David Law: Three Popular Misconceptions About the Japanese Constitution
from Asia Unbound and Will the Japanese Change Their Constitution?

David Law: Three Popular Misconceptions About the Japanese Constitution

A Japanese student reads a history textbook in a classroom at a junior high school in Tochigi, north of Tokyo, April 14, 2005.
A Japanese student reads a history textbook in a classroom at a junior high school in Tochigi, north of Tokyo, April 14, 2005. REUTERS/Yuriko Nakao

This blog post is part of a series entitled Will the Japanese Change Their Constitution?, in which leading experts discuss the prospects for revising Japan’s postwar constitution. David S. Law is professor of law and professor of political science at Washington University in St. Louis and, effective May 2016, the Sir Y.K. Pao chair in public law at the University of Hong Kong. He is the author of Nihon no saikosai wo kaibou suru [The Japanese Supreme Court and Judicial Review] (Gendaijinbunsha, 2013) and was a 2008 Hitachi Fellow and visiting associate professor at Keio University.

Efforts by Japanese conservatives to amend Japan’s post-war constitution, especially the strict commitment to pacifism found in Article Nine, are as old as the constitution itself. As part of its ongoing campaign to build support for constitutional revision, the ruling Liberal Democratic Party (LDP) has sought to popularize three misconceptions about Nihonkoku Kenpō, Japan's constitution that was promulgated in 1946 and came into effect a year later. The first is that it is too difficult to amend. The second is that it is obsolete and therefore in need of amendment. The third is that it was imposed by foreign occupiers and therefore illegitimate. None of these arguments withstand close scrutiny.

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(1) The Japanese constitution is not too difficult to amend.

It is true that no existing constitution in the world has lasted longer without amendment than the Japanese constitution of 1946. But there is a perfectly good reason why it has remained entirely intact for so long: on the whole, the Japanese people have preferred not to tamper with a document that laid the foundation for decades of peace and prosperity. The LDP deems amendment too difficult because it is unable to secure the amendments that it wants. But in a democratic country, the real test of whether constitutional amendment is excessively difficult is whether the people are unable to change the constitution if that is what they want.

That has never been the case in Japan. There have been no reliable indications of majority support for amending the constitution. The public has consistently shown little appetite for the kinds of constitutional changes long sought by the LDP: opinion polls suggest, for example, that only one-quarter to one-third of the Japanese public favors revision of Article Nine. The fact that Article Ninety-six requires popular ratification of constitutional amendments has stymied the LDP for decades. And this is as it should be. Constitutional amendment should not be so easy that the government can push through unpopular changes.

(2) The Japanese constitution is not obsolete.

By global standards, the 1946 Constitution has lasted a long time. The average constitution lasts only nineteen years and has a roughly one-in-three chance of being amended in any given year. That does not mean, however, that Japan’s constitution is obsolete. On the contrary, it was well ahead of its time when it was drafted and embodies an approach to constitution-writing that has become increasingly popular, if not dominant, in the decades since World War II. In embracing universal human rights and the nonviolent settlement of international disputes, the 1946 Constitution epitomizes the deep commitment to international norms and international law that has become the norm for respectable constitutions today. Its drafters studied a wide range of foreign examples in order to devise a progressive document that anticipated a variety of global trends, especially in the area of human rights. For example, even though it was adopted nearly seven decades ago, the Japanese constitution nevertheless contains nineteen of the twenty most common constitutional rights in the world. (The U.S. constitution, by comparison, contains only twelve of them.)

The irony of the LDP’s argument that the constitution is obsolete is that many of the constitutional changes sought by the LDP—such as deemphasizing individual rights and raising the standing of the emperor—would actually turn back the clock and go against the global mainstream of constitution-writing. The current government’s efforts to amend or reinterpret the constitution are aimed at precisely those universalistic, post-nationalistic aspects of the 1946 Constitution that made it so innovative and progressive by international and historical standards.

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(3) The Japanese Constitution was not “imposed” on the Japanese people.

It is not difficult to see why the misconception that the constitution was “imposed” by foreign occupiers is widespread even among many relatively sophisticated legal scholars. The document was initially drafted by a small group of Americans working in total secrecy under the command of General Douglas MacArthur, and the Japanese government was never at liberty to reject the basic principles of the document, such as demilitarization, popular sovereignty rather than imperial rule, and respect for human rights. But that is not the whole story.

The key to the longevity of Japan’s supposedly “imposed” constitution is that the American drafters—unlike Japan’s own leaders­—were willing to give the Japanese people what they wanted in a constitution. A leaked version of the cabinet’s own draft of a constitution, the so-called Matsumoto draft, met with overwhelmingly negative reaction from the Japanese public. In the aftermath of a devastating war that had thoroughly discredited the existing system, the Japanese people understandably wanted fundamental reform. Yet the Matsumoto draft proposed little more than superficial changes to the old Meiji Constitution.

Only after the initial Japanese draft proved to be a debacle did MacArthur’s group intervene to produce what the Shidehara cabinet had spectacularly failed to do—namely, produce a constitution that the Japanese people would embrace. Polls conducted both before and after the adoption of the constitution showed popular support for constitutional reforms such as reduction of the emperor to a purely symbolic role, expansion of the powers of the Diet, abolition or reform of the House of Peers, greater government responsiveness to the will of the people, and greater protection for individual rights and freedoms. None of these reforms were to be found in the Matsumoto draft. All of them found their way into the American draft.

That was no accident. The Americans made a conscious effort to draft a constitution that would appeal to the Japanese people­—a greater effort, it would seem, than Japan’s own political leaders did. While MacArthur was prepared to run roughshod over the Japanese government on the question of constitutional revision, he showed great respect for the wishes of the Japanese people. He knew that the new constitution had their support, and the Japanese government knew it too. When MacArthur raised the prospect of a referendum on the constitution shortly after its adoption, it was the Japanese government that rejected the idea. According to Prime Minister Shigeru Yoshida, there was no point in conducting a referendum because Japanese public opinion was “diametrically opposed” to any revision of the new constitution.

Therein lies one of the great ironies of Japan’s post-war constitution. When it came to writing a new constitution, American occupying forces proved more responsive to the wishes of the Japanese people than Japan’s own leaders. And it is thanks to American insistence upon a popular ratification requirement for constitutional amendments that the Japanese people remain capable of preventing their leaders from turning back the clock.

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