Redeeming Potholes

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2 Responses

  1. A.J. Sutter says:

    The historical counterexample to this is “At least they made the trains run on time.” Certainly it’s too extreme to say that potholes are the core of what constitutions are about. But a more moderate take on your post — namely, that by privileging certain constitutional narratives we risk ignoring other, perhaps more fundamental, constitutional issues — resonates with me about the situation here in Japan.

    Current Japanese constitutional narratives focus on a very narrow range of issues, mainly: whether or not to amend the “peace clause” (Art. 9); individual human rights, especially relating to gender equality (Art. 14) and to criminal procedure; and the status of the Emperor and the Imperial succession. However, there are many glaring defects in democratic institutions, which, even when grumbled about (e.g. power of the unelected bureaucracy), few seem to attribute to defects in the constitution (Kempou). And most well-educated people I’ve met seem not to have been aware:

    ・that the rules for parliamentary elections (including whether a district will have multiple representatives or just one, campaign restrictions, etc.) are determined in a statute that can be, and routinely is, changed only at discretion of the parliament itself (Diet a/k/a Kokkai) — creating tremendous conflicts of interest
    ・that although the Supreme Court has, on multiple occasions, ruled elections unconstitutional because people in some (usually rural, pro-LDP) districts effectively have 3 or more votes per 1 person, it has never invalidated an election or required that it be done over
    ・that it’s virtually impossible for an ordinary citizen to run for office
    ・that it’s virtually impossible to organize a town hall meeting to hear candidates debate each other (most campaigning being done via loudspeakers from sound trucks, and from hand-waving and bowing sessions at subway station entrances)
    ・etc., etc.

    In fact, other than students in law faculties, Japanese students aren’t taught much about the Kempou at all, aside from the fact of its existence. And judging by my conversations with law profs and students here, constitutional law courses and scholarship are tightly focused on Art. 9 and human rights issues, not at all on democratic institutions (though I hope to be able to teach a comparative con law course on that topic next year).

    At least one Japanese legal scholar, Shigenori Matsui, does foreground some of these institutional issues, including in a recent book. And he does so BTW in what this symposium would call a “redemptive” context, i.e., in pointing out that the Kempou’s promises of popular sovereignty, of the Kokkai’s being the highest and sole legislative organ, and of the Japanese Supreme Court’s power of judicial review, are all unmet. It might not be coincidence, though, that he teaches at Univ. of British Columbia, rather than domestically. That most people in Japan, and even in law faculties, don’t pay much attention to these issues (to the extent they’re aware of them at all), is the result of the democracy constitutional narrative being crowded out by those relating to peace and individual rights — which is a point of contact with your post.

  2. Terry Harris says:

    For what it’s worth, I’m not sure that there’s agreement in my jurisdiction that filling potholes has risen to the level of mundane things that a government should do.