Abstract

http://ssrn.com/abstract=1022686
 
 

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Baghdad, Tokyo, Kabul,...: Constitution Making in Occupied States


Zachary Elkins


University of Texas, Austin

Tom Ginsburg


University of Chicago Law School

James Melton


IMT Institute for Advanced Studies


William & Mary Law Review, Forthcoming
Illinois Public Law Research Paper No. 07-07

Abstract:     
We identify and document instances of "occupation constitutions," those drafted under conditions of foreign military occupation. Not every occupation produces a constitution, and it appears that certain occupying powers have a greater propensity to encourage or force a constitution-writing process. We anticipate ex ante that occupation constitutions should be less enduring, and provide some supportive evidence to this effect. Some occupation constitutions do endure, however, and we conduct a case study of the Japanese Constitution of 1946. We argue that it had a self-enforcing quality that has allowed it to endure un-amended for over six decades. Unlike conventional understandings of that document as an American imposition that imposed foreign values, we argue that Japanese participation in the adoption process, and familiarity with some of the rights provisions that had already appeared in the Meiji Constitution, helped make the document self-enforcing. Most important of all, however, was that it embodied a political bargain that fit the basic cleavages in Japanese society.

Number of Pages in PDF File: 37

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Date posted: October 22, 2007  

Suggested Citation

Elkins, Zachary and Ginsburg, Tom and Melton, James, Baghdad, Tokyo, Kabul,...: Constitution Making in Occupied States. William & Mary Law Review, Forthcoming; Illinois Public Law Research Paper No. 07-07. Available at SSRN: http://ssrn.com/abstract=1022686

Contact Information

Zachary Elkins
University of Texas, Austin ( email )
Austin, TX 78712
United States
Tom Ginsburg (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
James Melton
IMT Institute for Advanced Studies ( email )
Complesso San Micheletto
Lucca, 55100
Italy
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