in the history of the Supreme Court of the United States is full of examples of major cases due to the proper and wonderful interpretation of constitutional provisions after careful consideration. Such examples are talked about by people and are included in textbooks as examples that can be followed in similar cases in the future.

eye of the storm: the Supreme Court in American politics [US] David M. O’Brien, translated by Hu Xiaojin, Shanghai People’s publishing house, first edition, January 2010

in the process of political modernization in developing countries, a difficult problem or chronic disease is that there is a constitution without constitutionalism, This is proved by China’s modern history since the revolution of 1911. There are many and deep reasons for this problem, involving history, tradition, society and culture. It is impossible to solve it overnight. When we turn our attention to countries all over the world for reference, we can see that the setting and function of the U.S. Supreme Court and the ideas and decisions of the justices of the Supreme Court have great inspiration for us. Understanding and studying the history and operating mechanism of the U.S. Supreme Court should be a major topic for Chinese legal and even intellectual circles.

may be because the realization of constitutionalism has become an unavoidable topic for us. It may be because it is urgent to interpret the Constitution and review the unconstitutionality of existing laws and regulations. Recently, articles about the United States Supreme Court have been published in newspapers and periodicals, and relevant books have been published one after another. I recently read four books at a stretch: the eye of the storm published in 2010: the Supreme Court in American politics, the nine men: the Supreme Court of the United States, the judge has the final say, and the brothers of the Supreme Court, the Supreme Court of the United States, on 2009. Has the final say,

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, the American writer (the Chinese writer, he fan, the same as the judge of China) is lively and vivid, and is easy to read. These books about the US Supreme Court are about laws and jurisprudence, but they are not boring and boring. The turmoil inside and outside the court, the personality and temper of the Lord Chancellor, and the readers’ interest in reading is like watching a play or hearing a book; However, all the authors have professional qualities, are quite familiar with the American judicial system, and have observed and studied the personnel changes and interpersonal relationships of the U.S. Supreme Court for many years. They have accumulated a lot. Therefore, while reading easily, they can also receive the effect of completing the workshop of “the U.S. Supreme Court and its justices”. The constitution of

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needs interpretation before it can be implemented. The constitution of

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clearly expounds a country’s founding concept and governing principles, as well as citizens’ rights and obligations, but this exposition is inevitably guiding and principled, rather than exhaustive and detailed. If the constitution is written with high sounding, but it implements another set, that is, there is a constitution without constitutionalism. For example, if the Constitution stipulates that the people’s right to freedom of speech is guaranteed, and in fact some people are classified into the category of “non people” according to arbitrary standards, so as to deprive them of their right of speech and expression, this is not defending the constitution, but violating and mocking the constitution; For another example, confusing the basic concept that speech is action and that “the speaker is innocent” is not applicable to publishing certain articles and making certain speeches (this logic prevailed in the “Hu Feng counter revolutionary group case” and the anti rightist movement in 1957), which is a flagrant violation of the constitution. Therefore, to implement constitutionalism and the rule of law, we need to implement the constitution under specific circumstances and judge whether a certain kind of behavior is in line with the constitution or in violation of the constitution.

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in an illegal state, the type of ownership and exercise of power is unitary. The power to judge whether a certain behavior or policy is constitutional or unconstitutional is precisely in the hands of the government organ that made that behavior and launched that policy. Then we can imagine the dispute and review results on unconstitutionality. Therefore, the interpretation of the constitution must be implemented by an institution with judicial power independent of executive or legislative power. Since the interpretation of the constitution is quite complex, this institution must have a fairly high professional level. In the United States, the task of interpreting the constitution is undertaken by the Federal Supreme Court. Compared with any other possible options and practical arrangements, this ensures independence and professionalism to the greatest extent.

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in the history of the Supreme Court of the United States, there are many examples of facing judicial problems, properly and brilliantly interpreting constitutional provisions after careful consideration, so as to solve major cases. Such examples are talked about by people and included in law textbooks as examples to be followed in judging other similar cases in the future.

the amendment to the US Constitution has the same effect as the text of the constitution. Its first and Fourteenth Amendments stipulate that the federal Congress and states shall not enact laws to deprive citizens of freedom of speech or publication. In the history of the United States, this provision of the constitutional amendment has played a special role and is regarded as a priority provision to protect the basic rights of citizens. Of course, when encountering specific circumstances, how to understand and explain its meaning is a complex matter, which requires the level and wisdom of the justices.

in the 1960s, the United States was involved in the Vietnam War, and the anti war movement surged among the American public, especially among the youth. A young anti war activist Paul Cohen was sentenced to one month in prison for wearing a jacket with the slogan “fuck the draft” on the back. The lawsuit went to the Supreme Court, and the problem faced by the justices was to decide whether this very vulgar and indecent sentence should be protected by the constitution, whether to uphold or overturn the original sentence?

the first question is whether to understand the constitutional amendment literally or spiritually. From the literal point of view, the constitutional amendment says that the federal and state legislatures shall not enact laws to restrict citizens’ freedom of speech, which has nothing to do with how individuals implement their rights. The meaning and spirit of the amendment to the constitution are more and more important in practiceIt is more and more understood to give priority to the protection of citizens’ freedom of speech and expression. In view of all kinds of considerations that it is necessary to restrict freedom of speech, the balance of law and public opinion is gradually and more obvious in favor of individual freedom and rights rather than the possible adverse consequences of speech.

the second question is, is Cohen writing slogans on his jacket and walking around pure speech or action? Are you using a nasty word harmfully? If it is action, it will not be protected. Although some judges think this is not just a speech, what action is this? Advocating overthrowing the government, obstructing conscription, disturbing law and order, or inciting lust because of the sexual meaning of the word fuck? Most judges don’t think so.

the third question is, is this kind of dirty words worthy of constitutional protection? Although all the elegant justices were disgusted with this sentence and laboriously avoided it in discussing the case and sentencing, most people could not deny that it was an integral part of the anti war protest movement at that time and a political expression against the war.

finally, the Supreme Court ruled according to the majority vote of the chief justice that the speech involved in the case had social value and met the conditions of constitutional protection, overturning the judgment of the lower court.

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should add that the translators of the book “brothers of the Supreme Court” are two women. They don’t seem to have the same tolerance for dirty words and ruffians as their mainland compatriots. They translate the core sentence of the case as “go to other conscription”, which makes it difficult to understand the uneasiness and disgust of the justices when facing it. This translation is not bad, but its color is the lowest. I translated it as “fucking conscription law” in the front, which is medium. The most appropriate translation is “fucking conscription law”. Only in this way can people understand that decent people should try their best to avoid the key sentences when talking about this case.

when the constitution encounters government power,

the Pentagon document case is a major case in the modern judicial history of the United States. It has been repeatedly described and cited, and may have reached a familiar and detailed level in China. However, by carefully reading the story about the U.S. Supreme Court and carefully pondering the reasons and feelings of the justices in deciding the case, we can still realize more truth.

the so-called Pentagon document is the top secret of the US government and the large-scale investigation material of the Department of defense on the Vietnam War. It was stolen by insiders and published by the New York Times and the post. The government was both frightened and angry. After many efforts, the court issued an order to suspend publication. Finally, the case goes to the Supreme Court, which needs to decide whether to accept the complaint and whether to uphold or revoke the ban.