헌법의 자기보장규범성에 관한 검토- 데릴 레빈슨의 공공선택이론을 중심으로 -

Today, the Constitutional Court has emerged as the final judge of society. In our society policy-making of the Constitutional Court of Korea is expanding. This phenomenon is because especially Korean politics in gridlock has shifted responsibility on the Court to avoid the risk in solving the constitutional issues connected with democracy. The Court has invalidated some decisions and legislations of the President and the National Assembly. It seems to be understood as judicialization of politics and the politicization. However, a critical perspective criticizes this phenomenon by pointing out that the countermajoritan nature of policy-making through constitutional adjudication ultimately destroys the democratic representative system and self-governance. In other words, the theory criticize the deficiency of the democratic legitimacy of the Court. The common approach against this criticism is that the mission of the constitutional adjudication conducts as a protector of the constitutional rights of the minority against the tyranny of the majority. Another approach argues that the role of the constitutional adjudication shall complete democracy by promoting deliberation and debate through the institutional dialogue. Nevertheless, what is left unexplained in all of these accounts is how popular majorities or other powerful political actors successfully commit themselves to Constitutional law. No matter how legitimate or beneficial these constraints (Constitutional law) might be, they will not be effective unless they are accepted by the very actors who are making political decisions in the present - acting in the heat of the moment, in the fallen state of ordinary politics, and through flawed political processes. Therefore, I think we should explain reasons to observe the Constitution, apart from the legitimacy of the Constitutional Court. In order to approach this problem, I will analyze the Constitutional Court's decision by Daryl Levinson’s Public Choice Theory. This discussion will help us achieve the realistic answer to the normativity of Constitutional Law, It is further necessary for us more than the U.S., especially because we have provisions on the judicial review unlike in the U.S.