Blog of the International Journal of Constitutional Law

Happy 65th Birthday, Japanese postwar constitution …

… and here’s to the next 65. There are a number of interesting facts and longstanding myths surrounding the Nihonkoku Kenpo, which went into effect 65 years ago today: few constitutions have gone longer without being amended (true!), even though it was “imposed” by “the United States” (not true …)

 The Asahi Shimbun has a birthday tribute today, available in English, with tidbits from a couple of contributors to this blog. The journalist in question, Junji Tachino, does a nice job of anticipating, and addressing, common public concerns about the Kenpo in a very succinct and readable way. Here’s the political backdrop in a nutshell.  Conservatives in Japan have long wanted to amend the constitution, their particular pet peeve being Article 9, which constitutionally commits Japan to pacifism. Whereas the Asahi Shimbun, along with the rest of the center-left and (usually) a majority of the public, supports the Constitution. The all-too-common (and wrong) narrative about the Japanese Constitution having been “imposed” upon the Japanese may seem innocuous, or even a source of pride, to American scholars (a collective pat on the back for writing such a long-lived document), but in Japan, it’s a talking point for the right to justify the dilution of Article 9. 

Back to what’s true and what’s not true, and maybe even a little discussion of why or why not:

(1) Has it lasted a long time without amendment? Yes; indeed, as Tom points out in the Asahi Shimbun piece, it’s almost without peer. Is that necessarily a bad thing? No. In a constitution, old *can* mean out of fashion, but it doesn’t have to. Although the Kenpo turns 65 today, that doesn’t necessarily mean its content is out of date (measured against what’s globally popular these days). The Nihonkoku Kenpo was written in a blink-and-you’ll-miss-it historico-ideological sweet spot between Allied victory in WWII and the onset of the Cold War – a window during which New Deal progressivism could express itself constitutionally, in the form of a constitution filled with rights that have only become more popular in recent decades, before the weight of domestic and international security concerns settled in and thoroughly ruined the party. But the legacy of this last gasp of New Deal progressivism on the global stage was a document that was, quite arguably, ahead of its time in terms of the range of rights that it guaranteed. Even the pacifist commitment may not be very popular globally but has at least gotten more popular, not less so (contrast, e.g., the right to bear arms).

 (2) Was it “imposed” by the “United States”?  Not so much.  MacArthur definitely did *not* have permission from Washington to write a constitution for Japan, but instead saw and seized an opportunity after the Cabinet proposed a deeply conservative document that the Japanese public rejected, and he ended up proposing something with much stronger popular support than Japan’s own government could muster. Its longevity should therefore come as little surprise: what democratic constitution can endure for over six decades unless it enjoys enduring popular support? Therein ought to lie a valuable historical lesson for those who argue that constitution-making in post-occupation settings (Iraq, Afghanistan?) is about cutting deals among elites, popular opinion be damned.  The lesson is: actually, the people do matter.  If that’s too much to ask, then one at least hopes that scholars won’t draw from Japan the wrong lessons about the viability of “imposed constitutionalism”.

Last but not least: a tip of the hat to everyone’s favorite co-author, Mila Versteeg, for coming up with just the kinds of statistics that the Japanese people need to know that, even though their constitution may be approaching human retirement age, it is still up to date and worthy of their support.


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