An Originalist Test for Korea that Progressive should not Fear

• 영문명: An Originalist Test for Korea that Progressive should not Fear
• 발행기관: 세계헌법학회한국학회
• 저자명: Sean C. Hayes
• 간행물 정보: 『세계헌법연구』世界憲法硏究 第14卷 第2號, 345~367쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.07.01

영문 초록

  The very first step in being able to analyze constitutional law cases and issues is to first understand how scholars interpret constitutions. This is a step that is often ignored, or handled in a cursory fashion, by many academics teaching Constitutional Law in Korea.
  The two manners, in general, to interpret a constitution, in short, are either to consider the constitution a “living document” (nonoriginalism) that evolves over time or to read the constitution in a manner that gives meaning to the words in the constitution consistent with the understandings of those that adopted the constitution (originalism).
  The note (1) introduces constitutional interpretative methods; (2) argues that originalism should be employed in every case; and (3) explains my originalist test for Korea. This note analyses, thus, the most common interpretive methods and argues that nonoriginalism, among other things, is destroying the democratic process, since it is leaving us with courts totally unchecked. When we have courts, as such, “nine people from a very uncharacteristic class of society ― to whit, nine lawyers,” will rule us by “wield[ing] authority according to their own moral predilections.”

목차

Introduction
Ⅰ. Constitutional Interpretation: The Basic Debate
Ⅱ. Originalism: The Basics Explored
Ⅲ. Non-Originalism: The Basics Explored
Ⅳ. False Virtues of Evolving Constitutions
Ⅴ. Conclusion
Ⅵ. Conclusion
ABSTRACT

키워드

Constitutional Interpretation Originalism Nonoriginalism Judicial Activism Judicial Restraint Constitutional Interpretation at the Constitutional Court of Korea Korean Constitutional Law Korean Constitutional Court