민주주의와 법치주의의 관계에 대한 한 시론 : 미국의 노예제 폐지의 헌정사를 중심으로

Abstract

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

underprivileged.

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 courts 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

abrogated.

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 Lincolns stance on slavery...