Korean Principle of Proportionality, American Multi-leveled Scrutiny, and Empiricist Elements in U.S.-Korean Constitutional Jurisprudence

Abstract

The author introduces and explicates the Korean principle of proportionality as a standard of constitutional review and compares it to the multi-leveled scrutiny developed by the U.S. Supreme Court, and further examines the relative weaknesses and strengths of the two systems (Section I). Section II develops, to a higher abstraction, the common thread of the balancing paradigm running through both the Korean principle of proportionality and the American system of constitutional jurisprudence. Section III

tries to resolve some of the mysteries of the American system of constitutional jurisprudence using the balancing paradigm. Section IV compares the balancing paradigm of constitutional jurisprudence to the Learned Hand Formula and discovers the empiricist bias of the balancing paradigm, while Section V applies the balancing paradigm thus explicated to important cases of the Korean Constitutional Court.