More than sixty years ago, when the Japan Self Defense Forces was established, there was heated controversy about how far it was possible to interpret the Constitution. The central theme of the debate at that time was whether interpretation of the law was an academic exercise or a practical one, which, by today’s standards, seems quite absurd. After much prolonged debate, the eventual conclusion was that “the purpose of interpreting the law is to solve problems, making it an act of will, and as such, value judgments cannot be avoided.”
Given that they are value judgments, there could be as many interpretations as there are values. Governments have their own right to interpret the Constitution, as do the Courts. In the case of Japan’s Constitution, however, the final right of interpretation is believed to rest with the Court, so if there is a dispute over the interpretation of the Constitution between institutions of the state, the judgment of the Court should prevail.
For highly political issues, however, such as those concerning national defense and diplomacy, unless there is quite clearly a violation of the Constitution, the “act of state” argument comes into play. This has resulted in interpretation of the Constitution regarding political issues being placed in the hands of the political sector, such as the Diet and the Cabinet. Japan’s Constitution was not written with this kind of interpretation in mind.
The concept of rule of law was developed as a precaution against making and changing rules at one’s own convenience. Similarly, the challenges of constitutionalism were to keep the power of the state in check and to protect the people’s freedoms. Changes to the substance of a rule by those in power at their own convenience would be an act that would not be easily accepted, either from the perspective of rule of law or from that of constitutionalism. In other words, it is precisely the rule that prohibits self-serving decisions that lies at the heart of the concepts of rule of law and constitutionalism.
The decision making of how to amend the Constitution itself must be kept separate from the decision making of things on the basis of that Constitution. Only the people of the nation can make decisions about the Constitution itself. It is the same concept as those who decide the rules of a game being distinct from those who will make decisions in the game based on those rules. If those two groups are mixed up, the game becomes impossible to play.
Since that controversy over the interpretation of the law sixty years ago, debate about the interpretation of the Constitution has been relatively quiet in Japan. In the United States, however, sparks fly over almost every time there is a case involving the Constitution. On the one hand, we have “textualism,” which holds that the Constitution must be interpreted strictly as it is written, and “originalism,” which holds that interpretation of the Constitution must not stray from the intentions of those who established it. Both of these arguments are on the grounds that the Constitution exists to keep the power of the state in check. On the other hand, there are also proponents of “living constitutionalism,” which holds that the interpretation of the Constitution has no constraints and that it changes according to the needs of society. The argument that, because the international situation has changed, the interpretation of Article 9 of the Constitution must also change, is the consequence of this “living constitutionalism.”
“Living constitutionalism” has come under fire in the United States as well. Ideological conflicts lie behind much of the constitutional debate in the United States, such as the question of the constitutionality of restricting abortion or of affirmative action. For this reason, great care needs to be exercised in how such questions are evaluated, but there is deep-rooted resistance to the notion that it is acceptable to change the interpretation of the Constitution according to the needs of the time. This resistance is based on a wariness about the Constitution being interpreted at the whim of those who happen to be in power at that time.
If the circumstances surrounding the Constitution have changed, then the right thing to do from a constitutionalist standpoint would be to change the Constitution itself. Neither the Diet nor the Cabinet may make the decision to change the very shape and framework of the nation. The only ones who have the right to make such a decision are the nation’s people, who hold the power to amend the Constitution. The recent security legislation infringes on that right of the people, and that is what makes it unconstitutional. If the international situation has changed, then political fundamentals require that those changes be explained to the people and that the people’s understanding of the need for a constitutional amendment be sought.
So, why did the government and the ruling parties not attempt to amend the Constitution? It was for no other reason than that they decided that it would be too difficult to achieve. Prime Minister Shinzo Abe had previously tried and failed to change the procedures for constitutional amendments. He would have realized that amending the Constitution would be more difficult than he had imagined. And so, the only thing to do would be to abandon the high road and take an alternative path. To open the way to exercising the right to collective self-defense, he discarded, overnight, the interpretation that past governments had affirmed again and again over the years. If he were to call a national referendum, there was the risk that he would lose. The defeat of an amendment proposal would mean a rejection of the very party platform of the Liberal Democratic Party. And so, they decided to go down that alternative path, even knowing that they were likely to face criticism for doing so. That was the strategy that the government and the ruling parties adopted.
It is my belief that the substance of the Constitution does not change merely because of a change in the circumstances of society or the international situation. The only reason for the substance of the Constitution to change, even when its wording has not, would be if there had been a change in the consciousness of the people towards the Constitution. This is the same as the Court using changes in the national consciousness as its reason for making changes to interpretations of the Constitution that have previously prevailed. To make the new security legislation constitutional, either Article 9 itself must be changed, or we must wait for several decades for the consciousness of a majority of the people to change to the view that collective security does not contravene the Constitution. However, because the government has embarked on this security legislation based on the interpretation that it does not contravene Article 9, amending Article 9 has become pointless, in both substantive and logical terms.
The reasons why so many people are uncomfortable with the issue of collective self-defense and feel that there has not been sufficient explanation can also be found in this consciousness towards the Constitution. Until now, most of Japan’s citizens have trusted the government’s interpretation that the JSDF exists for the purpose of defending their nation from invasion and that, for this very reason, the JSDF does not contravene the Constitution. It is not possible to overturn this consciousness towards the Constitution through interpretation. The only ones who can change the established interpretation and the constitutional consciousness that has been formed on the basis of that interpretation are the people, as sovereign right-holders.
I am not saying that the interpretation of the constitution must never be changed. However, given the nature of these rules that we call a Constitution, any change in its interpretation must be made based on the constitutional consciousness of the people, and must be justified by an accumulation of precedents in case law and by the established interpretation. If not, both the rule of law and constitutionalism would be rendered meaningless. One of my students, on encountering the change of interpretation regarding collective security, asked me, “If the interpretation can be changed at whim, is there any point in studying the Constitution and the law?” In that respect, not only has the recent change of interpretation violated the Constitution but it has also created serious problems for the future of the law and the study of the law.
Professor, Faculty of Law, Chuo University
Area of Specialization: Public Law
- Professor Hashimoto was born in Tokushima Prefecture in 1959. He graduated from the Department of Law, Faculty of Law, Chuo University in 1982.
After completing the required course work in the Doctoral Program of the Public Law Course at the Graduate School of Law, Chuo University in 1989, he became a Doctor of Law.
He became a Professor in the Faculty of Law, Chuo University in April 2004 after serving as Associate Professor and Professor at Kochi Women’s University (currently the University of Kochi).
He was appointed Dean of the Faculty of Law, Chuo University in November 2009 (served until October 2013).
After serving on the Chuo University Board of Regents from November 2009 until October 2013, he was appointed Vice President of Chuo University in November 2014 (current position).
His current areas of research and activity include the positions of individuals and organizations in the Constitution, modern society and freedom of information, and questions concerning the right to enact ordinances.
Major publications include Organizations and Individuals in Modern Constitutions [Kindai kenpo ni okeru dantai to kojin] (Fuma Shobo and Shinzansha); Petit Seminar Constitution 1 (Human Rights) [Puchi zemi kenpo 1 (Jinken)] (Hogaku Shoin); Concise Local Autonomy Law [Yokuwakaru chiho jichiho] (co-authored, Minerva Shobo); Basics of the Constitution [Kenpo no kiso] (Hokuju Shuppan); Explanation of the National Civil Servant Act [Kokka komuin ho no kaisetsu] (co-authored, Hitotsubashi Shuppan); Freedom of Expression: Theory and Interpretations [Hyogen no jiyu – riron to kaishaku] (Chuo University Press); and The Constitution of Japan [Nihonkoku kenpo o manabu] (Chuokeizai-sha).