The Brevity of Japan’s Constitution

Kenneth Mori McElwainUniversity of Michigankmcelwai@umich.edu

Prepared for Conference: “Is Japan’s Constitution Suitable for the 21st Century?”, University of

Michigan, April 15th, 20111

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Explaining the infrequency of amendments1. Japan’s constitution is relatively VAGUE

Covers fewer topics, and in less detail Allows for more statutory change

2. However, it is also becoming EASIER to amend Electoral reform has increased size of Diet majorities Public opinion backs reform, although fickle

Prognosis: Public support linked with (unstable) foreign policy concerns. Revision more likely if bicameralism + decentralization become focal issues

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Data: “Comparative Constitutions Project” Elkins, Ginsberg, and Melton (2009)

General data: 860 constitutions, 198 states (from 1789) Birth / expiration dates Number + year of amendments # issues covered

Specific data: 184 current constitutions 13 categories 61 topics ~800 variables Codes WHETHER constitution specifies a particular

provision Codes WHAT the constitution says about provision

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How detailed is Japan’s constitution? Measuring “Scope” = % of issues mentioned

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Sample Categorie

s

Elkins, Ginsburg, Melton sample = 92 issues

ExecutiveDecree power; war power; immunity;

replacement

LegislatureElection method; political parties; special bills

(tax, budget)

JudiciaryConstitutional review; interpretation;

independence

Society Education; religion; civil rights; media

EconomyCentral bank; bankruptcy; economic plan

(market, socialism)

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Guarantees: Education (4 var.)

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Stipulate:(% Yes)

Access Hi-Ed

30%

Free School64%

Acad. Freedom

33%

Spain, Italy, Brazil [N=24]

Japan, Korea, Russia, [N=23]

Sweden, India, Taiwan [N=45]

Norway, Thai, USA [N=17]

Guarantees: Civil Rights (15 var.)

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Stipulate:(% Yes)

Censor40%

Privacy83%

Express

93%

Press64%

Assembly

92%

Germany, Korea, Brazil [N=46]

Japan

USA, Tonga

Australia, Thai, France [N=6]

Mentioned: Religion (4 var.)

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Topics: (% Mentioned)

Official44%

Freedom93%

Separation

29%

USA, Korea, Brazil, Mexico [N=27]

Japan, Italy, Brazil, Poland, [N=26]

Ireland, Indonesia, Spain, [N=49]

France [N=1]

Algeria, Saudi Arabia, Yemen [N=6]

Austria, NZL, Libya, Thailand, [N=5]

Mentioned: Judiciary (16 var.)

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Topics:(%

mentioned)

Any crts99%

Special crts23%

Independ78%

C Review

33%

Fiji, Swaziland [N=3]

Austria, Germany, Korea [N=27]

Japan, Eritrea, Bhutan [N=3]

USA, Canada, Nauru [N=14]

France, Sweden, Brazil [N=57]

Mentioned: Political Institutions (27 var.)

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Electoral System

LH rule LH quota UH rule UH quota

% of total, (in

Japan?)

46%(No)

17%(No)

79%(No)

66%(No)

Executive Powers

DecreeTerm Limit

Dismissal

Veto

% of total, (in

Japan?)

62%(Yes)

34%(No)

96%(Yes)

86%(No)

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Propensity for future amendments?

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Japan has benefited from peace and prosperity Cold War minimizes global / regional conflict Constitutional legacy of Meiji (never amended either) Low social / cultural heterogeneity, high economic

growth Political consistency under LDP

But the constitution has also been stretched pretty thin Article 9 Malapportionment & electoral fairness Decentralization of fiscal / administrative powers

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Is the amendment process prohibitive?

Unamend

QMVInterve

neReferend

umLocal

25% 64% 22% 58% 15%Subsample of 55 democracies

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2/3 QMV (n = 23) Required Ref (n = 9)

Japan, Korea, Iraq

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Why institutional structure matters1947-1993: MMD-SNTV Semi-proportionate electoral system

Small changes in vote share medium changes in seat share

Encourages parties to splinter multi-party system

1955: Liberals and Democrats merge LDP 1956: Hatoyama tries to switch the electoral

system Wants to amend Article 9 First-past-the-post would generate large super-

majorities

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Why institutional structure matters1994- : “mixed-member majoritarian” More disproportionate electoral system

Small changes in vote share large changes in seat share

Less malapportionment

Plurality party should win 50%, plausibly 66% of seats 2005: LDP = 61.7% 2009: DPJ = 64.2%

Caveat: hurdles remain in Upper House, which produces more proportional results

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LDP 2005 proposal: Making amendments easier! Article 9: Peace Clause

Maintain a Defense Army (not “SDF”) Permit forces abroad to…

Protect Japanese lives Participate in internationally-coordinated

actions

Article 96: Amendment Rule Diet hurdle reduced to absolute majority Keep 50% in voter referendum

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So what’s the prognosis?

Partisan differences appear relatively small Plurality of LDP, DPJ supporters have backed

revision Diet members strongly support revision (70-80%)

Caveat: easy to support in abstract

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% For Issues interested Issues to fix

DPJ LDP1) SDF, War: 42%

1) Decentralization: 30%

41% 42% 2) Environment: 33%

2) Self-defense military: 28%

3) Social insurance: 27%

3) Environment: 26%

Yomiuri Poll, March 2010

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Revision will be linked to LDP’s fate

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If amendment hurdle stays at 50%, then revision more likely under LDP LDP supporters more amenable to reform DPJ in coalition w/ SDP against Article 9 change

What issues will drive revision? Foreign policy fluctuates too much to be reliable Fiscal decentralization central to current

political debate Bicameralism majority supports revision

Research agenda for constitutional analysis

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What are the appropriate comparison groups? Common histories, e.g. military occupation, civil

war Mimicking Inception date changing roles of state, human

rights norms

One alternative: compare texts Data: “scope” from CCP Method: Coarsened Exact Matching (Iacus, King,

Porro 2008)

Rate of overlap with Japan [5+ yrs old]

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Top USAGerma

nyFranc

eBottom 3

All

Nauru (70%), Palau, Iceland,

Samoa, Tuvalu

48% 52% 50%Philippines, Colombia,

Mexico

Civil[21]

Poland (90%), Macedonia, Portugal, Albania

48% 67% 29%France,

Australia, Austria

Courts [55]

Australia (93%), Eritrea,

Nauru, Trinidad

73% 65% 53%Bosnia, Gabon, Portugal

Inst. [61]

Bosnia (74%), Austria, Belize,

Grenada

54% 69% 63%Costa Rica, Gambia,

Kenya

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Bases of Comparison Are there causal relationships underlying

similarities? Why so many island countries? Why E. European nations on civil rights? Parallel evolution, or conscious copying?

Do textual similarities matter? Constitutions set parameters for legislative /

judicial actions But if same actors control all branches, then do

constitutions function as institutional constraints??

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