Constitution of Jp Midterm week 1,2,4

What does it mean that the Constitution is the SUPREME LAW, and what 2 jobs does it do?

It is the basic rule that BINDS THE GOVERNMENT ITSELF - no law or government action can go against it.

Job 1: set the STRUCTURE of government (allocate + limit power among branches). Job 2: set the RIGHTS of the people against the government.

Tell the story: how do we get from the Meiji Restoration (1868) to a constitution in 1889 - and why that model?

Restoration (1868) -> centralized govt, Emperor on top, under Western pressure -> need to modernize -> import French/German codes + opposition demands an elected legislature -> model chosen: PRUSSIAN constitution (king keeps much power) -> 1889 Meiji Constitution + Diet established.

What is IMPERIAL SOVEREIGNTY, and how is it different from popular sovereignty?

Under Meiji, ALL 3 branches (legislature / executive / judiciary) sat ultimately under the Emperor - sovereignty is in the Emperor, power flows DOWN.

Popular sovereignty (1946) is the reverse: sovereignty in the people, the Diet represents them, the Cabinet answers to the Diet.

A Meiji subject has a right in the constitution. Why is it weak in practice? Give 3 reasons.

1) Rights were a matter of BENEVOLENCE - granted from above, not unalienable.

2) So an ordinary law could limit them.

3) NO JUDICIAL REVIEW - no court could strike the limiting law down. Plus: limited voting rights.

What was missing on the military under Meiji, and how exactly did the military escape control?

CIVILIAN CONTROL was missing. War = Emperor's prerogative (in practice his closest advisors); military officials took Cabinet seats; the govt could not proceed without their consent - so an unelected military could block and steer the state.

1946 drafting: what was the difference between the MATSUMOTO DRAFT and the GHQ (SCAP) DRAFT, and why does it matter?

MATSUMOTO DRAFT = the Japanese govt's first draft - it kept much of the emperor-centred Meiji system. GHQ DRAFT = SCAP took over and wrote a draft in a short span = strong American influence. The Diet passed the GHQ version with some revisions. It matters because the constitution's origin (imposed vs home-grown) is still used in revision debates.

Name what POPULAR SOVEREIGNTY changed in 1946, then the issue/question that comes with it.

Changed: Diet represents the people; Cabinet is responsible to the Diet, not the Emperor; voting expanded, including to women. Issue: in practice the Cabinet + bureaucracy dominate lawmaking rather than the Diet - and can the PM dissolve the Diet at will?

Quote the logic of Art. 9 para. 1 and para. 2. Read literally, what is banned?

Para. 1: Japan forever renounces war as a sovereign right + the threat/use of force to settle international disputes.

Para. 2: to accomplish that aim, land, sea and air forces and other WAR POTENTIAL will never be maintained, and the right of belligerency is not recognized. Literally = absolute pacifism, not even forces for self-defence.

Using the 4 sources of original intent, argue: did the makers of Art. 9 intend to allow a Self-Defense Force?

Mostly NO on the surface: (a) Potsdam; (b) MacArthur's principles first prohibited even self-defence (later removed in drafting); (c) Preamble = aspiration to peace; (d) Diet explanations (Kanemori/Yoshida) seem to deny armed forces even for self-defence - while admitting a nation inherently has a right of self-defence. The crack in the door is the ASHIDA AMENDMENT.

What did the ASHIDA AMENDMENT add to Art. 9 para. 2, and how is it used to justify the SDF?

It added: 'In order to accomplish the aim of the preceding paragraph…' at the start of para. 2. Reading: war potential is banned only for para. 1's aim - wars of aggression / settling disputes by force. Force that does NOT serve that aim, i.e. self-defence, falls outside the ban. That phrase is a main textual support for the SDF.

What is the government's core justification for the SDF? State the formula and its 4 supports.

Formula: the SDF is only the 'MINIMUM FORCE NECESSARY FOR SELF-DEFENCE', so it is not banned 'war potential'. Supports: 1) necessity / changed circumstances; 2) text + intent of the Ashida Amendment; 3) self-defence is inherent in sovereignty; 4) self-defence is different from war.

Walk through NAGANUMA (1973 -> 1976 -> 1982). Who said what, and what never got decided?

1973 Sapporo District: SDF = war potential, violates Art. 9 para. 2; standing via the right to live in peace. 1976 Sapporo High: reverses - no such standing; on Art. 9 uses the POLITICAL QUESTION DOCTRINE. 1982 Supreme Court: case MOOT on standing - the constitutional question is never decided.

What is the POLITICAL QUESTION DOCTRINE, and where does it show up in this course (2 cases)?

Idea: on highly political questions (esp. security), courts defer to the political branches - something is constitutional unless patently (clearly) unconstitutional. Cases: SUNAGAWA (1959) - Supreme Court on the U.S. treaty; and NAGANUMA, Sapporo High Court (1976) - judicial deference unless a law clearly violates the Constitution.

What happened in SUNAGAWA, and what 2 extra points did the Supreme Court add while reversing?

Trespass arrest at a U.S. base (now Tachikawa). Tokyo District Court: treaty + stationing troops = unconstitutional. Supreme Court reverses at once: highly political question. Extra points: 1) Japan has a right of self-defence; 2) para. 2 bans war potential maintained BY JAPAN - so U.S. forces are outside the ban.

How did the VICINITY AREA INCIDENTS ACT (1999) and the ANTI-TERRORISM SPECIAL MEASURES ACT (2001) each stretch self-defence?

Background: Cold War ends (1989) -> the alliance loses its original justification and must be redefined. 1999 Vicinity Act: SDF cooperates with the U.S. in a 'vicinity' emergency that might threaten Japan - SDF used abroad with NO attack on Japan. 2001 Anti-Terrorism Act: SDF supplies fuel to U.S./allied forces in the Indian Ocean.

What is COLLECTIVE SELF-DEFENCE, what was Japan's position before 2015, and what changed - in the text or in interpretation?

Collective self-defence = defending an ally (e.g. the U.S.) even when Japan itself is not attacked. Before: the government itself said Art. 9 prohibits it. 2015: after a major political battle the govt REINTERPRETED Art. 9 to allow it - the TEXT did not change.

List the logic of the PKO FIVE PRINCIPLES and say what problem they are designed to solve.

Problem: a PKO zone can become a combat situation, but the SDF must not join armed international conflicts. Principles: needs a ceasefire + consent of all parties (among other conditions); withdraw if conditions break; weapons small and only for self-defence (since 2015 also to protect other countries' personnel). Debate case: South Sudan - was it a 'conflict situation'?

What did the NAGOYA HIGH COURT rule in 2008 about the SDF Iraq mission, and why did it not settle the law?

It ruled the Iraq mission (under a special law) violated Art. 9 - essentially a war situation, SDF participating in armed conflict. Govt position: not a 'use of force' to settle international disputes. It did not settle the law because the case never went to the Supreme Court (and courts usually dodge these cases on standing).

If the SDF keeps expanding, has Article 9 done anything? Give the 4 subtle effects from class.

Yes - as a LIMITATION / point of reference, not a literal ban. 1) Military spending long kept within 1% of GDP (now close to 2%). 2) THREE NON-NUCLEAR PRINCIPLES - no production / possession / introduction. 3) Limits on PKO range (Five Principles). 4) Limits on collective defence - long treated as prohibited.

Contrast rights under Meiji with rights under the 1946 Constitution - and name the 1946 issues.

Meiji: benevolence, limitable by law, no judicial review. 1946: extensive rights provisions + JUDICIAL REVIEW exists + officials must respect the Constitution. 1946 issues: weak rights consciousness; rights limited by social conditions (e.g. gender equality); judicial review only recently active.

Why is the Diet BICAMERAL? Tell the US story, the Meiji story, and today's question.

US story: House = larger states (population), Senate = smaller states (equal per state) - a compromise: do both, both must agree. Meiji: Syugi-in elected (limited), Kizoku-in appointed by the Emperor (aristocrats / persons of honour). Today: bicameral by Art. 42 - but why two houses, when prefectural assemblies have one? Answer: they represent differently and move at different speeds.

Compare the two houses on 5 points: POWER, TERM, DISSOLUTION, ELECTION, CHARACTER.

POWER: Reps can OVERRIDE Councillors. TERM: Reps 4 years or shorter; Councillors guaranteed 6 years, half elected every 3. DISSOLUTION: Reps yes, Councillors no. ELECTION: Reps 289 SMD + 176 PR = 465; Councillors 148 prefectural + 100 PR = 248. CHARACTER: Reps = short-term popular opinion; Councillors = check on the House + stability.

What does a SINGLE-MEMBER DISTRICT system do to the party system and to governments? Give the hope and the cost.

One winner per district -> one or two parties dominate; smaller parties have little chance. Hope: a slight change of opinion can change the government (sharp reflection of popular opinion) and strong rivals competing creates accountability. Cost: votes for everyone except the winner elect nobody in that district.

What were MULTIPLE-MEMBER DISTRICTS, where were they used, and what was their political effect?

Districts electing several members each. They were the previous system in the Syugi-in (House of Representatives). Effect: several parties can gain seats, and the composition of seats is less likely to change - more stable, less responsive than SMD.

How does PROPORTIONAL REPRESENTATION allocate seats, and what are its gain and its problem?

Seats are allocated based on the proportion of votes each party gets. Gain: smaller parties gain seats; diversity of opinions is represented. Problem: difficult to form a majority -> coalition instability.

Work the example: 6 seats, 6 parties, PR votes A 25, B 20, C 15, D 15, E 15, F 10 (%). What happens, and why does governing get hard?

Seats follow shares, so NO party has a majority - combinations like A & BC, A & CD, A & DE are all possible. A COALITION must form to pick the PM; there is no clear majority, so partners can fight (A vs C over D), the rest can unite to throw off A (B+C+D+E), or everyone accommodates (A+B+C+D+E). PR is honest about votes - then asks: who governs together?

Define REPRESENTATION DISCREPANCY and prove it with AKITA vs TOKYO: people, districts, people-per-seat, ratio, who is over/underrepresented.

Discrepancy = the same vote weighing differently because districts hold different populations. AKITA: 880,000 people, 3 districts -> 1 seat per 293,000. TOKYO: 14,260,000 people, 30 districts -> 1 seat per 475,000. RATIO 1.62 - an Akita vote weighs about 1.6x a Tokyo vote. Akita = OVERREPRESENTED; Tokyo = UNDERREPRESENTED.

Use the TPP example to show HOW overrepresentation changes policy - and state the counter-argument to fixing it by population alone.

Rural (agriculture) voters, who are overrepresented, opposed the TPP; urban (big business) voters, underrepresented, favoured it (CPTPP). So more urban seats + fewer rural seats would shift policy outcomes, not just seat counts. Counter-argument: regions should be represented regardless of population - e.g. one seat for each prefecture.

Trace the Supreme Court's stance in 3 stages, and explain the middle verdict, 'STATE OF UNCONSTITUTIONALITY'.

Stage 1, 1960s-80s, WIDE TOLERANCE: Councillors gaps up to 5.85 upheld; Reps struck down only at 4.99 (1976) and 4.40 (1985). Stage 2, 2011-15, TIGHTENING: 'state of unconstitutionality' at 2.13 (Reps, 2015) and 4.77 (Councillors, 2014) - levels once upheld. Stage 3, 2017-today, NEW EQUILIBRIUM: about 1:2 (Reps) and 1:3 (Councillors) upheld. The middle verdict says: the system is in an unconstitutional STATE - pressure on the Diet to fix it, without voiding the election. Pending: 2025 Councillors election, 1:3.13.

How did the Diet actually respond to the Court? Name the 2016 and 2017 changes and the two positions behind the fight.

Pattern: Court declares a 'state of unconstitutionality' -> reluctant compliance -> 2016, Councillors: districts COMBINED (goku) - Shimane & Tottori, Kochi & Tokushima merged. 2017, Representatives: districts realigned, seats reduced in some areas. Positions: urban = seats proportionate to population; rural = population is not the only factor, regional representation matters.