Living Constitutionalism For Me But Not For Thee

by Patrick Brennan

The New York Times’ editorial board has a staff editorial today on why Japan shouldn’t be re-arming itself. Their line of argument might surprise you:

Mr. Abe’s highest political goal is to replace the Constitution written and imposed upon the Japanese by the American Army following World War II. For 67 years, not a single word has been amended. Mr. Abe strongly feels that the Constitution imposes an onerous restriction on Japanese sovereignty and is outdated. Still, as critics point out, he should know that the Constitution’s primary function is to check government power. It is not something that can be altered by the whim of government. Otherwise, there is no reason to bother with having a constitution at all.

It’s not even clear the specifics of Abe’s current plans extend to what the Japanese constitution might reasonably read to prohibit (given the quality of NYT staff editorials, I doubt they know the answer). But it’s impressively convenient that the Times believes a founding document is inflexible when it happens to prohibit a public priority they don’t like. Originalism and textualism are important, apparently, as long as they’re explained in Japanese rather than Scalia-ese.