권리의 사회적 구성: 남북전쟁 이전까지 미국 시민과 법인들의 지역화된 권리 형성 = The Social Construction of Rights: The Local Context of American Citizens’ and Corporations’ Rights during the Colonial and Antebellum Period

다국어 초록 (Multilingual Abstract)

Contrary to the widely held belief that the American Revolution and subsequent nation-building enabled the U.S. to establish a national system protecting its citizens’ fundamental rights, long after their nation’s birth Americans continued to resist any direct intervention of central authority especially when it came to the protection of individual and collective rights. Instead, they maintained a system in which most rights were ‘socially constructed’ at the state or local level. As intensive studies of antebellum socio-legal history reveal, up to the mid nineteenth century even citizenship rights were primarily constructed upon locally specific social relations, rather than upon any universal principle. Undergirding this system was a localized common law culture which, having rooted itself in each community since the colonial period, enabled local courts to mediate various disputes between rights-bearing inhabitants and legitimize their exercises of rights. Equally important for the post-revolutionary period was the police powers of state governments. In the name of maintaining communal peace and security, state governments exercised broad police powers defining and restricting its citizens’ social, economic, and political rights. Much like the local courts, Antebellum state governments’ use of these regulatory powers tended to support local demands and norms regarding rights.
Not everyone, of course, found this localized system satisfactory. Two primary examples would be African Americans and business corporations. In a situation in which the determination of rights closely reflected the specific social order of each locale including its racial order, the expansion of white citizens’ rights tended to be coupled with the diminution of the rights of black people, whether free or enslaved. Corporations, on the other hand, enjoyed numerous privileges under the prevailing system, but nonetheless their scope of activities was closely regulated by state police power. Thus, although widely divergent movements in every other respect, African American struggles for citizenship rights and American corporations’ pursuit of unencumbered business rights were both predicated on the same reality―that to fully obtain their rights, they needed to escape the restrictions of a localized system of rights by somehow involving federal authority. Before the Civil War, African Americans saw little success despite their persistent efforts along these lines, whereas corporations succeeded in winning several landmark Supreme Court decisions in their favor, although those precedents were largely ignored during the period. What this shows is that even when federal authority directly intervened to protect individual and collective rights, it was hardly in the context of shaping a uniform, national system of rights. Rather, these were largely arbitrary instances of intervention mobilized by particular influential dissidents within an overwhelmingly localized system of rights.