[4th EAI Academy] ① The Role of the Constitution in Sustaining Democracy

YouTube Link: https://www.youtube.com/watch?v=wRd7ruw37mA

Video Transcript

not too theoretical but rooted in the reality of Korean politics, and how we can specifically change it, how we can carry out political reform. I wanted to create a space to discuss these things with young people, the next generation, who might study politics or actually engage in politics. That was the intention for me. So, I thought, what can I offer? No matter how much I thought about it, I couldn't come up with anything. This is because my major is Western political philosophy.

Therefore, I cannot claim to be an absolute expert on the reality of Korean politics either. So, when asked what I would like to talk about, the director, Son Hyuk, said that the future of Korean politics is ultimately a problem of democracy. Therefore, whether it's good democracy or bad democracy, we cannot opt out of democracy. If so, the future of Korean politics is about democracy and institutional reform, which is the theme of this lecture. Institutions are ultimately a matter of law. Law creates institutions, right? Institutions are reformed by changing the law. If so, among those laws, the constitution, which holds the authority of the final instance. How about opening the discussion on democracy and the constitution? That was the request. I thought, well, I have studied this, so I can try.

So, I am here today. Therefore, what I will talk about today will be very different from the lectures you will hear from now on. So, I'm giving you a heads-up: even if it's not interesting today, the next lectures will be interesting, so please bear with me. The reason you might find it uninteresting is that today's talk will be primarily theoretical. It won't go as far as political philosophy, but it will be a very theoretical and abstract discussion. What is a constitution? How does a constitution relate to democracy? These will be abstract topics, and I will primarily use foreign examples. I will likely discuss Germany, but since you may not be familiar with Germany or Europe, I will use American examples. How does a constitution relate to democracy, for example, in the United States? What problems does this cause? What does constitutional reform entail? I will discuss these using American examples.

From the next lecture onwards, we will likely discuss Korean topics and concrete realities, so I would be satisfied if this lecture could serve as a springboard for you to think about Korea's challenges and vision with a slightly theoretical and comparative perspective. However, let's start the discussion with a Korean topic. You all were likely born around the year 2000. This is before you were born, so it's a story from a long time ago, but this is what actually happened.

After democratization in '87, and then after Kim Young-sam became president in '91, there was a need for the liquidation of deep-rooted evils in our country. There was a genuine need for the liquidation of deep-rooted evils. It was the aspiration of the entire nation, and naturally, there was a need to hold historically accountable for the series of tragic events that occurred in 1980. Therefore, the most important issue was to prosecute the two former presidents, Chun Doo-hwan and Roh Tae-woo, who were the masterminds at the time. However, there was a serious problem: by the time these proceedings were underway in 1993-94, the statute of limitations had already expired.

You know, the statute of limitations, or prescription in civil law, is actually a fundamental principle of any legal order. This is because if the statute of limitations is not respected, predictability in the enforcement of the legal order decreases, leading to considerable confusion. Therefore, there are various principles that constitute the constitutional order, and among them, the issue of the statute of limitations for prosecution is a very important cornerstone. Thus, while the results of democratization demanded prosecution, according to the principles of the constitution, prosecution was impossible. For the sake of political democracy, these two needed to be prosecuted, but from the perspective of constitutionalism, this was not possible. This is the situation that arose.

In this situation, the National Assembly enacted the May 18 Special Act. This special act was created to punish those responsible for the May 18 Gwangju Uprising and massacre. What this means is that prosecution was impossible against these two individuals during the period of Chun Doo-hwan and Roh Tae-woo's rule after 1980, so a special act was passed to exclude their terms of office from the statute of limitations. While many people supported this, and it seemed natural, it was problematic again from the perspective of constitutionalism.

Naturally, a constitutional court hearing was held. In other words, a lawsuit was filed to determine the constitutionality or unconstitutionality of the May 18 Special Act. And at that time, you may be familiar with the Constitutional Court of Korea from the impeachment of President Park Geun-hye, as nine constitutional judges deliberated on this matter. The conclusion was that it was unconstitutional. Five of them ruled it unconstitutional, and four ruled it constitutional. You may or may not know the Constitutional Court Act of Korea, but according to it, for any law or administrative measure to be ruled unconstitutional, six votes are required. A two-thirds majority is necessary.

Therefore, this means that a 5-to-4 ruling against constitutionality implies that an unconstitutional ruling was not made. Consequently, although the May 18 Special Act was legally unconstitutional from the perspective of constitutionalism, it was effectively ruled constitutional. As a result, Chun Doo-hwan and Roh Tae-woo were prosecuted politically, and as you know, they were imprisoned. What this means is that the principle of constitutionalism, specifically the principle of the statute of limitations, is in conflict with the principle of democracy, meaning the majority of the people now want punishment.

That is justice. These two were in conflict. The fact that our Constitutional Court made a 5-to-4 ruling at that time was, in that sense, a fair ruling that satisfied both the principles of constitutionalism and the will of the majority in representative democracy. Therefore, in 1997, during the presidential election, you may not remember, but the two major candidates were Lee Hoi-chang and Kim Dae-jung. In this election, held against the backdrop of the financial crisis, democratization was a very important issue in Korean society at the time. I remember reporters asking candidate Lee Hoi-chang about it.

I remember reading that article. Although I was in the United States at the time, the reporter asked candidate Lee Hoi-chang, "What do you think democracy is?" Lee Hoi-chang, you may or may not remember, was a former Supreme Court Justice. He was one of the most respected legal figures in Korea. So, as expected of someone with his background, he replied, "What's so great about democracy? Democracy is doing things according to the law." In other words, he equated the rule of law with democracy.

And this is the early history of the Constitutional Court of Korea, which dealt with the May 18 Special Act. Considering the same background, it's not surprising. The principles of the constitution and the principles of democracy, the principles of law and the principles of politics, were moving in that direction. However, problems began to emerge in 2003. At that time, Lee Hoi-chang ran again but lost, and Roh Moo-hyun was elected president. And as you know, President Roh Moo-hyun was, to put it kindly, a candid person. He spoke candidly, which was both his charm and often a source of trouble. Because he spoke so candidly, he said, "I can't stand being president anymore."

Due to the significant criticism and opposition from the conservative opposition party at the time, and the constant obstruction, he said he would hold a confidence vote by referendum. A confidence vote is a principle of governance. Therefore, in a presidential system like ours, a confidence vote is a very unusual thing. As expected, it went to the Constitutional Court. The president said he would hold a confidence vote.

A ruling came from the Constitutional Court regarding the constitutionality of the president's intention to seek a confidence vote from the public. I recall it was a 6-to-3 decision at the time; you can check it. The Constitutional Court stated that policies not yet implemented by the president are not subject to constitutional review. In other words, they did not deliberate on it. This makes sense: the president expressed his intention, but he wasn't actually organizing a referendum. However, there was an interesting dissenting opinion at the time.

The dissenting opinion at the time argued that this was a matter of grave importance, and if the president expressed such an intention, it should be subject to constitutional review even if not actually implemented as policy. Furthermore, if we were to proceed with constitutional review, it would violate the constitutional principle of a presidential system, making it unconstitutional. In essence, the Constitutional Court issued a warning to the president. It was a warning. If something like this were to happen again, even if it wouldn't result in an unconstitutional ruling, it would be subject to disciplinary action in the name of the constitution. Eventually, due to violations of election law, the situation escalated to impeachment proceedings. Looking back at 2003, the impeachment proceedings, while not the most important aspect, are significant. For those who may not remember, the impeachment system in Korea, as seen in the case of President Park Geun-hye, involves impeachment by the National Assembly. In other words, it follows the procedures of criminal trials. Therefore,

the role of the prosecutor is played by the National Assembly, and the trial is held by the Constitutional Court. Therefore, the National Assembly initiated the prosecution. The current president's actions, whether right or wrong, are for you to judge historically, but what happened in the end? It was dismissed by the Constitutional Court. In other words, in the case of President Park Geun-hye, the ruling was upheld, meaning the prosecution was accepted. This time, it was not accepted.

The Constitutional Court did not accept it. However, if viewed that way, it might seem like a unilateral victory for President Roh Moo-hyun at the time. That was not the case. Because if you read the Constitutional Court's ruling, it doesn't say the president did well. It clearly states that the president violated election law. However, the severity of the criminal act was not significant enough to warrant a severe punishment like impeachment. This is akin to a suspended sentence in a typical criminal trial for ordinary citizens.

It's like a suspended sentence. As expected, what happened next? The same year, a ruling was made on the unconstitutionality of the Special Act on the New Administrative Capital. The Special Act on the New Administrative Capital, you may or may not remember. It was about moving the capital to Sejong City, which is now Sejong City. A special act was passed for the new administrative capital. What's interesting is that it was a law passed with unanimous consent from the executive and legislative branches, which is rare in Korean history. At the time, the Roh Moo-hyun administration led this bill. Even the opposition leader at the time, Park Geun-hye, actively supported and cooperated with it, likely for political calculations. Ultimately, the Special Act on the New Administrative Capital, passed with near-unanimous consent from the executive, legislative, and both parties, was ruled unconstitutional by the Constitutional Court. That was the famous debate on customary law at the time. In short, the Constitutional Court stated that although the provision that the capital of the Republic of Korea is Seoul is not explicitly written in the constitution, it has held this status for 600 years of history, thus possessing the character of an unwritten constitution, or customary constitutional law.

Therefore, to relocate the capital, it would require not just ordinary legislation but a constitutional amendment. You see, Sejong City exists today, so it wasn't that it wasn't built. That's another story. But the point is this: the executive branch and the president are powers elected by the people. The legislative branch, the National Assembly members, are also powers elected by the people. These branches, with unanimous consent, decided to move the capital to implement the will of the majority of the people. Yet, the Constitutional Court intervened. The Constitutional Court consists of nine judges who have never been elected. Furthermore, unlike judges in Europe or the United States, they are typically individuals who have spent their lives studying law diligently from their mid-twenties, holding the title of 'judge' their entire careers. These nine individuals, with no democratic legitimacy, gather and overturn the overlapping consensus reached by the elected powers of the executive and legislative branches, the will of the majority, in the name of the constitution. Constitutionalism and democracy, or the principles that constitute the constitution, do not go together.

In other words, Lee Hoi-chang's statement that democracy is nothing more than doing things according to the law, the rule of law, is incorrect. The principle of the rule of law means governing through law. Right? When we talk about the rule of law, we often think of a dictatorial power. This dictatorial power exercises its authority arbitrarily, for its own self-interest, without regard for regulations or procedures. The law is a principle that controls such actions.

We often think this way. And that's true. During the authoritarian regimes Korea has experienced, many problems arose precisely because the principle of the rule of law was not established. But after democratization, what people overlooked, what we overlooked, is that from a legal perspective, there is no difference between a single ruler and the majority of the people. Whether power is held by one person, a minority, or everyone, any form of power that is not controlled by law is problematic. In contrast, democracy, the principle of rule by the people, right? More precisely, the people here mean the majority. Therefore, a country decides and moves in the direction desired by the majority within a national community. That is democracy. Simply put, when we look at it that way, the principle of the rule of law, even for democratic power, admits no exceptions; it cannot escape the control of the law. The principle of democracy aims for the will of the majority to be realized as freely and immediately as possible. Whether it follows the law or not is a secondary issue. When we look at it that way, the principle of the rule of law and the principle of democracy, the principle of constitutionalism, are based on entirely different logic. We don't need to go back to Kant to explain this; you can simply think about it. Nevertheless, as seen in the case of the dissolution of the Unified Progressive Party (UPP), which occurred in 2013 (I have corrected the new document I sent), what do we say?

The main reason for dissolving the UPP was that Korea is not simply a democracy, but a liberal democracy. Liberalism, in this context, referred to constitutionalism. Therefore, Korea, in other words, combines constitutionalism and democracy. So, as Lee Hoi-chang argued, democracy is constitutionalism. Therefore, the UPP, violating such principles of constitutionalism and liberalism, should be dissolved. This was the argument.

That is not true. That is not true. That is not true. Nevertheless, Korea is a liberal democracy. In other words, Korea combines liberalism and democracy. In our current class, from a left-right perspective, we are a country that combines constitutionalism and democracy. Strange, isn't it? These are very disparate and, in fact, contradictory ideologies, yet we pursue both. Strange, isn't it? Why is this possible? Why must they go together? This is what I will talk about from now on. How do they go together? How can the constitution and democracy go together? This is their original relationship, and I intend to discuss that. Can you follow?

I read the lecture given at the Constitutional Court, so it's a bit better, right? It's a bit better. The relationship between the constitution and democracy, how the constitution constrains democracy, can be explained in various ways. The easiest way to explain it is as a constraint, a "straitjacket" in English. What does this mean? It means that the constitutional norms constrain democracy when it tries to be realized, preventing it from acting arbitrarily. Let me explain.

Imagine, for instance, that a sudden religious revival movement sweeps across Korea, and the entire nation becomes Christian. Suppose 99% of the Korean population converts to Christianity. Then, the Korean people start a petition movement: "Why doesn't Korea have a state religion? Since 99% of the population are Christians, let's declare Christianity the state religion and amend the constitution to that effect." This petition movement, even with 99% support, would not succeed. Why?

The principle of separation of church and state is a core principle of constitutionalism. Therefore, even if 99% of the population desires it, it cannot be done. If such a constitution were enacted, it would no longer be a constitution. This is why, for example, the constitutions of Islamic countries often raise questions: they establish a state religion, leading to debates about whether they are truly constitutional or adhere to constitutionalism. Anyway, even though 99% want it, they cannot do it because of the constitution.

Due to the principle of constitutionalism, consider direct voting, for example. During the last presidential election, we faced considerable difficulties. But imagine this: I wanted to go to vote on election day, but I contracted an illness and couldn't go. In such a situation, I have absolute respect for my wife's political views and trust her completely, so I ask her to vote on my behalf. I give her my resident registration card and my seal to vote for me. Look, a high voter turnout is good, right? Therefore, it is in the public interest for me to add a vote through my wife rather than not voting at all because I am sick. Simultaneously, since I have the right to vote, exercising my right in this manner is also in my self-interest. It serves both public and private interests. However, I cannot do it. Why? Because Articles 41 and 67 of the Korean Constitution stipulate direct voting. Indirect voting is prohibited. In other words, no matter how good an idea it seems, I cannot do it. Why? Because a specific provision of the constitution restricts my thoughts and actions.

It restricts me. In Germany, Articles 1 to 20 of the constitution are stipulated as fundamental rights. Furthermore, Article 79, which stipulates the amendment of the constitution, states that the fundamental rights provisions in Articles 1 to 20 cannot be amended. What does this mean? A constitution is not like the Ten Commandments handed down by God; it is created by the people. Even if the people want to change it, they cannot. Constitutional scholars refer to such provisions as rigid clauses. The constitution is designed to be extremely difficult to change. This is an example. The constitution restricts the people's will to change it, preventing them from acting. How can this be justified? How can this be justified? The justification can be explained in various complex ways, but the simplest explanation is this: In politics, there is ordinary politics, and there is another level of politics, which is constitutional politics. Simply put, what is this?

Ordinary politics involves games like deciding where to build a new airport or whether to move the administrative capital. It's a game played in situations where various values and interests clash. This is the ordinary politics we see daily, the politics constantly happening in Yeouido. But that's not all. There is also politics surrounding the rules of the game. Therefore, what is that?

It involves struggles over bills with constitutional significance. Of course, constitutional amendment is the most representative and extreme case. But it doesn't have to go that far. For example, the issue of adjusting the electoral district system, currently proposed by the president in Korea, is not a game in itself. It doesn't necessarily lead to a specific policy outcome. Rather, it's about changing the rules of the game. Therefore, politics involves such different types of political activity.

Due to the principle of constitutionalism in the Constitution, what about, for example, direct voting? We had a very difficult time during the last presidential election, didn't we? But let's imagine this: I really want to go to vote on election day, but I become infected and cannot go. In such a situation, I absolutely respect and absolutely trust my wife's political views, so I ask my wife to vote indirectly on my behalf. So I go with my resident registration card and my seal and ask her to vote for me. Look, a high voter turnout is good, isn't it? Therefore, it is in the public interest to add one more vote by voting, rather than not voting because I am sick.

At the same time, since I have the right to vote, exercising my right in this way is also in line with my interests. It aligns with both the public interest and my personal interests, so why can't we do it? It's because direct voting is stipulated in Article 41 and Article 67, Paragraph 1 of our Constitution. Indirect voting is prohibited. In other words, no matter how good an idea it seems, I cannot implement it. Why is this? Because a specific provision in the Constitution limits my thinking and scope of action.

It restricts me. In the German Constitution, Articles 1 through 20 are stipulated as fundamental rights. They are stipulated as fundamental rights, and then Article 79, which stipulates the amendment of the Constitution, states that the fundamental rights provisions from Article 1 through 20 cannot be amended. What does this mean? Isn't the Constitution, like the Ten Commandments, something handed down by God? It is made by the people, but even if the people want to change it, they cannot. Scholars of constitutional law call these provisions "entrenched clauses".

This is an example where the Constitution is made extremely difficult to change. How is it possible that the Constitution restricts the will of the people to change the Constitution? It paralyzes them. How can this be justified? There are various complex ways to justify it, but to put it simply: In politics, when we talk about politics, there is ordinary politics. And then there is another dimension of politics that is fundamentally different. That is constitutional politics. To put it simply, what does this mean?

Ordinary politics involves things like, 'Where should we build a new airport?' or 'Should we relocate the provincial capital?' It's a game played with various values and interests clashing. This is the ordinary politics we see every day, the politics we see in Yeouido all the time. But that's not all. Although it may constitute 99% of politics, there are times when politics revolves around the rules of the game. So, what is that?

There are struggles surrounding legislation that hold a constitutional position. Of course, constitutional amendment is the most representative and extreme case. However, it doesn't have to go that far. For example, the issue of adjusting the large electoral district system, which is currently being discussed in South Korea, initiated by the President, is not a game in itself. It doesn't produce a specific policy outcome in itself. Rather, it's an attempt to change the rules of the game. Therefore, politics has these different kinds of dimensions.

Very normal politics. Deciding where to build an airport is relatively easy. Your interests might be involved, or there might be partisan or ideological considerations. Therefore, ordinary politics is somewhat understandable if you watch the news channels diligently. However, when it comes to politics at a very high level of abstraction, most citizens, though perhaps not you, cannot understand it. I am not trying to belittle anyone; sometimes, even I don't understand certain issues. What happens when constitutional politics comes to the forefront? Interestingly, although they talk about advancing democracy and improving its quality, public participation tends to decrease. Therefore, all processes of constitution-making or amendment are bound to be conducted behind closed doors. The general public doesn't fully understand what's going on.

Therefore, whenever politics surrounding the constitution arises, the key stakeholders, the constitutionalists, inevitably gather and engage in clandestine negotiations. This is why the full emergence of constitutional politics is not necessarily a good thing from the perspective of democratic participation, as it makes public involvement difficult. So, what's the point? For instance, consider the rigid structure of the constitution mentioned earlier. The rigid structure of the constitution means that in such contexts, one should not casually engage in constitutional politics. In Korea, too, the president proposes it, or more than half of the National Assembly agrees to propose it, and then it requires a two-thirds majority in the National Assembly, followed by a national referendum. This is entirely different from amending an ordinary law.

Because the constitution is made so difficult to amend, people are generally hesitant to attempt it. In other words, it discourages casual attempts to amend the constitution. And the reason for this is, and its justification is, for example: By preventing the emergence of constitutional politics, it actually broadens and secures the realm of ordinary politics. And that realm of ordinary politics is the space where the average voter can participate more actively in politics. Simultaneously, there are many historical examples. If we talk about the US, this happened in 1828, during the presidency of Andrew Jackson.

At that time, the Achilles' heel of the constitutional order of the United States, the repercussions of which we still suffer today, was the issue of slavery. And the issue of slavery was intertwined with the principle of federalism in the United States, making it an Achilles' heel, and ultimately leading to the Civil War. At that time, before the Civil War in 1828, President Andrew Jackson engaged in a "frog gag." A gag, you see, is like wearing a mask. What does this mean? He reached a grand compromise with the political leaders of the United States, acknowledging that the issue of slavery was their Achilles' heel but that it could not be resolved at that moment. So, they decided to put the issue of slavery aside. By gagging this issue, by covering it up, Andrew Jackson became one of the most successful presidents in terms of democratizing the United States. In other words, they were able to enjoy significant democratic achievements in ordinary politics concerning the issues of slavery and federalism.

This is, in essence, the role played by the rigid structure of the constitution. However, conversely, if there is something wrong with the constitution, and it is so difficult to amend, what happens? People cannot think of it lightly. They deliberate more carefully. And through such careful deliberation and dialogue, more quality democratic political participation becomes possible. In this context, the rigid structure of the constitution, at first glance, might seem like: "Why does it prevent me from voting indirectly? What's wrong with my wife voting for me? Isn't that anti-democratic?" It is indeed anti-democratic, but from the perspective I just explained, it plays a role in enhancing both the quantity and quality of democratic political participation.

Regarding the issue of freedom, since you don't seem very interested, let's consider how this constraint imposed by constitutionalism on democratic majority will can be democratically justified. The second perspective to consider is that of freedom. The perspective of freedom requires a bit of explanation. The most conventional philosophical definition of freedom is the absence of coercion and interference. What does that mean? I am thirsty right now, and I want to drink water. But Han Woo-jun comes out and says, "Sir, you cannot drink water indoors." He stops me. Because he stopped me, I am now freely drinking water. Simultaneously, I am not actually thirsty. But Park Si-yeon suddenly says, "Sir, you are now a wet wipe," and starts pouring water into my mouth, coercing me. But that didn't happen. Without coercion or interference, I drank the water. So, I drank it freely. We call this kind of freedom negative liberty, or negative freedom. Why? Because the definition of my free action does not derive its content from itself, but is defined by the absence of coercion and interference.

Therefore, because it is negatively defined, we call it negative liberty or negative freedom in Korean. Freedom is not just that. Freedom is different. When I lecture in the US, I always use this example, but it's difficult to use in Korea. Why? Because the system of designated drivers for drunk driving is common in Europe, but not in Korea. In Korean towns, there are designated drivers, but generally, there aren't. So, what do people usually do? When friends go out for drinks, one person agrees to drive. And everyone else hands over their car keys to that person. You know, at first, people might resolve not to drink and drive. But after an hour or two, some people get reckless. To prevent this, they designate a 'designated driver' and all hand over their car keys. And indeed, after a drink or two, someone might say, "It's okay, I can drive," and ask for their keys back. But the initial agreement was: never give back the car keys. Now, in that situation, if I want to drive, I need the car keys. I ask my friend for the car keys, but they don't give them to me. So, how is my freedom to drive being affected? It is being interfered with. So, I am not free, right? Therefore, according to the principle of negative liberty, is my right to receive the keys, to not have my driving interfered with, valid? In this case, it's not. This is because, while I may have the freedom to drive, I do not have the freedom to drive drunk.

Since the issue of freedom doesn't seem to interest you much, we will consider how the restrictions imposed by constitutionalism on the democratic majority will can be democratically justified. Secondly, we can consider the perspective of freedom. The perspective of freedom requires a bit of explanation. The most conventional philosophical definition of freedom is a situation where there is no coercion or interference. What does that mean? I am thirsty right now, and I want to drink some water. As I try to drink water, Mr. Han Woo-jun approaches and says, 'Sir, you cannot drink water indoors.'

He stops me. But that didn't happen, so I am freely drinking water. Simultaneously, I am not actually thirsty. Suddenly, Mr. Park Si-yeon says, 'Sir, it's time for a water fight,' and starts pouring water into my mouth. He is coercing me. But that didn't happen. Without coercion or interference, I drank this water. Therefore, I drank the water freely. This type of freedom is called negative freedom in the West. Why? Because the definition of my free action does not inherently contain content but is defined as a state of absence of coercion and interference.

Therefore, because I am a tablet definer, we call this 'negativity' in Korean as 'passive freedom'. That is not freedom, is it? Freedom is different. When I lecture in the US, I always use this example, but it's difficult to use in Korea. Why? In Korea, there is the system of designated drivers for drunk driving. In Europe, there is no such system of designated drivers, though they say there is one in Koreatown. Usually, there isn't. So, what do US soldiers do? When they go out to drink with friends, one person volunteers to drive. Then, everyone else hands over their car keys to that person.

Isn't that right? At first, people might resolve not to drive drunk. But after an hour or two, some people get reckless. To prevent this, everyone designates a designated driver and hands over their car keys. And in reality, after a drink or two, some friends say, 'It's okay, I can drive,' and ask for their keys back. But what was the original promise? Never to give back the car keys. In that situation, what is the reason I want to drive?

If I want to drive, I need the car keys now. My friend is not giving me the car keys. So, how is my freedom to drive being obstructed? It is being obstructed. Therefore, I am not free, right? So, according to the principle of negative freedom, is it my right to receive the keys in this case, as my freedom to drive should not be obstructed? Not in this case. Not in this case. Although I may have the freedom to drive, I do not have the freedom to drive drunk, and therefore...

Therefore, I do not have the right to demand that my keys be returned or that my driving not be interfered with. Moreover, in reality, it has gone further. If we consider this logically, before getting drunk, I knew I would get drunk and made the decision to give my keys to my friend. Right? Before drinking, I knew my true freedom was not to drive drunk. But after a drink, my legs get wobbly, and I start demanding the freedom to drive drunk again. In that situation, when the friend holding the keys does not give them to me, preventing me from driving drunk, it may seem like my freedom is being suppressed at that moment. However, in reality, it ultimately leads to an increase in my freedom by helping me avoid drunk driving. In some cases, interference and coercion can lead to freedom. This is what we can see from the example I just described. This is called a prior commitment (Vorkonstituierung).

Therefore, at time T1, when we are rational, before we get drunk, we make a sound decision. And at time T2, if our will weakens for some reason, or if we break our original rational judgment, and infringe upon our own freedom, we bind ourselves at T1 to the friend at T2. This is too difficult. So, why am I telling you this story? Why am I telling you this? Let's return to the topic of the constitution. What is a constitution? A constitution, in essence, is this. When was the constitution written? It came into effect in 1987. Have you ever consented to this constitution? No. Yet, you go to the military when ordered, pay taxes when required, and do everything else. Why? In other words, why should the constitution, which was thought of and agreed upon by people like me who were alive in 1988, be binding on you, who have never consented to it? Isn't that strange?

That logic, according to the concept of prior commitment, is as follows: At the time of constitution-making, a rational judgment is made to establish a constitutional order. To prevent this constitutional order from being destroyed by the tyranny of the majority at a later stage, the constitution is made difficult to amend through a rigid structure. This is analogous to handing over keys before drinking to guard oneself after getting drunk. This is the same logic. What is a more concrete historical example? As mentioned earlier,

Articles 1 to 20 of the German Basic Law. This is the Federal Basic Law of Germany. The reason for this is, as you can all imagine, because the law was written in 1948. This constitution of 1948 was written to negate the past. What was that past? It was the barbarism of Nazism. To prevent such barbarism from ever recurring, in 1948, fundamental rights were listed in Articles 1 to 20, and it was stated that even with unanimous consent from the people, these could not be amended. Why is this?

The reason is that the constitution, at the time of its creation, represents a rational decision made by the people to prevent the tyranny of the majority from destroying the constitutional order in the future. This is why it is made difficult to amend. This is similar to the logic of handing over car keys before drinking to prevent oneself from driving drunk later. This is the logic. The rigid structure of the constitution, in this sense, serves to protect the fundamental principles of democracy and constitutionalism from the potentially impulsive will of the majority.

This is the case with Articles 1 to 20 of the German Basic Law. This is the Federal Basic Law of Germany. The reason for this is, as you can all imagine, because the law was written in 1948. This constitution of 1948 was written to negate the past. What was that past? It was the barbarism of Nazism. To prevent such barbarism from ever recurring, in 1948, fundamental rights were listed in Articles 1 to 20, and it was stated that even with unanimous consent from the people, these could not be amended. Why is this?

Hitler came to power democratically; he was not someone who staged a coup or revolution. He became Chancellor through a coalition government as the leader of the largest party in the legislature, a process that was democratic. The German people elected him. Therefore, the most significant spirit of the German Basic Law is distrust of the majority will of the people. This is why fundamental rights are enshrined, to prevent the populace from suddenly changing their minds, as in our earlier example of drinking.

After one drink, one might decide to drive drunk, but the constitution, like a master lock, restrains such impulses. It prevents the people from acting on their whims. What does this imply? The constitution, in this manner, constrains the majority will, the popular will, through various means. While these constraints may appear secretive and are indeed secretive, in a broader perspective, they are essential for the enhancement of democracy. By exercising self-restraint, one can pursue greater freedom. Ultimately, constitutional constraints should be viewed from this perspective.

Regardless of the specifics, what is the core point of this argument? Democracy is a complex entity. It is complex because democracy does not function well when simply left to the will of the majority. Therefore, from the process of identifying and forming the majority will to its execution and subsequent evaluation, the majority will must be constantly constrained. The constitution serves as an institutional mechanism designed to tame this raw majority will.

This is the current situation. Therefore, when we consider political reform, particularly redesigning institutions for the sake of democracy, the most crucial point to remember is that democratic institutionalization does not aim to enable the immediate implementation of the majority will. Rather, the key point of institutional reform lies in how to tame the majority will through the filtering mechanism of institutions. This is the essence of institutional reform. As time is short, we will discuss this further during the debate. Since purely theoretical discussions can be dry, let me provide some examples.

Reforming the constitutional order is what we will discuss over the next few days. How can we reform it? I will provide two examples from the United States. One is the issue of slavery, which ultimately led to the Civil War. The war ended with the defeat of the South. However, the significance lies not just in the war itself but in the need to resolve the issue of slavery constitutionally. To achieve this, after the Civil War, the 13th, 14th, and 15th Amendments to the Constitution were enacted. The reasons for their enactment could fill a book.

The point is that the 13th Amendment abolished slavery. It declared that the institution of slavery shall not exist within the United States. Ironically, although the United States was founded in 1789 with slavery embedded and constitutionalized, the word 'slavery' does not appear anywhere in the U.S. Constitution. It only appears in the 13th Amendment. The 14th Amendment, as a follow-up, enumerates rights such as equal protection under the law for all persons and the legal rights of U.S. citizens. The 15th Amendment guarantees the right to vote, ensuring that it cannot be denied based on race, and is enshrined in the constitutional structure.

The 15th Amendment concerns the right to vote, specifically ensuring that voting rights are guaranteed for Black individuals. This is the constitutional structure that regulates these matters. However, the issue is that in 1870, after the Civil War concluded, the Union Army militarily occupied the South for about five years. Interestingly, Korea also experienced U.S. military occupation from 1945 to 1948. When the U.S. military government was established, it referenced the field manuals used by the Union Army during its occupation of the South.

This was a challenging period, marking the first instance of U.S. military governance in American history. Despite the passage of laws and constitutional amendments, and the formal amendment of the constitution to abolish slavery, the South reverted to its previous state as soon as the Union Army withdrew. For example, literacy tests were implemented, denying voting rights to those who could not read, a clear measure to discriminate against Black people. Poll taxes were another such measure. Poll taxes, in a Korean context, meant that individuals who did not pay a certain amount of taxes were denied the right to vote.

These laws, designed to disenfranchise Black people, were known as poll taxes in the United States. They were finally abolished with the passage of the 13th Amendment in 1863. Consequently, by the 1880s, the South had largely reverted to its old ways. The most notorious aspect was the policy of racial segregation. Black and white people could not attend the same schools. This system persisted until the 1950s. So, what was the purpose of the 13th, 14th, and 15th Amendments? They explicitly prohibited such practices. Yet, they were ineffective.

There are various reasons for this. However, from the perspective of constitutional reform and institutional change, it demonstrated significant limitations. Consequently, the United States continued to grapple with racial issues well into the 20th century, and this persists to some extent even today. The point is that while one might believe that constitutional reform through formal amendment is sufficient, it can be ineffective in certain cases. Furthermore, as you all know, during the Great Depression, the U.S. President was one of the greatest presidents in American history.

However, when we look at Franklin from today's perspective, he may seem like a great person. But in 1929, when the Great Depression struck, the United States did nothing until 1932. An economic crisis of immense proportions occurred, similar to today, yet the federal government did not intervene, believing the market would sort it out. It was only after Roosevelt was elected president in 1932 that intervention began. Even then, during his first term, his first four years, that was the New Deal policy, which we are all familiar with. However, the New Deal policies all failed.

The biggest reason for the failure was the need for institutions to implement the New Deal policies, akin to a Ministry of Economy and Finance or a Financial Supervisory Service in Korea. When such bodies were created, they were challenged in court, and the U.S. Supreme Court ruled them unconstitutional. By the end of his term, around 1935, the New Deal policies collapsed. In that situation, Roosevelt became frustrated. He decided to pursue constitutional reform. The core of the reform was to dismantle the federal judiciary, essentially a systemic reform.

However, he could not achieve it. Roosevelt ultimately failed. There were several reasons for this failure. The most significant reason was that even if the constitution were amended to grant the federal government the authority and obligation to implement social welfare policies or economic policies, the judiciary would continue to issue unconstitutional rulings based on various peculiar legal interpretations. Therefore, it became clear that the judiciary, rather than the constitutional provisions, was crucial. With this realization, the plan for constitutional amendment was abandoned.

The opposition, meanwhile, focused on the 1936 presidential election in November. No record in American history has been broken since the 1930s. In the context of the Great Depression, Roosevelt found himself cornered by the conservative judiciary. Ultimately, he secured a landslide victory. Immediately after taking office in 1937, the first card he played, in Korean terms, was the Judiciary Reorganization Act. This act concerned the number of justices on the U.S. Supreme Court, which is nine.

This number is not fixed by the current constitution; it is stipulated in the Judiciary Reorganization Act. The number nine has not been fixed for that long. In the past, it was seven, and at times, even fewer. Therefore, Roosevelt intended to expand the court to fifty members. This would grant him the power to appoint the majority of the justices. He aimed to dilute the influence of the conservative majority on the Supreme Court. In Korea, this would be considered a judicial crisis. Consequently, a bill was introduced to increase the number of justices to fifteen. The bill was submitted, but in the spring of 1937, this caused a nationwide uproar in the United States.

The situation escalated, but ultimately, the Supreme Court capitulated. Among the justices, five individuals, who were considered extremely conservative at the time – even by today's conservative standards, they were highly conservative – changed their votes. Suddenly, the unconstitutional rulings on New Deal policies were halted. This is how the Supreme Court, much like any court in Korea, including the Chief Justice, operates. The most crucial factor for any court, including the U.S. federal courts, is its institutional standing. If a law is passed, especially with the overwhelming majority support that Roosevelt enjoyed, it will be enacted. In such a scenario, the Supreme Court would lose its institutional prestige and could no longer maintain its position.

Therefore, the Court ultimately capitulated. This might seem like ordinary political maneuvering, similar to what happens in Korea's National Assembly, but Bruce Ackerman, a professor of American constitutional law at Yale University, interprets this as a form of constitutional amendment not explicitly based on Article V of the U.S. Constitution, which deals with amendments. He refers to it as structural constitutional change. This means that while the constitution itself does not undergo direct alteration or modification, fundamental changes are brought about through subtle political interactions.

According to his theory, this model is based on the immense impasse that arises between branches of government – in this case, the judiciary and the executive branch. This situation can lead to a state of governmental paralysis, where the nation's affairs come to a standstill. During such times, a nationwide election, whether general or presidential, takes place. Roosevelt, having won the election, secured the mandate of the majority of the people. With this power, he exerted pressure on his opponents.

The court-packing bill, as mentioned earlier, was an example of such pressure. And when the pressured institution finally yields, a fundamental change occurs. This is the essence of the argument. Therefore, there is no explicit provision in the U.S. Constitution that acknowledges the institutional legacy created by the New Deal policies. Even the U.S. Constitution, which is often discussed, does not contain such provisions. In other words, despite the constitutional amendments during the Civil War, the reform of the constitutional order was incomplete.

It remained incomplete, and that is why the United States continues to face challenges. Although Roosevelt did not officially amend the constitution, a form of social democracy, in the American style, emerged during that period. A complete institutional revolution took place. Therefore, when we consider the reform of a constitutional order or any institutional reform, we must consider how to view the constitution itself. In this context, we should consider the following.

As I mentioned earlier, it is returning to Korea. Our country's constitution clearly has problems. It definitely has problems. Many people, especially those discussing the power structure, will talk about this. You have likely heard it many times: the imperial presidency, and so on. You have heard these terms countless times. In reality, these issues will ultimately require constitutional amendment. While we must gather consensus on that at the time, it will likely be difficult to resolve without amending the Constitution. However, the issue is that, in other words, there is a demand for constitutional amendment in Korea. There is a need to amend the Constitution.

What is the problem then? The problem is whether we have the capacity for constitutional amendment. What does the capacity for constitutional amendment mean? Imagine this: imagine opening Pandora's box of constitutional amendment in Korea. Will it end with just the single-term presidency, the re-election system, or a parliamentary cabinet system? It will not end there. In a country like Korea, right? In a country where consensus on whether Korea is a democracy or a liberal democracy is constantly debated every time a textbook is written. All our problems, including the foundational issues of Korea's Constitution, are all...

will become problematic. Not only that, but fundamental rights. From the right to sunlight to, as mentioned earlier, granting rights to pets, all sorts of demands will be made. Diversity is good for constitutional amendment. However, to handle constitutional amendment, there must be political power that can integrate such diversity. What do you think? Do you feel that way? Constitutional amendment is therefore like Pandora's box. We cannot pick and choose only what we want from it. Once opened, everything spills out.

If we still have the capacity to put it all back together, then we should proceed. But if we cannot, who will bear the responsibility afterward? What happens then? It is the same as in the United States. The reason the U.S. is like that is that constitutional amendment was possible due to the Civil War. However, Article V of the U.S. Constitution makes amendment difficult. The U.S. Constitution is even more stringent than ours. Because it requires the consent of two-thirds of the 50 states, it becomes even more difficult.

Therefore, the U.S. also lacks the capacity for constitutional amendment. The barrier to entry is too high. That is why, in such a situation, we must consider how, by all means, we can achieve a change in the constitutional order without amending the Constitution, even though we ultimately need to amend it. This is what those interested in politics must contemplate. For example, what about a runoff election? For instance, in Korea, the presidential election always faces the issue of a candidate winning with about 40% of the vote. Therefore, while winner-take-all is practiced, with a 40% stake, who can accept this winner-take-all system?

Who would accept it? Consequently, disputes over presidential election results always arise, and such institutional problems emerge. Therefore, there are always people who advocate for introducing a runoff election system. I am not an expert on France, so I do not know. However, some argue that the runoff election system requires a constitutional amendment, while others argue that it can be implemented at the level of presidential election law without amending the Constitution. For example, when faced with such issues, this is what we should consider. How can we achieve the effect of constitutional amendment without formally amending the Constitution, given that opening Pandora's box is not feasible? We need to consider what kind of politics can achieve this. This is an example.

Ultimately, constitutional amendment. Therefore, to put it simply, constitutional amendment is not a means to solve any problem. Constitutional amendment is a declaration that a problem has been resolved politically; it does not solve problems through constitutional amendment. Problems must be solved for constitutional amendment to occur. We must think of it this way. And when considering such fundamental institutional changes in the constitutional order, we must always keep in mind the value of the Constitution as a constraint on the will of the democratic majority. And even if we do not discuss it philosophically, it is the issue of the sustainability of democracy, which is often discussed these days.

Therefore, in reality, our democracy, as requested by a professor from Kangwon National University at the very end, must be discussed. Our democracy, in reality, we, including myself and everyone here, are thinking a lot and believe that reforms are necessary. However, in comparison, this is actually a good situation. Right? Everyone saw what happened in the US during the Trump administration. Everyone saw what happened in France. Everyone saw what happened in Italy, right? We saw what happened in the UK. Compared to those, our democracy is not bad.

Nevertheless, we continue to contemplate and dream. In other words, the problem of populism, which we call... right? The populism that is also observed in the West, which we consider advanced democracies, is the majority that we must control. Then, why is it possible for Korea to control this, compared to those countries? Honestly, I am writing a book about this myself. Why was it possible for us to control it? I am contemplating this, and you must also contemplate this. Therefore, to create a sustainable democracy, we must carry out institutional reforms. And the measures for institutional reform should ideally avoid constitutional amendment as much as possible. The ultimate goal of institutional reform is to create a sustainable democracy, or to enhance the sustainability of democracy in the Republic of Korea. How can we institutionally control the will of an uncontrolled majority? This is what we must contemplate. This will be the summary of today's discussion.

It will be the summary of the discussion.