著者

川鍋 健

出版者

一橋大学大学院法学研究科

雑誌

一橋法学 (ISSN:13470388)

巻号頁・発行日

vol.16, no.1, pp.165-206, 2017-03

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This article considers Professor Jack M. Balkin's text on the methodology of constitutional interpretation, Living Originalism, and his historical narrative of legitimating the U.S. Constitution, Constitutional Redemption. In both books, Balkin's commitment to equal citizenship of the U.S. Constitution and abundant reference to American history are influenced by Professor Bruce A. Ackerman's constitutional theory. This article recognizes that Balkin's dichotomy between "hard-wired" rules and abstract principles in constitutional interpretation succeeds in justifying a broad constitutional construction including apparently illegitimate constitutional changes such as Reconstruction and the New Deal. In addition, this article concedes that Balkin's acceptance and revision of constitutional historicism from Ackerman's theory are convincing because the dynamism of constitutional security, Living Constitutionalism, can be normatively controllable through historical reference even though Living Constitutionalism is frequently conceived of as approval of easy transition of the Constitution. This article also supports Balkin's implication that positive judgment of the Constitution by the judiciary contributes to promotion of democracy and popular sovereignty as establishment of equal citizenship. Finally, this article alludes to the applicability of Balkin's theory to the Japanese Constitution.