A FOURTH MODEL OF CONSTITUTIONAL REVIEW? DE FACTO EXECUTIVE SUPREMACY.

• Author: Fukuda, Kazuo

INTRODUCTION 116 I. WHOSE INTERPRETATION SHALL PREVAIL? THREE COMPETING MODELS OF CONSTITUTIONAL REVIEW 118 A. Judicial Supremacy 118 B. Legislative Supremacy 118 C. Departmentalism 118 D. Toward a Missing (Fourth) Model: De Facto Executive Supremacy 118 II. JAPAN'S CABINET LEGISLATION BUREAU: A CASE OF DE FACTO EXECUTIVE SUPREMACY 126 A. A Brief History of Japan's CLB 127 B. Japan's CLB Today: Form and Function 131 C. Controversy in Japan Concerning the CLB's Role and Power 131 III. COMPARATIVE ANALYSIS 135 A. France's Conseil d'Etat 127 1. Similarities and Differences with Japan's CLB 121 B. The U.S. Office of Legal Counsel 131 2. Similarities and Differences with Japan's CLB 121 C. Wrap-up 131 III. Discussion: Preliminary Thoughts on a Fourth Model (De Facto Executive Supremacy) 135 A. Procedural Considerations 127 B. Design Considerations 131 C. Normative Considerations 131 CONCLUSION 135 INTRODUCTION

In 1986, Walter F. Murphy famously posed a provocative question--"who shall interpret the constitution?"--and proposed three possible answers (models): judicial supremacy, legislative supremacy, and departmentalism. (1) In the four decades since, "who shall interpret the constitution?" and "whose interpretation shall prevail?" have been central organizing questions for major debates in constitutional law and political science. Over the years, the model of judicial supremacy has attracted the most attention: after all, as Ginsburg and Versteeg note, more than 80% of existing constitutions have explicitly established a judicial review mechanism (without including such states as the United States and Australia whose constitutions do not make explicit references to judicial review), (2) and, allegedly, such mechanisms, once adopted, have never been abolished. (3) Yet do these three prevailing models sufficiently capture the theoretical and real-world possibilities for constitutional review? (4)

This article argues that scholars should consider a fourth model of constitutional review: de facto executive supremacy. To be clear, this suggestion that scholars seriously consider such a model is not part of a normative claim, but a dispassionately analytical one based on observation of real-world cases. Nor is it an assertion that executive supremacy exists in a "pure," de jure sense. In fact, this article takes no issue with Gant's argument that "the notion of pure executive supremacy has yet to find an exponent among academicians." (5) Rather, it uses the case of Japan to highlight that de facto executive supremacy is not only an empirical reality, but one which warrants further consideration from scholars interested in the fundamental questions of "who shall interpret?" and "whose interpretation shall prevail?"

Though historically modeled on the French Conseil d'Etat, the modern (post-World War II) version of Japan's Cabinet Legislation Bureau (hereafter, CLB) has charted a remarkable path since its resurrection after Japan regained its sovereignty with the end of the U.S.-led post-war Occupation in 1952. Part of the Cabinet and staffed mostly by career bureaucrats seconded from various executive-based ministries, rather than independent judges, it has enjoyed extraordinary authority to determine the constitutionality of draft legislation developed by line ministries and agencies. (6) Yet it remains conspicuously under-examined in related literatures in constitutional law and political science. (7) That the CLB has not received much attention is especially remarkable in light of its preeminent role shaping major legislation and policies in Japan, and in determining their constitutionality in the world's third-largest economy.

With an emphasis on the interpretation of the constitution and also the constitutional review of draft statutes conducted by this executive agency, this article uses Japan's CLB to argue that scholars should revisit the questions of "who shall interpret the Constitution" and "whose interpretation shall prevail?" In particular, it asks whether scholars should rethink the overwhelming centrality of the judiciary in scholarship engaging these questions. In addition to shedding light on (1) the importance of incorporating the missing perspective of de facto executive supremacy into debates about the "whose interpretation shall prevail?" question, this study also highlights (2) the need to critically examine possible gaps between law in books and law in action, (3) the empirical, normative, and design implications for the executive-led constitutional review, and (4) a new perspective on the debate surrounding constitutional review by non-judicial bodies.

This article is organized as follows: Section I reviews relevant literatures that motivate the study, with a particular emphasis on highlighting how the three prevailing models do not articulate satisfactorily the possibility of the executive branch serving as the final interpretive authority in constitutional review. Next, Section II illustrates this model primarily through an analysis of Japan's CLB. After introducing the CLB's form and function, this section highlights its central role in constitutional interpretation in Japan. Comparing the CLB with ostensibly similar executive bodies generally more familiar to scholars outside Japan -- France's Conseil d'Etat (8) and the United States' Office of Legal Counsel--Section III puts a spotlight on the existence and legal/political significance of constitutional review by nonjudicial, executive bodies. The penultimate section, Section IV, discusses possible theoretical implications of a fourth model of de facto executive supremacy and suggests several avenues for future research. The final section concludes.

1. WHOSE INTERPRETATION SHALL PREVAIL? THREE COMPETING MODELS OF CONSTITUTIONAL REVIEW

   The existing literature engaging the question of "whose interpretation shall prevail?" has traditionally focused on three competing models: judicial supremacy, legislative supremacy, and departmentalism. What follows is an overview of the core arguments of each. This brief summary cannot possibly do justice to the rich academic debates in constitutional law and political science concerning the validity, strengths, and weaknesses of each model--and such a fulsome critical review is beyond this article's scope. Rather, the following overview intends only to place this study's call for consideration of a "fourth model" in conversation with the three existing models and, in doing so, to make the case that the literature has overlooked de facto executive supremacy as a legitimate model. (9)

   1. Judicial Supremacy

      The first major model basically argues that in exercising its power of judicial review the judiciary is the final interpretive authority of the constitution and its meanings. (10) As such, other branches are obliged to obey and follow the judiciary's decisions, interpretations, logics, and reasoning. (11) As noted earlier, though some scholars have criticized judicial review as being in inherent tension with democracy, (12) the notion of judicial supremacy is a core feature of constitutional review in most societies. In the United States it is now so firmly entrenched that reportedly "[n]o public official has questioned judicial supremacy since Edwin Meese received a drubbing for doing so in 1984." (13) In fact, though the mechanism of judicial review has evolved over time, the concept of judicial supremacy itself has remained as a central feature of the U.S. judicial system. (14) Its legitimacy and justification primarily derive from (1) "[a] practical need for an umpire" (15) that settles and unifies constitutional meanings within a state; (2) time and institutional constraints on the part of the executive and the legislature that do not allow for "dispassionate, coherent, consistent, and systematic analysis" (16) of constitutional issues; (3) "constitutionalism's objective of protecting individual liberty by limiting government" (17); and (4) the role of the judiciary as a check on executive and legislature power. (18)

   2. Legislative Supremacy

      This second model argues that the legislature's constitutional interpretation should be final and should prevail over that of the other branches. (19) Proponents of legislative supremacy contend that "[i]nsofar as the Constitution should remain a living document of, and for, the people, arguably the branch of government thought most responsive to the people ought to serve as the ultimate interpreter of the ultimate guide for governing our polity." (20) Generally speaking, scholars allow that legislative supremacy inherently necessitates some cooperation between the legislature and the judiciary. However, there is a spectrum of different views. (21) In the words of Larry Kramer, legislative supremacy (or popular constitutionalism) essentially "means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference, but who is ultimately supposed to yield to our judgments about what the Constitution means and not the reverse." (22) Despite the normative appeal embedded in the idea of legislative supremacy for some, empirically speaking, in recent years it has lost much of the status and appeal that it used to enjoy as the once-dominant governing mechanism. Most states have shifted to a constitutional review mechanism centered on the courts (the U.S. or Kelsenian model). (23)

      Though arguments vary among scholars, advocates of judicial and legislative supremacy do not necessarily call for the elimination of constitutional review by other branches. There are exceptions, however. For example, Mark Tushnet criticizes judicial review to the extent of advocating the abolition of judicial review in favor of legislative supremacy. (24) More common are less categorical views like that of Larry Alexander and Frederick Schauer, who are strong proponents of judicial supremacy but do not argue that the...