According to the large-scale statistical research conducted on constitutions throughout the world since 1789, the average life expectancy of a constitution is 17 years,Footnote 1 and the median length is 19 years.Footnote 2 Moreover, the longevity of Constitutions enacted during a foreign occupation is generally short.Footnote 3 Nevertheless, the Japanese Constitution has remained unamended since it was promulgated on November 3, 1946, and enacted under occupation on May 3, 1947, all while. It is the oldest unamended constitution in the world.Footnote 4
Why is the Japanese Constitution so stable? What factors influence that stability? It is sometimes said that the stability is due to the Japanese people’s sincere endorsement of the Constitution. Yet, the Liberal Democratic Party (LDP)—which has endorsed revision of Constitution since its founding has been the ruling party for almost the entire post-war era. Moreover, a recent study of opinion polls concerning the Constitution of Japan since World War II found that the people do not see the Constitution as something so sacred that it should never be amended.Footnote 5 Therefore, the conventional explanation for Japan’s constitutional stability appears incorrect or inadequate.
Given that there is always a majority in favor of the constitutional amendment, why is the Japanese Constitution still intact? This fact forces us to reconsider the relationship between constitutional stability and popular approval. This Article advances mutually related reasons for why the Japanese Constitution has not been amended: Post-War politics, the structure of the Constitution, judicial restraint on constitutional issues, and an evaluation of the necessity of constitutional amendments. All of these factors create a culture that treats the Constitution as unamendable or irrelevant.
Section B briefly covers the two conventional dichotomous attitudes toward the Constitution in Japan and surveys their analysis of the stability of the Constitution. The shortcomings of these analyses will also be pointed out. Based on that recognition, Section C discusses the need to focus on other factors to understand the Japanese Constitution’s lack of change. Section C demonstrates the problems with the two conventional attitudes toward the Constitution in Japan. Section D surveys post-war politics, focusing on the peace clause in Article 9. Japan created the Self-Defense Forces (SDF)—a military-like entity—without any constitutional amendment in the early stages of the post-war period. This affected people’s attitudes to the Constitution and Constitutional amendments. Next, Section E focuses on the structural characteristics of the Japanese Constitution, which leave plenty of room for interpretation and allowed post-war politics to develop without any constitutional amendments, as discussed in Section D. Section E treats judicial review in Japan, suggesting that the judicial branch has played a limited role in interpreting the Constitution because of its tenet of judicial restraint. As a result, the government has filled the interpretive gap without resort to formal amendment of the Constitution. Finally, Section F discusses constitutional scholars’ claims as to when constitutional amendment is desirable based on a cost-benefit analysis. Combined with post-war politics, the structure of the Constitution, and judicial restraint, the cost-benefit analysis contributes to the constitutional stability without widespread popular support.
B. The conventional explanation of the constitutional stability
I. Dichotomous constitutional amendment debate in japan
Conventionally, in Japan debates on Constitutional amendment have been occupied by two extreme positions: Goken-ha and Kaiken-ha. Generally speaking, Goken-ha are anti-revisionist groups, they try to prevent any Constitutional amendment. Kaiken-ha are pro-revisionist groups, those who try to amend every Constitutional provision. Behind these extreme attitudes is the idea that a little leak will sink a great ship. The ship is Article 9. This clause provides that Japan “forever renounce[s] war as a sovereign right of the nation” and that “land, sea, and air forces, as well as other war potential, will never be maintained.” Footnote 6 On the one hand, Goken-ha have thought that for the sake of preventing revision of the peace clause of Article 9, any constitutional amendment should not be allowed because it would become a little leak of a great ship. On the other hand, Kaiken-ha believes that for the sake of accomplishing the revision of Article 9, change is needed to accustom people to constitutional amendments. This experience would be a little leak of a great ship.Footnote 7 Because of this background, “[u]nder the Japanese Constitution, ‘constitutional amendments’ fall into the context of being fundamental amendments or being completely refused or obstructed. It is regrettable that work cannot be done on individual items which genuinely need amending (revising) for advancing the Japanese Constitution.”Footnote 8
Politically, the right-wing, conservative parties such as the LDP have been Kaiken-ha. The LDP asserted revision of the Constitution as its party platform since the beginning of the party. The left-wing, progressive parties such as the Japanese Socialist Party (JSP) and the Japanese Communist Party (JCP) have been Goken-ha. They oppose LDP’s attempts to change the Constitution, notwithstanding its contents.Footnote 9 Many constitutional scholars in Japan have also been categorized as Goken-ha by newspapers and other media, and they are sometimes self-professed Goken-ha.Footnote 10
The media have magnified this dichotomous attitude toward the Constitution. In Japan, almost all forms of major media have regularly conducted opinion polls concerning the Constitution with questions such as, “do you think a revision of the Constitution of Japan is needed?” It is interesting to note how broadly the question is phrased because it does not indicate what amendment or which provision.Footnote 11 This general questionnaire has been continuously used since the 1950s.Footnote 12 It is evidence of the pervasive, dichotomous attitude towards the Constitution in Japan.
II. Anti-revisionists’ account for stability
Goken-ha and Kaiken-ha have proposed different reasons for the stability of the Japanese Constitution. It is well-known that the Goken-ha made a statement claiming that the reason for the stability is the Japanese people’s profound endorsement of the Constitution and its philosophy. For example, the Japanese Communist party—one of the most powerful proponents of the Constitution—currently claims in the AKAHATA [Red Flag]—a national daily newspaper—that “the reason why the people do not expect the revision of the Constitution is not that they are conservative. Instead, the contents of the Constitution is so great that people need not feel any amendments.”Footnote 13 Many constitutional scholars emphasize that Japanese people endorsed the “imposed constitution”Footnote 14 soon after its enactment, as evidence of that claim.Footnote 15 They tend to use a public opinion poll conducted by the daily Mainichi Shimbun—published on May 5, 1946—as the basis of their assertion.Footnote 16 It found that eighty-five percent of respondents supported a new Tennō [emperor] system of a draft to the Constitution of Japan which situated the Tennō as a symbol of Japan (thirteen percent of the respondent oppose), seventy percent of respondents said that a war-renouncing article was necessary (twenty-eighty percent of the respondents said it was unnecessary), and sixty-five percent said they supported the rights and duties of the people (thirty-three percent of the respondents sought revision).Footnote 17 Since the enactment of the current Constitution, the Japanese people have cherished it and have not desired its amendment.Footnote 18
Such an explanation does not seem to reflect real public opinion, however. Shirō Sakaiya—a professor of political science at Tokyo Metropolitan University—recently published a book titled “Constitution and Public Opinion.”Footnote 19 He indicates that the poll of 1946 did not reflect actual demographic composition at that time because that poll was only reflected the views of the “intellectual classes.” Footnote 20 Thirty-nine percent of the total 2,000 respondents were university graduates, twenty-four percent were public servants, thirteen percent were women, and only six percent were farmers.Footnote 21 In his book, Sakaiya comprehensively collects the results of more than 1,200 public opinion polls performed in the postwar period (1945–2016) and clarifies how the general public saw the Constitution. Based on his thorough research, Sakaiya concludes as follows:
To get straight to the bottom line, Japanese people did not consider the Constitution of Japan as absolutely perfect at the beginning of its enactment, and since then it has never been thought that it was inviolable to this day…. It can be said that Japanese people have cast a skeptical eye toward the Constitution of Japan at all times. The biggest reason for never realizing any constitutional amendments is, as pointed out well, the constitutional restriction of the amendment on Article 96. For successive LDP governments, the condition to the amendment proposal that required a concurring vote of two-thirds or more of all the members of each House has been too big a hurdle to overcome.Footnote 22
III. Pro-revisionists’ account for stability
Is the strict amendment procedure the reason for Japanese Constitution’s stability? It is true that the JSP—which belonged to the Goken-ha—held one-third of the Diet and therefore could prevent presentation of a draft amendment in the system of 1955, in which two primary left and right parties confronted each other. It is also well-known that the Kaiken-ha frequently makes statements claiming that the reason for the invariability of the Constitution is the excessive strictness of constitutional amendment procedure as set out in Article 96. Article 96 provides as follows:
1. Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify.
2. Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.
Pro-revisionists have criticized the initial threshold of the constitutional amendment procedure as too high to allow the proposal of any amendments to the people. For instance, when Shinzō Abe became Prime Minister for the second time in December 2012, he showed great interest in revising of the Constitutional amendment procedure. He argued that the current amendment procedure stipulated in Article 96 was too strict to adapt to changing international and domestic environments, and that it deprived the sovereign people of their right to amend the Constitution.Footnote 23 He suggested relaxing the threshold for a draft amendment proposal from a two-thirds majority of all the members of each House to a simple majority of all the members of each House.Footnote 24 His proposal retained the mandatory national referendum.Footnote 25
The threshold requirement in the Japanese Constitution is not so uncommonly high as to prevent any amendment. For example, using the legislature’s vote threshold requirement as the primary factor, political scientist Arend Lijphart measured the difficulty of amending the constitution in 36 democratic countries.Footnote 26 Lijphart reduced a great variety of constitutional provisions into four basic types: Supermajorities greater than two-thirds, two-thirds majorities, between two-thirds and ordinary majorities, and ordinary majorities. Using this index, Lijphart placed Japan in the highest rigidity category, but six other countries—Argentina, Korea, Australia, Switzerland, Canada, and United States—which have implemented many constitutional amendments were put in the same category.Footnote 27
Studies that used different scales to measure a country’s difficulty of amending its constitution do not categorize the Japanese Constitution as the most rigid constitution. In his classic work on the difficulties of the amendment process, Donald Lutz ranked the U.S. Constitution as the most rigid one, and the Japanese Constitution as tenth of thirty-two countries.Footnote 28 This research suggests that the Japanese Constitutional amendment process is not so strict as prohibit any amendment.
It is true that the difficulty of acquiring a two-thirds majority in each house depends heavily on the electoral system. But it is enough here to point out that the procedures for amending the constitution are not the only factors that determine the difficulty of constitutional amendments.
C. Shortcomings of political debates on constitutional amendments
For the reasons discussed above, both sides’ accounts of the stability of the Japanese Constitution flawed. Masami Itō, former Supreme Court Justice and law professor at Tokyo University, made the following statement in his book:
The difficulty [of amending the constitution] is due to other factors rather than procedural issues. The regulations in the constitution are determined by a variety of factors whether detailed or simple, what sort of standard the people and government believe the constitution to be, whether reality and the constitution are strictly separate because of political and social changes, what people think about the role of constitutional interpretation to fill in the gaps, and whether there is sufficient political capital to realize an amendment. Therefore, the difficulty of amending the constitution needs to be determined from a vast number of angles.Footnote 29
I. Amendment cultures
A noteworthy study concerning this point was conducted by Tom Ginsburg and James Melton, who attempted to demonstrate the relationship between “amendment difficulty” and “amendment rate.”Footnote 30 According to Ginsburg and Melton, many of the traditional studies that attempt to quantify amendment difficulty have focused on the rate of constitutional amendments and the various formal procedural factors for changing the constitution, such as the number of actors involved and how many votes are required. Analysis that has explored these various factors and the actual rate of constitutional amendments have only demonstrated a fragile relationship, however. It has been noted that studies that measure the difficulty of constitutional amendments is stressful in and of itself.Footnote 31 Therefore, Ginsburg and Melton posited the hypothesis that amendment culture rather than the difficulty of the formal amendment procedure is the decisive factor in the difficulty of amending a constitution. In their article, amendment culture is defined as “the set of attitudes about the desirability of amendment, independent of the substantive issue under consideration and the degree of pressure for change.”Footnote 32 The results of Ginsburg and Melton’s analysis using the variables rate of constitutional amendments and amendment culture—because this cannot be easily measured, it was substituted for the frequent replacements of the body of the constitution in the concerned country—showed that these are the best predictors. They concluded that the procedural rigidity for amending a constitution is not the primary factor in the rate of constitutional amendment.Footnote 33
Ginsburg and Melton’s study backs up the previous points noted by Masami Itō. Itō espoused the necessity of a discussion conducted from a vast number of angles, and this could be looked at as pointing out the need for further investigation of the factors that regulate the “amendment culture” in Japan.
II. The pathology of amendment cultures
Some theories characterize a certain attitude about constitutional amendments as a type of pathology. So, what type of amendment culture is considered pathological? What about Japanese dichotomous attitudes toward the Constitution?
The American Constitutional scholar Kathleen Sullivan uses the words “Constitutional Amendment Fever”Footnote 34 or “Amendmentitis.”Footnote 35 to describe the phenomenon of increases in proposed constitutional amendments—stipulations for a balanced budget, for term limits, and for authorizing Congress and the states to prohibit flag desecration—in America following the 1994 presidential election. Sullivan wrote:
This rash of amendment proposals is cause for alarm, even apart from any of their individual merits. For there are strong structural reasons for amending the Constitution only reluctantly and as a last resort. This strong presumption against constitutional amendment has been a bedrock in our constitutional history, and there is no good reason for overturning it now.Footnote 36
The structural reasons that Sullivan brings up are stability, rule of law, coherence, generality, and the role of the courts. She goes into more depth on each of these points. First, there is no need to tamper with a constitution that has stood the test of time without failing. Second, the constitution—which has a higher priority than the ordinary statutes—will become like ordinary statutes if it is frequently changed. It is essential to prevent the resulting situation whereby the areas of law and politics are too intermingled. Third, it is possible that the coherency and consistency of the entire constitution will be lost because of a hasty constitutional amendment. Fourth, it could damage the generality of constitutional regulations. Fifth, in America, the courts have a flexible interpretation of the law, so very frequent formal constitutional amendments are not needed. Further, frequent constitutional amendments—particularly amendments intended to overturn court interpretations of the constitution—could potentially undermine the legitimacy of the courts that set out these interpretations.Footnote 37
Vicki Jackson has recently posited some objections to Sullivan’s argument.Footnote 38 Jackson argues that in the U.S. there is a theoretical and political discourse that emphasizes the extreme difficulty of amending the Constitution through the formal process provided by Article V of the U.S. Constitution.Footnote 39 Jackson pointed out the argument that the Constitutional amendment should be a last resort, as Sullivan’s did, has created a political culture in which it is very difficult actually to amend the Constitution.Footnote 40 Jackson continues her analysis by stating that one consequence of this sort of political culture is that it encourages a tendency to depend on a work-around methodology. In the case of America, the apparent alternative form of amendments to the constitution comes through court decisions on constitutional issues.Footnote 41 Jackson identifies issues with this route because it overlooks the importance of consent of the citizens, which should be the primary element that guarantees the legitimacy of the Constitution. Jackson wrote that “over-reliance on interpretation and change in the judiciary as the sole methods for constitutional change undervalues the significance of more active forms of public consent for constitutional legitimacy; too strong a convention against formal textual amendment saps the democratic legitimacy of the formal text.”Footnote 42 Jackson then points out the significance of clearly written constitutional amendments to change constitutional precedents set forth by the courts. Her concerns about “amendophobia”—namely the pathology of being irrationally afraid of employing a constitutional amendment even when it is appropriateFootnote 43—are set out much like Sullivan in her discourse on amendment fever.
III. Diagnosis of Japanese debates
The main points of these two opposing arguments involve the evaluations of making changes to a constitutional system without formal amendments to a constitution, and—more specifically—how to evaluate changes to a constitutional system via the courts. Sullivan assesses this as a positive point and states it as a reason why constitutional amendments should not be made. Conversely, Jackson is uncomfortable with the assumption that the courts are the main actors for making changes to a constitutional system.
Let us return to Japan. Sullivan does not refer to any specific proposals for constitutional amendments in her argument, but she emphasizes it as a general argument.Footnote 44 Jackson’s argument is also developed in the context of America, but she states that other countries could have a similar situation with regard to this problem, so it should not be emphasized as an argument that only applies to America.Footnote 45 Their arguments seem to be a valuable reference when considering the Japanese situation. On the one hand, Kaiken-ha looks like it has been infected by an Amendments fever. On the other hand, Goken-ha looks like it has been infected by an Amendophobia. Not only are their accounts of constitutional stability inadequate but so also are their attitudes to the Constitution. Unfortunately, the Goken-ha and Kaiken-ha have formulated the Japanese people’s perception of the Constitution.
D. How do Japanese people see the constitution?
Section B explored the traditional dichotomous attitudes toward the Constitution in Japan and the failure of their accounts of constitutional stability. Section C argued that to understand the reason for the constitutional stability, we need to view it from multiple angles and focus on the amendment cultures. So, what constitutes Japanese amendment culture? In Section D, we further explore how Goken-ha and Kaiken-ha have made Japanese amendment culture somewhat pathological. Then I shall argue that the political debate between them affects ordinary people’s view of the Constitution.
I. Interpretation of article 9
Goken-ha and Kaiken-ha have endorsed a sharply different interpretation of Article 9. Soon after the enactment of the Constitution of Japan in 1946, the international environment radically changed: The increased tension between the U.S. and the U.S.S.R., the emergence of the communist countries such as China and North Korea, and the outbreak of the Korean War in 1950. Japan created Keisatsu Yobi-Tai (National Police Reserve) in 1951, Hoan-Tai (National Security Force) in 1952, and Jiei-Tai (Self Defense Forces (SDF)) in 1954, notwithstanding the pacifist clause of Article 9. It reads as follow:
1. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
2. In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
This clause appears to prohibit an organization such as the SDF. So how has the government interpreted this clause in order to legalize the existence of the SDF? The government has developed a somewhat unique interpretation of Article 9.Footnote 46 It is true that the language of Article 9 of the Constitution appears to prohibit “use of force” in all forms in international relations, but when considered in light of “the right to live in peace” as recognized in the Preamble of the Constitution and the “rights to life, liberty, and the pursuit of happiness” as guaranteed in the article 13 of the Constitution,Footnote 47 Article 9 of the Constitution should not be interpreted to prohibit Japan from taking measures of self-defense necessary to maintain its peace and security and to ensure its survival.Footnote 48 Therefore, although Article 9 paragraph 2 prohibits the maintenance of “land, sea and air forces, as well as other war potential,” Japan is permitted to possess the minimum necessary level of self-defense capabilities, and that is not categorized as “war potential.” The SDF is constitutional because it is within those limits and used purely for self-defense. Furthermore, the United States’ forces in Japan—provided for in the Treaty of Mutual Cooperation and Security between Japan and the United States of America (the Japan-US Security Treaty)—which was concluded simultaneously with the Treaty of Peace with Japan on September 8, 1951—is not included in “war potential” under Article 9.Footnote 49
The left-wing parties and the majority of constitutional scholarship have criticized this governmental interpretation of Article 9 as Kaishaku-Kaiken (constitutional amendment through interpretation, without formal amendments). They argue that even if Article 9 does not prohibit Japan from taking measures of self-defense necessary to maintain its peace and security and to ensure its survival, it does prohibit any Senryoku (war potential). Japan must exercise the right of self-defense—not through a quasi-military force such as SDF—through the police or citizens themselves.Footnote 50
II. Postwar politics: An overview
Post-War politics has proceeded based on the government’s interpretation of Article 9. In the 1950s, after Japan regained its sovereign status, conservative parties (the LDP was established in 1955) argued for formal constitutional revision based on the recognition of the imposed constitution. Many hawkish politicians, such as Ichirō Hatoyama and Nobusuke Kishi—who became prime minister—claimed that there was a discrepancy between the actual constitutional system and the text of Article 9, and that the Constitution should be revised to correct this discrepancy. The JSP also recognized the difference between reality and ideal, but they argued for the abolition of the SDF and the Japan-US Security Treaty in order to adjust the reality to the ideal.
Following the struggle and the aftermath of the conflict over the Japan–U.S. Security Treaty in 1959–1960, the LDP stopped loudly arguing for constitutional amendment and tried to preserve the status quo until 1990: The coexistence of the SDF, the Japan-U.S. Treaty, and Article 9. Such a pragmatic approach had been approved not only by the voters—who had made the LDP the ruling party since then—but also by the media and the judiciary, even if passively.
In the 1990s, the discrepancy became deeper because of the change in international politics. During the Gulf War, 1990–1991, many countries provided troops as part of a multinational force. Japan was also requested to send the SDF to join the multinational forces but could not accept the request due to Article 9 of the Constitution. Instead of sending the SDF, Japan contributed about thirteen billion dollars to help fund the military operation, but this did not earn international respect. This Gulf War trauma led to Japan enacting an Act on Cooperation with United Nations Peacekeeping Operations and Other OperationsFootnote 51 (PKO Act) to “enable active contributions by Japan to international peace efforts centering upon the United Nations.”Footnote 52 Since then, Japan has dispatched the SDF for foreign peacekeeping operations many times.Footnote 53
In 1994, the leader of the JSP—Tomiichi Murayama—became Prime Minister in a coalition formed with the LDP. Although the JSP held the tenet of abolishing the SDF and repealing the Japan–U.S. Security Treaty due to their unconstitutionality, Murayama suddenly changed their longstanding policy and confirmed the status quo.Footnote 54 At that time, many parties formed mainly by former LDP members sprung up like mushrooms after the rain. These parties also approved the constitutionality of the SDF, the Japan–U.S. Security Treaty, and dispatching the SDF abroad for PKO activities.
In the 2000s, the LDP government led by Junichirō Koizumi enacted the Anti-Terrorism Special Measures LawFootnote 55 allowing for the dispatch of the SDF to the oil-fueling missions in the Indian Ocean.Footnote 56 The first administration of Koizumi’s successor, Shinzo Abe, started to suggest a possible right of collective self-defense under the war-renouncing Constitution. In 2009, the Democratic Party of Japan (DPJ) won a landslide victory at the general election of the House of Representatives on August 30, 2009, forming the government in place of the LDP. The DPJ also approved the constitutionality of the SDF and considered the possibility of the right of collective self-defense under the war-renouncing Constitution.Footnote 57
On June 1, 2014, the Cabinet led by second administration of Shinzō Abe re-interpreted Article 9 to permit exercising part of the right of collective self-defense that had been prohibited by previous interpretation. The Cabinet decision stated as follows:
Under such recognition and as a result of careful examination in light of the current security environment, the Government has reached a conclusion that not only when an armed attack against Japan occurs but also when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness, and when there are no other appropriate means available to repel the attack and ensure Japan’s survival and protect its people, use of force to the minimum extent necessary should be interpreted to be permitted under the Constitution as measures for self-defense in accordance with the basic logic of the Government’s view to date.Footnote 58
Many opposing parties and constitutional scholars severely criticized this change of constitutional interpretation as a “crisis of constitutionalism” or “destruction of constitutionalism.”Footnote 59 They protested by standing at the front of the National Diet and requested Abe’s resignation day after day. In spite of that event, the LDP—led by Abe and its junior coalition party New Komeito—won overwhelming victories in three successive national elections: The general election of the House of Representatives on December 14, 2014, the ordinary election of the House of Councilors on July 10, 2016, and the lower house election on October 22, 2017. Now Prime Minister Shinzō Abe’s ruling coalition retains its two-thirds parliamentary majority in both houses, and it has sufficient numbers for proposing constitutional amendments, for the first time since the enactment of the Constitution.
III. Formation of people’s attitude toward the constitution
In such a manner, post-war politics have gradually come to regard the constitutionality of the SDF as self-evident, postponing resolution of the discrepancy between the ideal and the reality concerning the Article 9 by formal constitutional amendment. So, it is natural for Japanese people to think the difference between the constitutional text and the existence of the SDF is not that big a deal. Today, even if the text of the Constitution is unchanged, the vast majority of citizens have approved the constitutionality of SDF, including its activity abroad.
Interestingly, a current opinion poll shows that about fifty percent of respondents think Abe’s attempt to change the interpretation of the Constitution is unconstitutional, but simultaneously a majority of respondents responded negatively to the question, “Do you think laws based on that interpretation should be abolished?” This result indicates that ordinary people do not seem to think the state of unconstitutionality should be solved as soon as possible.Footnote 60 Japanese people have come to the conclusion that the constitutional text need not reflect the reality, and that it can be flexibly interpreted by the government. Due to the post-war politics mentioned above, the Japanese Constitution has gradually lost its normative force among people. This is one aspect of constitutional culture in Japan and is thought to be the reason for constitutional stability in the negative sense.
E. The structural characteristics of the constitution of Japan
One of the other factors that enables such political balance in post-war Japan is the structure of the Constitution. To think about the constitutional structure, we should distinguish two different issues, detail and scope.Footnote 61 Detail refers to the depth in which the constitution treats the topics within its scope, and scope refers to what issues are included in the constitution.Footnote 62 As discussed below, the governmental structure provided in the Japanese Constitution is brief and narrow, which could make people even less motivated to amend the Constitution.
I. Compact constitution
It has been said that the Japanese Constitution is a compact one.Footnote 63 But, that claim seems to be grounded not on a close comparative examination of world constitutions, but rather on a comparison with a limited number of optimally selected constitutions. Kenneth McElwain and Christian Winkler clarify the Japanese Constitution’s structural characteristics using large-number statistical methods. Based on their statistical survey, McElwain and Winkler analyzed the reasons that Japan’s Constitution has endured without being changed even once.Footnote 64
According to McElwain and Winkler, one of the reasons that Japan’s Constitution has not been amended is that it is quite short when compared with the constitutions of other countries.Footnote 65 The median value for the number of words (translated in English) in constitutions examined for this paper was 13,630 words. Japan’s Constitution has only 4,986 words, which ranks fifth to last of the 190 constitutions studied.Footnote 66 Compared with other democratic countries such as the United States (7,762 words), Germany (27,379 words), France (10,180 words), Italy (11,708 words), and Canada (19,565 words), the small number of words in Japan’s constitution is striking.Footnote 67 Generally speaking, most provisions of the Japanese Constitution are characterized as vague standards, not as concrete rules. It means that interpretation has a primary role in relation to constitutional meaning.
Moreover, the Japanese Constitution does not treat broad topics. According to McElwain and Winkler, among ninety-two common issues that have been specified in many constitutions’ texts, the Japanese Constitution addresses approximately thirty-four percent of these topics.Footnote 68 Thus, the areas and topics that can be addressed by the ordinary laws are extensive.Footnote 69 Moreover, the Japanese Constitution frequently uses such phrases as “provided (for) by law” (fourteen times), “fixed by law” (seven times), “determined by law” (four times), “in accordance with law” (four times), “established by law” (three times); that is, “[i]n effect, many issues enumerated in other constitutions are either unaddressed or left explicitly to ordinary law in Japan, giving more room to the Diet and the courts to fill in the gaps via statutes and case law.”Footnote 70
Japan has a tradition of concise constitutions. When Japan was preparing the draft of the Constitution of The Empire of Japan—the so-called Meiji Constitution, which went into effect on November 29, 1890—one of the primary instructions given by Hirofumi Itō, the first Prime Minister, was that “the constitution should leave it only in a general outline about the emperor state politics, use the concise, clear text, and make it elastic to adapt to future progress.”Footnote 71 When drafting the current Constitution, Tastukichi Minobe, who was then the most influential constitutional scholar, claimed there was no need to revise the Meiji Constitution for the sake of the democratization of Japan. He wrote that democratization of the Meiji Constitution could be achieved without formal amendment through revision and repeal of laws and effective management.Footnote 72
II. Structural reform without formal constitutional amendment
Because of this structural characteristic of the Constitution, the Japanese “Constitutional Order,” which is comprised of “not only various stipulations incorporated into the text of the Constitution, but also judicial precedents and constitutional cases with a force almost equivalent to the Constitution, and regular ordinances subordinate to them and Kenpō-fuzoku hō [constitutional acts or statutes],”Footnote 73 is largely comprised of materials other than the constitutional text itself. Especially in the realm of governance structure, constitutional acts play a pivotal role.Footnote 74 Constitutional acts are defined as those that “are not formally incorporated into the text of the Constitution but are rather entrusted in parliamentary statutes and other ordinances”; but these laws are “equally foundational for the organization and management of national governance.”Footnote 75 It can be said that the concept of constitutional acts has almost the same meaning to “small-c constitution,” which “consists of the body of rules, practices, and understanding, written or unwritten that actually determines who hold what kind of power, under what conditions, and subject to what limits.”Footnote 76
Under these backgrounds, many drastic governance structural reforms have been carried out in Japan since the 1990s as a result of changes in constitutional acts, not the Constitution itself. The following reforms resulted from changes of the constitutional act and not from those in the actual Constitution.
In 1994, the National Diet amended the “Public Offices Election Act”Footnote 77 several times to realize a party-oriented and policy-oriented electoral system. It changed the electoral system of the House of Representatives from a multiple-seat constituency system—from which three to five candidates are elected—to the electoral system combining single-seat constituencies with proportional representation. In some countries, these election system reforms must be accomplished through a constitutional amendment.Footnote 78 The Japanese Supreme Court upheld the constitutionality of the new election system, saying:
There is no single, invariable model for the election system…. Since the Diet is empowered to decide which system of election is appropriate for achieving the goal of electing fair and effective representatives for both houses by its discretion, when the Diet has adopted a new system of election, it is unconstitutional only when the choice of the actual system is beyond the discretion of the Diet, even considering its broad discretionary power, because it exceeds the limits mentioned above, or it is against the requirement of equality under the law and therefore, against the requirements of the Constitution.Footnote 79
At the same time, the National Diet enacted the Political Party Subsidies ActFootnote 80 to institutionalize a party subsidy system. Although the Japanese Constitution itself does not say anything about political parties, they have been assigned a leading role in the constitutional system by ordinary statute.
In the executive branch, Gyōsei Kaikaku Kaigi (the Administrative Reform Council) was established in 1996 and produced its final report in 1997.Footnote 81 The Report declared that its basic idea and objective was to restructure Kono-Kuni no Katachi (the shape of our country), which phrase has been used interchangeably with Constitutional order in Japan. As this phrase indicates, the Administrative Reform aimed to change the Japanese Constitutional order. The Report recommended: (1) Reinforcing Cabinet functions, (2) restructuring central government ministries and agencies, (3) cutting back government functions and promoting privatization, and (4) reforming the public service system. Based on the recommendation, the Diet amended the Cabinet Act,Footnote 82 and enacted many laws such as the Basic Act on Central Government Reform.Footnote 83
In 2000, to strengthen the regional governance and management as well as the promotion of decentralization reform, the Omnibus Decentralization ActFootnote 84 and other related acts radically reformulated the local government system. This changed the hierarchical relationship between the central and local governments to an equal and cooperative one. It abolished the system in which the central government delegated some of its authorities to the local governments, treating them as organs of the central government within a scope of delegated authority. It promoted the devolution of authority, from central to prefectural, from prefectural to municipal, and so on. Since then, local government reform has been ongoing.
Concerning the Judiciary, many reforms have resulted in the introduction of a lay judge system (Saiban-in system) which allows the participation of citizens in criminal trials,Footnote 85 the establishment of graduate law schools to increase the number of legal professionals, the establishment of an Intellectual Property High Court, and others. These have been introduced based on the Opinion Paper of the Judicial System Reform Council (JSRC).Footnote 86 The Opinion Paper, Judicial System Supporting Japan in the 21st Century,Footnote 87 published on June 12, 2001, proposed wholesale reform of the current Japanese legal and judicial system. It begins as follows:
Japan, which is facing difficult conditions, has been working on various reforms, including political reform, administrative reform, promotion of decentralization, and reforms of the economic structure such as deregulation. What commonly underlies these reforms is the will that each and every person will break out of the consciousness of being a governed object and will become a governing subject, with autonomy and bearing social responsibility, and that the people will participate in building a free and fair society in mutual cooperation and will work to restore rich creativity and vitality to this country. This reform of the justice system aims to tie these various reforms together organically under “the rule of law” that is one of the fundamental concepts on which the Constitution is based. Justice system reform should be positioned as the “final linchpin” of a series of various reforms concerning restructuring of “the shape of our country.”Footnote 88
As mentioned above, the phrase “the shape of our country” is the translation of “Kono Kuni no Katachi.” The Opinion Paper situated the series of reforms as a practically constitutional amendment through constitutional acts, not through formal amendment procedure.Footnote 89
In sum, as Takeshi Inoue claims, “the fact that the Japanese constitution has not been amended once since its enactment indicates that it has the flexibility to handle the changing circumstances of society without being revised. Conversely, however, it also shows the possibility that it is a weak standard for limiting power.”Footnote 90 Sakaiya also pointed out that the government has coped with new situations through reinterpretation of the constitutional text and revision of the constitutional acts, and states that this is one reason for the Constitution’s stability.Footnote 91
III. Judicial restraint
As discussed above, the concise Japanese Constitution leaves much room for interpretation. But what organization should have the task of interpreting the textual meaning of the Constitution? Rosalind Dixon argues that constitutions are generally either framework style constitutions that only regulate policies in extremely general language, or codified constitutions that formally document more detailed or restrictive regulations. Dixon explains that framework style constitutions are founded on faith in the courts and their capacity for interpretation and fair decision-making. Conversely, codified constitutions are designed as a system that assumes distrust in entities to make accurate interpretations and decisions based on a constitution. Dixon recommended that anyone trying to establish a new democratic body of constitutional law should design their constitution keeping these concepts in mind.Footnote 92
The Japanese Constitution is to be classified as a typical framework style constitution with a judicial review system imported from the United States.Footnote 93 As discussed above, the concise Japanese Constitution leaves much room for interpretation. Therefore, it appears on its face that the task of interpreting the textual meaning of the Constitution would fall to the judicial branch. Yet, since the judicial review system’s beginning in 1947,Footnote 94 the Supreme Court of Japan has been widely regarded as reluctant to use that power. Up until now, there have only been ten cases in which the Supreme Court has struck down statutes as unconstitutional.Footnote 95 Many academics have researched the reasons for the judicial passivity of the Supreme Court of Japan,Footnote 96 but for this article it suffices to note that all agree that judicial review has not played a critical role in Japan’s politics. As a result of the judicial restraint, the government might be the primary agent that interprets the Constitution.Footnote 97
Many academics have pointed out that the Cabinet Legislation Bureau (CLB), which is established under the Cabinet,Footnote 98 has effectively exercised the power of constitutional review. CLB examines the constitutionality of all legislative bills that will be submitted from the Cabinet to the Diet. CLB also gives legal opinions to the Cabinet members as well as to the Cabinet as a whole. Moreover, the CLB Directors General and other officials have been invited to the Diet or its committee meetings and answered legal and constitutional questions. The interpretation of Article 9 mentioned in Section B.I. is also the work of the CLB.
In short, the government of Japan can introduce essential change without resorting to constitutional amendments due to the structure of the Constitution and extreme judicial restraint.Footnote 99 It means that a government that has received a majority of the vote can change the shape of the country. In other words, the Japanese Constitution can be interpreted in democratic or populistic ways. This relationship between the Constitution and populism is one feature of Japanese constitutional culture.Footnote 100
F. What is the desirable attitude toward constitutional amendment?
As discussed in the previous Section, the structure of the Constitution of Japan allows for a wide range of interpretation. The ordinary laws enacted by the Diet and the government—not the judicial branch—have taken the responsibility of constitutional construction or interpretation. Is this a desirable situation? How do constitutional scholars evaluate this? In this Section, we shall consider constitutional scholars’ arguments that try to judge whether it is appropriate to make amendments based on the costs and the benefits. These amplify a negative attitude toward constitutional amendments in general.
I. Cost-benefit analysis
Many scholars have sought to evaluate whether it is desirable to amend the Constitution on the basis of cost-benefit analysis. For example, political scientist Atsushi Sugita, who is the member of “Save Constitutional Democracy Japan”Footnote 101—a group critical of the Abe administration—pointed out that “from the objective of Constitutionalism, the topics that can be addressed by ordinary statutes should be managed with ordinary statutes, not with the Constitution. The Constitution should only be involved when the topics cannot be addressed by general statutes.” Footnote 102 Therefore, “using a Constitutional amendment on a matter that can be solved by ordinary statutes is a waste of time and effort.”Footnote 103 Similarly, constitutional scholar Yasuo Hasebe’s argument about whether the right to privacy or environmental rights should be written in the constitution, also uses costs-benefits analysis. Hasebe wrote:
[M]erely writing these things into the text of the constitution without solidifying implementation through statutes in the National Diet or precedents set by the courts would be meaningless. The right to privacy has already been solidified by the court’s interpretation of Article 13 of the Constitution. As it is, if this right is infringed upon, a person can seek damages or an injunction against the violator. It seems like nothing would be gained by making a new constitutional amendment for what citizens already have. Environmental rights are meaningless without laws that make them concrete, and if there is a law that makes it concrete, then a constitutional amendment has only a symbolic meaning.Footnote 104
These are the typical sort of arguments given about costs and benefits.
Nonetheless, as mentioned in Section D—because almost every political reform can be achieved through ordinary statutes due to the structure of the Constitution—if the advisability of amendment is assessed based on costs and benefits, it is almost always assessed as being inadvisable. If so, is it an appropriate way of judging the desirability of constitutional amendments?
II. Constitutional change always evaluated negatively
Hasebe invokes David Strauss’ article entitled “The Irrelevance of Constitutional Amendments”Footnote 105 as a basis of his argument.Footnote 106 Strauss argues that in a “mature democratic society” formal constitutional amendments are not the main or even an essential means of changing the constitutional system:
There is great appeal to the idea that the written Constitution is the authentic voice of the People on matters of fundamental principle. But however true this idea was for the original Constitution and its early amendments, it presents a misleading picture of the constitutional development of the mature Republic. The fundamental changes in the constitutional order have occurred by means other than the amendment process. They have occurred without amendments, despite the rejection of amendments, or in ways that made amendments only incidentally important.Footnote 107
Strauss is discussing the U.S., but since it is presented as a statement that is valid for mature democracies, it is a valuable reference when considering the general phenomenon of constitutional amendments.
Constitutional scholarship uses cost-benefit analysis to evaluate negatively almost all of the constitutional amendments proposed by the LDP and others. Currently, the party is arguing for four specific amendments: (1) Clarifying the legal status of the SDF under the Constitution, (2) making education free of charge, (3) giving the government emergency powers in case of a natural disasters and national crisis, and(4) eliminating House of Councilors’ electoral districts that merged two prefectures with one district,Footnote 108 correcting the state of unconstitutionality that followed from the Supreme Court’s decision that there was a vote-value disparity,Footnote 109 maintaining that at least one person can be elected from each prefecture.Footnote 110 Those who oppose these amendment proposals argue that almost all of them do not necessarily require the formal constitutional amendment. First, because the SDF is already constitutional under the official interpretation of the Constitution,Footnote 111 writing it down expressly in the Constitutional text is futility, waste of time and money. Second, making education free of charge can be achieved through enacting general statutes; resorting to a constitutional amendment is pointless.Footnote 112 Third, introduction of an emergency clause to the Constitution is more or less complicated.Footnote 113 If this proposal is to authorize an extension of legislators’ terms in response to major earthquakes and other disasters, it would not be necessary as Article 54 Section 2 of the Constitution already allows for such a situation.Footnote 114 If this proposal is to concentrate powers in the hands of the prime minister to tackle the emergency situation effectively, it would risk the perpetuation of emergency power.Footnote 115 Accordingly, such an emergency clause should not be introduced into the Constitution.Footnote 116 Fourth, eliminating the House of Councilors’ merging of electoral districts could be realized through the introduction of an indirect election system and putting the house of Councilors as representatives of the region.Footnote 117 In such a way, almost every proposal for a constitutional amendment is assessed by the cost-benefit analysis and diagnosed as unnecessary.
III. Other reasons for constitutional amendment
The stance of this constitutional scholarship might be the reason for the Japanese people’s attitude toward the Constitution.
First, as discussed above, the majority of constitutional scholars had thought the SDF was unconstitutional.Footnote 118 Nevertheless, when they criticized Abe’s interpretative change of Article 9, their claim was based on the former interpretation of the government, which they had attacked. In other words—because the vast majority of people already approve and admit the existence of the SDF—constitutional scholarships seeks to refrain from their fundamental assertion of its unconstitutionality. Instead, it only criticized the change of interpretation from what the government had been saying previously. Nevertheless, many people view their claim as motivated not by jurisprudential reasons, but by political reasons.Footnote 119 Second, although there are many scholars explicitly acknowledging the constitutionality of the SDF among critics of Abe’s administration, their attack on Abe’s attempt as Kaishaku-Kaiken (constitutional amendment through interpretation, without formal amendment) is also received as a political one. As a philosopher of law, Tatsuo Inoue points out elsewhere, these scholars behave as if they criticize Abe’s Kaisyaku-Kaiken simultaneously endorse another type of Kaisyaku-Kaiken.Footnote 120 Such disingenuous behavior contributes to the posture of ordinary Japanese people which is discussed in Section D.III. Third, because many scholars criticize the amendment proposal aimed at eliminating the discrepancy between the actual constitutional order and the text of the Constitution based on the cost-benefit analysis, ordinary people do not find this state of affairs problematic.
The idea of making the constitutional amendment procedure more difficult than passing an ordinary law within the constitutional text—which is universally recognized around the worldFootnote 121—is to reconcile conflicting demands for constitutionalism, those for stability and change.Footnote 122 Under the Japanese Constitution—which has the structural characteristics described in Section D—it is easy for discrepancies between the Constitution and the actual constitutional order to arise. As long as one takes the perspective of championing constitutionalism, amending the Constitution to eliminate a situation where reality appears to contradict the constitutional text should not be dismissed by cost-benefit analysis.Footnote 123
In this Article, I have discussed the reasons for constitutional stability in Japan. The reason is not the popular approval of the Constitution regardless of its origin, but rather cultural reasons. In spite of the dichotomous attitude in political debate toward the Constitution—especially Article 9—the actual post-war politics has proceeded without solving the contradiction between reality and the ideal of Article 9 and the SDF. Such politics have been approved tacitly by the compact Constitution and by judicial restraint on constitutional issues. Also, many constitutional scholars—who have a strong incentive to deter any constitutional amendment—have claimed that the criteria for determining the necessity of constitutional amendment should be evaluated by cost-benefit analysis. It is an analysis of whether the proposed amendment’s purpose could be achieved by ordinary laws or change of constitutional interpretation. Due to a mixture of these factors, the Japanese people have gradually lost trust in the normative forces of the Constitution’s text and have regarded it as so flexible that it can fit almost any changing environment. That seems to be the reason for constitutional stability in Japan and the characteristics of the relationship between the Constitution and populism in Japan.
Therefore, as I have described, the stability is a product of some sort of pathological phenomenon. My point is, as Versteeg and Zackin pointed out, “constitutional scholars should no longer define constitutional success in terms of the stability (or majesty) of a single constitutional text.”Footnote 124 Those who want to know the way to stabilize the constitutions should not overestimate Japanese experience nor the normative importance of Article 9 for ordinary Japanese people.