Constitution Memorial Day Thoughts on Japan’s Basic Law

The Meaning of the Memorial Day

Since my young days, I have never been very good at remembering Japan’s national holidays. There are a few notable exceptions, though: New Year’s Day, of course, Children’s Day on May 5, Sports Day—now called Health and Sports Day, held on the second Monday of October—and, for some reason, Constitution Memorial Day on May 3. Each year as this date draws close, I am called into service to contribute comments to various media projects to commemorate Japan’s basic law, and as a result it seems to have been imprinted in my memory.

I may be out of the ordinary in this respect, though. I suspect most Japanese people think of May 3 as a part of the Golden Week series of holidays, lumping it in with the others as just a part of a period for leisure and vacation travel. It is unfortunate for the Japanese Constitution, in fact, that its day falls amid so many other holidays—rather than providing a time for many Japanese citizens to reflect on their Constitution, it allows them to mentally bypass this important date, year after year. The natural result is that the people of Japan show little interest in the question of constitutional amendment, or understanding of it, despite the energy poured into it in Diet proceedings. I find this all an unfortunate state of affairs, which is one thing that has prompted me to write this column to mark the day.

Here it may be helpful to consider the actual significance of a constitution. In a word, it is a fundamental set of rules defining the basic form of a nation. The ideal form of said nation may change over time, depending on the conditions of the era in which it finds itself; this makes it only natural for a constitution to be amended over time as needed. In other nations this is indeed how such laws have been approached. Germany and Italy, for example, which both crafted their current constitutions at around the same time as Japan’s came into being, soon after World War II, have amended their documents numerous times—almost 70 times in Germany’s case, and nearly 20 times for Italy.

In Japan, meanwhile, the Constitution has never been amended. It is designed to be much harder to change than an ordinary law—admittedly, something true of the basic laws of most other nations. Amendment of the Constitution of Japan, for example, requires approval by two thirds of the members of both the House of Councillors and House of Representatives, followed by another approval by a majority of voters in a national referendum on the change in question. Compared to an ordinary legislative change, which generally requires only a simple majority of votes in the two chambers of the Diet, this is a tall hurdle to clear indeed.

The importance of fixing the fundamental form of the nation in advance lies in preventing those in power at any given time from altering society’s most basic rules to suit their own interests. The minimum conditions that need to be met in a nation’s fundamental form, such as the freedom of expression or religion, can easily be trampled by governments wielding police or military power, as can be seen in any history book.

A Cage to Contain a Lion

To head off this threat, the political thinkers of the modern age came up with the idea of the constitution—a legal cage of sorts that can contain the beast, a lion, say, of unbridled state power. This is the theory of constitutionalism, which keeps the lion active only within a strictly limited range of its own. It goes without stating that if this cage is so flimsy that the animal can burst through it or bend its bars, it is not serving its purpose. If we are going to build a cage, we must make it a strong one.

As noted above, though, the time may come when the cage’s master—here the people of the nation—may see fit to alter it, changing its size or shape to better meet their needs. A cage that is designed poorly for its inhabitant may end up doing harm to the well-being of the lion, or even threatening its very life, a state of affairs we do not want. (True, there may be some who view the lion as unnecessary in the first place, but this sort of anarchism is not something I can agree with.) Taking this metaphor still further, if the creature is contained in a cage that clearly does not fit it, but still appears to be moving around in a vigorous manner, we may be looking at a flawed cage, with holes in it allowing the lion to escape at will.

Applying this metaphor to the postwar Japanese situation, we might say that the lion was placed early on in a magnificent cage, growing healthily within it. As it grew, though, the cage became too confining, and the lion can no longer move about as it should. Meanwhile, the cage itself has fallen into poor condition over the years, and the holes between its bars are growing evidently larger. Yes, I am still safely contained, the lion tells the owner to avoid causing a panic, but it is increasingly clear that its body is pressing through the bars in places—a situation growing more severe year by year, to the point where the beast could clearly burst out entirely at some point.

Those in Japan arguing for amendment of the Constitution look at this situation and say that we can no longer avoid rebuilding the cage. Many of them, however, say only that it must be refashioned to fit the present size of the lion’s body—that the lion cannot live a healthy life in this cramped space, and if we focus on mending holes in the cage without altering its size, the creature is likely to suffer stress, grow ill, and eventually destroy the cage when it can take no more.

Those who seek to preserve the Constitution as it stands, meanwhile, are firmly against any change to the container. The cage must be left just as it is, they argue; if we listen to the lion’s complaints and enlarge it even once, it will encourage the beast to escalate its demands again and again. In the end, they fear, we will have an enclosure so vast it encroaches on the owner’s living space, no longer serving as a proper cage at all.

I will not deny that some proponents of constitutional revision show little understanding of constitutional principles, or even perhaps antipathy for them. They want only to set the lion free, giving no thought to the idea that it might end up biting the owner if this happens. Given the risk of such reckless adventurism, it may indeed be the wise choice to keep the cage unchanged, holes and all, in its current, smaller size.

Japanese party politics throughout the postwar era has featured a steady stream of fruitless debates between these two camps, with their opinions never meeting in the middle. And all the while, the lion’s body has pressed its way more and more through the cramped bars of its cage while their arguments go nowhere. Even as early as the 1950s, when the Self-Defense Forces were established, many constitutional scholars and members of the main opposition parties viewed this development as unconstitutional. In later years, though, the SDF came to be dispatched overseas, to be equipped with offensive capabilities allowing it to attack enemy bases, and otherwise to expand the scope of its activities. In the 2010s, the SDF was formally permitted to take part in collective self-defense actions alongside Japan’s allies, despite this also being described as clearly falling afoul of constitutional restrictions. It is only natural for people to worry that the constitutional cage is no longer functioning as it is meant to.

Returning to the Real Constitutionalism

Will we ever see a conclusion to the long-lasting debate on constitutional revision in Japan? I believe we will. The key to breaking through here is consciously separating considerations of repairs to the cage—the work aimed at bringing real-world policy into line with the text of the Constitution—and considerations of the form of the cage itself, which might include things like the leeway we will give the SDF in its actions on the world stage.

These are both important goals to pursue. The former one, though, is a defense of constitutionalism itself, and should be promoted by all people on any side of the political divide, assuming they care about human rights. There is no room for turning this into a debate point. If we believe that the cage has already suffered damage, as do many constitutional scholars, then it is difficult to mount a convincing argument against repairing it.

The latter argument, that we need to rethink the form of the cage itself, is one that can give rise to various takes depending on the political stances of those espousing them. Those who want to stake out an autonomous foreign policy for Japan will have different ideas from those who wish to pursue harmony with others, and champions of austerity will not agree with fiscal expansionists. We cannot declare with confidence that one argument is the clear winner, which means that the political parties representing the people of Japan will need to engage in thorough discussions. It will not be easy to reach a compromise through this process, but if the cage is to be repaired at all, it is the duty of the Japanese Diet to hammer out the details and consolidate these varied opinions.

Once the Golden Week holidays come to an end, the Diet will be back in session, and we are certain to see a fresh round of debate on constitutional revision. I hope we will see all political actors recognize the maintenance (or establishment) of constitutionalism as the top priority. Based on this shared understanding, as they move ahead with explorations of the ideal size and shape of the constitutional cage, they may be able to glimpse the final goal they are aiming for.

(Originally written in Japanese. Banner photo: The MSDF Aegis destroyer JS Ashigara, in the foreground, sails with the aircraft carrier USS Ronald Reagan in the Philippine Sea in November 2022. Courtesy US Navy; © Jiji.)