미국헌법상 기본적 권리(fundamental rights)론의 전개와 평가

• 영문명: The Development of the Fundamental Rights theories on the U.S. Constitution and the Review.
• 발행기관: 세계헌법학회 한국학회
• 저자명: 석인선(Seok In Sun)
• 간행물 정보: 『세계헌법연구』世界憲法硏究 第13卷 第1號, 273~300쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.01

영문 초록

  The U.S. Supreme Court has held that certain liberties are so important as to be considered as fundamental rights and the government generally cannot interfere with such rights unless it passes strict scrutiny. The Court has required that governmental actions infringing on those rights should be necessary enough to serve a compelling purpose. The Court has pointed out that the rights not recognized as fundamental rights have no constitutional ground while those regarded as fundamental rights have some explicit or implicit constitutional basis. However, the concept of fundamental rights is so indefinite that there have been intense debates in the decisions acknowledging fundamental rights. This vagueness of fundamental rights results from the two factors: first, the findings of the legitimate constitutional ground are not easy because the rights have no basis on the Constitution; second, there is no standard of discerning the fundamental rights.
  Most of these rights have been protected based upon the due process clause in the Fifth and Fourteenth Amendment as well as equal protection clause in the Fourteenth Amendment or either of the two. The main difference between the due process clause and equal protection clause as the ground of fundamental rights is how the discussions were consisted of. If a certain right is recognized as fundamental based on the due process clause, the constitutional issue is whether the governmental intervention is justified by the sufficient purpose. By contrast, if it is preserved by equal protection clause, the issue is whether the governmental discrimination in the subject of the right is justified by the proper purpose. Although the difference is generally in semantics and phrasing, it also can be real one. If a law denies a certain right to all the people, the due process clause will provide the best framework of the analysis. If some of the people can enjoy the right while others cannot, however, the classification could be appealed as suspect and the interference with the right would be judged based on the due process clause.
  Ultimately, the subjective judgments of the Justices are inevitable in the process of recognizing the fundamental rights. The most important issue in every case is how the Court decides what right should be fundamental rights. This article attempts to inquire what right is "fundamental"; whether the recognition requires the constitutional ground or not; what standard is required in case of expanding the fundamental rights; how important the "basic necessities" such as poverty and food, clothing and housing are in the constitutional matters. For this study, I will review the developments of the U.S. Supreme Court"s decisions and assess the establishment of the fundamental rights.
  For this purpose, in Part Ⅰ, I describe the background of the fundamental rights theories in the U.S. Constitution and then review the controversies over the concept of fundamental rights and introduce framework for analyzing in Part Ⅱ. Part Ⅲ includes the developments of fundamental rights theories based on due process clause through analyzing the Court"s holdings and then Part Ⅳ deals with the developments of the theories based on equal protection clause. In Part Ⅴ, I review the theories of fundamental rights without any explicit constitutional ground but based on the implicit rights. Finally, in Part Ⅵ, I will incorporate many kinds of arguments in the fundamental rights debates and attempt to evaluate the establishment of the fundamental right on the U.S. Constitution.

목차

Ⅰ. 미국 헌법상 기본적 권리론의 배경
Ⅱ. 미국 헌법상 기본적 권리의 개념과 분석틀
Ⅲ. 적법절차에 근거한 기본적 권리론
Ⅳ. 평등보호에 근거한 기본적 권리론
Ⅴ. 헌법규정상 열거되지 않았으나 내포된 권리에 근거한 기본적 권리론
Ⅵ. 미국헌법상 기본적 권리의 확정에 대한 평가
참고문헌
ABSTRACT

키워드

기본적 권리 적법절차 평등보호 미연방수정헌법 제9조 엄격심사 fundamental right due Process equal protection the ninth amendment strict judicial review