Constitutional Amendments Contrary to Constitutionalism: The Political Nature of Unconstitutional Constitutional Amendment in Japan [Article]

Abstract

Constitutional law scholars in Japan have acknowledged the limitations of power to amend the Constitution since before the enactment of the Constitution of Japan in 1946. They argue that there are some “cores” that cannot be changed, even if pursuant to the prescribed procedure in the Constitution. However, they deny judicial scrutiny of when a constitutional amendment exceeds its limits. In this sense, the argument about unconstitutional constitutional amendments in Japan tends to be political, not legal, in nature. One of the “cores” of the Japanese Constitution is constitutionalism. Many constitutional law scholars have recently criticized attempts at constitutional amendment by Prime Minister Shinzō Abe’s administration and the Liberal Democratic Party as “contrary to constitutionalism” and/or a “crisis of constitutionalism.” This article analyzes the meaning of that criticism and points out that it does not always mean the proposed amendment is an unconstitutional constitutional amendment: they sometimes use these narratives because the content of the proposed amendment is problematic, and sometimes amending the Constitution is unnecessary. The article argues that the reason for such a loose usage of the concept of constitutionalism stems from political motivation: the goal is to maximize the political effect of holding up constitutional amendments by taking advantage of the vague concept of constitutionalism. This article claims that scholars should abstain from overusing the concept of constitutionalism and crisis narratives and clarify what constitutes a legally unconstitutional constitutional amendment in Japan.