The Myth of the Imposed Constitution

The Social and Political Foundations of Constitutions (Denis Galligan & Mila Versteeg eds., Cambridge University Press 2013, pp. 239-68)

Washington University in St. Louis Legal Studies Research Paper No. 13-05-01

31 Pages Posted: 27 May 2013 Last revised: 24 Jul 2015

See all articles by David S. Law

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Date Written: May 26, 2013

Abstract

Japan’s post-war constitution, the Nihonkoku Kenpo, is routinely cited as an example of an "imposed" constitution. It is generally understood to be the product of military occupation by the United States. More than six decades after the end of that occupation, however, the Kenpo not only remains in place, but has outlasted the average constitution and survived longer without amendment than any other constitution in the world. Given the supposedly unfavorable circumstances of its birth, how can the exceptional longevity and stability of the Kenpo be explained, and what lessons can be drawn from its success that might apply elsewhere?

This contribution to an edited volume offers two explanations for the longevity of the Kenpo. First, it is not true that Japan’s constitution has remain unchanged. Rather, constitutional evolution in Japan has favored informal mechanisms that have obviated formal amendment of the Kenpo itself. In Japan as elsewhere, it is necessary to distinguish between the "large-C" constitution, or the formal document that bills itself the constitution, and the "small-c" constitution, consisting of the rules, practices, and understandings (written or otherwise) that actually govern the operation of the state. Tension between these two sources of constitutional meaning is inevitable and gives the practice of constitutionalism a syncretic character.

Although Japan’s large-C constitution has remained fixed, its small-c constitution has evolved through a combination of interpretation, nonenforcement, and functional obsolescence. The last of these evolutionary mechanisms goes largely unremarked but is not unique to Japan. Its existence is manifest in the form of "zombie" constitutional provisions that are formally respected but no longer perform any meaningful function and are thus, for all practical intents and purposes, dead.

A second explanation for the longevity of the Kenpo is that it was never truly imposed. A distinction must be drawn between Japan’s political leaders, who opposed significant constitutional revisions, and the Japanese people, who lacked faith in their discredited leaders and supported meaningful change. Contemporaneous public opinion data strongly supports the view that General MacArthur’s constitutional maneuvering is best understood not as an act of imposition upon "Japan" as a whole, but rather as an act of agenda control that bypassed elite resistance in favor of a document that enjoyed widespread popular support. Since then, legislative supermajority and popular ratification requirements for constitutional amendment have enabled public sentiment and opposition parties to thwart the long-standing efforts of Japan’s center-right Liberal Democratic Party to dilute the pacifist provisions of the Kenpo.

Japan’s experience suggests that widespread popular support, not the support of governing elites, is the sine qua non of an enduring democratic constitution. Logic and experience alike support the conclusion that, in any country where the people truly hold political power, the people can and will eventually modify or reject a constitution that they do not support. Conversely, however, if the people generally support the constitution, their leaders will encounter great difficulty amending it.

In closing, the chapter argues that the very concept of an "imposed" constitution lacks explanatory or analytical value because it rests upon a false dichotomy between "imposed" and "unimposed" constitutions. Constitution-making routinely implicates multiple authors, constituencies, and narratives in a process that is part negotiation, part dialectic, and part coercion. This multiplicity of participants and processes makes it difficult to say with confidence what is an "imposed" constitution and what is not. In the politics of constitution-making, as in any other kind of politics, there are invariably both winners and losers, both those who participate and those who are marginalized. Elements of imposition and alienation are therefore endemic to constitution-making.

Keywords: constitution, constitutional law, comparative constitutional law, Japan, constitutional drafting, constitution-making, constitution-writing, imposed constitution, democratic constitutionalism

JEL Classification: K19, K39

Suggested Citation

Law, David S., The Myth of the Imposed Constitution (May 26, 2013). The Social and Political Foundations of Constitutions (Denis Galligan & Mila Versteeg eds., Cambridge University Press 2013, pp. 239-68); Washington University in St. Louis Legal Studies Research Paper No. 13-05-01. Available at SSRN: https://ssrn.com/abstract=2270399

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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