미합중국헌법의 성립과 변경 : 비준조항·개정조항의 유래와 그 ‘경성(硬性)’의 극복
The Establishment and Change of the U.S. Constitution : Ratification Clause(Art.7), Amendment Clause(Art.5), and the Overcome of its Rigidity
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Why was the U.S. Constitution designed to be a “rigid” one, and what made it work as a “living” document? To answer these questions, I traced the origins of Article Seven(The Ratification Clause) and Article Five(The Amendment Clause) back to the debates in the Federal Convention of 1787, summarized the historical developments of the state constitutions toward more “flexible” amendment and revision procedures, and examined the various “informal” methods to change the Constitution without formal amendments. Choosing the way to validate the “proposed” Constitution was essential to the delegates to the Convention, who were suffering from the lack of “legitimacy” under the Articles of Confederation. Considering both the republican principle and practical possibility of ratification, the ratification by the special “state conventions”, setting the threshold for ratification at 9 states, was finally chosen instead of the ratification by the “state legislatures.” Concerning the amendment to the Constitution, the procedure was split into two parts, “proposal” by congress/convention and “ratification” by state legislatures/ conventions, and the threshold for ratification at three fourths of the states was unanimously accepted. However, the adoption of a particularly rigid amendment procedure could not be attributed to the founders’ intent to make amendments difficult, but rather to their intent to seek protections for the separate states. In contrast to the U.S. Constitution, the state constitutions tend to adopt more flexible amendment and revision procedures, coupled with the increasing institutionalization of “popular participation” like referendums and initiatives. Besides, the “substantial meanings” of articles of the U.S. Constitution are continuously being changed by new customs within the elected branches, broad statutes enacted by Congress, and unilateral decisions of the Supreme Court. So, the scarcity of amendments to the Constitution usually does not pose a problem.
Abstract
Why was the U.S. Constitution designed to be a “rigid” one, and what made it work as a “living” document? To answer these questions, I traced the origins of Article Seven(The Ratification Clause) and Article Five(The Amendment Clause) back to the debates in the Federal Convention of 1787, summarized the historical developments of the state constitutions toward more “flexible” amendment and revision procedures, and examined the various “informal” methods to change the Constitution without formal amendments. Choosing the way to validate the “proposed” Constitution was essential to the delegates to the Convention, who were suffering from the lack of “legitimacy” under the Articles of Confederation. Considering both the republican principle and practical possibility of ratification, the ratification by the special “state conventions”, setting the threshold for ratification at 9 states, was finally chosen instead of the ratification by the “state legislatures.” Concerning the amendment to the Constitution, the procedure was split into two parts, “proposal” by congress/convention and “ratification” by state legislatures/ conventions, and the threshold for ratification at three fourths of the states was unanimously accepted. However, the adoption of a particularly rigid amendment procedure could not be attributed to the founders’ intent to make amendments difficult, but rather to their intent to seek protections for the separate states. In contrast to the U.S. Constitution, the state constitutions tend to adopt more flexible amendment and revision procedures, coupled with the increasing institutionalization of “popular participation” like referendums and initiatives. Besides, the “substantial meanings” of articles of the U.S. Constitution are continuously being changed by new customs within the elected branches, broad statutes enacted by Congress, and unilateral decisions of the Supreme Court. So, the scarcity of amendments to the Constitution usually does not pose a problem.
참고문헌 (26)
- Anderson, Thornton, "Creating the Constitution : The Convention of 1787 and the First Congress" (1993), Pennsylvania State University Press
- Beard, Charles A., "An Economic Interpretation of the Constitution of the United States" (2004), Dover Publications
- Beeman, Richard, "Plain, Honest Men : The Making of the American Constitution" (2009), Random House
- Cornell, Saul, "The Other Founders : Anti-Federalism and the Dissenting Tradition in America, 1788-1828" (1999), University of North Carolina Press
- Dinan, John J., "The American State Constitutional Tradition" (2009), University Press of Kansas
- Dinan, John, "The Oxford Handbook of The U.S. Constitution" (2015), Oxford University Press
- Farrand, Max, "The Records of the Federal Convention of 1787, vol.1, vol.2, vol.3" (1911), Yale University Press
- Gordon, S. Wood, "The Creation of the American Republic 1776-1787" (1998), University of North Carolina Press
- Holton, Woody, "Unruly Americans and the Origins of the Constitution" (2007), Hill and Wang
- James Madison, "The Writings of James Madison, vol.5(1787-1790)" (1904), G. P. Putnam’s Sons
- Klarman, Michael J., "The Framers’ Coup : The Making of the United States Constitution" (2016), Oxford University Press
- Klein, Claude, "The Oxford Handbook of Comparative Constitutional Law" (2012), Oxford University Press
- Konig, Thomas David, "Constitutionalism and American Culture" (2002), University Press of Kansas
- Levinson, Sanford, "Responding to Imperfection : The Theory and Practice of Constitutional Amendment" (1995), Princeton University Press
- Maglocca, Gerard N., "The Oxford Handbook of The U.S. Constitution" (2015), Oxford University Press
- Maier, Pauline, "Ratification : The People Debate the Constitution, 1787－1788" (2010), Simon & Schuster
- McDonald, Forrest, "Novus Ordo Seclorum : The Intellectual Origin of the Constitution" (1985), University Press of Kansas
- McDonald, Forrest, "We the People : The Economic Origins of the Constitution" (2009), University of Chicago Press
- Nedelsky, Jennifer, "Private Property and the Limits of American Constitutionalism : The Madisonian Framework and Its Legacy" (1994), University of Chicago Press
- Raphael, Ray, "Founding Myth : Stories That Hide Our Patriotic Past" (2004), The New Press
- Robertson, David, "The Oxford Handbook of The U.S. Constitution" (2015), Oxford University Press
- Robertson, David Brian, "The Constitution and America’s Destiny" (2005), Cambridge University Press
- Robertson, David Brian, "The Original Compromise : What the Constitution’s Framers Were Really Thinking" (2013), Oxford University Press
- Smith, J. Allen, "The Spirit of American Government － A Study of the Constitution : Its Origin, Influence and Relation to Democracy" (1907), MacMillan
- Stern, Klaus, "Das Staatsrecht der Bundesrepublik Deutschland, Bd. I" (1984), C. H. Beck
- Thomas Jefferson, "The Political Writings of Thomas Jefferson : Representative Selections" (1955), Bobbs-Merrill