미국의 위헌심사기준으로서의 ‘이중 기준(二重 基準) (Double Standard)’

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 Court’s 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 application of a rather unified standard of judicial review. This conceptual movement has appeared more clearly in the areas of freedom of expression and substantive due process, and, to a much lesser degree, in the area of equal protection. In terms of methodology, there have been more evident departures from the multi-tier system, and, there also has been less blatant deviation from the system accomplished through various means of, for example, upgrading or strengthening minimal scrutiny, downgrading intermediate scrutiny, and carving out exceptions to strict scrutiny.