The Constitution of Japan, ratified in November 1946 and enacted in May 1947, is the oldest unamended constitution in the world today. Considering that the average constitution is amended every five years, the lack of changes to Japan’s constitution marks it as a clear outlier. What does this lack tell us about the quality of Japan’s constitutional democracy? And is there no need to improve the constitution’s contents to make it viable for the next 70 years? This book answers these questions through three main arguments, based on a quantitative comparison of over 900 constitutions enacted since 1789.
 
First, the most significant feature of the Constitution of Japan lies in its “asymmetric flexibility”. Compared to other constitutions, it guarantees an extensive range of human rights, such as the pursuit of happiness and the protection of minimum standards of living, which were uncommon for its era. In contrast, the details of political institutions are left to legislation, allowing for changes to the architecture of government, such as central-local relations or the parliamentary electoral system, by a simple majority in the Diet. This latter aspect is closely related to the frequency of constitutional amendments. Most amendments worldwide concern political institutions, but in Japan, these can be achieved through legislative changes. Thus, there is less structural need to amend the constitution than in other countries.
 
Second, far from being outdated, global standards are moving in the direction of the Constitution of Japan.  When it was established, the Japanese constitution enumerated once-rare rights that have become commonplace today. These limited excessive state intervention in the private sphere and broadly secured socio-economic rights, contributing to the constitution’s survival. An analysis of constitutional longevity worldwide shows that those that guarantee more human rights tend to endure longer. Furthermore, survey experiments demonstrate that rights-rich constitutions tend to have higher legitimacy among citizens. These help explain how the Japanese constitution has survived for over seventy years, even without revisions.
 
Lastly, the lack of structural necessity for amendments does not mean that amendments are undesirable. The flexibility of political systems, a key feature of Japan's constitution, can be a double-edged sword for representative democracy. One specific problem is the ease with which parliamentary majorities can manipulate the electoral system. By creating disparities in voting power through malapportionment and establishing excessive campaign regulations, ruling parties in Japan have been able to bias elections in their favor. Allowing the Diet to determine the details of the electoral system is akin to letting employees (legislators) choose the standards for their employment and dismissal. This book proposes to grant the Supreme Court the explicit authority to intervene in the electoral system so as to limit the discretion of Diet members and strengthen the quality of constitutional democracy in Japan.
 

(Written by Kenneth Mori McElwain, Professor, Institute of Social Science / 2023)

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Related Info

Awards:
The 44^th Ishiban Tanzan Book Award (The Ishibashi Tanzan Memorial Fundation  2023)
https://ishibashi-mf.org/activity/prize/44th/
 
The 34^th Asia-Pacific Award Special Prize  (The Asian Affairs Research Council  Nov. 2022)
http://www.aarc.or.jp/apshow34.html
 
Interview:
Meet Kenneth Mori McElwain – What constitutes a constitution?  (The University of Tokyo | YouTube  Feb 14, 2024)
https://www.youtube.com/watch?v=Idq4n4ieK5w
 
Book Review:
Reviewed by Yokodaido, Satoshi “Can Japanese Constitutional Law Scholars Recognize the Significance of this Book?” (Japanese Journal of Political Science, Volume 24, Issue 3, pp.368-374.　April 24, 2023)
https://doi.org/10.1017/S1468109923000075
 
Related articles:
Constitutional Politics in the Post-Abe Era: Institutional and Political Hurdles  (nippon.com  Oct. 19, 2022)
https://www.nippon.com/en/in-depth/d00847/
 
A Long-Lived, Unamended Constitution  (Discuss Japan  Oct. 27, 2017)
https://www.japanpolicyforum.jp/politics/pt201710270040267126.html
 

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