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Baghdad, Tokyo, Kabul . . . : Constitution-making in Occupied States

Tom Ginsburg, University of Chicago
Zachary Elkins, University of Illinois
James Melton, University of Illinois

Abstract

We identify and document instances of “occupation constitutions,” those drafted under conditions of foreign military occupation. Not every occupation produces a constitution, and it appears that certain occupying powers have a greater propensity to encourage or force a constitution-writing process. We anticipate ex ante that occupation constitutions should be less enduring, and provide some supportive evidence to this effect. Some occupation constitutions do endure, however, and we conduct a case study of the Japanese Constitution of 1946. We argue that it had a self-enforcing quality that has allowed it to endure un-amended for over six decades. Unlike conventional understandings of that document as an American imposition that imposed foreign values, we argue that Japanese participation in the adoption process, and familiarity with some of the rights provisions that had already appeared in the Meiji Constitution, helped make the document self-enforcing. Most important of all, however, was that it embodied a political bargain that fit the basic cleavages in Japanese society.

Suggested Citation

Tom Ginsburg, Zachary Elkins, and James Melton. "Baghdad, Tokyo, Kabul . . . : Constitution-making in Occupied States" William and Mary Law Review 49 (2008): 1139-1179.
Available at: http://works.bepress.com/tom_ginsburg/19