宪法的守护者:试论中国宪法法院建构

中国是成文宪法国家,宪法在中国特色社会主义法律体系中居于最高地位,拥有最高效力。但是在现实中,宪法的规范效力往往无法实现,违宪活动时有发生,这与我国缺乏有效的宪法监督机制有关。一般来说,世界上宪法监督机制无非就是司法审查制度、议会监督宪法制度、专门宪法监督机构等三种类型,为了实现宪法监督的实效,各国都选择适合本国国情需要的宪法监督机制。在中国建立何种类型的宪法监督机制一直是学界争议的难题,而在全国人民代表大会下,设立宪法法院,保障宪法实施,是符合当代中国现行体制的最佳选择。     

On the Ideological Foundations of Supreme Court Legitimacy in the American Public

Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court's policymaking suggests rational bases for perceiving the Court's contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one's ideological preferences and one's perception of the Court's ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court's ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public's view of the Court as a “political” institution.     

The Separation of Powers and Supreme Court Agenda Setting

This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices' agenda votes. It spatially models how justices set the Court's agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices' votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court's agenda stage is the most likely stage of the decision‐making process to show signs of an SOP effect.     

Canada: The Supreme Court Sets Rules for the Secession of Quebec

The Supreme Court of Canada ruled in 1998 that neither the Canadianconstitution nor international law allows Quebec to secede fromCanada unilaterally. Secession would require amending the constitution.However, if a clear majority of Quebecers unambiguously optsfor secession, the federal government and the other provinceswould have a constitutional duty to negotiate. This is an obligationthat the court declared to be implicit in four principles that"inform and sustain the constitutional text"—federalism,democracy, constitutionalism and the rule of law, and respectfor minorities. The same set of principles would govern thenegotiations themselves. Accordingly, Quebec could not dictatethe terms of secession, and one cannot assume that agreementwould be reached. If negotiations fail, and Quebec declaresindependence unilaterally, the international community wouldhave to decide whether Quebec's action was legitimate.     

The Supreme Court and the Federal System: Federalism from Warren to Burger

The question of the relation of the states to the federal governmentis the cardinal question of our constitutional system. It cannotbe settled by the opinion of any one generation, because itis a question of growth, and each successive stage of our politicaland economic development gives it a new aspect, makes it a newquestion.¹     

The Institutionalization of the U.S. Supreme Court

In pursuing their goals, members of the U.S. Supreme Court areaffected by their institutional setting. How has that institutionalenvironment changed over time and what have been the politicalconsequences of those changes? Despite considerable analysisof the institutional dynamics of legislatures and executives,political scientists have been slow to bring time series techniquesto the study of the Supreme Court, and as a result much lessis known about its evolutionary path. Measuring a variety oforganizational characteristics, I construct an index of theinstitutionalization of the Supreme Court from 1790 to 1996.This indicator suggests that the integration of the Court intothe system of federal policy making has better enabled the justicesto satisfy their objectives. To demonstrate this empirically,I test a series of error correction models of judicial influence,each of which confirms that the nature of the Supreme Court'scharacter has had considerable implications for the scope ofthe justices' legal and political impact. These results underscorethe need for judicial scholars to examine the Court's policymaking in longitudinal perspective.