Grounds and Standards for Deriving New Fundamental Rights under the U.S. Constitution

Abstract

The U.S. Supreme Court has developed the concept of so-called fundamental rights and the requirements for its establishment in the process of deriving new constitutional rights. Criticism of the methodology based on the 14th Amendment to the previous Federal Constitution and the context in which the 9th Amendment was raised as an alternative to it, the difference between the constitutional system of Korea and the United States in the list of fundamental rights, and the controversy over the provisions on the basis of the basic rights are minimized as much as possible. Considering that it is desirable to do so, Article 37 Paragraph 1 of the Constitution should be understood as a provision of the principle of interpretation, not a provision of the direct basis for deriving basic rights that are not enumerated. In judging whether a right is guaranteed under the Constitution, the human rights nature of the content of the right in question or the relationship with human dignity and value should be an important starting point. In terms of the form of rights, it is undesirable to require that the content be formed at the most specific level, but within a system that recognizes at least the same effect as the enumerated basic rights for unlisted basic rights, such violations of basic rights will be prevented in the future. Considering the result of making constitutional complaints possible for reasons as well as the normative effect of basic rights that directly bind all state power, the necessity of recognizing independent rights must be convincingly argued and the contents of those rights must be presented as specifically as possible.