The Influence of the States in Constitutional Change: A Comparison of American and Korean Approaches to Constitutional Amendment
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This paper addresses the role of the states in the U.S. Constitution’s amendment process for purposes of comparison with the Korean Constitution. A fundamental difference arises in the democratic nature of constitutional amendment in the two systems. The Korean constitution provides for approval of constitutional amendments by a simple majority in a nationwide referendum. While this process nevertheless restricts majoritarianism by requiring approval first by a two-thirds vote of the National Assembly, it is still more democratic than the U.S. Constitution, which ultimately requires approval of any formal change in the constitutional text by three-quarters of the 50 states. This paper explains why the Framers of the U.S. Constitution chose to make their document difficult, rather than easy, to amend, to provide perspective on proposals in Korea for new means of constitutional amendment. Another feature of difference, and the focus of this paper, is the role of mediating institutions. Under the Korean system, the only institutions that stand between majority will and the Constitution is the National Assembly. The proposal of the amendment itself need come from only the President or a majority of the Assembly, both of which are directly elected by the people. The only check on majoritarianism is the two-thirds requirement of Assembly approval, but the Assembly itself still represents the people. The Assembly presumably will assent to an amendment if it believes that two-thirds of the people desire it, or perhaps even somewhere between a majority and two-thirds. In the U.S. Constitution, by contrast, the states as states play an indispensable role. One-third of the states, acting through the Senate, can prevent an amendment from even emerging from Washington, D.C. for approval, and then simply one-quarter of the states can block final ratification of an amendment. This paper explains why the Framers used the institution of the states to raise the barriers to constitutional amendment.
Abstract
This paper addresses the role of the states in the U.S. Constitution’s amendment process for purposes of comparison with the Korean Constitution. A fundamental difference arises in the democratic nature of constitutional amendment in the two systems. The Korean constitution provides for approval of constitutional amendments by a simple majority in a nationwide referendum. While this process nevertheless restricts majoritarianism by requiring approval first by a two-thirds vote of the National Assembly, it is still more democratic than the U.S. Constitution, which ultimately requires approval of any formal change in the constitutional text by three-quarters of the 50 states. This paper explains why the Framers of the U.S. Constitution chose to make their document difficult, rather than easy, to amend, to provide perspective on proposals in Korea for new means of constitutional amendment. Another feature of difference, and the focus of this paper, is the role of mediating institutions. Under the Korean system, the only institutions that stand between majority will and the Constitution is the National Assembly. The proposal of the amendment itself need come from only the President or a majority of the Assembly, both of which are directly elected by the people. The only check on majoritarianism is the two-thirds requirement of Assembly approval, but the Assembly itself still represents the people. The Assembly presumably will assent to an amendment if it believes that two-thirds of the people desire it, or perhaps even somewhere between a majority and two-thirds. In the U.S. Constitution, by contrast, the states as states play an indispensable role. One-third of the states, acting through the Senate, can prevent an amendment from even emerging from Washington, D.C. for approval, and then simply one-quarter of the states can block final ratification of an amendment. This paper explains why the Framers used the institution of the states to raise the barriers to constitutional amendment.
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