This article examines the American constitutional theory of Charles L. Black, Jr. His argument is characterized as follows. First, he proposes the ‘liberal’, flexible method of constitutional construction because of the abstractness of every single constitutional article and the demand for solutions to contemporary problems in society. Second, he emphasizes the judicial finality of constitutional construction whose role is played by the U.S. Supreme Court based on the U.S. Constitution and the statutes enacted by Congress. Third, using his methodology, he contends that the Ninth Amendment of the U.S. Constitution guarantees the right of livelihood and the governmental duty of preventing people from descent into poverty even though almost all American constitutional scholars have been skeptical of the existence of such a right or duty. In addition, this article considers his position in the American constitutional scholarship and the applicability to the Japanese Constitution.

一橋大学大学院法学研究科

2020-07-10

日本語(jpn)

departmental bulletin paper（紀要論文）

VoR

10.15057/31347

1347-0388

AA1161370X

一橋法学

19

2

189

232

19巻2号(2020.7)

https://hdl.handle.net/10086/31347