普通法传统与违宪审查制度的形成

违宪审查制度在美国而不是在其他国家出现,是由美国的法律传统决定的。美国作为普通法国家接受自然法学说,而按照自然法高于人定法的判断,依据宪法审查人定法不过是对自然法与人定法关系原理的扩大使用。普通法法律至上学说的自然延伸是宪法至上,其间接的结果就是以司法权审查违宪的立法。在美国宪法缔造者们的笔下,权力制衡的政治原则早就推演出司法机关有宣布违反宪法明文规定的立法为无效之权的结论,马歇尔的创造不过是对制宪者们的逻辑结论的实践。普通法传统赋予法官的特殊地位,也使法官有条件创立新的制度。而以普通法的传统为构成要素的美国民族精神,则为违宪审查制度的创立提供了文化基础。

Tradition of the Common Law and the Formation of the Constitution Review

The review of constitutionality which is not appear in other national but in the United States,is decided by legal tradition of the United States.The United States as the common law country accepts the natural law theory,however,on the judgment of the natural law method,the natural law overtops the statue law.According to the theory that the constitution examines the statue law is the expanded use of the relational principle between the natural law and the statue law.The supremacy of constitution is the nature extends of the supremacy of law in common law,its indirect result is that we should examination unconstitutional legislation by the judicial power.The political principle of the check and balance has already deduced the conclusion that the judicial office have power to announce the legislation which violate the constitution regulations is invalid in the writing of American constitution founders.Marshall's creation is the practice to the constitution founders's logic conclusion.The traditions of common law entrusts with judge's special status,also enable judge to have the condition to establish the new system.However,the United States national spirit which takes the tradition of common law as it's integrant part,has provided the cultural basis for the establishment of the review of constitutionality.