미국 대통령의 외교권 행사에 대한 논쟁

서지정보

· 발행기관 : 동국사학회
· 수록지 정보 : 동국사학 / 43권
· 저자명 : 강택구

초록

민주주의 철학자인 John Locke는 “어떤 국가든 외부의 적으로부터 안전하지 않는 한 국내적 자유를 보장받을 수 없다”라고 주장했다. 미국 헌법제도의 상당 부분은 로크의 철학에 기초하여 운영되어 왔다. 그는 국가 방위의 우선적 책임을 소위 ‘연방권(federative power)’에 두었으며, 이는 주로 행정부의 권한을 의미한 것이다. Locke는 특히 대외 관계의 불예측성을 지적하며, 연방권의 법적인 권한(statutory authority)보다는 이를 행사하는 책임자들의 사리분별력(prudence)이 특히 중요하다고 지적하였다.1) 사실 미국헌정사에 나타나는 권력 분립, 견제와 균형 그리고 성문법적 전통 등과 같은 가치들은 국내 문제에서보다 대외 문제에서 더 유연하고 관대하게 적용되어 왔다. 그럼에도 불구하고 외부의 잠재적 적국들로부터 미국의 안전을 지키려는 시도 즉 ‘국가 안전 보장’ 문제를 주도하려는 행정부와 미국의 전통적 가치인 엄격한 권력 분립에 입각해 정치적 자유의 보존을 주장하는 이상적 명분주의자 간에는 늘 팽팽한 긴장이 있어 왔다.

영어초록

Values like separation of the powers that is expressed in America’s
constitutional history, restrain, balances and tradition of being written in law have
been applied flexibly and generously regarding foreign problems than domestic
one. In spite of that, trial to protect America’s safety from potential enemies of
outer parts, to say - Very strong strained tension has been existed all the time
between justification ideologist who intend to preserve political freedom being
based on strict separation of the powers that is the America’s traditional value
and the Administration that take the lead of the problem to be "Security of
national safety".
Both parties 1st dispute had been happened in 1793 - Geroge Washington’s
2nd term. Washington proclaimed neutralization for the purpose of America’s
isolation from war between England and France. The proclaim had been criticized
as his act of arrogation(malfeasance) by people who came out on the side of
France. Alexander Hamilton assisted president’s position in the statement to be
Gazette of the United States as the writer’s name of “Pacificus”. Hamilton analyzed
that the president’s huge right to be written in 2nd clause of the constitutional
law was not limited under not showing his right in it. James Madison had wrote
the contradict in the same paper with the name of "Helvidius". Madison had
contradicted that the Congress was the first organization and it had all rights
related to the foreign activities except president’s special rights that had been
written in Constitutional law.
The Constitutional duplicity and ambiguity between president and congress
regarding acting right of foreign policies had been issued at much dispute. This
kind of dispute existed as the non-solved one in the point of that supreme court
specially had not done clear-cut judgement in detail about this critical issues.
Supreme court avoided to interfere the foreign policy’s problems. Supreme court
followed the decision of President and Congress as that foreign policies’ problem
was stronger in the part of politics than law since John Marshall had been
inaugurated on the justice of the supreme court in 1801. Supreme court’s
judgement in 1863 that President could make the decision of military action for
solving the national crisis mean the President’s discretion. But, Supreme court
confirmed the point that America may have possibility to act very clearly and
speedy in the center of foreign diplomatic crisis.
Even though the lawful duplicity and ambiguity regarding president acts of
foreign right made the reverse functional result - no matter what ‘Fathers of the
Constitutional law’ intention had been, it is matters of the fact that many cases
had been applied into the direction of positivity. At last, these kind of separation
of the lawful power of being duplicated and ambiguous may be the social assets
and also liabilities at the same time.

참고자료

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