A Comparative Analysis Of The Constitutional Review System Of The United States And Germany

Constitutionalism originated in the United Kingdom.In the time of the Anglo-Saxon,there was a general assembly of all the freedoms.The Renaissance and Enlightenment made the idea of the people's sovereignty recognized and accepted by the people.Constitutional thought,as the theoretical basis of modern constitutional system,is deeply accepted by the people.Its ideas include popular sovereignty,limited government and advocating the rule of law.The meaning of constitutionalism is to protect people's freedom.Constitution and constitutional government are complement to each other,One of the key factors that led to this difference was the establishment of a constitutional review system.The establishment and perfection of the unconstitutional review system is necessary for the implementation of constitutional government.Only when it works effectively can we explain the existence of constitutionalism.Marshall in the 1803 Marbury v.Madison case,for the first time established the right of unconstitutional review,created a review of the unconstitutional system.The judicial review system as the first established model of unconstitutional review system,not only for the United States has a unique significance,but also for many countries have far-reaching impact.One impact the United States makes on Europe is that Europe follows the judicial review system of America,and another impact is Europe,based on their national conditions,adjusts the judicial review system of America and builds the revision of the specialized agencies unconstitutional model.Since the end of the Second World War,the European people have given sufficient attention to the constitutional review.Especially Germany,after failing to implement the judicial review system,it established a national constitutional court review system and achieved outstanding results,according to its own national conditions.The unconstitutional review system established by the United States is the representative of the common court model of the Anglo-American law system.The unconstitutional review system established by Germany is the representative of the specialized agency model of the civil law system.The reason why there are two different ways of implementing a constitutional review is because two countries have different historical backgrounds which have profound influence on their legal systems.The United States is a case law country that followed the precedent,and its constitutional review was formed in the jurisprudence of the court and not in the constitution.And Germany,as the statute law country,abides by the principle of separation of powers and implements the constitutional review based on the political prerequisite.At the same time,the political forces of the contrast affect the choice of the Constitutional Court.These two models have their own characteristics in the subject,scope,manner,and the results,and both of them have advantages and disadvantages.But in the process of development,the distance between them is gradually narrowed,showing a trend of convergence.This paper explores the specific factors that affect the establishment of different national systems by exploring the system of unconstitutional review in the United States and Germany,including politics,culture,legal system and other factors.And through the analysis of the subjective and objective conditions established by the unconstitutional review system in the United States and Germany,it demonstrates the feasibility of establishing the review mode of unconstitutionality in our country.