Balkinization  

Friday, June 01, 2007

Below The Radar: A Constitutional Revolution In Japan?

Guest Blogger

Bruce Ackerman

The recent decision by the Japanese parliament to pass a referendum law on the Constitution is an epochal moment in modern history. Japan’s Constitution has been frozen in time, marked with the trauma of capitulation. Drafted largely by two American military lawyers, it took the form of an amendment to the imperial constitution – with the Emperor submitting it to his legislature for rapid approval, without sustained discussion, in 1946. It has never been amended since, and the recent referendum law will begin a process through which the Japanese people might begin the process of taking ownership over their constitutional destiny.

The MacArthur Constitution, in form at least, adopted American principles of popular sovereignty-- providing a higher lawmaking track through which the People could legitimately revise their fundamental principles. But the text left it up to the Diet to fill in the crucial details, and the present government is off to a very bad start -- its referendum law violates fundamental principles of free speech and democratic accountability. For some obscure reason -- maybe the Wolfowitz melodrama at the World Bank -- the newspapers haven't reported on Japan's great lurch forward. So I have written a brief essay, with a Japanese colleague, in Foreign Policy, which you can read here.

Comments:

The question I have is why an amendment formula that requires a 2/3 vote in the national legislature followed by a referendum is so bad. I certainly agree that the social practices needed to sustain constitutionalism (e.g., that certain changes require supermajority consent) are important but it is not clear that the amendment formula should require that degree of mobilization before constitutional changes can occur. Article V requires a reasonably high level of mobilization before changes can be made and I think it has served our nation poorly by precluding change. Perhaps more importantly it has impoverished the constitutional imagination so that change is seen as unthinkable. The amendment formula adopted in Japan (leaving aside the restriction of freedom of speech) strikes me as a reasonable solution and certainly better than our own amendment formula. Requiring that amendments always elicit a high degree of mobilization will preclude needed constitutional changes while not facilitating the practices needed to sustain constitutionalism. Miguel Schor
 

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