헌법해석방법으로서 원의주의에 대한 검토- 미국에서의 논의를 중심으로 -

Justice A. Scalia, a leading proponent of originalism, spoke that “ when we read Shakespeare, we use a grossary because we want to know what it meant when it was written. ---- So also with statutes - ---they don't change meaning from age to age to comport with the whatever the zeitgeist thinks appropriate. Are reading Shakespeare and interpreting the Constitution identical? Originalists argue that original meaning of the Constitution was fixed at the time each provision was enacted and constitutional interpretation should be binded to the original meaning of the Constitution. They contend the writtenness of the Constitution necessitates a fixed constituional meaning and courts should be binded to the meaning. They insist originalism is the only legitimate approach to constitutinal interpretation. They argue that originalism constrains the ability to impose their own value choice under the guise of constitutional interpretation. But interpreting the Constitution is different from reading Shakespeare. It is not excavating historical fact of original intent or original meaning, but ascertaining the contemporary meaning of the Constitution that is valid now. The contemporary meaning of a text can be different from the original meaning. The basic concept of a text does not change without amendment, but the concrete meaning should not be isolated from the realities, public understandings.