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Constitutional Comparisons with Japan

Did you know that the U.S. Constitution is the oldest living constitution in the world? How does it compare with newer constitutions, such as Japan?

It's pretty incredible that the Constitution of the United States of America is the oldest living constitution in the world, that only three others have existed since the 1800s, and that Japan's constitution is considered one of the older constitutions still around. Japan's constitution, created following World War II, is a very interesting document for comparison with America's constitution when considering the fact that America helped Japan develop their constitution and democratic form of government after having over 150 years of experience with it ourselves. Other than a few major differences (such as the structure of their government, their court system, and their "anti-military" clause), many parts put into their constitution from the outset are based on democratic concepts that took our own form of government until recently to figure.

There are many concepts explicitly stated in Japan's original constitution that aren't based on America's original constitution, but based on principles that we have developed over time before explicitly or impliedly integrating them into our constitution. For example, Japan's constitution includes the right to quiet enjoyment of life (privacy), prohibits slavery, and guarantees equality-including the right to vote, work, and learn-regardless of race, sex, or ethnicity. Additionally, Japan's constitution includes everyone's fundamental right to work and education, not only regardless of race, ethnicity, sex, or religion, but regardless of anything that would inhibit such a right; in a way, some might argue that some of their principles are advanced from what even our own constitution has evolved into. It's as if Japan received a jump start to their new government and constitution by relying on our experience and skipping many of the trials and errors we had to make in order to realize lot of the principles that we now believe in.

However, this is not to say that they haven't-similar to our own experience-had their fair share of struggles with taking principles stated in the constitution and applying it neutrally, or in other words, absent any societal or historical influences. Analogous to our historical and societal struggle in fixing problems associated with slavery, segregation, and discrimination, Japan shares similar struggles in applying separation of religion with state due to the heavy influence and connection that the Shinto religion has had with Japan's long history (much longer than our own).

This can be illustrated by looking at the inconsistent decisions that Japan's Supreme Court has held in applying constitutional principles to situations where the state has gotten involved in religious activities associated with Shintoism. In one case, the court held that the state's involvement in a Shinto groundbreaking ceremony was not a violation of the constitution because the ceremony was not significantly religious in nature, even though it involved a Shinto priest and religious articles associated with Shintoism; in another case, the court held that the state's monetary contributions to a Shinto festival was a violation of the constitution, even though some argue that the main purpose of the festival and the contributions was to honor the war dead; in yet another case, the court found no violation in the constitution by very narrowly distinguishing the state's involvement in an application for enshrinement from the enshrinement itself. In that case, the plaintiff protesting the enshrinement of her dead husband was a Christian woman, which further demonstrates the struggle of applying democratic principles absent the influence of historical biases, discriminations, and associations. Further, it does not help that prime ministers are frequently found visiting Shinto ceremonies and shrines, that the Shinto religion is heavily connected to remembering the dead military, or that Shinto's commemoration of war victims limits awareness of a negative past by showing it through a narrowly positive, limited, and selective lense. This is not to say that we aren't often guilty of "forgetting" about our own unfavorable pasts...

On a different but relevant note, it is interesting to look at the role that the application of stare decisis and the structure of the court system plays-if any-in trying to limit interference from outside influences. In America, Supreme Court justices are allowed lifelong terms and are supposed to apply stare decisis to their decisions. In contrast, Japan's Supreme Court justices are allowed ten year renewable terms, usually start at the age of 60, are required to retire at 70, and do not have to apply stare decisis to their decisions.

Looking at these factors, one might conclude that America's application of life-long terms in combination with stare decisis limits any room for historical or societal biases and leads to consistent, neutral decision-making, while Japan's application of short terms absent stare decisis leaves the court vulnerable to inconsistent and biased decision-making. Although this maybe accurate to some extent, stare decisis does not always limit such influences, and America breaks away from stare decisis all the time due to societal pressure; this works for both the good and the bad. For example, stare decisis was one of the main reasons America took so long to realize the hypocritical and cruel nature that slavery, segregation, and discrimination has on a democratic society, and it is the revolutionary departure from stare decisis that paved the way for equality. Similarly, the Japanese court's inconsistent shifting in viewpoint with regards to public workers' rights is analogous to America's shifting in viewpoint with regards to Congress's power over commerce, which can be attributed to societal and economic influences that existed at the time such decisions were made.

In other words, one of the biggest struggles in applying constitutional, democratic concepts in any society-whether it be in America or Japan, whether the constitution is new or hundreds of years old, or whether the court system is centered around principles of stare decisis or not-is applying such principles absent social, historical, and unjust bias. As a result, Japan's newer democratic government deals with the same problem of social and historical influence that we still deal with every day two hundred plus years later.

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