사법부의 탄생 : 미합중국헌법 사법조항의 역사적 기원 - 필라델피아 제헌회의에서의 핵심 쟁점을 중심으로

초록

Article III, which vests the weakest and the least dangerous judicial power in federal courts, is the shortest vesting clause in the U.S. Constitution. In this paper, I traced the historic origins of the judiciary provisions in the U.S. Constitution back to the debates in the Federal Convention of 1787, and found some significant features. The inferior tribunals of the federal judiciary, at first, were struck out of the Virginia Plan by a narrow margin, but, by a transfer of their establishment from the Constitution to the discretion of the national legislature, the delegates revived them. Likewise, the delegates succeeded in sharing the power to appoint federal judges, which was at first given exclusively to the Senate, with the executive. The Connecticut Compromise, which altered the expectations of the delegates as to whether small or large states would dominate the Senate, was the main factor that resulted above changes in the constitutional provisions related to the federal judiciary. However, the delegates easily agreed that federal judges should enjoy tenure during good behavior, rather than serving a fixed term of years, and that Congress should be barred from diminishing the judges’ salaries during their terms in office, even after the compromise on congressional representation(the Connecticut Compromise). The delegates, having little confidence in the people themselves sitting on juries, inserted three provisions to undermine the jury system. First, jury trials in criminal cases were expressly guaranteed, but not required to be held in the vicinity of the crimes. Second, the express provision of juries in criminal cases suggested the presumption that they were not required in civil cases. Third, appeals were allowed on jury findings of fact. The power of judicial review was well known to the delegates and they undoubtedly expected federal courts to reject unconstitutional laws, but, fearing vigorous public protest, they did not want this power to be explicitly said in the document. This is why the delegates chose the supremacy clause as a substitute. In conclusion, I analyzed the motivations and motivational assumptions of the delegates in framing the constitutional provisions related to the judicial branch, classifying them into three categories, group interest, personal interest, and institutional interest. My opinion is that the collective interests of the small/large states were a much more important factor than the personal interests of the delegates themselves in the Federal Convention, and that the interests of soon-to-be national-level institutions could not possibly play a meaningful role in the constitution-making process.

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