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

37 Pages Posted: 22 Oct 2007  

Zachary Elkins

University of Texas, Austin

Tom Ginsburg

University of Chicago Law School

James Melton

affiliation not provided to SSRN

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.

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: https://ssrn.com/abstract=1022686

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

affiliation not provided to SSRN

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