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37 Conn. L. Rev. 907 (2004-2005)
On the Migration of Constitutional Ideas

handle is hein.journals/conlr37 and id is 925 raw text is: On the Migration of Constitutional Ideas FREDERICK SCHAUER* Constitutional ideas are on the move. Although new constitutions these days are rarely borrowed and even more rarely imposed, it is a mis- take to assume that they are therefore inevitably created indigenously, largely devoid of extra-national influence, pressure, and incentives. In- deed, the model of the indigenous constitution is even rarer than the model of the borrowed or imposed one, and understanding the non-indigeneity of even the most seemingly indigenously created constitutions is an important facet of contemporary constitution-making and contemporary constitution- alism. In this paper I seek to explain this phenomenon, a phenomenon that will, en passant, illustrate why seeing constitutions as necessarily either indigenous or imposed is invariably to see today's constitutions through yesterday's lenses. I. THE IMPOSED CONSTITUTION As is well-known and well-documented, constitutions are sometimes imposed from outside. The classic example is the Japanese Constitution of 1947, much more the contribution of Douglas MacArthur than of internal Japanese decision.' More specifically, the Japanese Constitution of 1947 was largely the product of a process created and managed by an occupying power that had achieved that status by virtue of an unconditional surrender followed by a period of occupation from September 1945 until April 1952. This period in Japan was characterized by both capitulation and aggressive occupation, and the constitution, adopted on November 3, 1946, and in Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Har- vard University. Research support was generously provided by the Joan Shorenstein Center on the Press, Politics and Public Policy, Harvard University. I See generally DALE M. HELLEGERS, WE THE JAPANESE PEOPLE: WORLD WAR II AND THE ORI- GINS OF THE JAPANESE CONSTITUTION (2001) (describing the process of crafting the Japanese constitu- tion); KYOKO INOUE, MACARTHUR'S JAPANESE CONSTITUTION: A LINGUISTIC AND CULTURAL STUDY OF ITS MAKING (1991) (comparing the English and Japanese versions); RAY A. MOORE & DONALD L. ROBINSON, PARTNERS FOR DEMOCRACY: CRAFTING THE NEW JAPANESE STATE UNDER MACARTHUR (2002) (evaluating America's imposition of a constitution on Japan).