Constitutional Change in the American Experience

• 발행기관: 한국헌법학회
• 저자명: David D. Meyer
• 간행물 정보: 『헌법학연구』憲法學硏究 第16卷 第3號, 207~223쪽, 전체 17쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.09.30

영문 초록

Change is fundamental to the design of the United States Constitution and yet the nature of legitimate constitutional revision remains intensely controversial. One of the most significant features of the U.S. Constitution is that its framers embraced the idea of its mutability from the very beginning. The architects of the American constitution accepted that future generations must be free to renegotiate the basic charter by which they were governed, both because latent defects in the original design would inevitably be revealed and because social needs and circumstances would inevitably evolve. “[T]he plan now to be formed will certainly be defective,” acknowledged George Mason at the 1787 constitutional convention. “Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.” Accordingly, alongside the distinct sections (or “Articles”) of the Constitution defining the powers of the President, the legislature, and the courts, the framers included a separate section defining two methods for amending the Constitution. This receptivity to revision is now often taken for granted by Americans, but it is a notable departure from the assumptions of many other legal cultures which have regarded fundamental law as permanent and unchanging.

목차

Ⅰ. Constitutional Revision by Formal Amendment: The Article V Process

Ⅱ. Constitutional Revision By Other Means: Shifting Constitutional Norms and the “Living Constitution”

Ⅲ. Conclusion