Constitutional Responses to Social Changes

Constitutions can respond to rapidly changing social realities by interpreting, changing or amending them. In practice, amendments to the constitution are only possible when special procedural and situational conditions are in place to make them possible, so when legal demands arise from everyday social changes that require a constitutional solution, various interpretations of the constitution should be explored; when the problem cannot be solved through interpretation of constitutional provisions, the possibility of transformative change in the constitutional meaning of given provisions should be explored; and when the limits such change are exceeded, only then should a solution be sought through constitutional amendment. In this sense, this article explores the relationship between social change and the Constitution and the possible responses of the Korean Constitution, using two specific examples of social change facing Korean society: changes in political reality in the state sphere and changes in public sense of values in the society. In the former case, it points out that claims of the so-called ‘president's inherent power’ related to the exercise of personnel power is problematic from the historical, normative, and political perspectives of the Korean Constitution, and raises critical questions about whether the problem of presidential power that has deviated from effective control and improper personnel practices is indeed a constitutional problem, and whether constitutional amendments to the political system must be accompanied. In the latter case, in view of the changes in the public sense of value in society on same-sex marriage, it examines whether same-sex marriage is legally acceptable under the Korean Constitution from a historical and comparative perspective, and explores the possibility of interpreting and transformatively changing the existing interpretation of the Korean Constitution to respond appropriately to social changes. In conclusion, when legal responses to changes in social reality and changes in the public sense of values in society are required, it is crucial to make appropriate use of parliamentary legislation and constitutional interpretation, informal change, and amendment to keep pace with rapid social change while maintaining a stable legal order.