The Origin Of American Judicial Review:The Combination Of Common Law Tradition And Constitution

Until recently, the academic community is still far from a consensus on the practice of American judicial review. This dispute, even confusion in some way, is largely due to different opinions on the thoughts and theoretical origin of American judicial review. Therefore, this dissertation attempts to contribute to tracing the thoughts and theoretical origin of American judicial review.To illustrate the thoughts and theoretical origin of American judicial review should begin with these three propositions or facts: the fundamental aim of American judicial review is to protect freedom of individuals; to achieve this aim, the judiciary and legislature should be checked and balanced; the concrete instrument to realize it is the judicial review of common courts against legislature. Thus, common law tradition and constitution provide two clues to analyze the thoughts and theoretical origin of American judicial review. The positive effects that common law tradition and constitution exert on judicial review indicate American judicial review is a perfect combination of politics and law. Therefore, this paper presents that the essence of judicial review is combination of politics and law, which should regress to its tradition that judges in common law courts comply with common law tradition and judiciary undertakes its political responsibility.