미합중국헌법의 성립과 변경

• 영문명: The Establishment and Change of the U.S. Constitution : Ratification Clause(Art.7), Amendment Clause(Art.5), and the Overcome of its Rigidity
• 발행기관: 중앙대학교 법학연구원
• 저자명: 신우철(Shin Woo Cheol)
• 간행물 정보: 『법학논문집』法學論文集 第41輯 第3號, 53~84쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.12.30

영문 초록

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.

목차

Ⅰ. 들어가는 말

Ⅱ. 비준조항(Art.7)의 성립 경위

Ⅲ. 개정조항(Art.5)의 성립 경위

Ⅳ. 경성(硬性)의 극복과정

Ⅴ. 맺음말

참고문헌

Abstract

키워드

미합중국헌법 필라델피아 제헌회의 비준조항 개정조항 헌법의 경성 U.S. Constitution Philadelphia Convention Ratification Clause Amendment Clause Constitutional Rigidity