The United States from judicial passivity to judicial activism

下面为大家整理一篇优秀的assignment代写范文- The United States from judicial passivity to judicial activism，供大家参考学习，这篇论文讨论了美国从司法消极主义到司法能动主义。美国内战后对联邦宪法进行了修正，联邦最高法院审查各州对选民资格进行了法律限制。但在1874年至1944年，最高法院在选民资格案件中始终持消极主义的司法哲学，在法律方法上，表现为对文义解释和历史解释的倚重。而1944年至1962年间，最高法院开始注重体系解释和目的解释，初步呈现出能动主义的司法哲学。自1962年以来，最高法院全面进入司法能动主义时代，州法对选民资格的调控权因此受到极大限制。尽管如此，最高法院仍需考虑制宪者的原初意图，尊重州权和联邦主义，这构成司法能动主义的边界。

Amendments to the federal constitution after the civil war made it possible for the Supreme Court to review states' legal restrictions on voter eligibility. However, in the 70 years since 1874, the Supreme Court has always adopted a negative judicial philosophy in voter qualification cases, which is manifested in the reliance on literary interpretation and historical interpretation in terms of legal methods. From 1944 to 1962, the Supreme Court began to pay attention to system interpretation and purpose interpretation, and initially presented an activist judicial philosophy. Since 1962, the Supreme Court has entered the era of judicial activism, which greatly limits the power of state law to regulate the qualification of voters. Still, the court needs to consider the framers' original intent to respect state rights and federalism, which constitute the boundaries of judicial activism. The change of the Supreme Court's judicial philosophy is finally subject to the constitutional arrangement, the atmosphere of The Times and the social needs.

As early as before the founding of the United States of America, the colonies had inherited representative democracy from Britain and some forms of democracy existed, although the scope of American democracy at that time was quite limited, that is, white male "citizens" with considerable property could enjoy the right to vote. In a sense, the history of American democracy is a history of the gradual expansion of voting rights. The Supreme Court of the United States is an important stage for the judicial protection of human rights and public issues BBS.

According to the original constitution design of the United States, the federal constitution does not define or guarantee the right to vote independently, but basically leaves the issue of the right to vote to the states. After the civil war, the power of the union was strengthened. The fourteenth and fifteenth amendments to the constitution make it possible for the Supreme Court to examine the legal limitations of the states on the subject of the right to vote. The reality, however, is that the Supreme Court initially did not want to get involved in the expansion of voting rights to provide relief to citizens who were disenfranchised because of their gender, ethnicity, race or class. The passivist judicial philosophy of the Supreme Court after the civil war lasted about 70 years.

As an authoritative constitutional review and constitutional interpretation institution, the Supreme Court of the United States has gradually formed two judicial philosophies of passivism and activism in its history of more than two hundred years. Judicial passivism emphasizes the scope and capacity limit of the court itself, respects the majority rules and political departments, tends to avoid "political issues", applies the framers' intention to interpret and assume constitutionality, and tries its best not to make unconstitutional judgments on legislative and administrative ACTS. Compared with judicial activism, judicial passivity has a longer history, a wide range of influences, and a relatively deep foundation of legitimacy. This is especially true in electoral cases such as voter eligibility cases.

Maina v. harperset, 1874, was an early example of the Supreme Court. The core issue of the case was: although the constitution and laws of Missouri only granted the right to vote to male citizens, after the passage of the 14th amendment, female citizens of Missouri could have the right to vote and become voters of the state. Minor claims that a woman, as long as she is a U.S. citizen, has the right to vote. The right to vote is a privilege and immunity enjoyed by each state as a citizen of the United States. Therefore, the Missouri constitution and related provisions of the law violate the United States constitution. The Supreme Court recognized that women are unquestionably American citizens. The key question is whether the right to vote is necessarily a privilege enjoyed by American citizens. To put it more bluntly: are all American citizens necessarily voters? To this end, the Supreme Court began to explore whether the right to vote was an inevitable part of the privileges enjoyed by American citizens.

The court held that the voters of the states were not created by the United States. The elected officials of the United States are all elected directly or indirectly by the voters of the states. The state's power in this matter is unquestionably Paramount unless congress does something about it. Nor does the fourteenth amendment increase the privileges or immunities of citizens. "Clearly, when the fourteenth amendment was ratified, the federal constitution did not add the right to vote to the privileges and immunities that citizens already had," the court declared. The court held that there was no room for ambiguity in the legal conditions governing the right of states to vote, if the federal constitution intended to make all American citizens voters. Therefore, this inference is not allowed. And while the constitution grants citizenship, it does not necessarily enfranchise it has been practiced for almost 90 years. In the end, the court stressed the responsibility to try according to law: our task is to judge what is law, not to declare what should be law. If the law is wrong, it should be changed, but we don't have the power to change it. So the argument that women needed the right to vote was not taken into account.

Elk v. Wilkins in 1884 was a case that denied native americans the right to vote. Elk, the plaintiff, was born to an American Indian tribe, from which he later voluntarily separated and intermingled with white citizens. On April 5, 1880, he tried to register to vote, but was refused by the registrar, Wilkins. He claimed the right to vote be unlawful deprivation, reason is: on the basis of the 14th amendment in the first paragraph, namely "all in the United States of America was born or naturalized in the United States, and subject to the jurisdiction of the people, are citizens of the United States of America and they state", he is a citizen of the United States, and on the basis of the fifteenth amendment, "the right to vote, citizens of the United States shall not be because of race, color, or used to be a slave by the United States or any state to refuse or restrict". The Supreme Court held, however, that "indians not taxed" were not counted in the base from which the number of members of the house was allocated, according to the original constitution of the United States. The Indian tribes within the territory of the United States were not technically foreign, but they were foreign, a special political community with which the United States could and was accustomed to deal, either by treaty or by congressional legislation. The members of these tribes were directly loyal to their respective tribes and were not part of the people of the United States. A law made by congress does not apply to indians unless it expressly covers them.

The Supreme Court of the United States held that the alien and dependent nature of members of an Indian tribe could not be changed on the basis of its own will, unless it was legislated by the United States. Indians have never been considered citizens of the United States unless explicitly provided for by legislation. Indians born within the territory of the United States, though geographically "persons born and subject to the jurisdiction of the United States," as the fourteenth amendment calls them, are in fact the children of foreign ambassadors born in the United States. Although the national legislation pay more and more attention to the education of the indians and civilized, efforts to make it become the citizen, however, Indian tribes and their members, will be enough to civilized to get rid of the state of the minors, and should be accepted for citizens and have the corresponding privileges and responsibilities, this is not by each indians to decide, but must be they want to avoid or national decision. Since elk the plaintiff was not a citizen of the United States under the fourteenth amendment, he was not deprived of the right to vote guaranteed by the fifteenth amendment. The 1904 case, Pope v. William, dealt with the constitutionality of Maryland laws that strictly limited the right of immigrants from other states to vote. The plaintiff filed an application for voter registration on September 29, 1903, but was refused on the grounds that it did not comply with Maryland law. It required an outsider who intended to reside in the state to register his name at the county court office and declare his intention to reside in the state and attempt to become a citizen of the state. On June 27, 1902, he moved with his wife and children from Washington, d.c., to Montgomery county, md., and from that time on, he had the intention of taking Maryland as his permanent residence and becoming a Maryland citizen, according to the source. The plaintiff admitted that he had not previously registered residence as required by the Maryland law, but argued that that provision violated the fourteenth amendment. The issue to be determined here, according to the court's opinion, is whether Maryland's legislature has the power, as far as the exercise of the right to vote is concerned, to provide that settlers in the state should declare their intention and register as voters a year later. The court said yes.

The court's reasoning was that the right to vote in the states was not granted by the federal constitution and its amendments. The right to vote is not a right rooted in the citizenship of the United States. Although the right to vote cannot be denied because of race, color, or former slavery, it does not stem from the citizenship of the United States itself. In other words, the right to vote in each state is within the jurisdiction of each state, as long as it does not violate the discrimination prohibited by the federal constitution. In reality, some states allow women to vote, while others do not. A state may also stipulate that only locally born residents have the right to vote. This is entirely a state affair. Although some would argue that the right to elect members of congress does not derive from state law, the electors must be those who have the right to vote under state law. Therefore, according to the provisions of state law, immigrants from other states must declare their intention to become citizens of the state before they have the right to register as voters and vote, which does not violate the rights of the plaintiff at the federal level.

Jean v. United States in 1915 was concerned with the constitutionality of the limitations on voter eligibility. The Oklahoma constitution, which requires a literacy test to qualify as a voter, makes an exception: his grandfather was a legal voter before January 1, 1866, living abroad or in the military. This exception, though ostensibly equal to all voters, essentially favored white voters over black ones, most of whom were born to slaves before 1866 and did not have the right to vote. So the justices agreed that the "grandfather clause" violated the 15th amendment, but also affirmed the constitutionality of the cultural test on the same grounds that it was an exercise of the constitutional rights of the states, not subject to the supervision of the Supreme Court.

In breedlove v. Sartre in 1937, the Supreme Court upheld the traditional philosophy of judicial passivity and found the poll tax constitutional. At the time, Georgia law required residents between the ages of 21 and 60 to pay a poll tax of $1 a year, but not for blind people or women who were not registered to vote. Meanwhile, Georgia's constitution states that all poll taxes must be paid by law to register as a voter and to vote. On March 16, 1936, Mr. Breedlove, a 28-year-old white male citizen, applied to register as a voter, but was told that he had not paid the first tax, so he refused to register. Plaintiff hereby claims that the foregoing provisions violate the equal protection and privileges and immunities clauses of the fourteenth amendment and the nineteenth amendment. The unanimous opinion of the court held that the poll tax was a burden imposed on individuals regardless of occupation or property and was intended for governance or other more specific purposes, rather than for the purpose of deprivation or infringement of the right to vote. The requirement that voters must pay taxes before registering is an exercise of state power not prohibited by the federal constitution. The right to vote did not originate in the United States, but was granted by the states. The states may regulate the right to vote as they see fit, so long as it does not violate the fifteenth and nineteenth amendments, and other provisions of the federal constitution. The 19th amendment applies to both men and women and limits federal and state misconduct. Taxes on ballot initiatives are well known and have long been used in many states, including Georgia for more than a century. That measure, as a form of taxation, may be considered reasonable.

Obviously, in the above-mentioned voter qualification case, the Supreme Court is dominated by the negative judicial philosophy, which is manifested in the reliance on the literal interpretation and historical interpretation in the legal method. Through its interpretation of the framers' intentions and its defense of federalism, it largely respects the limitations of state law on voter eligibility. Later, the expansion of voter qualification was mainly achieved through constitutional amendment and legislation. Women's right to vote was resolved by the 19th amendment in 1919. The right to vote for members of Indian tribes was resolved through the Indian citizenship act of 1924. The poll tax in federal elections was repealed by the second: fourteenth amendment of 1964. The cultural test was repealed by congressional legislation, notably the voting rights act of 1965.

In contrast to judicial passivity, judicial activism refers to a judicial philosophy in which judges are skeptical of most rules and political departments, tend to intervene in "political issues", make extensive use of discretionary power, create rules and precedents, and do not shy away from making unconstitutional judgments on legislative and administrative ACTS. Although since 1905, "Locke v. New York case 7, the Supreme Court in the" economic freedom "case has presented the concept of judicial activism, but in the case of the qualification of voters want to wait until the 1940 s to more clearly present judicial activism, the concept of which is gradually break through the traditional direct interpretation and explanation of the history, began to pay attention to system interpretation and objective interpretation, pay more attention to the protection of the right to vote, rather than respect for the state legislature.

In 1935, in grover v. townsend, the justices unanimously affirmed that it was constitutional for the Texas Democratic Party to limit membership to whites. Although this effectively excluded blacks from the primary, the decision was made only by the party itself, a private group with the right to govern itself. Therefore, it was ruled that it did not violate the fourteenth amendment. In 1941, in United States v. creske, the Supreme Court ruled that congressional primaries were a "major part" of the election process and that the federal government could intervene if there was fraud. In the case of Smith v. albright in 1944, the Supreme Court of the United States explicitly overturned the ruling of grover's case, and regarded the partisan action as the act of the state government, and its discriminatory practice was equivalent to state discrimination.

In the Smith case, the Texas Democratic Party passed a resolution prohibiting people of color from becoming Democrats to run for congress, governor, and other office. "The right to vote without state discrimination in the primary election of a nominee, like the right to vote in the general election, is a constitutional right... The United States is a constitutional democracy. Its basic law gives all citizens the right to participate in the election of officials, regardless of race, regardless of state restrictions. This mandate to give people a choice cannot be invalidated by a state planning an election process that allows a private group to discriminate on the basis of race. If the right to vote could be indirectly abolished in this way, the constitutional right would be worthless." In this case, the primary election was held by the party in accordance with state laws, and party membership was the main condition for voting in the primary election to choose candidates for the general election. The opinion noted that while it was best to maintain continuity in its decisions on constitutional matters, the Supreme Court, in the face of its own past mistakes, had never felt compelled to conform to precedent and overturned the grover decision.

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