Wednesday, September 24, 2008

Port on The Story of Article 9 of the Japanese Constitution

The Story of Article 9 of the Japanese Constitution is a paper by Kenneth L. Port, William Mitchell College of Law. Only the abstract is posted. I read an earlier paper by Professor Port on Article 9 some time ago, and one important aspect of his work is his use of Japanese language sources, which I suspect he draws upon in this paper as well. As with any SSRN posting without a full paper, those interested in more should contact the author. Here's the abstract:
Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each "story" of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of what Article 9 stands for. On one extreme are Article 9 Society groups that claim that it stands for the proposition that Japan is a completely pacifist nation and may not possess any military for any purpose. On the other extreme, the Liberal Democratic Party that has ruled Japan for most of the post-WWII era feels Article 9 restrains the military somewhat but does not prevent it from becoming one of the largest militaries in the world by dollars spent.
This situation of not having a Supreme Court ruling on this important societal issue transforms this into a moral, ethical, or spiritual debate, not a legal or constitutional one. This debate has come to play the role in Japan that abortion has played as a rhetorical and political issue in the United States. However, because there is no Supreme Court ruling, it is a debate over Roe v. Wade without the Roe v. Wade.

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