헌법의 본질과 다양성 그리고 그 가치

This study examines the nature of the Constitution and its value in terms of the variety of the Constitution and the application of constitutionalism. It also investigates how separation of power and the judicial review,exceptionally adopted by modern countries, are functioning these days under the value of the Constitution. It shows that the Constitution eventually aims to divide government powers into various organizations,ultimately guarantee people's freedom and rights by controling the exercise of power, and protect essential values and order of the nation and its society. These common purposes of the Constitution are served by currently existing diverse constitutional forms, such as a written vs. unwritten constitution, a rigid vs. soft constitution, a parliamentary cabinet vs. presidential system constitution, or a two-tier government system constitution. They are in existence to fulfill the spirit of the Constitution,that is, liberalism and constitutionalism, which is realized through separation of government power. Moreover, the judicial review is also adopted by many countries as a way to achieve constitutionalism. The constitutionality of laws enacted by the Congress is subject to review by the judiciary which has comparatively less democratic legitimacy than the legislature. It is considered, however, that the judicial review is a major system to put the value of the Constitution into practice since it can make up for weaknesses of democratic procedures carried by the legislature, and protect the minority against the majority. Therefore, it is necessary to keep in mind that various forms of the Constitution and their application always place top priority on its ultimate goals, that is to say limitation of government power and protection of freedom and rights of the people.