美國憲法學研究脈動：以司法違憲審查正當性論辯為核心之探討

Abstract

眾所皆知，司法違憲審查制度首創於美國，並有全球發展之趨勢。惟兩百多年來，美國 法政學術界對於該制度正當性的論辯，歷久不衰，已成為美國憲法學研究之重要課題。然而， 就經驗性資料顯示，美國多數民意長期以來肯定並支持該制度之價值。於是，司法違憲審查 制度正當性的論辯，形成了一種弔詭的現象，深值吾人進行學術探討。 國內對此議題之文獻不多，在僅有的少數文獻中，或從小議題著手，或著墨於特定理論， 較具廣度之文獻則因未納入新文獻和新論證，而仍有闕漏。本計畫申請人長期關注此一議 題，並有初步成果產出。依據初步成果之綜合觀察，美國有關司法違憲審查制度正當性的論 辯，仍有脈絡可循。吾人初步發現這些論辯大致上集中於司法違憲審查的「制度創設」、「制 度運作」與「制度功效」等焦點，從而形成三大脈絡。 本研究計畫擬就這些脈絡下之各種論證或主張進行深入研究，期能獲得「見林又見樹」 的學術觀察，一方面填補國內文獻之不足，作為國內對此議題進一步研究之基礎，一方面提 供我國司法實務與制度改革之參考。

It is well-known that judicial review was firstly founded in the United States, and for the time being, it is globally embraced. However, the debate of the legitimacy of judicial review in American legal and political scholarship has experienced over two hundred years. Paradoxically, according to periodical polls, while many scholars challenge the legitimacy of judicial review from various perspectives, the very institution maintains a longstanding support by the majorities of American people. So, it goes without saying that this issue deserves investigation. Regretfully, Taiwan’s scholars did not pay much attention to this issue, and thus a few articles were published here. Among these articles, furthermore, some focused on tiny thesis; some authors concentrated their energy on specific theories, and some other articles, which were deeply explored, did not analysize the updated sources, for these articles were written before 2003. The principal investigator of this project has worked for this issue for a long time, and co-authors an article with about 50,000 words which was submitted to a TSSCI law journal. According to the mentioned article, most arguments concerning the legitimacy of judicial review in American scholarship, which shaped the debate context, focused on three issues, namely, the institutional establishment, the institutional operation, and the institutional effect. This project aims to make a thorough investigation on these various arguments under the framework of the debate context, and tries to render a report which may be readable from detailed perspective on the one hand, and be briefly depicted from an outlined perspective on the other hand. In so doing, the achievements that this project acquired will probably lay a foundation for Taiwan’s academic research and be conducive to judicial reform agenda.