114【憲法解釋之理論】－制憲者原意主義 Henry J. Abraham，Freedom and The Court： Under our system of government some agency of course must serve as the arbiter of what is and what is not legal or constitutional。The Founding Father did recognized and call for the creation of an arbiter，not only between the states and the national government but also between any level of government and the individual。There was no unanimity on who might arbitrate；and the records of the debate in the Constitutional Convention now available to us demonstrate that nearly every segment of the incipient government framework received at least some consideration for the role of arbiter：the states themselves，Congress，the executive，the judiciary，and several combinations of these。But it was fairly clear that the rold would fall to the judiciary and that it should included the power of judicial review，which authorizes the Supreme Court to hold unconstitutional，and hence unenforceable，any law，any official action based upon a law，and any other action by a public offical that it deems－upon careful reflection and in line with the taught tradition of the law and judicial restraints－to be in conflict with the Constitution。Scholars contiune to argue the authenticity of the power of judicial view。That so many doubts and challenges are raised is due preeminently to the failure of the American Founding Farther to spell it out in the Constitution in so many words。Yet the records fo the Philadelphia Constitutional Convention of 1787 indicate that the idea or principle of judicial review was a matter distinct concern to the framers who，after all，had little use for unrestrainted popular majoritarian government；that judicial review was indeed known to the colonist because the British Privy Council had established it over acts passed by colonial legislatures；that at least eight of the ratifying state conventions had expressly discussed and accepted the judicial power to pronounce legislative acts void；and that prior to 1789 some eight instances of state court judicial review against state legislature has taken place。The language of both Article Three and the famed “ supremacy clause ” of Article Six clearly imply the necessary but controversial weapon。Research by constitutional historians such as Charles A Beard，Edward S. Corwin，and Alpheus T. Mason indicate that between 25 and 30 of the 40 delegates at Philadelphia generally favored the adoption of judicial review。 Henry J.Abraham，Freedom and The Court－Civil Rights and Liberties in the United States，（Oxford：Oxford University Press 1982） pp.5-6
Posted on: Mon, 19 Jan 2015 23:17:12 +0000