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Chen, Wen-Cheng;Chen, Wei-Chieh;Wang, Shang-Wei;Chuang, Min-Ta
Judicial Review;Counter-majoritarian Difficulty;Legal Legitimacy;Political Legitimacy;Moral Legitimacy;Process-based Argument;Substance-based Argument;Judicial Supremacy;Departmentalism;Popular Constitutionalism
|Issue Date: ||2016-05-20 16:38:10 (UTC+8)|
From the outset of the framing of the Constitution, the debate on the legitimacy of judicial review in American legal and political scholarship has been going on over two hundred years, and nowadays, there is no sign of it coming to an end. As far as the context of the debate is concerned, most arguments focus on three issues about judicial review, namely, the institutional establishment, the institutional operation, and the institutional effect. This article calls it a tripartite debate. In light of the rise of judicial power from the second half of the 20th century, the trend of the debate has become prevalent. It is to be regretted that because commentators paid little attention to the definition of legitimacy, most of arguments just illuminated their own views. This article is divided into seven parts. After the introduction, the second part focuses on the definition and the type of legitimacy, and clarifies the context of American tripartite debate so as to lay the foundation for the subsequent analysis. In parts three to five, we will respectively discuss and analyze the legitimacy debate over the institutional establishment, the institutional operation, and the institutional effect of American judicial review. Then, in the sixth part, we will empirically examine the diffuse support of judicial review in American society according to public opinion. Finally, this article will make an overall criticism on the tripartite debate, and draw several conclusions.
|Relation: ||法學評論, 122, 83-199|
|Data Type: ||article|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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