미국의 위헌심사기준으로서의 "이중 기준(二重基準) (Double Standard)"

Abstract

Contemporary constitutional adjudication in the United States is characterized

by a system of judicial review composed of three distinctive levels of scrutiny

that are invoked in the respective spheres, referred to as strict, intermediate, and

minimal or rational-basis scrutiny. This multi-level system of scrutiny as

employed by the U.S. Supreme Court was established out of the constitutional

crisis occasioned during the New Deal era. Through the U.S. Supreme Courts

continual and extensive elaboration, most notably in equal protection clause cases

spanning 1950s through 1980s, the system of multi-level scrutiny in the U.S. by

now has revealed certain structural flaws.

As criticized from both inside and outside the judiciary in the U.S., the

multi-level system is a rigidified approach that might hinder proper constitutional

analysis in the following respects. First, it might misdirect constitutional analysis

by deflecting the focus of inquiry toward abstractions, i.e., the tiers of scrutiny,

that might have little to do with the specific merits of a case. It might thus

dilute constitutional analysis by using a priori definitions, such as fundamental

right and suspect classification, to trigger the operative tier of scrutiny, thus

hampering legal analysis by focusing the inquiry toward abstractions.

Furthermore, the multi-level system might impede legal analysis by imposing

categories upon the constitutional balancing process. Finally, the a priori

categories used in the multi-level system have not always been capable of

providing internal stability for the system, as particularly indicated in the equal

protection cases pertaining to the suspect classifications.

Especially since mid-1980s, the U.S. Supreme Court has indicated increasing

deviation from the multi-level approach and has moved toward a less rigidified...