The Comparative Study of Constitutional Interpretation Between U.S. Supreme Co
urt and East Asia Constitutional Court (Korea & Japan) 1
Jung, Young Hoa 2
Ⅰ. Introduction
Law sets substantially in motion in a wide area of social life. Due to the difference of legal culture, it
appears contradictory concept of law. East Asia law of the Confucian legal culture was basically a repressive
law. we have a tool to ensure the enforceability of the legality and norms of the dominant group in the vertical
social structure. But western Law of the Christian culture is entitled to the tools of freedom and progress of
society. In other words, law is a mode of practical analysis of social life. Today, the concept of culture― and
perhaps legal culture ― remains useful as a way of referring to clusters of social phenomena (patterns of
thought, and belief, patterns of action or interaction, characteristic institutions) coexisting in certain social
environments, where the exact relationships existing among elements in the cluster are clear or are not of
concern. In this sense, legal culture may have same degree of significance for sociology of law that the idea
of legal families has for comparative law. 3
Nonet and Selznick’s typology of forms of legal ordering― repressive, autonomous, and responsive law,
is most enduring contribution. 4 The typology of law is original and useful because it incorporates both
political and jurisprudential aspects of law when judges have to interpret the constitution and statute in the
related litigations. Repressive law is subordinated to politics and Judges serve the interests of the political
powers. They are only weakly bound by legal constraint. In contrast, autonomous law is independent of
politics and acts a restraint on political power. Judges should apply the rule of law within the discretion of
legal interpretation because judiciary is institutionally separated from politics. Moreover, responsive law is
a facilitator of response to social needs legal institutions. The law becomes more dynamic instruments of
social ordering and social change by legal realists and sociological tradition. This legal institution is
substantially sensitive to discriminate the poor seriously suffered from economic polarization serious today,
and to enhance the social welfare in the range of legal protection and amendment.
While we have seriously experienced the economic polarization, by which both constitutionalism and
democracy have been consistently threatened in our society, subsequently the authority of the law also is
more weakening in consistently. Because, modern constitutionalism has emphasized the importance of
constitutional review and interpretation in both different political environment and constitution culture.
Actually, both Korea and Japan have been directly influenced by Constitution of United States America since
1945. After post-democracy in 1987, Korea has enacted an autonomous law and Constitutional Court has
adopted very active constitutional review. By contrast, Japanese Supreme Court has run on passive judicial
review. Although both countries have a similar legal culture of Confucian traditional culture, what is a chief
cause why the Court of Korea & Japan have adopted a contrasting constitutional review? I may examine the
constitutional interpretation of United States Supreme Court review and compare the institution of
constitutional review as legal culture in Korea and Japan since 1945.
1
2
3
4
This article is presented for CRN-1 Session of LSA annual meeting at New Orleans in June 2, 2016.
Chonbuk National University, Law School (Professor) [email protected] [email protected]
Roger Cotterrell, Law, Culture and Society, Ashgate(London), 88 (2006).
Philippe nonet and Philip Setznick, Law & Society in Transition, Transaction Publishers, ⅷ (2005).
1
Ⅱ. A transition of East Asia Legal Cultures 19 - 20 C
1.
From Meiji Reformation (1868) To Allied Government (1945)
A. Pre War: Meiji Constitution
As of 1868 Japan executed the Meiji Restoration which was fundamental policies to transform from feudal
regime into a modern state, and seeking to pursuit of modernization and industrialization of the West as its
model. Japan promulgated the Constitution of the Empire of Great Japan in 1889, and it supplied for half a
century the basic principles of Japan’s governance as well as the criminal and civil law in bench mark of
German and French legislatures. Because Japan recognized the need for amendment the coercive and
unequal treaties with the Western countries under the Tokugawa shogunate government after 260 years of
self-imposed isolation policy at then. The “Meiji Constitution of 1889” distinguished from “the Constitution
of 1946,” which is sometimes called the “Showha(昭和) Constitution.” The Meiji Constitution was drawn
up with the utmost secrecy and promulgated as a gift of the Emperor to his subjects. The sovereignty resides
in the Tennō, the hereditary, not in the people. 5
Even though the controversy of Tenno’s sovereignty was an academic and theoretical one about a status
of the Emperor in constitutional system, it concealed a political debate between proponents of executive
supremacy and of legislative supremacy. 6 Minobe was a liberal and progressive constructionist, when
political reaction set in with the military ascendency in the 1930s, however Minobe’s “organ theory” was
severely attacked as heretical by, among others, ultranationalistic politicians in the Diet. In fact, the symbolic
value of the Emperor was more important for the unity of the whole nation than his sovereign political
powers, which actually rested in the hands of his advisers. Under the Meiji Constitution, however, the
legitimate source of the Emperor’s authority was the mythological and religious theory that he was the
descendant of the Sun Goddess. In contrast, under the new Constitution, his position rests on the secular and
political doctrine of popular will. The theory changed, but the institution itself remains. The constitution
takes scrupulous care to guarantee executive supremacy, which had been the policy of the Meiji government
since the Restoration, by recognizing broad imperial prerogatives. In Short, the Meiji Constitution emanate
all governmental powers. This concentration in the monarch resulted in an outspoken executive supremacy
over the bicameral legislature and the judiciary, which had no power to rule on the legality of administrative
acts. While one may admit that when the instrument was enacted it showed progress over the status quo ante,
it was discredited by the manner in which it had been applied in the thirties. Under the postwar Constitution,
sovereignty is vested in the people from whose will the /emperor derives his position. He is defined as the
symbol of the State and of the unity of the people. Powers related to government are explicitly denied him,
since he is not the chief executive. Apparently, the prohibition regarding functions related to government is
nothing but a corroborative repetition of the principle that the Emperor can’t make any final determination
independently, but needs the advice and approval of the cabinet.
5
Yatsuka Hozumi (Professor of Constitution in Tokyo Imperial University) made the theory of Tenno’s
sovereignty which constituted the form of Japanese state that could not be changed. However, Tatsukichi Minobe
rejected this metaphysical distinction and adopted theory of the highest state organ as the Tenno’s status, then
prevailing among German publicists at then.
6
Kaneko Kempo Seitei and Obeijin Hyoron, Establishment of the Constitution and Critical Comments Theoreon
by Europeans and Americans, 197-391 (1937).
2
B. Post War: US American Constitution to Japan’s Constitution
The new Constitution was being deliberated in the Diet in 1946, and under the political circumstances
there was no doubt that it would be enacted as the basic law of the land. Harold S. Quigley upbraided as
sophistry “American belief that they [the Japanese] were free to reject a document prepared in the main
Government Section and enthusiastically endorsed by SCAP.” 7 He touched on the much-debated question
of whether or not the revised charter was “imposed” by SCAP on the Japanese government. Justin Williams
made an interesting attempt to disprove Quigley’s thesis. 8 From a purely legal point of view, Williams is
right when he emphasizes that SCAP did not “direct” the recalcitrant Japanese government to enact the
Government Section draft, but that he merely made suggestions and gave guidance as to how to write a
document complying with the requirements of the Potsdam Declaration. Such guidance was not contrary to
SCAP’s instruction from his home government and, strictly speaking, did not violate the Moscow Agreement
by bypassing the newly established policy-making organization of the Allied powers, the Far Eastern
Commission. According to the letter of the Moscow Agreement, this commission had to be consulted on
“any directives dealing with fundamental changes in the Japanese constitutional structure.” 9
when the suggestion was followed by high praise of its substance by the Supreme Commander himself
and, if not by direct threats, then by hints of the adverse consequences that non-acceptance might have.
Commander Hussey, who first revealed the authorship of Government Section in his amazingly candid
chapter on the Constitution in Political Reorientation of Japan, 10 made it clear that the cabinet, at least, was
under pressure to accept the draft. He reported that on February 13, 1946, Whitney, while telling Foreign
Minister Yoshida that there was no compulsion upon the cabinet to take further action, added that “failing
action by the Cabinet, General MacArthur prepared to lay the issue before the people himself.” Nevertheless,
it may be more correct to say that if there was coercion it came from the “international situation” rather than
from MacArthur.
According to the letters of Generals MacArthur and Whitney to Takayanagi, SCAP was apprehensive
about the interference of the Far Eastern Commission, which included Soviet Russia. MacArthur himself
wrote that the preservation of the institution of the Emperor was his fixed purpose; that it was inherent and
integral to Japanese political and cultural survival; and that the vicious efforts to destroy the person of the
Emperor became one of the most dangerous menaces that threatened the successful rehabilitation of the
nation. In his meeting with Prime Minister Shidehara on February 21 1946, MacArthur emphasized his
difficulties with the Far Eastern Commission and even expressed doubts whether he could keep his position
much longer. 11
7
Harold S.Quigley and John E. Turner, The New Japan (Mineapolis: University of Minnesota Press, .94(1956).
Justin Williams, “Making the Japanese Constitution: A Further Look,” 59 American Political Science Review,
665-679(1965).
9
Takayanagi, chairman of the Cabinet Commission on Constitutional Revision, draws the same fine distinction
between directive and suggestion. “Making the Japanese Constitution: What Really Happened” in the Japan Times
of March 16(1959).
10 Id.
11 Whitney stated that “General MacArthur at the time was under strong pressure by some of the Allied
Government to pursue a much harsher – even brutal – course in the administration of the Occupation. Some even
demanded the trial of the Emperor as a major war criminal.” Whitney also observed that “this critical situation
was well known to [Prime Minister] Baron Shidehara and Mr. Yoshida, then his Foreign Minister, whose
cooperation with the Supreme Commander in his effort to protect the Japanese was magnificent.” Theodore
McNelly, Contemporary Government of Japan (Boston: Houghton Mifflin, 1959/63), 42.
8
3
In the light of these subsequent revelations, of which I was innocently unaware in February 1846,
MacArthur appears now to have fathered the Constitution of Japan in the strange and complex combination
of protector of the throne on the one hand, and reformer on the other hand – in both respects following
American, though not necessarily Allied, policies. By playing both roles with remarkable virtuosity, he again
showed his genius. The price the Japanese government had to pay for keeping the imperial institution and
Emperor Hirohito personally was the acceptance of a far reaching transformation of the governmental and
socio-political structures as well as of the Tenno (Emperor) to a mere “symbol of the state and the unity of
the people.”
Regarding the dissolution of the Lower House, a constitutional controversy ensued when, in 1948, Prime
Minister Yoshida threatened to suggest to the Emperor the dissolution of the Lower House on the basis of
Article 7 the Constitution, which lists the dissolution among the functions in matters of state of the Emperor.
The political opposition at that time maintained that the House could only be dissolved in the case of nonconfidence explicitly spelled out in the document, while the government held that this could be done for any
other reason. The dispute was received in 1951, as a result of public pressure on the government to have the
House dissolved and new elections carried out after the coming into effect of the peace treaty. The
government as well as the opposition reversed their previous positions which proved that their views were
motivated by political rather than constitutional considerations.
As the Weimar Constitution (1919) and Japan Constitution (1946) so radically changed the “national polity”
without experience of a civil revolution, those resulted from defeat and surrender. A closer acquaintance with
Japanese attitudes has met that the similarity with Weimar was only superficial, because the unwillingness
of the German to acknowledge their military defeat led to the stab-in-the-back legend, according to which
leftist and pacifist influence inside Germany undermined the strength and perseverance of the combatants
on the front. Contrast to the Weimar Constitution, Japan’s Constitution had not stab-in-the-back among
Japanese. 12 While civil law was accompanied by the authoritarian concept of law, Japanese lawyers and
administrators mastered the continental rule of law through seventy years the pre-war. The postwar contact
of civil law with common law has deplored in some quarters, but it has not only broadened the vision of
Japanese jurists but also afforded an occasion for improving Japanese legal culture and its order.
2. US Military Government and Korean Legal System
From its inception the Meiji government, it took only three quarters of a century after the restoration to
achieve a high level of industrial and military development. However, Japanese Militarism led into World
War Ⅱ and subsequent defeat at the hands of Allied Forces. Two qualifications can be added to these
assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by
the rank system in court law and the local customs among settled immigrants. Second, official law was not
clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law
was gradually emerging into a formal state law as far as central government was concerned. For these reasons,
it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with
Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive,
were the prototype of the Japanese legal system which developed in later periods into more organized legal
pluralisms. In according to the Treaty of “Kanghwa” in 1876, Japan took the initiative in opening Korea at
that time. Consequently, Korean reformations steps were suspect as a manifestation of Japanese plan to
deprive the Koreans of their nationhood and national self-respect. Korean modern legal history from 1868
12
Alfred C. Oppler, Legal Reform in Occupied Japan – A Participant looks back, Princeton Univ. Press, 62(1976).
4
to 1910 was humiliating that even the loss of judicial sovereignty was justified in the name of possible
termination of extraterritoriality. The administration of a new legal system under the Japanese colonial rule
only aggravated the initial ill-will against the westernized legal system. 13
When the instrument of surrender was signed by the Japanese on September 2, 1945, the Supreme
Commander for the Allied Powers (SCAP) placed the residents of Korea in the territory below the 38th
parallel under his jurisdiction by the Proclamation No. 1 on September 7, 1945 (in the name of CINCAFPAC).
The residents in his jurisdiction were ordered to obey all of his proclamations, ordinances, regulations, orders
and enactments. The Military Government at the top level was organized to correspond to the existing
governmental structure in Korea under the Japanese. In terms of the command structure there was no
separation between the Japanese and Korean occupations where were under the authority of General
MacArthur. Therefore, Korea was able to receive only secondary consideration by the authority in Japan
who was primarily interested in the occupation of Japan. 14
To be sure, US America had more important objects of the occupation which had to accept the surrender
of the Japanese force, arrange the repatriation of the Japanese military and civilian population, and maintain
law and order. Simultaneously, US Allied government faced the difficult situation that the Russian had not
only the Korean personnel who later became the core of their military government, but also had a Korean
army which became the embryo of the North Korean army to accompany them on their arrival. The
Americans were destined to dilemma to establish an independent and free Korea. More over all, even though
Allied Government could not succeed in fully removing the vestiges of the Japanese legal culture for the
colonial period of 35 years, they took a judicial action of de-Japanese the Korean legal system. It was
relatively simple first of all to remove all the Japanese from the courts and the procuracy. 15 Although it was
possible to keep the pro-Japanese collaborator out of the government and the judiciary, they could not be
entirely extinguished from the legal profession in legal culture. During December 1945 a new national bar
association was formed, automatically giving membership to anyone who was a member of the legal
profession under the Japanese. 16 By the provisions of Ordinance No. 21, November 2, 1945, “all laws,
regulations, orders or notices issued by any former government or having legal effect as of 9 August were
continued in force unless especially repealed or modified by the Military Government”. 17 This meant that
the Japanese laws governing the organization of the Government-General were continued. Unfortunately, if
there was one lesson to draw from the legal profession’s behavior during the Japanese colonial period, it
certainly was not that courts and prosecutor would be the institutions that could be trusted with safeguarding
individual rights and establishing justice.
In the Colonial period, Japanese judges rejected formalism. They did not apply to the ordinary meaning
of legal texts. They had to carry out their task that “penetrate its inner core in their interpretations and realize
13
Hahm Pyong-Chun, Korean Jurisprudence, Politics and Culture, Yonsei Univ. Press, 123(1986).
Meade E.G. American Military Government in Korea, 76(1950).
15 All of Japanese judges and procurators had voluntarily resigned, and the Japanese high officials of the Bureau
of Justice of the Government-General had maliciously destroyed many important documents such as fingerprint
files, land files, prison records etc. even before the arrival of Americas. A great amount of official fund had been
either embezzled or illegally disposed of upon the surrender by the Emperor on August 15, 1945.what bothered
the occupation authorities was the lack of trained Koreans who had stayed away from the Japanese far enough to
avoid the label of being a pro-Japanese collaborator (SCAP, op. cit., p.132).
16 Hahm Pyong-choon, supra note 7, at.146.
17 SCAP, op. cit., No.2, Nov. 1945, p.183.
14
5
aims of the legislature.” Post war, the Allied forces had to distress about how to establish new legal system
with liquidating the Japanese legal vestiges in Korea. One of their steps was to insist on a formalistic, “plain
meaning” approach to law. 18 Although legal system, organization of the judiciary, the procuracy, the bar
association, the legal education and curriculum, and the bar examination remained basically unchanged, the
Government finally capped its three-year rule with the “Proclamation of the Rights of the Korean People”
on April 5, 1948 in the name of the commanding general of the U.S. Forces in Korea. Eleven “inherent
liberties” were enumerated in the Proclamation. It included all the liberties found in American Bill of
Rights. 19 Subsequently, the success of US military Government’s effort to de-Japanize the Korean legal
institution was not rather small, even though, for the Japanese colonial era, court and legal profession could
no longer be trusted to protect rights as a deep-rooted Korean legal culture. From 1945, Military Government
prepared the formalistic core in their interpretation in covert or overt through practices of courts and
administrations. Let us make sense formalism to entail three commitments: to ensuring compliance with all
applicable legal formalities, to rule-bound law, and to constraining the discretion of judges in deciding cases.
Thus understood, formalism is an attempt to make the law both autonomous, in the sense that it does not
depend on moral or political values of judges, and also deductive, in the sense that judges decide cases
mechanically on the basis of preexisting law, and do not exercise discretion individual cases. 20
Ⅲ. The Constitutional Interpretation of US Supreme Court
1. Constitutional Culture and its Interpretation
A. Constitutional Culture
Constitutional culture constitutes a fact of the social sciences. Existing attempts as defining constitutional
culture offer a useful start, 21 but these approaches all share the same major shortcoming, as they limit the
concept of constitutional culture to situations where the polity accepts constitutional constraints. The
definition of constitutional culture as accepting constitutionalism is too limiting, as it does not shed light on
constitutional failure, which is much more common than constitutional success. 22 However, the broader
definition of constitutional culture means an attitude about constitutional constraint and constitutionalism; it
includes the informal and formal, scope and function of constitutional constraints. In actual, constitutional
culture is a complex phenomenon and it emerges throughout society, in the form of changing practices and
mores, as judges interpret constitutions and political practice in a changing society. 23 In short, the Supreme
18
Ingo Muller, Hitler’s Justice: The Courts of the Third Reich (Deborah Lucas Schneider trans, 202(1991).
Although the exercise of the basic liberties such as those of press, speech, assembly, association, etc. were
qualified by the phrase “provided they are not inflammatory to the extent of inciting disorder or the overthrow of
government.” SKIGA, No. 31, April 1948, 167.
20
Formalism entails an interpretative method that relies on the text of the relevant law and that excludes or
minimizes extra-textual sources of law. Cass R. Sunstein, Must Formalism be defended Empirically?, Chicago
Working Paper In Law and Economics, 4.
21
J. Ferejohn, J. Rakove and J. Riley, Constitutional culture and Democratic Rule, Cambridge Univ. Press, 1014(2001).
22
Nikolai G. Wenzel, Towards a Research agenda on the Emergence of Constitutional Culture into Constitutional
Order, Studies In Emergent Order Vol. 5, 3(2012).
23
The agenda is organized into eight proposed research programs; the first four are attempts to study
constitutional culture directly: 1. Economic sociology, 2. Economic anthropology, 3. Applied mesoeconomics, 4.
Social indicators as proxies for constitutional culture. The next four are indirect attempts, through the study of
proxies or history. 1. Constitutional review as a proxy for constitutional culture, 2. Comparative case studies, 3.
Social change, 4. Lessons from the anti-Constitutionalists. Id. 4.
19
6
Court’s interpretation on constitutional matter reflects the constitutional culture each country. Constitutional
review provides an important proxy for each constitutional culture. We may discern two institutions of
constitutional review style from American type of judicial review to European type of constitutional review.
The constitutional review took place in the form of a Kelsen’s constitutional council that has fewer powers
than American court style. Subsequently, Knowledge of each country’s constitutional review will cast light
on its constitutional culture.
B. Constitutional Interpretation
Many legal scholars may take constitutional interpretation as legal interpretation. The way of legal
interpretation can be applied to the constitutional interpretation. Legal interpretation refers to the action in
pursue to a comprehensive and objective legal meaning with regarding to a logic, legislative purpose of legal
provision. However, because Constitution contains an ideology, historicity, political characteristics as well
as basic norms, we have to take into account a distinct characteristic of constitutional interpretation. In, the
Constitution directly concerned with politics as basic law, and it is also abstract and uncertain concepts order
to derive a concrete meaning and content among the political community unlike other laws and regulations.
This article grasps the constitutional interpretation attitude of the Constitutional Court order to do, as
compared to the Constitution, take a look before the constitutional interpretation of the United States
Supreme Court. A constitution is a legal text that grounds a legal norm. as such, it should be interpreted any
other legal text. However, constitution sits at the top of the legal system in respective state. It is designed to
guide human behavior over an extended period of time, establishing the framework for enacting legislation
and managing the government. The unique characteristics of a constitution warrant a special interpretive
approach to its interpretation, 24 because “it is a constitution are expounding.” 25 Among those
Characteristics of the Constitution interpretation of U.S. Supreme Court, the selection process for Supreme
Court justices has formally or informally given the influence to its interpretation of Constitution. Presidents
have the constitutional power to nominate justices, and they have employed several criteria at different times,
including constitutional professional merit, ideological compatibility, and mentor for political support by the
president and his advisers. 26
2. Legal Formalism – Judge’s neutral values
A legal formalism offers the hope that law truly can be separated from politics and that this can be a nation
governed by laws, not by people. 27 As the important evidence of formalistic legal system, Nazi’s judges
denied the ordinary or original meaning of legal texts. They interpreted statues in accordance with lawmakers’
aims or the sprite of the age. After the war, the Allied forces faced a range of choices about how to reform
the German legal system. the first steps was to insist on a formalistic, that is plain meaning approach the
law. 28 Formalism is the way in which rules achieve their “ruleness” precisely by doing what is supposed to
24
L. Tribe and M.C. Dorf, On Reading the Constitution (1991); Bruce Ackerman, We the People: Foundations,
(1991)
25
McCulloch v. Maryland, 17 U.S., 407 (1819) (Marshall. C.J).
26
Norman Dorsen, The Selection of U.S. Supreme Court Justices, International Journal of Constitutional Law,
vol. 4, No.4, 652(2006).
27
Erwin Chemerinsky, Getting Beyond Formalism in Constitutional Law: Constitutional Theory Matters,
Oklahoma Law Review Vol. 54, 2 (2001).
28
Id.
7
be the failing of formalism. 29 A strength to formalism was much evident in constitutional decisions such as
Locker v. New York, 30 and U.S. v. Butler 31 during the early of twentieth century. Indeed, the Lockner era,
which lasted from the late nineteenth century until 1937 and saw the invalidation of hundreds of laws, was
based on the Justices’ view that they “were restoring the natural order which had been upset by the
legislature.” 32 During the 1950s and 1960s, scholars called for “neutral principles” of constitutional law, as
was criticized Shelly v. Kramer, 33 and Brown v. Board of Education 34 as lacking sufficient foundation of
neutral principle. 35 Therefore, formalism seeks to make a law both autonomous, in the sense that it does not
rely upon judge’s moral or political values, and also deductive, in the sense that judges decides cases
mechanically on the basis of preexisting law, and do not exercise discretion in respective cases. Subsequently,
formalism entails an interpretative method that relies on the text of the relevant law and that excludes or
minimizes extratextual sources of law. 36 Let’s distinguish between two phenomena that go under the term
formalism. The first is captured in the pretense that all or most legal terms can resolve hard cases. This
pretense is captured in the view that the term “liberty” necessarily includes freedom of contract, or that a
requirement of “equal protection” necessarily prohibits affirmative action. Formalism might increase
predictability for all concerned, in the process greatly decreasing the costs of decision. Justice Scalia’s
argument of the original textualism does expressly belong to an original formalism. In particular, Cass
Sunstein suggested “the new formalism,” different from the old which was not empirical and pragmatic in
character. He thought that the conceptual arguments are best taken as pragmatic arguments in disguise; that
claims about “legitimacy” are really consequentialist claims about what system of interpretation is likely to
have good effects on democratic government. 37 The formalism in constitutional law manifests itself in a
quest for predetermined principles of constitutional law from which Justices can reason in relatively
determinate ways with results that are external to the Justice’s own values. Consider four of the leading
theories in this regard, how they purport to do this, and how they inevitably fail.
A. Original Intent
The original form of originalism is called intentionalism, and look for the subjective intent of a legislators.
Problem of this theory is identifying the relevant lawmaker whose intent is sought. There is the constant
search for framers’ intent and the use of original intent as a basis for constitutional interpretation. But many
29
Fredrick Schauer, Formalism, The Yale Law Journal Vol. 97, No. 4, 2(1988).
198 U.S. 45 (1905). Justice Peckham simply announced that “the general right to make a contract in relation
to his business is part of the liberty of the individual protected by the Fourteenth Amendment” and that “the right
to purchase or to sell labor is part of the liberty protected by this amendment.” Locker is condemned as formalistic
precisely because the analogy between pelicans and unrestricted contracting (as liberty) fails. We criticize Lockner
as formalistic because it treats the word “liberty” (or the word “bird”, or property, without due process of law) as
being like the word “bird” and the privilege of contracting as being like a pelican, i.e., subsumed in the broader
category. Shauer, supra note 25, at 512.
31
297 U.S. 1 (1936). The Court stated that “When an act of congress is appropriately challenged in the courts as
not conforming to the to the constitutional mandate, the judicial branch of government has only one duty – to lay
the article of the Constitution which is involved beside the statute which is challenged and to decide whether the
latter squares with the former.” Id at 62.
32
L. Tribe, American Constitutional Law, 579 (2d ed. 1988).
33
334 U.S. 1 (1948).
34
349 U.S. 294 (1955).
35
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review. No. 1, 30(1959).
36
Cass Sunstein, supra note 20, at 4.
37
Id. 10.
30
8
have exposed the inherent flaws of originalism. 38 For example, most of the Founders did not leave detailed
discussions what their intent was in 1787, and while a few did, there is no reason to think that they should
be dispositive of what the rest thought. This theory was challenged in a string of law review articles in the
1980s. 39 Moreover, the discussions of the drafters may have been recorded, but they were not available to
the ratifiers in each state. Original intentionalism was seen as lacking good answers to three important
questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could
be determined from two centuries distance; and whether the framers would have supported original intent. 40
Originalists defend their theory based on a claim that non-interpretivist judicial review is “inconsistent with
democratic self-government.” 41
B. Original Meaning
Justice Scalia was advocates for originalism and argued for a constitutional jurisprudence based on
“original meaning,” and distinguished this approach from original intent. This originalism treats a
constitution like a statute, and gives it the meaning that its word was understood to bear at the time they were
promulgated. Though there may be no evidence that the Founding Fathers intended the Constitution to be
like a statute, this fact does not matter under Scalia’s approach. The reason for adherence to original meaning
derive from other justifications, such as the argument that the understanding of the ratifiers should be
controlling, as well as consequentialist argument about original meaning’s positive effect on rule of law.
How is this original meaning found? Justice Scalia’s book did not explain an answer, but his many
decisions indicated that he looked to the text of the Constitution and to practices that existed at the time the
Constitution was ratified. In Printz v. U.S., Justice Scalia said for the majority, that “[b]ecause there is no
constitutional text speaking to this precise question, the answer --- must be sought in historical understanding
and practice, in the structure of the Constitution, and in the jurisprudence of the Court. 42 Similarly, in other
cases, Justice Scalia expressly understood of “original meaning” on the practices that occurred at the time
the relevant constitutional provision was adopted. 43 For instance, in McIntyre v. Ohio Elections Commission.
Original meaning emphasizes how the text would have been understood by a reasonable person in the
historical period during which the Constitution was proposed, ratified, and first implemented. For example,
Thomas Sowell notes that phrases like “due process” and “freedom of the press” had a long established
meaning in English law, even before they were put into the Constitution of the United States.” Scalia
dissented from the Court’s holding unconstitutional a law that prohibited the distribution of anonymous
campaign literature. 44 Under Justice Scalia’s philosophy of original meaning, Brown v. Board of Education
was clearly wrongly decided. 45 The same Congress that approved the Fourteenth Amendment also voted to
38
Paul Brest, The Misconceived Quest for Original Understanding, 60 Boston Law Review, Vol 204(1980); Larry
Simson, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 Cal.
Law Review, 1482(1985).
39
Powell The Original Understanding of Original Intent, 98 Harvard Law Review, 885 (1985).
40
W. Serwetman, Original at Work in Lopez: An Examination of the Recent Trend in Commerce Clause
Jurisprudence,
41
Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Indiana Law Journal, 23 (1971).
42
521 U.S. at 905.
43
Chemerinsky, supra note 27, at 8.
44
514 U.S. 334 (1995).
45
349 U.S. 294 (1955).
9
segregate the District of Columbia public schools. 46 But those unreasonable interpretation of constitution
that the Court wrongly decided Brown is expressly difficult for acceptance. What relevance is original
meaning in deciding First Amendment issues such as whether the government can prohibit indecent speech
over internet, or what types of campaign finance regulation reform are permissible. 47 These involve issues
about which there is just no original meaning to be found. The only way to find an original meaning would
be to state it at such a high level the Court wants to arrive. 48
C. Semantic Originalism
Semantic originalism is Dworkin’s term for the theory that the original meaning of many statutes implies
that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of
their passages. This theory contrasts with expectations originalism which adheres to how the statutes
functioned at the times of passages, without any expectation that they would function in any other particular
ways. 49 Other originalists often claim that the death penalty is not “cruel and unusual punishment” because
at the time of the Eight Amendment’s passage, it was a punishment believed to be neither cruel and unusual.
Dworkin asserts that if advances in moral philosophy reveal that the death penalty is in fact “cruel and
unusual”, then the original meaning of the Eight Amendment implies that the death penalty is
unconstitutional. Similarly, Scalia purported to follow semantic originalism, although he conceded that
Dworkin does not believe Scalia is true to that calling. 50
D. Balkin’s Living Originalism
In the American debate over constitutional meaning, originalism looms large. Among American legal
academics, the theory of originalism has spilt into multiple competing versions. 51 Balkin rethinks
originalism by starting with the framework that the constitution created “build out” that framework to fill in
the plan. 52 Jack Balkin’s Framework (living) originalism seeks to blend two constitutional interpretive
methods such as original meaning and living constitution. This living originalists view the Constitution as
an “initial framework for governance that sets politics in motion” and must be built out over time by
successive generations. In effect, the process of building out the Constitution on top of the framework of the
original meaning is living constitutionalism, the change of and progress of law over time to address particular
issues. According to living originalism, interpreters must always adhere to the original meaning of the
Constitution but are not necessarily required to follow the original expected application, although they may
use it to create doctrines and decides cases. However, originalism is mostly unknown outside of the United
States. The most widespread approach to constitutional interpretation in contemporary constitutional courts
is proportionally review, which decidedly not an inquiry into original meanings. 53
What is purposive interpretation, and how is it different from originalism? The difference between
46
Ronald Dworkin, Law’s Empire 360 (1986).
Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).
48
Chemerinsky, supra note 27, at 10.
49
A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/1996.
50
A. Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton Univ. Press, 144(1998).
51
Colby T.B., and Smith, P.J, Living Originalism, 59 (2) Duke Law Journal, 239-307(2009).
52
Kim L. Scheppele, Jack Balkin Is an American, Yale Journal of Law & the Humanities, Vol. 25, 23(2013).
53
J. Mathews and Stone Sweet A., All Things in Proportion? American Review and the Problem of Balancing,
60 Emory Law journal, 797-875(2011).
47
10
originalism and purposive interpretation parallels the difference between “because” and “in order to.” 54 As
a result, the starting point of a purposive interpretation is the present, and its referent is the future. To contrast,
originalism requires us to start with the past and ask how we in the present should live up to what others
imagined for us. Both originalism and purposive interpretation find the meaning of a constitution in a long
arc of time, but the two theories place “now” differently in that arc. 55 With originalism, we are bound to
become what our imagined ancestors wanted. For example, as of the original meaning of the 14th Amendment
in 1868, what they thought about the constitutionality of racial segregation or sex discrimination. When the
Constitution uses principles or standards, like “equal protection” or “unreasonable searches and seizures,”
further construction is usually required. Balkin asserts that original meaning is not sufficient to decide a wide
range of cases or controversies. Balkin opposes limits the meaning of the constitution to the thoughts of
those founding generation, but he adjusts the constraints set by the founding generation to vary with the
precision of the direction they gave to later generation. 56 The authority of the judiciary and the political
branches to engage in constitutional construction comes from their “joint responsiveness to public opinion”
over long stretches of time.
3. Anti-formalism (Legal Realism & Functionalism)
According to legal formalism, judges and lawyers saw law as autonomous comprehensive, logically
ordered, and determinate and believed that judges engaged in pure mechanical deduction from this body of
law to produce single correct outcomes. On this account, legal formalism was brought to an end by the
Realists (anti-formalists), who “building upon the insights of Oliver Wendell Holmes, Roscoe Pound, and
Benjamin Cardozo” showed “that the law is filled with gaps and contradictions, that the law is indeterminate,
that there are exceptions for every legal rule or principle. 57
Anti-formalism allows judges to interpret making use of other legal sources other than the written law.
Judges should make value choices in interpreting the Constitution. For example, whether the term liberty
protects a right to engage in private homosexual activity or a right to abortion or a right to physician-assisted
suicide inherently requires a value choice. Consequently, the role of the Justice is to decide what she or he
believes is the best meaning of the Constitution and then write an opinion justifying that view. 58 In particular,
anti-formalist is likely to consult empirical and academic studies to buttress legal conclusions. On contrary,
formalistic doctrine establishes bright-line rules that decrease engagement with facts. But anti-formalist
doctrine is attentive to facts and context, and it tends to be more explicitly focused on outcomes and policy
objectives. 59
Nevertheless, it is true that many Constitution are written in open-textured language using phrases such
as “commerce … among the several States,” “necessary and proper,” “freedom of speech,” “due process of
law,” “liberty,” “taking,” “equal protection,” and “cruel and unusual punishment.” There is doubtless that
these open-textured languages are what has allowed the Constitution to survive for over 200 years and
govern. 60 On the one hand, constitutional formalism and functionalism can be contrasted by three different
54 Scheppele, supra note 52, at 23
55 Id 25.
56 Jack Balkin, Living Originalism, Harvard Univ. Press, 183-184(2011).
57
Brian Leiter, Legal Formalism and Legal Realism: What Is the Issue ?, Journal of Legal Theory,.5(2010).
58
Chemersky, supra note 27, at 13.
59
Schauer, supra note 29, at 539.
60
Chemersky, supra note 27, at 14.
11
ways. First of all is apparently different approach to legal rules and standards. 61 Formalism might be
associated with bright-line rules that seek to place determinate, readily enforceable limits on public actors.
Functionalism might be associated with standards or balancing tests that seek to provide public actors with
greater flexibility. 62 Secondly, both are contrasted to focus on the reasoning process by which we reach rules
or authoritative constitutional text, structure, original intent, or all three working together. Functionalism
might be understood as induction from constitutional policy and practice. Formalist reasoning promises
stability and continuity of analysis over time. Functionalist reasoning promises adaptability and evolution. 63
Finally, formalism and functionalism could be contrasted as emphasizing different goals for law. Formalism
emphasizes priority to rule of law values such as transparency, predictability, and continuity in law.
Functionalism does emphasis on pragmatic values like adaptability, efficacy, and justice in law. 64
Whether understood as theories about rules, reasoning process, or competing jurisprudence, neither
formalism nor functionalism has wholly dominated American constitutional history. 65 In Steel Seizure
case, 66 Supreme Court struck down President’s Truman’s seizure of steel mills as unauthorized by
congressional statutes and therefore an executive usurpation of legislative powers. 67 This case rests just as
firmly in functionalist reasoning. Justice Jackson’s concurring opinions was considered more flexible
standards, induction from experience, and pragmatic accommodation. It has emerged as the most influential
of the Steel Seizure Case opinions. This case at least two distinct majority voices, one predominantly
formalist and the other functionalist. 68
In short, Justice Jackson’s functionalism is against formalism of the traditional separation of powers, basis
on the legitimate authority of the President and Congress in three manners. First of all, the President or
explicitly or substantially exercise the granting rights by congress’s permissions, second, when the Congress
is silent reversely, third, if the president will ignore the authority of congress, did. Interpretation of Justice
Jackson’s functionalism had a major impact in the Steel Seizure case. 69 Thereafter, His judgment provided
the conclusive judgment of similar cases, for example, the Hamdan v. Rumsfeld (2006), installment a military
committee of W. Bush administration's Guantanamo camp, Zemel v. Rusk (1965), the travel restriction to
Cuba of State Department decision, and military commission in the Vietnam War. That case was cited in
resolution of similar cases thereof.
4. Purposive interpretation
As interpretation of Constitution is different from either logical deduction or policy analysis, neither legal
formalism nor anti-formalism are sufficiently useful in which to discuss interpretation of Constitution. It
seems to me that policy consideration affects the interpretation of unclear statutory and constitutional
61
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process (William N. Eskridge, Jr. & Philip P. Frickey eds.,
1994); Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 Harv. J.L & Public Policy 13
(1998).
62
Willam N. Eskridge, Jr., Relationships Between Formalism and Functionalism Separation of Powers Cases, 22
Harv. J.L. & Public Policy 21(1998).
63
Id.
64
Id.
65
Id. 22.
66
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
67
Easterbrook, supra note 57, at 17.
68
Eskridge, supra note 58, at 24.
69
Id. 636-38 ff.
12
provisions. 70 When we say a provision is “unclear” we mean that the elements in the linguistic and cultural
environment that enable us to get meaning out of words and sentences are uncertain or contested, and this is
true because of disputes over policy. How can we ever know whether the interpretation of an unclear
provision is the correct interpretation? 71 In short, originalism has sufficiently played very important roles
where America has a very simple provisions of Constitution rather than Korea, Japan, and Germany that
have too detailed and more than one hundreds provisions of Constitution. Just seemingly as the history of
change and significant technological progress (Internet, TV media, etc.), the Constitution is product of social
transition and public consensus. In addition, outside of the United States originalism is a completely
unfamiliar concept. Today, constitutional interpretation, which is widely used in the Constitutional Court is
a review of the purposive interpretation, which has been normally used in advanced constitutional system.
The objective interpretation theory, the objective interpretation of the law in the United States or are
different in how the original note is, as a general interpretation, is the interpretation of the way to understand
the legislative purpose and laws and regulations. Purposive interpretation of the Constitution requires a
specific constitutional order who is entitled to work inherently. The originalists pay attention to set the
historical starting point in the past, but purposivists seek to the new constitutional order of the future, which
is expected to the essence of the constitutional culture. In other words, the originalism explains our current
in the light the past (drafters’ intent), but purposivists illuminate the desired our future with describing the
current. Ultimately, the starting of purposive interpretation is the current, and an its goal is the future. but,
the originalism asks for us to starting from the past, what ancestors thought in the past, are now asking us
how to apply their intents.
Purposive interpretation pinpoints a legal meaning that realizes the purpose of the constitutional provision.
It recognizes the presumption that the language of a norm provides information about its purpose. To be sure,
purpose must remain within the limits of language. The interpreter need not necessarily learn the purpose
from reading the language of the text. The language, the semantic medium, must be able to bear the purpose
of the Constitution. 72 In particular, purposive interpretation has three components: language, purpose, and
judicial discretion. Interpreters must rely on both language and purpose in the hard cases and they must
exercise judicial discretion. Most importantly, purposive interpretation does not set an order for the use of
interpretive and non-interpretive doctrines. 73
In finally, constitutional interpretation, taking into account the purpose of legal norms and investigating
of its meaning is important. According to the social needs, a clear knowledge of comprehensive and general
provisions of the Constitution refers to the interpretation that can be adapted to changes of the social. After
all, the essence of constitutional interpretation is the selection of the most appropriate interpretation
regarding to the purpose of constitutional provision. Because if we rely upon only the operation of logic
nearly to ignore the constitutional reality, it is difficult to fully reflect the purport and purpose of the
Constitution. 74
70 Richard Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, Case
Western Reserve Law Review, Vol. 37, No. 2, 212 (1986).
71
Id, 213.
72
Aharon Barak, Purposive Interpretation in Law, Princeton Univ. Press, 92 (2005).
73
Id. 93.
74
Jung, Young H., The Korea Constitutional Culture and Constitutional Court’s Interpretation – The Comparative
Study of U.S. Supreme Court’s Constitutional Interpretation, The Journal of American Constitutional Law, Vol.
27. No.1, 341-42 (2016).
13
Ⅳ. Constitution Interpretation in Korea and Japan
1. Korea – Formalism, Purposive Interpretation and Activism
A. Korea Legal Culture
In 1961, military government took the revolutionary revocation of almost Japanese colonial legislature
accordance with “Act on Special Measures for Consolidation of the old laws”(1961.7.15) till the end of 1961,
and further the government took an action which all colonial acts must automatically be abolished without
exception till January 20th 1962. Although this transformative legislative revolution seemingly revoked
Japanese colonial legal institutions during three decades all at once, what did Japanese professors cultivate
the colonial legal education and professionalism has remained current legal terminologies, and legal
professional practices within courts or prosecution proceedings informally. 75 The hallmark of the law
becomes its association with, and subordination to, the requirements of government.
The first Constitution of 1948 was not only influenced by the German Weimar Constitution 1919 at least
in the sense of formal constitutional institution, but also judicial process was substantially influenced by
American formalism of constitutional interpretation. Since the enactment of the First Constitution, Korean
political democracy was not realized until nine constitutional amendments. Before the transformative
Constitutional amendment of 1987, the mere existence of law did not guarantee fairness, much less
substantive justice. Just as “monopoly of legitimate violence” is celebrated as a major achievement of the
modern state, what were the main implications of long authoritative regime (1961-1987) the repressive laws,
vortex political culture 76 and a rigid formalism of judicial process. However, Democracy movement realized
the dependent of law and politics and led to the transformative current Constitution and Constitutional Court,
which imported the style of German Constitutional Court since Constitution Amendment of 1987.
In other words, legal culture may not only relate with economic development, democracy, and political
certainty, but also these are the important factors for enhancement of human rights. in particular, existing
political elites could hardly overcome the political culture of centralized vortex in real life, and the results
made the changing legal culture retarded persistently. The answer how does Korean Democracy develop
relies upon the change of legal culture that may determine the advanced democracy and rule of law thereof.
According to Henderson's analysis of Korean history, political culture, the pattern of "the
vortex" 77constitutes the single magnet political culture in past and present. Moreover, it seems to me that the
current presidential system has been "the greatest vortex summoning men/woman rapidly into it, placing
them briefly near the summit of ambition, and then sweeping them out both political decision as well as
economic culture. Because since economic development, all governments have consistently interfered in
market through resources general or selective distribution of resources as economic coordinator and regulator
75
Jung, Young H., The Limit of Rule of Law in Economic Development in South Korea, 2010 Annual Meeting
LSA (May, 2010).
76
See detailed, Young H. The Crisis of Korea Democracy and Problems of Legal Reformation- the Critics of
Constitutional Sociology on the Vortex-Centralized Political Culture, The Law Review, Vol. 24, Chung Nam Law
School, 2-45(2013): Jung, Young H., Korea Political Culture and Constitutional Sociology, Constitutional
Sociology, Chonbuk National University Press, 1-63 (2015)77
“Vortex” means which means the powerful, centripetal, and vertiginous updraft that sucks “all components” of
a “mass society” toward the power apex. Gregory Henderson, Korea: The Politics of the Vortex, Harvard
University Press, 31 (1987):
14
since 1962 so far. 78
B. Formalism, Purposive interpretation, and Activism
The Justice of Constitutional Court may be appointed by President, in according to the consent of Congress
nominating each three candidates by President, Congress, and Chief Justice of Supreme Court respectively. 79
All candidates should be qualified as judges, be more than 40 years of age, and have more than 15 years of
career experience as a judge, prosecutor, or attorney. 80 The terms of office and retirement age of Justices are
the same as those of Justices of Supreme Court. Justices are subject to constitutional obligations not to join
a political party or participate in politics. Justice shall not be forced out of office against their will unless
they are impeached or more severe. 81 Constitutional Court may review the legislation by the Congress and
equivalent to statutes by others entity. According to Article 107 Section 2. Of Constitution, the
constitutionality of subordinate legislation, such as administrative orders, regulations, rules, and measures,
is subject to judgment of the Supreme Court. Consequently, a dualism causes serious conflict of law between
Constitutional Court and Supreme Court. If it arises a different interpretation of Constitution between both
Courts, the Constitution don’t expressly prescribe regarding whose opinion shall be final. This incomplete
dualism arises to undermining the uniformity and consistency of constitutional order. 82 Constitutional
Court’s jurisdiction shall be excluded abstract judicial review and judicial judgments over constitutional
complaints. 83
Here I have looked more closely at Constitutional Justices appointment process in Korea system: the
importance of ‘merit’ and the exclusion of socioeconomic ideology, which has been underscored by
emphasizing either ‘political factors’ or ‘judicial dependence.’ What are the criteria for the appointment to
the Constitutional Court? The first is professional merit such as constitutional professionalism and
jurisprudential philosophy etc. A second criteria of appointment is socioeconomic ideology that Justices will
take into consideration of the protection of minority in advance. 84 Since Constitutional Court has established
September 1st 1988, there were filed total 29,121 cases which consisted of 892 cases of unconstitutional
review over legislation, one impeachment case, two party dissolution cases, 28,131 cases of constitutional
complaints over state action as well as legislation, and 95 cases of conflicts of jurisdiction between public
entities till March 31st 2016. 85 The result of statistics data showed a unconstitutional legislation
(340/892(38%) cases: unconstitutional-264, non-confirmed 58, restricted:18), constitutional complaints
(CCA art. 68, sec.1: unconstitutional public agency’s action -710/22,668(3%); CCA art.68, sec.1-295/5,463
(5.4%) for 28 years. The cause of high proportion of unconstitutional legislation can be attributed to the
professional vulnerability of the Congress, or many infringements of human rights by laws and public actions
must be ceased to regarded as primarily a matter of concern to the victim and the miscreant in early 1990s.
In recent percentage of unconstitutional decision cases is apparently decreasing.
78
See more details Jung, Young H., The Economic Development and Governance of Industrial Policy in Korea
(1961-2014),in: The Institution and Policy for Industrial Upgrading: Korean Experiences and Implications for
Developing Countries (Kye H. Kim, Young H. Jung, et al.), 112-172 (2014)
79
Constitution art. 111 Sec. 2.
80
Constitution Art. 111 Sec. 2; the Constitutional Court Act art. 5, sec.2.
81
Constitution Art. 112. Sec. 2.
82
Korea Legislation Research Institute ed., Introduction to Korean Law, Springer, 60(2012).
83
CCA Act art. 68 sec. 1.
84
Jung Young., supra note 75, at 345.
85
www.ccourt.go.kr/cckhome/kor/info/selectEventGeneralStats.do (May 1st, 2016).
15
C. Formalism and Purposive Interpretation
It is important to emphasize that the rule of law (Rechtsstaat Principle) requires executive power to be
enforced according to statutes and any administrative wrongful actions should be redressed in the judicial
process. As the notion of democratic constitutionalism evolved, the importance of rule of law moved from
the formal conception to the substantive one. The current Constitution adopts a constitutional litigation
institution, including constitutional review as well as constitutional complaints. It seems clear that the
Constitutional Court has firmly applied a legal formalism on basis of Justice’s value neutrality, derived from
the United States Supreme Court. In other words, it is assumed that Constitutional Court is independent on
political powers on the ground of an autonomous law in accordance with a strict separation of law and
politics. Constitutional Court has contributed to the establishment of the rule of law by presenting the clear
limits and precise standards regarding to the exercise of executive power. As constitutional jurisprudence in
legal practice and education, the Constitutional Court may basically screen to scrutiny orders that are "the
protection scope of the fundamental rights and freedoms, another issue is whether the restriction of
fundamental rights and freedom constitutes what kind of the constitutional issue. The last, is deductively to
examine whether it meets the requirements to justify the restriction of those rights and freedoms.
As noted above, if it does not correspond to the scope of protection of those rights and freedoms (outside
of restriction’s ranges), the result would constitute a failure to constitutional protection range and lose the
interests of constitutional protection (for example, violence incitement). Second, it need a legal basis or
rational for restricting those rights and freedom restriction (statutory formal requirement), a and, purpose of
those right’s restriction needs a substantial standards such as the compelling public interest, an important
public interest, legitimacy that must meet the scrutiny standard of the necessity and proportionality to restrict
those rights and freedoms. Accordingly, Constitution is vested with due process of law (art. 12. Sec. 1, art.
12, sec. 3), and the requirement of protection and restriction of fundamental rights and freedoms, and the
prohibition of law infringing an essential element of fundamental rights and freedoms in according to Article
37 section 2. This provision is very unique traits of fundamental rights protection that it refers to the doctrine
of general statutory reservation whereby fundamental rights and freedom may be restricted unless four
requirements of fundamental rights and freedom restriction are not all met as following. 86
First step is need to the applicable statutory basis as requirements to restrict fundamental rights and
freedom. At constitutional trial, in order to meet the doctrine of applicable statutes, made by the Congress.
For example, according to the Korean Broadcasting System(‘KBS’) Act (art.36, Sec. 1), the Board of KBS
was granted to set the amount of the broadcasting fee to lots of TV recipients merely obtaining the approval
from the Minister of Public Information without any resolution of Congress, and that statute was ruled
unconstitutional by Constitutional Court. 87 Second step is to meet the requirements of restriction objectives
that are three categories of public order, public interest, and national security, that are obviously abstract
concepts and so this requirement can be recognized as declaratory. Third step requires that restriction is
deemed necessary to meet the legislative objectives. This standard is regarded as the constitutional
jurisprudence of proportionality principle. At trial, Constitutional Court including to ordinary courts has
always used to this requirement elaborated in four-tired test than any other standards. Last step is requirement
that any restriction shall not infringe the essential elements of fundamental rights and freedom in Constitution.
On the other hand, the Constitutional Court is faithful to the purposive constitutional interpretation.
86
87
Jung Young, Korean Constitutional Law, 495(2011).
Con. Ct. 98 Hun-ba 70, May 27, 1999.
16
Justices may interpret the Constitution in the viewpoint of current generation with a solely legal source of
the written Constitution in order to form the expecting a constitutional order and its culture. The Justices
shall not bind unconditionally to the intent of the Drafters, but must precisely interpret an objective purport
and purpose of Constitution. Therefore, the Constitutional Court has consistently interpreted purposive
theory which enable to explore the purpose of constitutional provisions. Ultimately, the Constitutional Court,
should be established to faithfully apply the doctrine of purposive constitutional interpretation of the United
States of the Federal Supreme Court law formalism and general Constitutional Court of the fundamental
principles of constitutional interpretation. Based on this premise, if and to participate in the expert of the
Constitutional court of the general public and the Constitution rationally improve the method of selecting
judges, democratic constitutionalism is developed, it is expected to improve the effect of the Constitution
culture it can.
2. Japan – Constitutional Interpretation
A. Japan’s Legal Culture
Japanese legal history is particularly interesting because it contains a significant discontinuity. In the course
of the Meiji Restoration, in the middle of the nineteenth century, Japan adopted western codes of law. This
move turned Japan into a civil law country. It aligned Japan with a legal tradition that, in some regards,
harked back to the days of the Roman Empire. Obviously, Julius Caesar and the Roman emperors never quite
got to Japan. Nonetheless, Japan opted to join the civil law family. The government was in the process of
modernizing Japanese society, and it was plausible to include the legal system in their plans. And the ruling
circles looked, not unnaturally, to advanced European countries as models. Of course, after more than a
century and a half, Japanese lawyers I suppose do not really see their legal system as some sort of alien
intrusion, any more than they would consider tempura an alien intrusion, despite the fact that they owe this
marvelous food to Portuguese Jesuits.
Almost of countries have constitutions with bills of rights, and most of them have some sort of judicial
review. To be sure, judicial review may be an American invention; it has been part of the American
constitutional system for the last two hundred years. But these institutions have now spread all over the
world—as the world modernizes and globalizes. Most of judicial review does not work the same in each
country. The Japanese Supreme Court does not have the same record of activism as both Korean and German
Constitutional Court. In United Kingdom and the Netherlands still lack judicial review, but both of these
countries adhere to international human rights treaties and to the European Court of Human Rights. 88
A. The Features of Constitution and Supreme Court
The Japanese Constitution made clear that it is the supreme law of the land and any legislation or acts of
the government which would violate the Constitution are invalid: Chapter Ⅹ- Supreme law, the Constitution
thus provides that “[t]his Constitution shall be the supreme law of the nation and no law, ordinance, imperial
rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force
or validity” (article 98, section 1). The supremacy of the Constitution is derived from the foundation law for
freedom, and Bill of Rights is the core of the Constitution which may protect positive natural rights deriving
from human dignity. 89 Stated positively, the important issue is whether all statutes and orders enacted under
the Meiji constitution has effect. Constitution article 98, section 1 allows those statutes and orders under the
Meiji Constitution to be valid so long as they do not violate the Constitution.
Since 1947, U.S. American Constitution has contributed to Japanese Constitution on the concepts and
foundations in both political democracy and judicial review. It can’t not be denied that the Meiji Constitution
was represented pseudo-constitutionalism in the light of history of constitutionalism. To be sure, prewar
political regime was an absolute monarchy sovereignty in pursuit of continental civil law system and military
88
89
Lawrence M. Friedman. (2006)
Ashibe, Constitutional Law, 110-12(1994).
17
imperialism. Similarly, the Constitution relied on the concept of both legal positivism and reactive right
derived from German Rechsstaat Principle in 19 Century. 90 To contrast, postwar current Constitution
declares nation sovereignty that people governs in domestics and prefers to bicameral system alike British
parliamentary cabinet style. But the so-called MacArthur Draft had to introduce unicameralism on the ground
that the bicameralism is not wholly democratic. 91
While Japanese founders were sticking to the ideas of bicameralism and the House of Councilors as well
as a House of Representatives which was invented a house of vocational representation such as two Councils
of both Labor and Management in Weimar Constitution 1919. 92 The judicial review of Constitution has
enacted and implanted by American Constitutional judicial review which. Supreme Court has been entitled
to the Supremacy Clause of Constitution and Justice’s compliance to Constitution since Mabury v. Madison.
The judicial review has established by the concrete judicial review, but, the abstract judicial review, which
Justice can exercise a broader discretion for protection of Constitution in constitutional adjudication, is not
vested in due to the principles of separation of power and national sovereignty. 93 Subsequently, as the
concrete judicial review has a main purpose to settle each individual litigation, Supreme Court can impose
the self-restriction of judicial review, if it is possible to solve the case without making decision constitutional
issue. Japanese Justices may obey the doctrine of "Constitutional avoidance," which Justice Brandeis
identified two prominent limitations on the federal judicial power based on the separation principle: the "case
or controversy" requirement and the rule that federal courts have no power to render advisory opinions. 94 In
Ashwander v. Tennessee Valley Authority, 95 Brandeis set out a broad formulation of the avoidance doctrine.
This reluctance to use the power of judicial review was, according to Brandeis, predicated on the principle
of separation of powers that one branch must not "encroach upon the domain of another." Brandeis identified
two prominent limitations on the federal judicial power based on the separation principle: the "case or
controversy" requirement and the rule that federal courts have no power to render advisory opinions.
Brandeis linked a host of justiciability doctrines, including political question and standing inquiries, to these
limitations. In particular, Supreme court has made decision only nine cases as unconstitutionality regarding
90
Jung, Young, supra note 74, 340.
Yasuhiro Okudaira, Forty Years of the Constitution and its various Influences: Japanese, American, and
European, Law and Contemporary Problems, 17(1990).
92
Der Arbeiterrat und der Wirtschaftsrat, art. 165 von der Weimar Verfassungsrecht, August 11, 1919.
93
Jung, Young H, Constitutional Law, East Group(Seoul), 812(2011); Ito Masami, Constitutional Law,
Houbundou(Tokyo), .640(1995).
94
Brandeis described how the Court had developed "prudential" rules — meaning nonconstitutional, selfimposed restraints — by which to avoid "passing upon a large part of all the constitutional questions" presented
to it, despite having jurisdiction to hear them. He described the avoidance doctrine as consisting of a "series" of
seven rules: (1) "The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary,
proceeding "; (2). "The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' (3) "The Court will not 'formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.' (4). The Court will not pass upon a constitutional question, although properly
presented by the record, if there is also present some other ground upon which the case may be disposed. (5). The
Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute.
(6) "The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself
of its benefits." (7) Even if "serious doubt[s]" concerning the validity of an act of Congress are raised, the Court
will first ascertain "'whether a construction of the statute is fairly possible by which the question may be avoided.'"
Brandeis concludes his discussion of the avoidance doctrine with this warning: "One branch of the government
cannot encroach upon the domain of another, without danger. The safety of our institutions depends in no small
degree on a strict observance of this salutary rule." Ashwander, 297 U.S. (quoting Sinking-Fund Cases v. U.S.
Central Pacific Railroad Co., 99 U.S. 700, 718 (1871)). See Robert A. Katzmann, "The Underlying Concerns," in
Judges and Legislators p. 14 (Robert A. Katzmann ed., 1988) (discussing separation of powers as "separated
institutions sharing powers,' not separate institutions"); David B. Frohnmayer, "The Separation of Powers: An
Essay on the Vitality of a Constitutional Idea," 52 Oregon Law Review 211 (1973).
95
297 U.S. 288 (1936)
91
18
to laws and among total constitutional litigations.
Human Rights of Japan Constitution has adopted the concept of American notion of civil liberties derived
from natural law as well as various legal concepts of American unique ideas such as individualism,
fundamental human rights, freedom and equality etc. Moreover, the Constitution enumerates some social
economic rights in pursuit to the principle of well fare state which stemmed from the Weimar Constitution
and implications of American New Deal policies. Social rights is prescribed a provision that everyone can
maintain the minimum standards of whole some and cultured living in addition to freedom of thought (art.
19), freedom of religion (art. 20), freedom of speech and of press (art. 21), freedom of assembly and
association (art. 23).
However, the Supreme Court has applied the double standard of scrutiny: strict scrutiny and rational basis
test, which originated in Justice Stone’s footnote four in United States v. Carolene Products Co., 96 on
contrary American Supreme Court has generally maintained the level of scrutiny and burden of proof that
will rely upon the three classification such as strict scrutiny, intermediate scrutiny, and rational basis test.
Even though Japanese Constitution entails more lists of human rights than United States America’s
Constitution, Japanese Supreme Court has never applied the scrutiny to social human rights. 97 In Japanese
Constitution, freedom of speech and political freedom may be entitled to protection as “it is politically free,
but is socially not free.” Still, everyone may enjoy the freedom of expression and keep a delicate balance
between formal and informal social relationship in due to symbiotic feature of Confucian hierarchy culture. 98
B. The Rigid Formalism – Constraint of Political Ideology
There have been nine cases on which the Supreme Court made decided as invalid legislation on ground
of violation of Constitution during the almost past seventy years. Even though there are various comments
or opinions regarding to the function of judicial review or interpretation of Supreme Court. Many scholars
and lawyers evaluated that Supreme Court’s attitude has been a rigid passivism of judicial review which has
allowed the broader legislative discretion on Constitutional interpretation. 99 In generally, the Supreme Court
relied upon the broad “public welfare” standard. However, the Court prefers to give weight to the wide
discretion of the legislature. 100 What is the main cause of Japanese Supreme Court has showed very passive
judicial review.
First, Japanese legal culture has been thought to be a more collective-orienting on cooperation due to the
strong influence of Confucian Culture, on less individual autonomy. In fact, the legal culture used to
emphasize on collective group rather than on individuals. The long experience of rule of law more one
96
Footnote Four introduced explicitly to Supreme Court jurisprudence the idea of levels of judicial scrutiny. In
keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation,
an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted
by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate
state interest. Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain
conditions: 1. On its face violates a provision of the Constitution (facial challenge). 2.Attempts to distort or rig
the political process. 3. Discriminates against minorities, particularly those who lack sufficient numbers or power
to seek redress through the political process. This higher level of scrutiny, now called "strict scrutiny", was first
applied in Justice Black's opinion in Korematsu v. U.S. (1944). In fact, the cited work above (while quite useful
on the origin and growth of the footnote) does not claim that the law clerk was the author, and implies the opposite
through letters between the justices. 304 U.S. 144 (1938).
97
Ashibe, supra note 79, 122-23..
98
Yasuhiro, supra note 91, 26.
99
The public officials election act absolutely prohibits door-to-door election canvassing. Since 1950 the Supreme
Court has continuously held that such regulation is constitutional. 4 Keishu 1799 (Sup. Ct., G.B. Sept. 27, 1950);
21 Keishu 1245 (Sup. Ct. 3rd. P.B., Nov. 21, 1967); 38 Keishu 387 (Sup. Ct., 3rd, P.B., July 21, 1981).
100
Yasuhiro, supra note 91, 37.
19
hundred years did inherently establish the autonomous laws.
Second, Supreme court’s Constitutional interpretation received more rigid formalism and textualism from
American Supreme Court and remained ‘Rechtsstaat’ principle derived from German Constitution since 19
Century. With regard to the incidental system of judicial review, some members questioned the adequacy of
deciding- the constitutionality of laws and other measures after the fact and in conjunction with litigation on
specific cases.
Third, Justices of Supreme Court must rigidly obey doctrine of Constitutional avoidance under the legal
culture since Meiji Constitution and Weimar Constitution that was run on the passive interpretation of
constitutional provisions by judiciary. Judging from the role of judicial review included the following: the
system is designed to guarantee human rights and the Constitution. it is very important to constitutional
democracy to maintain an appropriate tension between the judicial and political branches through the
medium of judicial review; and judicial review also serves to stimulate constitutional debate.
Fourth, Supreme Court justices, with their large caseload of final appeals, are too busy to decide questions
of constitutionality. The passive stance of the judiciary may be attributed in large part to; (1) the restraints
on judicial renew due to the fact that Japan’s system is construed as being a U.S.-style system of incidental
review; (2) the influence of the idea that the executive branch takes precedence; (3) the fact that, in the
absence of free debate on constitutional re-vision, any Supreme Court decision on the constitutionality of a
high-level matter of governance risked drawing intense scrutiny as a political issue. In particular, an
environment in which the Constitution could be amended when a law was ruled unconstitutional was lacking,
mainly due to the- strict amendment procedure laid down by Article 96. The problem lies in the political
coloration of appointments of Supreme Court justices and other judges, and in the judicial bureaucracy,
which does not adequately ensure their freedom and independence.
To last, citing evidence such as the rarity of Supreme Court rulings that find statutes unconstitutional,
expressed the view that the judiciary is reluctant to decide questions of constitutionality (“judicial passivism”)
and suggested that it is not adequately fulfilling the role entrusted to it in guaranteeing the Constitution.
Others scholars also criticized the courts’ tendency to avoid rendering a decision by invoking the “act of
state” doctrine-on the grounds that the case is highly- political in nature. Some scholars expressed the view
that the judiciary should have a limited involvement in acts of state, leaving decisions in that area to the
political branch, while others commented that whether the courts rule on constitutionality is a question that
affects the autonomy of the judicial branch, and the legislative branch should not intervene.
Under the unitary social structure and implied unilateral political governance, the Supreme Court carries
out very diverse cases in addition to ordinary litigations related with the bylaws of local government, and
most Justices are inclined to follow a pattern of career judge’s thought and conduct. As the Cabinet will
appoint the Justice, whom ruling party may substantially select as candidates from among career judges,
prosecutors, practicing attorney, and law professors, in according to the recommendation of some sections
of the legal community. The greatest significance of passive judicial review attributed to a highly
bureaucratic machinery, a rigid formalism control, and a thoroughly respect for the status quo unless other
political things do change. 101
Ⅴ. Conclusion
101
Id, 42.
20
American originalism in its Constitution shows the powerful influence of American society and culture
on American jurisprudence. American originalism has been produced by a combination of historical
and cultural factors. Throughout American history lawyers and judges have made claims about the
purpose and intentions of the Constitution’s framers. 102 American constitutional culture shows us the
by-product of political culture and dynamic civil revolution. To be sure, originalism is a completely
unfamiliar concept different countries outside of the America. Every political culture must articulate
and struggle over their traditions in different ways. American identity is bound up with the memory of
the revolution and the enactment of the American Constitution. Today, constitutional interpretation,
which is widely used in the Constitutional Court is a review of the purposive interpretation, which has
been normally used in advanced constitutional system such as Germany, Korean, and Japan.
While Japan has adopted civil law accompanied authoritarian legal concept and established the
continental rule of law (Rechtsstaat) for the prewar, Japanese legal culture has been afforded and
improved by American common law since post war. However Confucian tradition has comprehensively
remained in various public and private associations in a sense of symbiosis (a collective interest).
However, Japanese has never experienced civil revolution in history, the Justices of Supreme Court
shall constraint political ideology of conservative political ideology of ruling party(LDP) as unilateral
nominator.
In the one hand, the first Constitution of Korea was influenced by the Weimar Constitution at least in
the sense of formal constitutionalism. Japanese judicial tradition has deeply prevailed on legal education
and professional practices, which has recently been influenced by American formalism and purposive
interpretation of German Constitutional Court. Even though there has persistently remained the vortex
pattern of political culture in a sense of Confucian tradition, Since Korean People carried out the
voluntary civil revolution against the authoritarian military governments till 1980s, the Justices of
Constitutional Court shall pay attention to the constitutional jurisprudence in partly rather than a
political preference of three nominators who are president, the Chief of Supreme Court, Congress. The
pattern and range of constitutional review is decisive evidence of the political and constitutional culture
in according to the national Civil Revolution respectively.
102
Jack Balkin, Why are Americans Originalist ?, 8(2014).
21