Judicial Passivism And Constitutional Review In The United States Of America

Judicial passivism is a kind of value standpoint upholding by the SupremeCourt of the United States in the process of constitutional review. It emphasizes thedeference of courts to the power of legislature and administrative agencies andtends to make decisions constitutional. The judicial passivism is always maintainedduring the two hundred years history of American constitutional review. The ideaand attitude has taken a deep roots in American constitutional culture and judicialpractice and plays an important role in harmonizing the three powers andsafeguarding the separation of them and the judicial authority.This thesis can be divided into five parts:Part one gives an introduction to the history of judicial passivism in UnitedState and lists the definitions and forms of judicial passivism.Part two analyzes the philosophical foundation and constitutional foundationon which the judicial passivism is based and the reasons why it has become theprimary value standpoint of the supreme court.Part three introduces the measures taken by the Supreme Court in their judicialpractice which includes the procedural measures and substantial measures.Part four makes a discussion about three representative theories which areThayer’s clear rules of mistake theory, Bickel’s passive virtues theory and Sunstein’sjudicial minimalism theory. Each of them has both advantages and disadvantages.Part five makes a summary of the experiences of judicial passivism in helpingthe construction of China’s constitutionalism and constitutional review system.