Japan's postwar constitution is reaching in the zone of twilight–Tasogaredoki or Ōmagatoki in Japanese. As “Your Name “(Kimi no na wa)–the animated film that became a megahit worldwide in 2016-17–shows to us, things contradictory coexist in such moment. Constitutional order and violation. Liberal-democratic and authoritarian regime. Social equality and neo-liberal market state. Judicial activism and negativism. In this paper, the author will argue that the leading school of Japanese constitutional jurisprudence bears, by constructing an eithor-or rivalry between Democracy and Constitutionalism, partly the responsiblity for the current situation. The author will examine 1) the deep-seated tradition of the leading school preferring a singular Constitutionalism friendly to apolitical liberalism and rule of elite lawyers; 2) how the Platonic, anti-democratic argument prevailed in the 1990s; 3) the leading school's reluctant alliance with social democrats in Abe years.
In the 70 years since the war, Japan has been a stable democratic country. It can be said that its success has been based on postwar economic reform. The problem is the relationship between such economic reform and guarantee of property rights. The Supreme Court of Japan has held that such economic reforms are constitutional even under the new Constitution. There are criticisms that such judgments of the Supreme Court disdain the guarantee of property rights under Japanese Constitution. However, from the idea that the guarantee of the Constitution will not expand beyond assets that conflict with realization of democracy and accumulation of excessive wealth was not necessarily all the consequences of individual ability, it should be considered that such a Supreme Court decision was valid. Therefore, under the Constitution, if the concentration of wealth becomes excessive again, according to democratic decisions, the government can adopt measures to resolve the concentration of wealth.
This paper argues that the new and very modest formal amendment to Article 9 pushed by PM Abe, designed to avoid controversy and debate, could serve to effectively lock in the “reinterpretation” as a de facto informal amendment to the constitution. From this perspective, the apparent reversal in the scope of Abe’s amendment ambitions, and surprising modesty of the current proposal, may be seen as a disingenuous effort to disguise the extent of constitutional change that is at stake. It may be, in essence, a Trojan Horse through which to solidify the position of the “reinterpretation.” The paper seeks to explore the legitimacy of such a move, and its broader implications, from a comparative and theoretical perspective, drawing upon recent work on both informal amendment and unconstitutional constitutional amendments.