The myth of the imposed constitution

Abstract

© Cambridge University Press 2013. “Is there any point to which you would wish to draw my attention?” “To the curious incident of the dog in the night-time.” “The dog did nothing in the night-time.” “That was the curious incident,” remarked Sherlock Holmes. – Sir Arthur Conan Doyle, Silver Blaze INTRODUCTION: Postwar constitutionalism in Japan can be likened to the story of the dog that did not bark: the absence of the most routine forms of constitutional change is a source of mystery. Since its promulgation in 1947, the Nihonkoku Kenpō has yet to be amended even once, a record unmatched by any other constitution currently in force (Elkins et al. 2009: 180). (By way of comparison, the average national constitution lasts only nineteen years before it is replaced [129], to say nothing of how frequently it is amended. Germany alone has amended its postwar constitution more than fifty times.) Nor would it seem that judicial lawmaking has supplanted formal amendment. The Supreme Court of Japan almost never strikes down laws on constitutional grounds: since its establishment in 1947, it has done so just eight times. (Germany's constitutional court, created at roughly the same time, has struck down more than 600 laws; the U.S. Supreme Court's tally over the same period is roughly 900.)