One year after the protection of abortion rights, the Supreme Court of the United States has once again made a series of general conservative rulings this year: the equalization mechanism of the discounts and Latin people at the time of enrollment of universities is unconstitutional.Refuse to serve the same -sex partner, and determine the plan for President Biden to exempt from school loans.The mainstream public opinion in the United States determines that this is a conservative Supreme Court destroying the long -term progressive agenda and bringing "rush to the right" in American society.In the four years of Trump's ruling, three vacancies in the Supreme Court of Justice have been nominated by Trump, which means that for a long period of time, the number of conservatives in the Supreme Court will take 6 to 3.It constitutes part of the so -called Trump heritage.
Since 2005, the "Roberts Court" (editor: Roberts Court, referring to the Supreme Court led by Chief Justice John Roberts) in the proportion of liberals to conservatives, has been relatively balanced for a long time (4: 4:4) The gentleman Anthony Kennedy acts in essence the buffer between the two.Since his retirement and Liberal Justice Lose Bad Kingsberg's death, the court has quickly conservatively and became the most conservative court since the Vincent Court in the 1940s.This was also violently attacked by the American liberals. President Biden criticized the Supreme Court, which was completely controlled by the conservatives after being appointed by Trump after being appointed by Trump, saying that "this is not a normal court."In essence, it should be not only the conservativeness of the court, but the source of the court itself.
As soon as, according to the theory of people's sovereignty or left, a non -civilian agency can repeatedly overthrow the election government agenda, which is essentially no democratic legitimacy.The academic community once believed that the introduction of neutral judicial institutions independent of public opinion, to neutralize the social policy agenda of Zhonghe's election agencies and the social carrying capacity of the agenda, which can avoid the extremes of decision -making.But don't forget that non -elected institutions may not be neutral. The court's functional carrier judges cannot be politics from the outside world, and most of them have the colors of the party. There is no so -called pure neutrality.
In addition, it is not possible to ignore the possible extreme practices of the judicial institution itself.As a result of quoting the Constitution, it often has to go back to the original constitutional original legislative will, which is easy to flow to conservativeization, making it possible to cross the historical era.During the Roosevelt New Deal period, the Supreme Court sentenced the 12 legislations of Roosevelt in one breath and became one of the biggest resistances for the implementation of the New Deal.The progress of the agenda.
No one can tame the court to intervene in politics
In the second day, the judicial institutions are essentially lacking restrictions in the separation of three powers. The judge's life -oriented job has the right to master the unconstitutional review. In theory, it can judge that the laws and policies of any election parliament and the government are unconstitutional.It is not restricted by any accountability.When the court pursues judicial restraint, that is, when the agenda of the parliament and the government does not take the initiative to intervene in the agenda of the parliament and the government, the balance of the three can be guaranteed.Court.
In the early days of the separation of the three powers, the court was the weakest, but when it was given the right to review and judicial interpretation, the situation flipped.While it is given such great authority, it has not granted the corresponding responsibility procedure. Only by the judge's death or retirement, the election government has the time window to intervene in its agenda.
Three, the procedures within the court are essentially full of disadvantages.For a long time, the conservative or freedom of the court's agenda is tied to the "swinger".The "Roberts Court" was in the early stage of Anthony Kennedy as a "swinger" and had the substantial power; Roberts, Cavano, and Barrett, who were now considered "sway", were hoped by liberals.Therefore, the decision of the Supreme Court, which seems to be unable to choose but not restricted, is essentially about the digital "swinger".As a result, the quantity and the asymmetry of power have become paradox.
What are the legislative processes led by the people through democratic mechanisms, aside from judicial institutions, and resort to regulatory legislation, social legislation, and even moral legislation?
History cases have long been in the 19th century of the United States.At that time, the power of the judicial institutions had not been strengthened as it is now. In the severe and unbalanced development of American society, there was also a strong moral purification agenda to morality of all social problems, and advocated through moral revival and the use of ethical power to rebuild them to rebuild itSocial value system that is damaged by industrial civilization.Reflected in legislation is a "noble legislative experiment". For example, bypassing the judicial institution, in the form of constitutional amendments, the only constitutional amendment to the constitutional amendment to date is passed.According to statistics, during the ban on alcohol, the government arrested a total of more than 500,000 people, of which 300,000 were sentenced.
The enthusiastic people dominate moral legislation, and use "wine" as a scapegoat for cultural degeneration and social corruption.Moral legislation pushed deeper, and eventually abandoned the morals they claimed and organized a "private wine crime".Data show that in the later stage of the implementation of the ban on the ban, people in New York were even more serious than the implementation of the alcoholic amendment amendment.In the end, in the cheers of the people, the ban on the ban on the ban on long -term execution was abolished.Too ancient constitutions and eclipse public opinion have formed the constitutional government of the United States.
Natural logic tension
On the one hand, the spirit of constitutional government lies in restricting power, democratic mechanism requires public opinion to realize, and the two have natural logic tension.On the other hand, if the constitution is to adapt to the changes in the times and the people's conditions, it is necessary to introduce democratic mechanisms and update it by constitutional amendment, which will introduce the possibility of conflict.The US Constitution is based on the constitutional spirit of personal freedom, but it also has to accept the spirit of democracy to ensure adaptability and vitality.
Once the democratic mechanism is reserved as a constitutional amendment tool, even if it is matched with the complexity and high standards of constitutional amendments, such as the constitutional amendment mechanism in the United States must pass two -thirds of Congress or the state parliament proposal, and then through four through four.The three -in -three state parliament or constitutional meeting is approved, and the dilemma of constitutional government and democracy will also appear: or there is a unified moral concept as the cornerstone, with collective public opinion demands as the strength, the complexity of the constitutional amendment procedure is "The possibility of violations of constitutional constitutional amendments ", democratic restrictions restricted freedom, and legally subverted the Constitution, such as in the era of progressiveism, to resort to virtue legislation with enthusiastic democracy, and launch an incomprehensible" banning order ";Based on the non -elected source of power, the constitutional review that is not restricted, with the complicated test of the constitutional amendment, the test of democracy is conservatively applied to the ancient board, ignoring the collective public opinion, fighting against the unified morality of society, and the legitimate democracy is settled by democracy.Helpless situation.
But democracy will eventually challenge the Constitution. The power of the people in the constitutional constitution is essentially inequality.The people at the constitutional constitutional authority were more like sovereignty, and the constitutional conference actively entered into a constitutional meeting; but after the constitution, it became a passive national, and can only passively obey the constitution.Those who compete for the power of living.Democracy will eventually challenge the Constitution, no matter how stubborn the Supreme Court of the Guardian is.It is foreseeable that the counterattack of the Liberal Court of the Supreme Court will be presented for a long time in the future.
In fact, the vitality of any legal is to adapt to the adaptation of lasting humanity and human heart. It should not be trapped with the changing people's sentiments with the waves, and should not ignore the stability of public opinion.The abilities will absorb the activities of a large number of foreign world into the system.The function of the law should be to incorporate the vast majority of people into a legal framework to suppress external behavior and external phenomenon.This is the institutional ability that the law should provide to society, otherwise it is a greater institutional failure.The middle path of jurisdiction is guaranteed, constitutional government and democracyThe balance is a long -term compulsory course in any modern country.
The author is a research assistant of the Shanghai Institute of U.S. Institute of American Institute of U.S.
