헌법해석론으로서 “살아있는 헌법(The Living Constitution)”개념의 전개와 의의

다국어 초록 (Multilingual Abstract)

The constitutional interpretation methodologies in the U. S. have been divided the originalism, which makes the original meaning and adopters or ratifiers’ understanding of the Constitution as a criteria to judge, and the non-originalism or “the living constitution”, which makes today’s meaning of constitutional text clearly considering the change of society. In compliance with the pressing needs of the times, each approach claimed to return to the original meaning and object of the enactment periods or to change the meaning depending on the situations.
The originalism was dominant in the late 18th and 19th. But it was criticized from the living constitutionalism which demanded the new understanding of the Constitution during the Civil War. The Great Depression of the 20’s and 30’s sparked the fierce debate about constitutional interpretation theory. Having become a major issue in the Court, the view emphasizing textual limitations of the Constitution and the view insisting that the Constitution has to adapt to new objects over time had opposed with each other.
With the New Deal era, a radical interpretation about major political and economical provisions had appeared in earnest. The main focus was the boundary of the legislative power to solve the economical and social problems of the periods. After this period, both theories were accepted at need in theory and practice. Especially, with political conservatism since 80’s, the main stream has shown the compatible attitude imposing a limit on the legislative power and interpretational discretion of the judiciary and admitting the new understanding about the meaning of the Constitution simultaneously.
Now, a flexible and alleviated the originalism has formed in the mainstream, it is that the meaning is fixed but the understanding can change at contemporaneous needs or the object of Constitution only presented the framework.
The living constitutionalism not only makes the Constitution to be accordance with change of human perceptions and values but also be a standard to fulfill distributional justice a task of the present day.