Globalizing constitutional moments? A reflection on the Japanese article 9 debate

Abstract

U.S. scholars have developed a rich toolkit for analyzing informal, as well as formal, processes of constitutional change. A leading example is Bruce Ackerman's theory of “constitutional moments.” Comparative constitutional scholars, in contrast, have given relatively little attention to the legitimacy of informal modes of constitutional change. This Article contributes to filling this gap in our understanding of informal constitutional change outside the United States, by analyzing recent attempts by Shinzo Abe's Liberal Democratic Party (LDP) government informally to amend or “reinterpret” Japan's pacifist Constitution. Attention to the Japanese experience in this context reveals superficial indications of an actual constitutional moment, but also a lack of true democratic support for such change. This, the Article suggests, further helps reveal an important, though largely unstated, precondition for the application of Ackerman's theory-that there must be meaningful competition between political parties, in the legislature and at national elections, before informal constitutional change can legitimately occur.