On Ely's Methodology Of Interpret Constitution

After the birth of the United States Constitution, the attendant problems is interpretation. There are not here who will interpret the Constitution from controversy, and the methods adopted to explain the problem. The United States Constitution scholars there are various schools of constitutional interpretation methodology, different methods have different theoretical system, they can be roughly summed up as non-intent with the intent of, and the active (activism) and the negative (self-restraint), historical Dworkin read, and the moral basis, and other. Of the first modern interpretation of the Constitution than to the scientific community-is John Hart Ely. Ely would have had broad interpretation of the Constitution as "interpretivism" and "noninterpretivism," in two modes. "interprevism" that judges in the interpretation of the Constitution, should limit themselves to the statutory provisions of the Constitution or clearly implied that the norms of "noninterprevism" which according to the view that the Court can not covered by the text of the Constitution of the many references and the implementation of norms to make a ruling, that is, under the Constitution, the wording of the judge to reconsider the subjective judgement of the constitutional judgement of the value, and as the basis for the Constitutional Review. In Ely's view, excessive reliance on the interpretation of the constitutional text and the original intent of the constitutional, non-interpretivism is too dependent on the values of the individual judge. He believes that the two theories are not consistent with representative democracy. And explained, and explained the different non-illite raised a "procedural" constitutional interpretation methodology. And the aforementioned two theories focus on the value of constitutional interpretation of the different entities, Ely, entities should be representative organs value to judge, the court can not take over, but it should be through a judicial review to facilitate representative body better reflect public opinion, protection human rights. According to Ely by this theory, judicial review is not only consistent with the system of representative democracy, it is to prevent the defects of the democratic system effective protection mechanism. Ely believe that the Constitution is actually on the Government and the democratic system and procedures constitute the basic law, it should be the substantive value of the options and most of them left the issue to reconcile the political process to solve the problem. The fundamental purpose of judicial review is to safeguard the fairness of procedures for democratic participation. Supreme Court constitutional duty is to prevent the majority has the power to take advantage of the favorable location of the plug political change channels, will lose forever a minority faction of the disadvantaged, and to provide effective protection of minorities. The theory is not only a good response to a judicial review of the non-democratic nature of the accusations, to resolve the constitutional text open to fill the gap, but also for the inherent shortcomings of the democratic system - tyranny of the majority to provide a solution. This paper uses historical observation and the analysis of the sociology research methods, and procedures of the Ely interpretation of the Constitution the theory of the overall study.The article on the first part of the Constitution of the United States to explain the theory of evolution describes the interpretvism and noninterprevism of the contents, characteristics, as well as on their respective Ely criticism. Ely through the second part of "footnote 4", as well as the Warren Court "judicial activism" of the re-interpretation of Ely leads the "procedures" theoretical interpretation of the Constitution. the third part will explain his theory applied to the practice of the United States Constitution case, he passed on the freedom of expression, the voting rights of minorities and the protection of analysis to prove that judicial review should be the entity to make judgments on the value of procedural issues judge, should only be concerned about maintaining democratic participation in the fairness of procedures. The fourth part of the theory of the Ely Review.The article in affirming the contribution of the theory, and other scholars through Dworkin's criticism of the theory,pointing out that its shortcomings. Finally, the article used "process" of the theory of China's judicial review of the system construction, expounded on the theory of Constitutionalism in China inspiration.