Constitutional Redemption and Finality

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. A.J. Sutter says:

    “All legal systems need some finality that goes beyond adopting a rule of recognition.” Perhaps. But in most legal systems constitutions have much shorter lives. E.g., the Swiss and Finnish constitutions both date from 1999; in Sweden, the current principal constitutional document, the Regeringsformen (Instrument of Government), is from 1974; and even in France, which retains some allegiance to the revolutionary ideals of “liberté, égalité, fraternité,” the constitution dates from 1958. Japan currently has the world record for a living, unamended constitution, but the issue of its legitimacy — whether or not it was “imposed” by MacArthur’s GHQ — is still alive, too (in a political sense, not a jurisprudential one). So “final” is a relative term, at best.

    The “redemption” concept doesn’t necessarily translate well, either. There isn’t any analogue in Japan to a Declaration of Independence, which Jack declares to be Americans’ constitution. The 1946 constitution does retain certain aspects of the previous constitution, from the Meiji era (1889). But that document was pretty much a deal between the Emperor and the landed classes — no one is very sentimental about it or wants to “redeem” it.

    There are plenty of Japanese who are passionately devoted to the current constitution’s character as a “peace constitution,” which may provide the best example of a feeling of “allegiance to a constitutional command issued long ago.” But there are also plenty of people who want to amend that very aspect of it (Article 9) to allow a wider scope of action for the Self-Defense Forces — to say nothing of those who want to return to a proper army. Those who love Article 9 may indeed be devoted to it because it embodies stories about the past (in a very negative sense), but those who want to change it aren’t necessarily motivated by different past narratives. Rather, they’re concerned about the growing weakness and indifference of the US, and rising threats from China and N. Korea: simple pragmatism.

    Nor is the depth of feeling suggested by the word “redemption” at all common. Japan’s 1946 constitution is based on the principle of popular sovereignty. For reasons too voluminous to be detailed here (power of bureaucrats; restrictions on popular canvassing; provisions not in the constitution but in a statute whose contents are determined opportunistically, and with conflicts of interest, by the legislature; etc. etc.), true popular sovereignty not exist in Japan — but you won’t see anyone out in the streets about it. In fact, as a law student at a national university recently asked a friend of mine who was teaching a constitutional law class, “Why should we want to participate in the development of the law?” And only the less-than-1% of the citizenry who are Christians might have any idea of what the metaphor of “redemption” means, anyway.

    In Europe, a not uncommon motive for constitutional change is the perception that the past narrative of nation-state needs to give way to multiculturalism, membership in the European Union, and other contemporary needs. In some cases the inspiration may be historical, but the extent to which constitutional changes reflect some kind of “redemption” of founding ideals needs to be examined closely in each case.

    So one should be careful about generalizing to “all legal systems,” especially those outside the Anglo-Saxon tradition.