헌법질서와 주권의 매력에 관한 소고

This essay is a constitutional theoretical reflection on the curious phenomenon of the continuing appeal of the concept of sovereignty and its invocation worldwide, despite the well-known tendency inherent in the term toward concentration of power and dangers of absolutism. Using the writings of three constitutional scholar/legal theorists in the Anglo-American as a vehicle, this essay will attempt a conceptual exploration of the relationship between constitutionalism and the sovereign will of the people. It will begin by discussing in some detail the views of Martin Loughlin of London School of Economics who declares that modern constitutionalism is at odds with the principle of sovereignty. It will become clear that, by incorporating liberal political thought, modern constitutionalism has tended to promote a rather distrustful attitude toward politics and the idea of rule of law that prioritizes reason over will. Next, the essay will turn to the writings of Paul Kahn of Yale Law School who makes the contrary claim that at least in the United States, the place where modern constitutionalism originated from, will has triumphed over reason. By introducing his argument that the sovereign will of the people is an essential element in American constitutionalism and rule of law, the intention is to challenge Loughlin’s perspective. Lastly, motivated by the suspicion that emphasis on the people’s sovereign will might be a universal phenomenon of modern constitutionalism, the essay will discuss the position of Frank Michelman of Harvard Law School. The hope is that his rather counterintuitive argument that liberal constitutional theory, despite its emphasis on individual reason and autonomy, almost necessarily requires the positing of the idea of an originary author that establishes a constitutional order will help us appreciate the attraction that the idea of sovereignty still has in the modern world.