미합중국헌법의 성립과 변경 : 비준조항·개정조항의 유래와 그 ‘경성(硬性)’의 극복

초록

Why was the U.S. Constitution designed to be a “rigid” one, and what made it work as a “living” document? To answer these questions, I traced the origins of Article Seven(The Ratification Clause) and Article Five(The Amendment Clause) back to the debates in the Federal Convention of 1787, summarized the historical developments of the state constitutions toward more “flexible” amendment and revision procedures, and examined the various “informal” methods to change the Constitution without formal amendments. Choosing the way to validate the “proposed” Constitution was essential to the delegates to the Convention, who were suffering from the lack of “legitimacy” under the Articles of Confederation. Considering both the republican principle and practical possibility of ratification, the ratification by the special “state conventions”, setting the threshold for ratification at 9 states, was finally chosen instead of the ratification by the “state legislatures.” Concerning the amendment to the Constitution, the procedure was split into two parts, “proposal” by congress/convention and “ratification” by state legislatures/ conventions, and the threshold for ratification at three fourths of the states was unanimously accepted. However, the adoption of a particularly rigid amendment procedure could not be attributed to the founders’ intent to make amendments difficult, but rather to their intent to seek protections for the separate states. In contrast to the U.S. Constitution, the state constitutions tend to adopt more flexible amendment and revision procedures, coupled with the increasing institutionalization of “popular participation” like referendums and initiatives. Besides, the “substantial meanings” of articles of the U.S. Constitution are continuously being changed by new customs within the elected branches, broad statutes enacted by Congress, and unilateral decisions of the Supreme Court. So, the scarcity of amendments to the Constitution usually does not pose a problem.

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