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Constitutional stability in japan not due to popular approval

  • Satoshi Yokodaido

Abstract

The Japanese Constitution has never experienced any amendment since its enactment in 1947. This article claims that the reason is not the Japanese people’s support of it from the heart. The hypothesis presented in this article is that many other political, structural and cultural reasons have gradually deprived the Constitution’s normative force among people, and have made constitutional amendment unnecessary in Japanese politics.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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Satoshi Yokodaido is a Professor of Constitutional Law, Keio University Law School. The author is grateful to Prof. Oran Doyle for his suggestive comment on my early draft.

Footnotes

References

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1 Zachary Elkins, Tom Ginsburg & James Melton, The Lifespan of Written Constitutions, Record Online, http://www.law.uchicago.edu/alumni/magazine/lifespan.

2 Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions 129–30 (2009).

3 Zachary Elkins, Tom Ginsburg & James Melton, Baghdad, Tokyo, Kabul…: Constitution Making in Occupied States, 49 WM. & MARY L. REV. 1139, 1153–58 (2008).

4 See Constitution Rankings, Comparative Constitutions Project, http://comparativeconstitutionsproject.org/ccp-rankings/.

5 See infra Section B.II.

6 Nihonkoku Kenpō [The Constitution of Japan], art. 9.

7 Where do their attitudes toward the Constitution come from? An American commentator, Jed Rubenfeld explores this issue. Rubenfeld emphasizes that for a constitution to take root, there is a need for the populace to feel a national commitment to the history and narrative of a self-given constitution, enacted by the people themselves. If the constitution has not been democratically enacted, there will always be doubts about its legitimacy, which will prevent it from becoming rooted firmly. Rubenfeld cites Japan as a typical example of it. See Jed Rubenfeld, Freedom And Time: A Theory Of Constitutional Self-Government 13 (2001). It is true that Goken-ha’s claims of an “imposed constitution” has some weak points, but the issue to be addressed here is the social fact that this argument, for all its theoretical, factual, and practical weaknesses, is gaining a certain level of support. Yasuhiro Okudaira stated that “[w]e can suppose that there are considerable numbers of people in Japan saying ‘This imposed constitution needs immediate revision!’—and not all of them are members of the LDP. One should not overlook this reality. Yasuhiro Okudaira, ‘Jishu Kenpō Seitei = Zenmen Kaisei’ Sōhihan [A General Critique of ‘Independently Enacting a Constitution = Full Constitutional Reform’], 840 Sekai 117, 119 (2013).

8 Kōji Satō, Rikken-Syugi Ni Tsuite: Seiritsu Katei To Gendai [On Constitutionalism: Formation Process and the Modern Age] 225 (Sayu-sha, 2015).

9 It should be noted that at the time of the Constitutional enactment, one of the leaders of Communist Party, Sanzō Nosaka, strongly opposed the introduction of the peace clause of Article 9 because it undermined the independence of the Japanese race. The Communist Party was not Goken-ha, but an anti-U.S. party. In 1994, this party officially adopted Goken-ha position.

10 In 1969, one of the monthly law magazines “Hōritsu Jihō” conducted a questionnaire survey to public law scholars. It showed that seventy percent of respondents said the SDF was unconstitutional. See generally 41 Hōritsu Jihō 54 (1969). The same type of survey conducted by them in 1981 also showed about eighty percent of the respondents thought the SDF was unconstitutional. See generally 53 Hōritsu Jihō 59 (1981).

11 Yasuo Hasebe, Kenpō Toha Nanika [What is a Constitution?] 126–28 (Iwanami-syoten, 2006).

12 Shirō Sakaiya, Kenpō To Yoron: Sengo Nihonjin Ha Kenpō To Dou Mukiatte Kitanoka [Constitution and Public Opinion: How Japanese People Confront the Constitution After War] 52–53, 86–87. (Chikuma-syobō, 2017).

13 The Crucial Year to Admit No Abe’s Constitutional Revision, Daily Akahata, Jan. 4, 2018, http://www.jcp.or.jp/akahata/aik17/2018-01-04/2018010402_01_1.html

14 The Japanese Constitution is usually regarded as imposed. See, e.g., Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 907–18 (2005). See also supra note 7.

15 See David S. Law, The Myth of the Imposed Constitution, in Social and Political Foundations of Constitutions 239, 252–59 (Denis Galligan & Mila Versteeg, eds., 2013).

16 Miyoko Tsujimura, Kenpō Kaisei Ron No Shōten: Heiwa, Jinken, Kazoku Wo Kangaeru [The Focus Point of the Arguments of Constitutional Amendment: Thinking About Peace, Human Rights, and Family] 16 (Hōritu-Bunka-sya, 2018); see also Law, supra note15, at 254.

17 The Response of the People, Daily Mainichi Shimbun, May 27, 1946.

18 Naoki Kobayashi, Nihon Ni Okeru Kenpō -Dōtai No Bunseki [An Analysis to Constitutional Dynamics in Japan] 59 (Iwanami-syoten, 1963); Mark A. Chinen, Article 9 of the Constitution of Japan and the Use of Procedural and Substantive Heuristics for Consensus, 27 Mich. J. Int’l L. 55, 93 (2005).

19 Sakaiya, supra note 12.

20 Id. at 65.

21 Id. at 64–66.

22 Id. at 290, 292–93. Sakaiya also said at the Japan National Press Club on December 19, 2017, “In short, a key message of my book is that people haven’t seen the Constitution as something so ‘sacred’ that it should not be touched in the postwar years.” Reiji Yoshida, Scholar Plumbs Postwar Polls to Challenge Japanese Constitution ‘Myths’, Japan Times (Jan. 7, 2018), https://www.japantimes.co.jp/news/2018/01/07/national/scholar-plumbs-late-20th-century-polls-gauge-publics-inclinations-revising-japans-constitution/#.XGCBj89KjOQ.

23 The LDP’s official guidebook to their proposed draft amendment to the Constitution explains the reason why they think a change to amendment procedure necessary. It states that because every constitutional amendment has to be directly judged by the sovereign people’s will in a referendum, the strict threshold requirement before submission narrows down the opportunity of expressing sovereign people’s will, and it results in the current constitution not reflecting the sovereign people’s will. The Liberal Democratic Party, Nihonkoku kenpō sōan Q&A [Q&A on the Draft of the Japanese Constitution] (Enlarged ed., Oct. 2013) at 36, https://jimin.ncss.nifty.com/pdf/pamphlet/kenpou_qa.pdf.

24 As a matter of course, the majority of all the members of each House is not the same as the majority of those members present. Although the former requirement is harder than the latter, many critics of prime minister Shinzō Abe and his ruling party have argued that his proposal for the amendment procedure makes it as flexible as an ordinary statute. Nevertheless, an ordinary statute can be enacted by a majority of each House present and without a mandatory referendum. Therefore, such criticism is fatally inaccurate. Legal philosopher Shigeru Otsuka criticizes this as a deceptive argument motivated by political or ideological reasons, not by academical ones. See Shigeru Otsuka, Kenpō Kaisei Genkai Ron No Ideology Sei [The Ideological Nature of the Discussion of Limiting Constitutional Amendment] 2–40 (Seibundō, 2017).

25 Prime Minister Abe ceased his efforts to change the amendment procedure because of intense criticism. On the problem of amending the constitutional amendment rule in Japan, see Richard Albert, Amending Constitutional Amendment Rules, 13 Int’l J. Const. L. 655 (2015).

26 Arend Lijphart, Patterns of Democracy: Government Forms And Performance in Thirty-Six Democracies, 206–07 (2d ed. 2012).

27 Id. at 211.

28 Donald Lutz, Toward a Theory of Constitutional Amendment, 88(2) Am. Pol. Sci. Rev. 355, 355–70 (1994).

29 Masami Itō, Kenpō [The Constitutional Law] 18–19 (Kōbun-dō, 3d ed. 1995).

30 Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, 13 Int’l J. Const. L. 686 (2015).

31 Id. at 692–98.

32 Id. at 699.

33 Id. at 709–12.

34 See Kathleen M. Sullivan, Constitutional Constancy: Why Congress should Cure Itself of Amendment Fever, 17 Cardozo L. Rev. 691 (1996).

35 Kathleen M. Sullivan, Constitutional Amendmentitis, 23 The Am. Prospect, no. 23, Fall 1995, at 20.

36 Sullivan, supra note34, at 694.

37 Id. at 695–703.

38 See Vicki C. Jackson, The (Myth of Un) Amendability of the US Constitution and the Democratic component of Constitutionalism, 13 Int’l J. Const. L. 575 (2015).

39 For a study that is consistent with Jackson, see Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We The People Can Correct It) (2008). Chapter 6 of this book is particularly useful for reference. Incidentally, Levinson criticizes Sullivan who is critical of constitutional amendments in general. Id. at 176.

40 Jackson, supra note38, at 584.

41 Id. at 604.

42 Id. at 576.

43 Id. at 602.

44 Sullivan, supra note 34, at 704.

45 Jackson, supra note36, at 605.

46 “Relationship between the Right of Collective Self-Defense and the Constitution” submitted by the Government to the Committee on Audit of the House of Councilors on October 14, 1972.

47 See Nihonkoku Kenpō [The Constitution of Japan], art. 13 (stating that “[a]ll of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs”).

48 See generally Masahiro Sakata, Seifu No Kenpō Kaisyaku [Governmental Interpretation of the Constitution] (Yuhikaku, 2013). The author is the former Director General of Cabinet Legislation Bureau, see infra Section E.III.

49 Supreme Court, grand bench, December 16, 1959, Keishu Vol.13, No.13, 3225 (Sunagawa Case).

50 See, e.g., Nobuyoshi Ashibe, Kenpō [Constitutional Law], 61 (Iwanami-Shoten, 6th ed. 2015).

51 Act No. 79 of June 19, 1992. The following principles have been arranged to ensure that participation in Peacekeeping Operations is in accordance with Article 9 of the Constitution. (1) Agreement on a cease-fire shall have been reached among the parties to armed conflicts; (2) Consent for the undertaking of UN Peacekeeping Operations as well as Japan’s participation in such operations shall have been obtained from the host countries as well as the parties to armed conflicts; (3) The operations shall strictly maintain impartiality, not favoring any of the parties to armed conflicts; and (4) Should any of the requirements in the above-mentioned principles cease to be satisfied, the Government of Japan may withdraw Self-Defense Force (SDF) contingent. (5) The use of weapons shall be limited to the minimum necessary to protect the lives of personnel, etc. See Ministry of Foreign Affairs of Japan (MOFA), Japan’s Contribution to UN Peacekeeping Operations (PKO): Outline of Japan’s International Peace Cooperation (May 14, 2015), https://www.mofa.go.jp/fp/ipc/page22e_000683.html.

52 Act on Cooperation for United Nations Peacekeeping Operations and Other Operations, art. 1, http://www.pko.go.jp/pko_j/data/law/pdf/law_e.pdf.

53 See MOFA, supra note 51.

54 Shūgiin Kaigiroku [House Of Representative Plenary Session Minutes], 130th Diet Session, No. 2, 5 (July 20, 1994). It should be noted that the Social Democratic Party (SDP), which is renamed the JSP, declared that the existence of the SDF violates the Constitution in 2006. The JSP had been biggest opposition party once, but now the SDP has lost public support and only has four seats in the Diet (two in the House of Representatives and two in the House of Councilors). Such a rapid decline is the reason for this party’s inconsistent attitude toward Article 9 and SDF. Junji Annen, Nihonkoku- Kenpō no Igi to Unei [Value and Operation of the Constitution of Japan], in Yasuo Hasebe Ed., Iwanami-Kōza Kenpō 6: Kenpō To Jikan [Iwnami Course of Lecture on Constitution No.6: Constitution and Time] 136 (Iwanami-syoten, 2007).

55 Act No. 113 of November 2, 2001 (expired on November 1, 2007).

56 See Katsumi Ishizuka, Japan’s Policy Towards the War on Terror in Afghanistan (Afrasian Research Centre, Ryukoku University, Working Paper No. 3, 2012), http://afrasia.ryukoku.ac.jp/english/publication/upfile/WP003.pdf.

57 See Makoto Arai, Seiken- Kōtai to Seiji-Syudō no Kenpō-Kaisyaku [Change of Government and Constitutional Interpretation let by Government], 34(3) Hiroshima Hōgaku 53 (2011).

58 Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People, Ministry of Foreign Affairs of Japan (June 1, 2014), https://www.mofa.go.jp/fp/nsp/page23e_000273.html.

59 See generally Noboru Yanase, Debates Over Constitutionalism in Recent Japanese Constitutional Scholarship, 19(2) Soc. Sci. Japan J. 193 (2016). Compare Yasuo Hasebe, The End of Constitutional Pacifism? 26(1) Wash. Int’l L.J. 125 (2016), with Hajime Yamamoto, Interpretation of the Pacifist Article of the Constitution by the Bureau of Cabinet Legislation: A New Source of Constitutional Law? 26 Pac. Rim L. & Pol’y J. 99 (2017).

60 Shirō Sakaiya, Nihon-Jin no Kenpō Ishiki [Japanese people’s Understanding of the Constitution], 90 Hōritsu Jihō 131 (2018).

61 Tom Ginsburg, Constitutional Specificity, Unwritten Understandings and Constitutional Agreement, in Constitutional Topography: Values and Constitutions 77 (Andras Sajó & Renata Utiz eds., 2010).

62 Id. at 78, 81.

63 See, e.g., Makoto Ōishi, Tōchi-Kikō Eno Tenbō [Prospects of Framework of The Government] 7, 38–39 (Yuhikaku, 2008).

64 Kenneth Mori McElwain & Christian G. Winkler, What’s Unique About the Japanese Constitution?: A Comparative and Historical Analysis, 41 J. JAPANESE STUD. 249 (2015); see also Kenneth Mori McElwain, Nihonkoku Kenpō No Tokui Na Kōzō Ga Kaiken Wo Hituyō To Shinakatta [The Japanese Constitution’s Unique Structure Makes Constitutional Revision Unnecessary], 131 Chuō-kōron 76 (2017).

65 See also Takeshi Inoue, The Constitution of Japan and Constitutional Reform, 23 (2) Asia-Pac. Rev. 1, 9–11 (2016).

66 Constitution Rankings, supra note 4. Smaller constitutions than Japan are in ascending order, Monaco (3,814 words), Iceland (4,089 words), Laos (4,820 words), Latvia (4,917 words).

67 Moreover, the current trend of the constitutional writing is towards longer and more detailed constitutions. See Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, 110 Am. Pol. Sci. Rev. 657 (2016).

68 McElwain & Winkler, supra note64, at 261.

69 Id. at 260–62.

70 Id. at 262.

71 Kentarō Kaneko, Kenpō Seitei To Ōbeijin No Hyōron [Constitutional Making and Critiques of Westerners] 133 (Nihon-Seinenkan, 1937).

72 Tatsukichi Minobe, The Problems of Constitutional Amendment, vol. 1, Asahi Shimbun (Oct. 20, 1945).

73 Ōishi, supra note63, at 6; see also Richard Albert, Quasi-Constitutional Amendments, 65 Buffalo L. Rev. 739 (2015).

74 Id. at 10.

75 Id. at 35.

76 David S. Law, Constitutions, in The Oxford Handbook of Empirical Legal Research 376, 377 (Peter Cane & Herbert M. Kritzer eds. 2010); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408 (2007)

77 Act No. 2 of February 4, 1994, Act No. 10 of March 11, 1994; Act No. 104 of November 25, 1994.

78 For example, Ireland, which has a similar amendment procedure to Japan, amended its Constitution many times to change the election system. See Michael Gallagher, Politics, the Constitution and the Judiciary, in Politics in the Republic of Ireland, 63–66, 380–81 (John Coakley & Michael Gallagher eds., 6th ed. 2018).

79 Saikō Saibansho [Supreme Court] Nov. 10, 1999, 53 Minshu 1704.

80 Act No. 5 of February 4, 1994.

81 Gyōsei Kaikaku Kaigi, Saisyū-Hōkoku [Final Report of the Administrative Reform Council] (December 3, 1997). English executive summary version is available at https://japan.kantei.go.jp/971228finalreport.html.

82 Act No. 5 of January 16, 1947.

83 Act No. 103 of June 12, 1998.

84 Act No. 87 of July 16, 1999.

85 See Noboru Yanase, Deliberative Democracy and the Japanese Saiban-in (Lay Judge) Trial System, 3 (2) Asian J.L. & Soc’y, 327 (2016).

86 JSRC was established under the Cabinet in July 1999, Article 2, Paragraph 1 of the Law concerning Establishment of the Justice System Reform Council, Act No. 68 of June 9, 1999.

87 JSRC, Recommendations of the Justice System Reform Council: For a Justice System to Support Japan in the 21st Century (June 12, 2001), https://japan.kantei.go.jp/judiciary/2001/0612report.html.

88 Id. at ch. 1.

89 Satoshi Machidori, Seiji-Gaku kara Mita “Kenpō-Kaisei” [“Constitutional Amendment” from the point of view of Political Science], inKenpō-KaiseiNo Hikaku Seiji-Gaku [Comparative Political Science onConstitutional Amendment”] 2, 15 (Keigo Komamura and Satoshi Machidori eds. 2016); see also Ōishi, supra note63, at ii.

90 Takeshi Inoue, Nihon Koku Kenpō to Rikken Syugi: Nani o Kangaeru Bekika [Japanese constitutional law and constitutionalism: What should we think?] 86 (5) Hōritsu Jihō 12, 18–19 (2014).

91 Sakaiya, supra note12, at 293.

92 Rosalind Dixon, Constitutional Drafting and Distrust, 13 Int’l J. Const. L. 819, 824–25 (2015).

93 Saikō Saibansho [Supreme Court] Oct. 8, 1952, 6 Minshu 783 (Japan) declared that “Our courts cannot exercise a power whereby, in the absence of such a concrete legal dispute” and “the Supreme Court possesses the power to review the constitutionality of laws, orders, and the like, but that authority may be exercised only within the limits of judicial power; in this respect, the Supreme Court is no different from the lower courts.”

94 See Norikazu Kawagishi, The Birth of Judicial Review in Japan, 5 Int’l J. Const. L. 308 (2007).

95 Saikō Saibansho [Supreme Court], Apr. 4, 1973, 27 Keishu 265 (parricide case); Saikō Saibansho [Supreme Court] Apr. 30, 1975, 29 Minshu 572 (Pharmaceutical Affairs Law case); Saikō Saibansho [Supreme Court] Apr. 14, 1976, 30 Minshu 223 (malapportionment of electoral districts at house of Representatives case); Saikō Saibansho [Supreme Court] July 17, 1985, 39 Minshu 1100 (malapportionment of electoral districts at house of Councilors case); Saikō Saibansho [Supreme Court] Apr. 22, 1982, 41 Minshu 408 (The Forest Law case); Saikō Saibansho [Supreme Court] Sept. 11, 2002, 56 Minshu, 1439 (The Postal Law case); Saikō Saibansho [Supreme Court] Sept. 14, 2005, 59 Minshu 2087 (seeking declaration of illegality of deprivation of the right to vote of Japanese citizens residing abroad); Saikō Saibansho [Supreme Court] June 4, 2008, 62 Minshu 1367 (Nationality Law case); Saikō Saibansho [Supreme Court] Sept. 4, 2013, 67bMinshu 1320 (Discrimination on children born out of wedlock case); Saikō Saibansho [Supreme Court] Dec. 10, 2015, 69 Minshu 2427 (noting the prohibition of remarriage to woman case).

96 See, e.g., Yasuo Hasebe, The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms, 5 Int’l J. Const. L. 296 (2007); David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Tex. L. Rev. 1545 (2009); Shigenori Matsui, Why Is the Japanese Supreme Court So Conservative?, 88 Wash. U. L. Rev. 1375 (2011); David S. Law, Decision Making on the Japanese Supreme Court: The Politics of Supreme Court Adjudication: Why Has Judicial Review Failed in Japan? 88 Wash. U. L. Rev. 1425 (2011); John O. Haley, Constitutional Adjudication in Japan: Context, Structures, and Values, 88 Wash. U. L. Rev. 1467 (2011); Tokujin Matsudaira, Judicialization of Politics and the Japanese Supreme Court, 88 Wash. U. L. Rev. 1559 (2011); Koji Tonami, Judicial Review in Japan and its Problems, 33 Waseda Bull. Comp. L. 10 (2015).

97 The Supreme Court explicitly entrusted the interpretation of the Constitution to the Cabinet, the Diet, and the people on the topics of “an act of a government of high political nature.” In the So-called Sunagawa Case (Saikō Saibansho [Supreme Court] Dec. 16, 1959, 13 Keishu 3225), the Supreme Court stated as follows:

An act of a government of high political nature, having direct relationship to the sovereign act of the state, is beyond the province of judicial review, even if it results in a legal dispute and even if it is legally possible to render judicial determination as to its validity or invalidity. It must be admitted that such determination should be entrusted to such a political department like the Government or the Diet, which owes a political responsibility to the people, with whom rests the sovereign power of the state, and ultimately to the political decision of the people themselves. This limitation imposed upon the judicial power, in its final analysis, is derived from the principle of separation of three powers: Although there is no express provision in the Constitution to this effect, it must be interpreted that such is the design inherent in the Constitution because of the very nature of the thing, when viewed in the light of the highly political nature of the act of the government now under consideration, the nature of the court as a judicial organ of the state, and the procedural limitation which inevitably accompanies the trial.

In this case and the Japanese type of “political question doctrine,” see Po Liang Chen and Jordan T. Wada, Can the Japanese Supreme Court Overcome the Political Question Hurdles? 26 Pac. Rim L. & Pol’y J. 349 (2017).

98 Act No. 252 of July 31, 1952.

99 See Satoshi Yokodaido, Kenpō-ten no Kaisei to Kenpō-Chitsujyo Hendō no Syosō [Amendments to the Constitutional Text and Various Aspects of Changes in the Constitutional Order] 28 Kenpō Mondai [Constitutional Problems] 7, 8–11 (2017); Satoshi Yokodaido, Kenpō no Architecture: Kenpō o Seido-Sekkei Suru, [Architecture of Constitutions: Designing Constitutions], in Architecture To Hō: Hōgaku No Architectural Na Tenkai? [Architecture And Law: Architectural Turn On The Jurisprudence?] 199, 209–13 (Yō Matsuo ed., Kōbun-dō, 2017).

100 It would be characterized as one of “abusive constitutionalism,” using the informal method of constitutional change by interpretation. See David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 195 (2013). In this Article, my argument is that this method of constitutional change is the product of Japanese constitutional cultures.

101 Save Congressional Democracy Japan 2014 (2014), http://constitutionaldemocracyjapan.tumblr.com/setsuritsushyushi.

102 Atsushi Sugita, Mattō na Kenpō Kaisei Rongi no Jyōken [Proper Conditions for Arguments about Constitutional Amendments, in Abe-Ryu Kaiken Ni No O! [Say No to Abe’s Style of Constitutional Reform!] 207 (Yoichi Higuchi & Jiro Yamaguchi eds., Iwanami-syoten, 2015).

103 Id.

104 Hasebe, supra note11, at 18–19.

105 David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001).

106 Hasebe, supra note11, at 129–31.

107 Id. at 1504–05. Strauss attempts to deny the relationship between changes in the constitutional system and constitutional amendment. His reasoning for this is that (1) there are examples of changes to the constitutional system without there being formal constitutional amendments, (2) there are examples of cases when even if a proposed formal constitutional amendment is not adopted, there is a change in the constitutional foundations that make it seem as though it has been, and (3) even if a formal constitutional amendment is made, there are examples of it not playing a significant role in changing the constitutional system. In addition, he attempts to substantiate the validity of his own statement, and with regard to his third point, he brings up (a) examples where in reality there has already been a change to the constitutional system, and a constitutional amendment was passed just to solidify these changes, (b) examples where the constitutional system is not changed through a constitutional amendment, and it takes a long time actually to change the constitutional system, and (c) examples of a constitutional amendment being nothing more than a means to determine an adjustment issue rather than being revisions that make a change to the constitutional system. Id. at 1469–89.

108 Shimane and Tottori, Ehime and Tokushima prefectures are merged into single constituencies by the Act No. 60 of August 5, 2015.

109 Judgement of the Supreme Court on 2012 (Saikō Saibansho [Supreme Court] Oct. 17, 2012, 66 Minshu Vol. 66, 3357) held that to meet the requirement of equality in the value of votes while maintaining the current mechanism designed to use a prefecture as a unit of constituency had become extremely difficult, and that inequality should be eliminated as soon as possible through legislative measures such as making a reasonable change to the current system of setting the number of seats for each prefecture-based constituency because the prefecture-based constituency was not a constitutional requirement. Saikō Saibansho [Supreme Court] Nov. 26, 2014, 68 Minshu 1363 follows it.

110 LDP to focus on four areas in crafting Constitution Amendment Proposal, Kyodo News, June 6, 2017.

111 See Sections D.I–II.

112 See, e.g, Ritsu Nakagawa, Kyōiku no Musyō-ka ha Kenpō Kaisei ni Yotte Jitugen Sarerubeki mono nano ka [Should Education free of charge be realized through the Constitutional Amendment?], in Kenpō Kaisei Wo Yoku Kangaeru [Taking Constitution Seriously] 121, 122–25 (Shōjirō Sakaguchi et al. ed., Nihon-Hyōron-sya, 2018).

113 LDP constitutional panel discusses ‘emergency clause,’ including limit on private rights, Daily Mainichi Shimbun, Mar. 8, 2018.

114 It reads “When the House of Representatives is dissolved, the House of Councilors is closed at the same time. However, the Cabinet may in time of national emergency convoke the House of Councilors in emergency session.” Because the term of office of members of the House of Councilors is six years, and election for half the members shall take place every three years (art. 46 sec. 2), at least half of the members of the House of Councilors are always in office. Measures taken at that emergency session are provisional and become null and void unless agreed to by the House of Representatives within ten days after the opening of the next session of the Diet (art. 46 sec. 3).

115 See generally Bruce Ackerman, Before The Next Attack: Preserving Civil Liberties In An Age Of Terrorism (2007).

116 The latter reason is not based on cost-benefit analysis. See Aikyō Kōji, Kaiken-Mondai to site no Kinkyū-Jitai Jyōkō [Emergency Clause as the Problem of Constitutional Amendment], 15 Ronkyū-Jurist 193 (2015).

117 Katsutoshi Takami, “Zen-Kokumin no Daihyō” to “Chihō no Fu” [“representative of all the people” and “Local Government”], in Sengo Nihon Kenpōgaku 70nen No Kiseki [The Path Of The Japanese Constitutional Academics For Seventy Years After War] 51 (Hōritsu Jihō Editorial Department ed., Nihon-Hyōron-sya, 2018); It is noteworthy that on the topics of malapportionment of electoral districts to the House of Councilors, Takami resorts to the radical change of constitutional interpretation despite the Supreme Court’s decisions mentioned at supra note109. On the other hand, Takami has severely criticized the change of constitutional interpretation of the government concerning the Article 9 as a violation of constitutionalism. For him, the former is permissible, and the latter is unforgivable under the Constitution, but the reason why has not been cleared. See also Kōsuke Okumura, Tōchi-Kikō Kaikaku [Political Reform of the System of Government], supra note112, at 151, 152–61.

118 See supra note10. In 2015, the Asahi Shimbun conducted a questionnaire survey to constitutional law scholars. It showed about sixty-three percent of respondent said the SDF is unconstitutional or possibly unconstitutional. As these data shows, some commentators say “constitutional studies of resistance” that focus on “effectively limiting authority and its theoretical structures” are overwhelming on the one hand, “constitutional studies of construction” that “have the perspective of taking power as our own and establishing structures and methodologies to express it” are weak. See Kazuyuki Takahashi, Gendai-Rikkensyugi No Seido-Kōsō [Institutional Ideas In Modern Constitutionalism] 15 (Yuhikaku, 2006).

119 These groups of scholars do not support a constitutional amendment that would realize their objective: Expressly in the text guarantee unarmed neutrality or absolute pacifism. This attitude also contributes to their claim to be seen as political.

120 Tatsuo Inoue, 9-jō Mondai Saisetu: “Sensō no Seigi” and Rikken Minsyusyugi no Kanten kara [Restatement of the Problems with Article 9: From the Perspective of War Justice and Constitutional Democracy], 33 Hō no Riron [The Theory of Law] 3 (2015).

121 About ninety-six percent of world constitutions include amendment provisions. Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limit of Amendment Powers 22 (2017).

122 Id. at 4-5. See also Ashibe, supra note50, at 392.

123 Some constitutional scholars indicate this point. See Hajime Yamamoto, “Kenpō Kaisei” Mondai no Syosō [Various Aspects of Issues with ‘Constitutional Amendments”], 612 Hōgaku seminar 9 (2005); Takeshi Inoue, Rikken Syugi to tekusuto: Nihonkoku Kenpo no Baai [Constitutionalism and Text: In Case of Japan] 20 Q. Jurist 112 (2017). Yokodaido, Kenpō-ten no Kaisei to Kenpō-Chitsujyo Hendō no Syosō, supra note99, at 13–17. Many scholars whose specialty is other than constitution make similar arguments. See, e.g., Yasuaki Ōnuma, Goken-Teki Kaiken-Ron [Arguments for constitutional change to protect the constitutionalism] 1260 Jurist 157 (2004), Takehiro Ōya, Kongen-teki Kiyaku-Syugi wa Kaisyaku-Kaiken o Hōjyu-ka saseruka [Does Radical Conventionalism lets Constitutional Amendment without Formal Procedures unrestrained?], in Iwanami-Koza Kenpō 1: Rikken-Syugi No Tetsugaku-Teki Tihei [Iwnami Course Of Lecture On Constitution No.1: Constitution And Time Philosophical Frontier on Constitutionalism] 283 (Tasuo Inoue ed., Iwanami-syoten, 2007), Takehiro Ōya, Kenpō Kaisei Genkai-Ron no Genkai o Megutte [On the Limitations of arguments to limit constitutional amendments], 33 Hō no Riron [The Theory of Law] 64 (2015).

124 Versteeg & Zackin, supra note67, at 671. See also Junta Okada, Senryō-kenpō no eikyō ni kansuru hikaku-kenkyū josetu: Nihon to Iraku no hikaku o chūshin ni [Introductory Remarks on the Comparative Studies about the Effects of Constitution-Making under Occupation], 20(2) Hakuoh hougaku 243 (2014).

* Satoshi Yokodaido is a Professor of Constitutional Law, Keio University Law School. The author is grateful to Prof. Oran Doyle for his suggestive comment on my early draft.

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German Law Journal
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