美國違憲審查的審查標準
Date Issued
2002
Date
2002
Author(s)
黃昭元
DOI
902414H002017
Abstract
The issue of choosing an appropriate
standard of review has been central to the
judicial review, particularly in practice. In
theory, there are two different methodologies
to approach this issue: the U.S. courts tend to
adopt the approach of “bottom-up ” categorization in deciding the standards of
review, while the German courts have been
used to a “top-down,” balancing test of
“proportionality principle.” This project
chooses the following three types of
constitutional rights, freedom of speech, right
to equal protection and political rights, and
analyze their standards of review as decided
by the U.S. Supreme Court.
The research finds that the U.S.
Supreme Court has applied the O ’Brien Test
to review the constitutionality of the
“content-neutral ” restrictions. However, this
research suggests that further categorization
based might be worth of consideration for
more predictable standards. Regarding the
equal protection cases, the U.S. Supreme
Court has recently developed a consistent
position to apply the strict scrutiny test to the
all racial discrimination cases, including the
race-based affirmative action, while applying
the intermediate scrutiny test to the gender
discrimination cases. However, this research
argues that the standard of review should be
relaxed with respect to the race-based
affirmative action. Finally, the research finds
that the U.S. Supreme Court seems to change
its standard from the previous strict scrutiny
test to an ad hoc balancing test after the
Anderson case of 1983. The research holds a
different and critical view on such a change.
Subjects
Standards of Review
Equal
Protection
Protection
Affirmative Action
Racial Equality
Gender Equality
Freedom of Speech
Content-Neutral Restrictions
Political Rights
Restrictions on
Candidacy
Candidacy
Publisher
臺北市：國立臺灣大學法律學系暨研究所
Type
report
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