민주주의와 법치주의의 관계에 대한 한 시론 : 미국의 노예제 폐지의 헌정사를 중심으로

The relationship between democracy and constitutionalism is a complicated and multi-dimensional question. This essay attempts to elucidate it from the viewpoint of the liberalism which admits fallibility and improvability. Democracy and constitutionalism are to be understood as constant procedure of improvement in the course of which the both of them are to influence each other. The author believes that liberalism is the positive interaction between democracy and constitutionalism for the political equality and human rights of the vulnerable and underprivileged. This essay finds a vivid example of such interaction in the American history of the Abolition. The original constitution drafted in 1787 failed to outlaw slavery which meant a gross defect of democracy and constitutionalism. Thereafter reforming movements continued through the Civil War to culminate in so-called Reconstruction Amendments. The history can be seen as the history of rectifying the flawed democracy and constitution The Southerners, however, had the opposite conceptions of democracy and constitutionalism. They insisted on the popular sovereignty and the constitutionality of slavery as property. They were supported even by the supreme court’s holdings in Dred Scott v. Sandford. But this essay contends that they were so contrary to the liberal conception of democracy and constitutionalism that they were forced to be abrogated. Last but the least, this essay asserts the rectifying procedure should be defensive rather than aggressive. So to speak, the procedure should hold the maintenance of the basic constitutional order. It is well demonstrated at Lincoln’s stance on slavery during the time of the Civil War. At the commencement of the War, he placed more importance on the maintenance of the Union than the liberation of the slaves. Then in the course of the War he moved the cause of the War into the Abolition.