As for the second topic, I would like to highlight the fact that since the end of the
Cold War, the world has witnessed the sudden rise of constitutionalism, which
usually incorporates active judicial review as its core, and the Supreme Court has
been perceived to be the most reluctant court to exercise its review function.
In fact, the court has been described as “the most conservative constitutional court
in the world for good reason.”^1 The court has struck down only eight statutes since
its creation at the end of the Second World War. However, between 2002 and 2008 ,
it struck down three. Has the court finally awoken from its characteristic slumber?
i. the problem of constitutional reform and amendment
Historical background
Though the Constitution of Japan has never been amended, there has been
considerable movement towards constitutional reform since it entered into force
in 1947. It is no exaggeration to say that any attempt to amend the Constitution has
become a major political issue in postwar Japan.
This ought to be a particular source of bewilderment from the perspective of
comparative constitutional law. Except during the short period of Occupation by
the Allied Forces, the legitimacy of the Constitution has been the subject of heated
debate. Usually the ruling power in any given country accepts the legitimacy of the
constitution, and uses the legitimacy of the constitution to justify its rule. In Japan,
however, the conservative Liberal Democratic Party remained in power for almost
half a century until 2009 without interruption, and during that time it consistently
attacked the legitimacy of the Constitution and called for its revision, claiming that
the Constitution ought to be null and void since it was drafted by Americans and
“imposed” on the Japanese government and people against their will.^2
The LDP has consistently called for an “independent revision” of the Constitution
in its party’s platform. Liberal constitutional scholars in postwar Japan have been
haunted by the fact that the political forces in power have failed to accept the
legitimacy of the Constitution and to fully embrace the concept of constitutionalism.^3
Conservative politicians have often been concerned with defending the national
identity and traditional values, arguing that Japanese society should be based on the
(^1) David S. Law, “The anatomy of a conservative court: judicial review in Japan” ( 2009 ) 87
Texas Law Review 1545 at 1546. He even suggests that judicial review in Japan can be
characterized as a “failure”: David S. Law, “Why has judicial review failed in Japan?”
( 2011 ) 88 Washington University Law Review 1425 at 1426.
(^2) On the origin of the Constitution, see generally Koseki Shoichi,The Birth of Japan’s
Postwar Constitution, trans. Ray A. Moore (Boulder, CO: Westview, 1997 ).
(^3) Yoichi Higuchi, “The paradox of constitutional revisionism in postwar Japan,” in Yoichi
Higuchi (ed.),Five Decades of Constitutionalism in Japanese Society(Tokyo: University of
Tokyo Press, 2001 ), p. 351 at 352.