미국 헌정질서의 기원에 대한 재검토

Abstract

This essay attempts to review the new interpretations that social scientists have recently offered with regard to the origins of constitutionalism in the United States. For they show that historians, taking the initiative in investigating this significant topic in the last half-century, have paid more attention to ideas formed in modern Europe than to traditions shaped in medieval Europe or in the ancient world. Political scientist Donald S. Lutz has pointed out American constitutionalism is characteristically embodied in documents, asserting that it is rooted in the compact Americans used to make in establishing a church in colonial America. Political scientist David Cieply has argued it did not originate in the theory of social contract but in the institution of corporation, emphasizing that this institution represents a legal tradition originally shaped in ancient Rome and then reshaped in medieval Europe. From historical perspective, these interpretations have demerits, such as a tendency to disregard the larger context in which American constitutionalism was formed. Still, they remind that it has roots in the long tradition of Judaism, Christianity, and the Roman and canon laws. In particular, they call attention to the voluntary contract that people used to make establishing a church or corporation in colonial America, an ancient practice which medieval historians have already shown derived from the legendary covenant between a sovereign and his or her subjects. In order to properly understand the origins of American constitutionalism, then, historians ought to look beyond the horizon of modern Europe.