미합중국헌법의 ‘수권조항(Vesting Clause)’ : 그 이론적 배경(권력분립원리)과 역사적 기원을 중심으로

초록

No part of a modern constitution is more similar to the U.S. Constitution than its “vesting clauses,” and the current Korean Constitution is not an exception. In this Article, I traced the historic origins of three (legislative, executive and judicial) “vesting clauses” in the U.S. Constitution back to the debates in the Federal Convention of 1787. As an ideological background of the “vesting clauses,” I also examined the acceptance of the principle of “separation of powers” in the early stage of the U.S. constitutional history. The “pure doctrine” of the separation of powers, which empathized the clear division of government responsibilities into two (legislative and executive, as in Britain) or three (legislative, executive and judicial, as in the U.S.) distinct functions and organs, prevailed during or just after the American Revolution, as was under the Instrument of Government following the English Civil War. However, in the course of repeated compromises between broad nationalists and state-federalists during the debates in the Federal Convention of 1787, the concept of “checks and balances,” which had its origins in the British political theory of “mixed government” or of the “balanced constitution” in the 18th century, overwhelmed the “simple separation” of functions and organs. Therefore, the newly integrated principle of “separation of powers” was expanded to include the aristocratic idea of “checks and balances” between branches of government. The “vesting clauses” in the U.S. Constitution particularly reflected the complicatedpolitical compromises between antagonistic interests of delegates from different states. The “legislative” vesting clause was more enumerative, despite some general provisions, than other vesting clauses, which meant that the Founding Fathers concentrated their efforts on elaborating the vertical distribution of legislative powers between the national and state governments. In contrast, the “executive” vesting clause was written in more general terms than the legislative one, and the “judicial” vesting clause was written in the most general terms of all. In the last two vesting clauses, the Founding Fathers intended to broaden the “national” powers of the executive and of the judiciary against the “regionally-represented” federal congress. The “vesting clauses” hereby provided the “vertical” checks and balances, rather than the “functional” separation of powers.

키워드