judicial self-control. However, on the other hand, if the Supreme Court blindly obeys the legislative and executive branches and dare not exercise the privilege of veto in judicial review, the original intention of the founding fathers of the United States to use the Supreme Court to check and balance the legislative and executive branches will be defeated, because by the third of the 20th century In the 1900s, both the legislative and executive branches had achieved universal suffrage, and democracy had greatly expanded, and the function of the Supreme Court to stop the "tyranny of the majority" came to the fore.On what scale does the Supreme Court grasp "judicial self-control"?How to obey the concept of democracy and the will of the majority of the people, and protect the civil rights of all people, especially the rights of minorities and vulnerable groups, so as to prevent "tyranny of the majority"? In 1938, the Supreme Court finally formed a majority in favor of Roosevelt's New Deal.In the case of United States v. Carolene Products Co., Justice Harlan Stone issued a note under the Supreme Court's decision, which is the famous No. 4 Notes (FootnoteFour). The case itself is similar to the Lochner case in that it is a case concerning economic regulation regulations.The executive branch of Roosevelt's New Deal appealed to the Supreme Court to change the excessive intervention in economic legislation in the Lochner era, and to obey the legislation and the decision-making judgment of the executive branch that represented the will of the people.Justice Stone agreed with their criticism of the Lochner-era Supreme Court.In his notes, he pointed out that in general legislative cases related to economic and social reforms, judicial self-control should be the rule of the Supreme Court, and the Supreme Court should stand aside, give way to the venue, and allow the legislative branch to make policy judgments.However, he went on to point out that there are three important exceptions to the principle of judicial self-control. When these three exceptions occur, the Supreme Court not only cannot step back and step aside, but should conduct strict judicial review.The three exceptions are: First, when legislation appears likely to violate the Bill of Rights (the first ten amendments to the Constitution).The Supreme Court is especially wary of such legislation.This idea actually repeats the theoretical basis of traditional judicial review once again.This theoretical basis can be traced back to the views of the Federalists in the early days of the founding of the country, which was elaborated by Hamilton and Madison. The United States is a constitutional democratic republic rather than a simple majority democracy.An independent judiciary plays an irreplaceable and indispensable role in protecting minorities from the "tyranny of the majority".Individual rights are a constitutional right, and when there is a conflict between general legislation and the Constitution, the Constitution prevails. Second, when legislation involves the political process, changes in this political process may lead to improper legislation in the future.That is to say, the Supreme Court should maintain special vigilance against legislation that changes the procedure and the rules of the game in the procedure.This idea actually emphasizes that democracy is a procedural norm, and courts should play an important role in defending this procedural norm.To protect the procedural norms of democracy is to protect the integrity of the majority political process of a democratic system. Third, when legislation involves particular religions, nationalities and races.Courts have a special responsibility to protect the rights of minorities and vulnerable groups, because prejudice against minorities and vulnerable groups has the potential to seriously stifle the unfolding of the political process that was originally expected to protect minorities.This standard points out that the judicial branch may make exceptional judicial intervention in the political process of the majority, thus providing special judicial protection for the basic rights of minorities. Justice Stone’s No. 4 Commentary has only three short sections, respectively proposing three standards, or three boundaries, thus dividing the “rule of the majority” as an ideal democracy and the “rule of the majority” as a dangerous evil. tyranny".In general cases where these three exceptions do not occur, the Supreme Court should abide by "judicial self-control" and obey the decision-making judgments of the elected legislative and executive branches.When these three exceptions appear, the Supreme Court must be vigilant, exercise its prerogative to interpret the law, make judgments based on the Constitution, and overrule elected legislation and decision-making judgments of the executive branch when necessary. The publication of the No. 4 Annotation indicates that the judicial review function of the Supreme Court of the United States will undergo a profound change. The focus of its constitutional review will shift from laws such as the government’s regulation of economic relations to laws related to civil rights, especially those involving individuals. Fundamental constitutional rights and laws for vulnerable groups in society.Before then, the Supreme Court declared unconstitutional judgments containing almost no bills on civil rights issues, and since then, civil rights legal issues have accounted for half of the Supreme Court's decisions. Almost all the profound changes in American society in the second half of the 20th century were related to these judgments. There is a classic example of the transformation marked by Note No. 4, which is the flag salute case of the Jehovah's Witnesses. 4. National Flag Tribute Case "Jehovah's Witnesses" is a small sect of Christianity.This sect believes in the end of the world, emphasizes strict morality, and only allows the worship of the only true God, Jehovah.According to the relevant narration in the "Bible Exodus", they are opposed to worshiping and paying homage in front of any idol. In 1898, New York State passed the first flag salute law, requiring public schools to lead all students to salute the flag every day when the flag is raised.During the Second World War, the patriotism of the people was so high that all states passed the corresponding flag salute laws.Jehovah's Witnesses still oppose flag saluting, seeing it as an evil form of idolatry.In this way, some children of Jehovah’s Witness families refused to participate in the flag-raising ceremony and salute the national flag at school, and were punished by school regulations, suspended from school, and expelled home.Jehovah's Witnesses believe that this is a violation of their religious rights, and thus sued in court.The Supreme Court in 1940 in the Gobbies case (Minersville School District v. Gobitis, which ruled in favor of the school eight to one that the flag salute law is constitutional.Dissenting was Justice Harlan Stone. In this way, Jehovah's Witnesses have only two choices, either give up their creed of not saluting the flag, or their children cannot go to public schools.If no one comes forward to challenge this point, the flag salute law is a law, and the judicial system cannot take the initiative to correct the ruling.Fortunately, in the legal culture of the United States, the door for people to "defy the law" to challenge the law is always open. In 1942, the Barnett sisters, who were Jehovah's Witnesses, refused to salute the national flag at school and were suspended from school.Barnett filed the complaint in federal district court. To the surprise of many, the three judges in the federal district court ruled unanimously in Barnett's favor.In his judgment, Justice Parker acknowledged that, in general, lower courts should follow what the Supreme Court has already ruled, but in this case, which involved the right to religious belief, the situation was different.If Jehovah's Witness kids for refusing to salute the flag However, if they are expelled from the school, then their right to religious freedom guaranteed by the constitution is undoubtedly violated.They ruled that forcing Jehovah's Witness children to salute the flag was unconstitutional.Justice Parker noted that "the tyranny of the majority over the individual or the helpless few" "has always been regarded as the greatest danger to popular government. To counteract this danger the Founding Fathers enshrined in the Constitution a Bill of Rights to secure Every man has certain fundamental liberties which no power of government can take away. The Bill of Rights is not merely a guide to the exercise of legislative power, it is part of the basic laws of the land." The school agreed to keep Barnett's children in school and not require them to attend the flag-raising ceremony.But the state board of education decided to appeal to the federal supreme court.This is the famous case of West Virginia Department of Education v. Barnett (West Virginia State Board of Education v. Barnette). On March 11, 1943, the Federal Supreme Court heard the arguments of the two parties. On June 14, the Supreme Court ruled 6-3, upholding the district court's decision and overturning a Supreme Court decision three years earlier in the Gobbides case. Justice Jaxon wrote in the Supreme Court's judgment what is considered the most famous defense of the function of the courts in a constitutional democracy: The real purpose of the Bill of Rights was to free something from the ebb and flow of political conflict, to place it in a place out of the reach of the majority of the people and the government, and to establish it as a legal principle upon which the courts relied.Individual rights to life, liberty, and property, to free speech, to a free press, to worship God and to assemble, and other fundamental rights, are independent of votes; they do not depend on the outcome of elections. V. Empirical observations on the role of the Supreme Court Since the methods of public opinion surveys have gradually become standardized and complete, a large number of public opinion survey data have been accumulated on almost all major social issues for more than half a century, so that from a statistical point of view, the Supreme Court can be judged on major social and political issues. The verdict conclusions are compared with the opinion poll conclusions.The following results were found: First, compared with the democratically elected Congress, the House of Representatives, and the democratically elected president, the degree of agreement between the Supreme Court's rulings and public opinion polls is basically the same, at least not significantly lower than that of the democratically elected legislative and executive powers. branch; Second, in the last half century, the rulings of the Supreme Court are obviously different from those of the legislative and executive branches, and also different from public opinion polls. Most of them focus on cases related to civil rights, especially the rights of vulnerable groups and heretical groups; Third, in major cases where the Supreme Court’s rulings are inconsistent with public opinion, the degree of agreement between the Supreme Court’s opinions and the opinions of social elites, such as the academic, journalistic, political, legal, and business elites, is significantly higher than that of the grassroots. degree of consistency; Fourth, in some major cases involving civil rights that affect the American society, such as historical cases involving freedom of religion and belief, freedom of speech, freedom of the press, freedom of association, and the rights of suspects, the Supreme Court ruled to lead public opinion. effect.In some cases, only 20% of the public opinion was in favor when the ruling was made, and as high as 80% of the public opinion was against it. After a few years, the ratio was reversed. Scholars have analyzed the mechanism of this phenomenon, and believe that there are direct and indirect interactions between the Supreme Court and the public, and they are not absolutely insulated. The justices of the Supreme Court have sufficient channels to understand the wishes of the public. .At the institutional level, the nomination and appointment of justices Orders, selection of appeal cases, hearing procedures, constitutional provisions on the impeachment of federal judges, etc., form the internal and external constraints of the elected legislative and administrative branches on the Supreme Court, so that the unelected mechanism of the Supreme Court will not get out of control.Regardless of whether such investigation and analysis have a long enough time and enough data, whether the conclusions are convincing enough.It is worth pondering that for more than two hundred years, the "anti-majority" "judicial tyranny" that people feared did not happen, and the "tyranny of the majority" that Tocqueville worried about did not cause tyranny.