The United Kingdom is famous for having an “unwritten constitution.” In reality the constitution is written, just in a lot of places: the bits of Magna Carta that still mean something, 16th-century case law confirming the monarch’s ownership of English swans, later cases prohibiting the punishment of juries and general warrants, the Human Rights Act of 1998, and so forth. The British Constitution is “written” in the same way my office is “organized”: Things are there somewhere, just hard to find.
Of course, the British Constitution is considered “unwritten” because it is not compiled into a single identifiable charter with “Constitution” written at the top and sold in poster form at museum gift shops. Many readers will probably associate this type of “written constitution” with America, though as the world’s shortest national charter, the U.S. Constitution may be one of the few that is actually amenable to the poster medium.
But is the U.S. Constitution actually that much more “written” than its British counterpart? Several years ago, a juror in a U.S. federal drugs trial persisted in asking his fellow jurors: “In the past they had to change the constitution to prohibit the manufacture, import and sale of alcohol. How can the federal government criminalize the possession of drugs without a similar amendment?”
This was a reasonable question — one that probably deserved an answer. What the juror got instead was ejection from the trial for being bothersome. Perhaps the judge didn’t want to explain why the U.S. Constitution of today is very different from that of the 1920s, and how this is due primarily to an impenetrable thicket of Supreme Court jurisprudence interpreting the charter rather than amendments to its “written” parts.
I was moved to write this column by a New York Times editorial last month that called on Japan’s Supreme Court to reject Prime Minister Shinzo Abe’s efforts to change his country’s Constitution through interpretive tweaks. Frankly, it was embarrassing. First, there was the probably uniquely American pretension of a newspaper calling on the highest court of another nation to do something. Second, it expressed the quaintly naive hope that Japan’s Supreme Court might actually rise to the task of checking the executive and legislative powers currently under Abe’s control.
Of course, the NYT — not to mention many Japanese people — have some legitimate complaints about Abe when it comes to the Constitution. Every time the subject causes his mouth to pronounce words, they invariably form themselves into sentences that are both frightening and stupid. When asked recently about his understanding of the Constitution, he explained “there was the view” that it was supposed to “restrict state power” but then added that this was a mainstream view from a bygone age when monarchs had absolute power. Here it is worth noting that Abe’s Liberal Democratic Party (LDP) has already publicly rejected the Western concept that there are fundamental inalienable human rights based on natural law.
While pushing for outright amendment, Abe has also been aggressively trying to “reinterpret” the “no war” provisions of Article 9 to allow participation in joint military actions overseas, preemptive strikes on foreign soil and the use of the Self-Defense Forces to assist Japanese nationals in danger abroad. At a Feb. 12 Diet Budgetary Committee meeting, Abe declared that on the subject of collective self-defense, he had “final authority” over changes to constitutional interpretation. This rather kingly assumption of interpretive authority is what seems to have goaded the NYT into action.
To be fair, Abe may just be acting like an American leader: Douglas MacArthur, the head of the Allied Occupation. While Japan’s Supreme Court is often criticized for failing to adequately protect the Constitution, it is easy to forget that during the first five years of the charter’s existence, the court had to interpret the Constitution in a way that quietly ignored the fact that MacArthur governed outside the charter, censoring newspapers, restricting free speech, suppressing unions, purging communists, confiscating and redistributing land and ultimately “encouraging” the Japanese government to begin rebuilding its military. Small wonder that by the time the Occupation was over, the court had mastered the delicate art of using gravitas and legalese to obscure its apparent willingness to permit the other branches of government to act as they pleased.
The fate of habeas corpus in Japan provides an interesting study. During the Occupation, a Habeas Corpus Act was passed to provide prompt, simple judicial relief for deprivations of liberty in violation of the new Constitution. Prolonged arbitrary detentions had been a fact of life in fascist Japan.
The Supreme Court immediately set about gutting this new law, first by using its rule-making powers to limit its applicability to only those cases that involved “significant” constitutional violations in which relief was not likely to be available within a “substantial period” through other procedures (that did not necessarily have to be either “prompt” or “simple”). Furthermore, despite the law being intended to protect physical liberty and providing for immediate release as the only remedy for unlawful detentions, the court gave itself the authority to grant “other relief” short of actual freedom. Finally, the court has further limited recourse to the law through its own precedents.
Interestingly, one of the first post-Occupation habeas corpus cases decided by the court was a challenge brought by Japanese war criminals serving terms in Tokyo’s Sugamo Prison. They argued that their detentions were the result of a judicial process — the Tokyo War Crimes Tribunal — that had not complied with constitutional requirements. This was of course true, though it didn’t stop the court from rejecting their petition. War crimes are a special case, perhaps, but by this time habeas corpus was already well on track to becoming a judicial remedy that had nothing to do with prompt, simple relief, constitutional violations or even freedom. Today the law is used primarily by divorcing parents arguing over who gets the kids and secondarily by inmates seeking transfers to different prisons because of medical or even gender-identity issues.
Although habeas corpus is not specifically mentioned in Japan’s Constitution, its deep constitutional significance in Anglo-American law make its fate in Japan a useful indicator of what may have happened to many American-inspired principles that are. Not being in the Constitution, habeas corpus has not been muddied by decades-worth of what I call the kittens-are-cute jurisprudence (explanation follows) the Supreme Court has used to obfuscate the downgrading, minimization or outright negation of many fundamental rights.
Although the Constitution contains an extensive catalogue of human and social rights, virtually all of them are limited by the requirements of the public welfare. The Supreme Court has used this limitation to ratify almost any constitutional infringement that is even remotely justifiable in public-welfare terms. Laws and government acts will almost always pass constitutional muster if they can be shown to have a “rational basis” (in U.S. Supreme Court parlance).
Put another way, for the government to win a constitutional challenge, it merely has to show that the law or policy at issue is not insane. Since the bureaucracies that generate most of Japan’s laws and regulations do so through rational processes involving intelligent, reasonable people, this has never been a particularly difficult threshold to meet.
Of course, the court does not just rubber-stamp government acts — that would make it look irrelevant. What actually seems to happen in constitutional cases is that the court first makes a grand and wordy declaration of a general principle that few people would find disagreeable: “In principle, foreigners enjoy the same constitutional protections as Japanese people”; “Freedom of speech should be respected”; “Wrongfully obtained evidence should not be admissible”; or, to get back to my earlier descriptor, “Kittens are cute.”
The case is then associated with that general principle, and “In case X, the Supreme Court declared that kittens are cute” is duly repeated in newspaper accounts and textbooks. The judiciary gets positive marks for performance — how can you complain about a court that thinks kittens are cute? — but if you look at what actually happens in the specific cases, it turns out that they involved exceptions to the announced principle: The foreigner wasn’t entitled to protection in this specific instance, and the defendant would have been convicted anyway despite the unlawful acts by the police. In other words, that particular kitten just happened to be ugly.
Thus, whereas the American Constitution has become complex in an “unwritten” manner through what the U.S. Supreme Court has added to it interpretively, much of the unwritten complexity of the Japanese charter comes from what courts have allowed to be taken away. This includes any clear meaning to Article 9 other than what has been provided by the executive branch itself, the Supreme Court having long abdicated any role in interpreting the clause.
However, focusing on Article 9 makes it easy to lose sight of the fact that the government has a lot of freedom to override other parts of the Constitution through law and regulation. Abe complains about the difficulty of constitutional amendment and points to the absence of any amendments during its seven decades as evidence of a constitutional defect. Arguably, however, this is just a sign of how successful the process of unwritten amendments has been. For example, the recently-enacted state secrets act will likely be used to restrict freedom of the press and other constitutional liberties, yet probably few people expect the judiciary to actually stop such infringements. National security will almost certainly involve many unsightly kitties.
If Japan’s unwritten constitution is already so flexible, why are Abe and his party so bent on amending the written one? I think there are two reasons. First, ideology: Any successful amendment would represent the vindication of Abe’s conservative nationalism and the “restoration” of Japanese sovereignty.
Second, while the Constitution may have acted as a bothersome conceptual restraint on conservative rulers for decades, enough Japanese people apparently like concepts such as freedom of expression, the right to form unions and other constitutional liberties that outright amendment has long been difficult. Moreover, the process of nibbling away at constitutional liberties with judicial acquiescence is probably not enough for conservatives like Abe, who not only hope to restrict the exercise of freedoms but also want to actively tell people what to do. Arguably the greatest liberty the Japanese people got from the current Constitution is the unwritten freedom to ignore their government whenever possible. This is what conservatives probably want to change.
The constitutional amendments proposed by the LDP in 2012 would impose numerous new duties on the people — duties to support family members, to honor the flag, to cooperate in national defense and to respect the Constitution itself. I think Abe sees constitutional amendment as a process that will allow conservatives to get down to the truly important business of instructing Japanese people on the “correct” way of being Japanese.
Perhaps Abe’s policies will prove insane enough that the Supreme Court will find them unconstitutional. Perhaps Japanese voters will actually start to care about where majoritarian apathy is taking their country. In the meantime, there are plenty of cute kittens on Facebook. Perhaps that is all that most people want.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land usually appears on the third Thursday of the month. Send your comments and story ideas to firstname.lastname@example.org.
IN FIVE EASY PIECES WITH TAKE 5