민주주의와 법치주의의 관계에 대한 한 시론 : 미국의 노예제 폐지의 헌정사를 중심으로
The Relationship between Democracy and the Rule of Law ; The Relationship between Democracy and Constitutionalism: A Story of the Abolition in American History

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서울대학교 법학연구소
법학, Vol.49 No3 pp.127-158
민주주의교정가능성사회적 약자방어적 교정ConstitutionalismFallibilityDefensive CorrectionThe Most Disadvantaged
The relationship between democracy and constitutionalism is a complicated and
multi-dimensional question. This essay attempts to elucidate it from the viewpoint of
the liberalism which admits fallibility and improvability.
Democracy and constitutionalism are to be understood as constant procedure of
improvement in the course of which the both of them are to influence each other.
The author believes that liberalism is the positive interaction between democracy and
constitutionalism for the political equality and human rights of the vulnerable and
This essay finds a vivid example of such interaction in the American history of
the Abolition. The original constitution drafted in 1787 failed to outlaw slavery
which meant a gross defect of democracy and constitutionalism. Thereafter reforming
movements continued through the Civil War to culminate in so-called Reconstruction
Amendments. The history can be seen as the history of rectifying the flawed
democracy and constitution
The Southerners, however, had the opposite conceptions of democracy and
constitutionalism. They insisted on the popular sovereignty and the constitutionality
of slavery as property. They were supported even by the supreme court’s holdings
in Dred Scott v. Sandford. But this essay contends that they were so contrary to the
liberal conception of democracy and constitutionalism that they were forced to be
Last but the least, this essay asserts the rectifying procedure should be defensive
rather than aggressive. So to speak, the procedure should hold the maintenance of
the basic constitutional order. It is well demonstrated at Lincoln’s stance on slavery...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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