Study On Principles And Technology Of Constitutionality Review Standard

The Marbury v. Madison of1803, with John Marshall acting as the Chief Justice of the United States Supreme Court, was the very first case where judicial authorities has exercised constitutionality review on unconstitutional actions of state’s organs, and marked the debut of constitutionality review system. In1938, more than a hundred years after the birth of the system, Justice Harlan Stone of the United States Supreme Court suggested the well-known "Footnote Four", preceding the application of the standard of substantive examination in constitutionality review. With this backdrop, states around the world have been making progress in the practice of constitutionality review and the model of triple-standard represented by the United States and that of principle of proportionality by Germany gradually came into being.The thesis focuses on the technological study of constitutionality review instead of resorting to a grand topic such as the construction of constitutionality review pattern. By combining methodology of comparative analysis, historical analysis, normative analysis and empirical analysis, it elaborates on theoretical basis and value of constitutionality review standard through a comparison between abstract and specific review, passivism and positivism and a study on concepts, features and theoretical foundation of constitutionality review and form and procedure elements of exercising constitutionality review. The thesis further reviews, compares and comments on the formation and generic features, and it demonstrates the necessity and possibility of setting up a more distributed review standard system. Based on the practice of different nations and theories, it put forward the construction of five-layer review standard system embracing palpability review, rationality review, intermediate review, rigid review and absolute review.