Elkins, Zachary

Ginsburg, Tom

Melton, James

English

IMT Institutional Repository

7APSA-CP Vol 19, No. 2SymposiumJapanese remained comforted by thepossibility that any new documentcould be replaced or dramaticallyamended after the “guests” left. Theirony of that hope, of course, is thatthe Japanese constitution holds therecord – among constitutions current-ly in-force – for the longest stretch oftime without a formal amendment.What does the history of militaryoccupation tell us about the probabili-ty that occupiers will remake hostconstitutions? We have identified 107instances of military occupation since1789.4 We can compare theseepisodes of occupation to ourchronology of constitutional revisionfor the countries in question. If we call“occupation constitutions” those docu-ments that were written during andimmediately after occupation (withintwo years), we observe twenty-sixoccupations that resulted in forty-twoconstitutions (some occupiers, likethe Soviet Union in Afghanistan, over-saw multiple constitutions during theirstay).5 42 constitutions resulting from26 of the 107 occupations is not apaltry output by any means, especial-ly if we consider that only 800 consti-tutions or so have been producedworldwide since 1789. However, itdoes mean that a sizable majority ofoccupations do not result in new con-stitutions. Moreover, twelve of the 42cases we identified as occupationconstitutions occurred in the two-yearwindow following occupation, andthus may not necessarily have beenassociated with the occupation afterall. Further research should certainlydelve into which kind of occupations(and occupiers) tend to produce newconstitutions. Suffice it to say for nowthat constitutional replacement is notan automatic part of the script ofoccupying states.Do Occupiers Transplant TheirOwn Institutions?When new constitutions are commis-Zachary ElkinsUniversity of TexasAustinzelkins@austin.utexas.eduMilitaryOccupations andtheir ConstitutionalResidueIn February of 1946, General DouglasMacArthur gave members of his staffa week to produce a draft of a newJapanese constitution. That draftformed the core of a constitution thathas stood, formally unchanged, for 62years and counting. The Japanesecase suggests that occupiers canalter the institutional course of thehost country, perhaps for generations.But we know very little about constitu-tions written under such unusual cir-cumstances. Given foreign control,one might expect that occupationconstitutions are direct transplants,perhaps lifted from the occupier’s ownconstitution. After all, even in ordinarytimes, drafters of constitutions borrowforeign ideas (and sometimes wholeclauses, typographical errors and all)from abroad.2 In this essay we reportsome findings from an investigation ofthe incidence, content, and durabilityof constitutions written under foreignmilitary occupation. The focus on thisparticular species of constitution ispart of a much larger project in whichwe are identifying, collecting, andanalyzing written constitutions since1789.3 Occupation constitutions rep-resent a small minority (roughly 5%)of constitutions since 1789, but know-ing something about their structureand fate is illuminating, particularlywith respect to states like current-dayIraq and Afghanistan, whose institu-tional future is widely discussed anddebated. The Japanese case, as weshall see, is not at all typical of suchcases.Do Occupations Typically Result inConstitutional Replacement?It seems obvious that occupierswould oversee a revision of host con-stitutions. Military occupations pre-sumably arise from irreconcilable dif-ferences between states, some ofwhich are likely to be political. Buteven if political change is not amongthe original motives for the conflictand its resulting occupation, it is likelyto be part of the solution for occupiersintent on setting their host state on anew domestic and foreign policycourse. Constitutions are often com-missioned to serve such highly sym-bolic purposes. New documents sig-nal a clean slate, allowing occupiersto mark publicly the birth of a newpolitical order and to rally potentiallyresistant citizens around it. Citizens ofthe occupied state are often left with-out much choice, even if attachmentto the old order is strong. In theJapanese case, for example, mostelites after the war were reluctant tolet go of the Meiji constitution, letalone replace it with a foreign trans-plant. Indeed, their hopeful reading ofthe rather vague Potsdam agreementwas that constitutional revision wasnot necessary (Moore and Robinson2002: 51). MacArthur squashed thathope but, nonetheless, someTom GinsburgUniversity of IllinoisUrbana-Champaigntginsbur@law.uiuc.eduJames MeltonUniversity of IllinoisUrbana-Champaignmelton@uiuc.eduSummer 2008 Draft:Summer_2007_APSA-CP_Newsletter__August_6_FINAL.qxd 8/12/2008 10:02 AM Page 78 APSA-CP Vol 19, No. 2Symposiumsioned by the occupier (or, requestedby the newly empowered group ofhosts), it seems likely that the consti-tution of the occupying state wouldserve as a highly relevant model.Presumably, the occupiers think high-ly enough of their own institutions tosee them replicated elsewhere,notwithstanding the need for adaptingthem to their new context. Some imi-tation of the occupier’s charter seemsprobable even if design is left todomestic actors, who are likely to behandpicked by the occupiers or atleast interested in appeasing them.Aside from any ideological or instru-mental inclination for transplantationon the part of the hosts, it is quitepossible that informational constraintspropel them in this direction (Weyland2005). World powers, understandably,are well represented among the his-torical list of occupiers and the consti-tutions of such powers are likely to beamong the most prominent and avail-able models for off-the-shelf adoption.Of course, the exalted stature ofthese powers might render their con-stitutions less attractive, as smaller,perhaps fledgling states might viewthe models of world powers as inap-propriate or irrelevant to their ownneeds. Indeed, such a pattern is evi-dent in the case with the UnitedStates, whose constitution was widelycopied (especially in Latin America) inthe 1800s, but which has becomeless and less influential since then.Our data allow us to test the possibili-ty of occupational inheritance inrather comprehensive fashion. Ourapproach is to estimate the similaritybetween each constitution in the yearof its adoption and all the contempo-rary and historical constitutions thatmay have served as models, includ-ing previous constitutions from thehost country. Thus, for example, theJapanese constitution of 1946 can becompared with all 74 constitutionsthen in force, as well as the 346 con-stitutions that had been adopted inthe world since 1789. Among suchdyads we should expect occupationdyads (the host constitution and thatof the occupier) to have a higher simi-larity score than that of the averageconstitutional dyad, ideally controllingfor a set of other factors that wouldpredict similarity.6Our dataset records over 600 charac-teristics of constitutions, thus makingit possible to calculate constitutionalsimilarity along numerous dimen-sions. We start simply (or at leastbroadly), by calculating similaritybased on the “inventory” of each con-stitution. We identify 112 topics thathave historically been included inconstitutions (ranging from such mod-ern topics as the regulation oftelecommunications, to seeminglytrivial aspects like the motto for thestate, to central institutional topics likethe selection process for the execu-tive). For each constitutional dyad, wethen calculate the percentage of the112 topics that both constitutionseither include or exclude. This meas-ure, then, captures the degree towhich any two constitutions addressthe same topics, and not whetherthey make the same choices underthose topics, although the two meas-ures will likely be highly correlated. Toillustrate, consider some non-occupa-tion examples. The French constitu-tion of 1791 and that of the UnitedStates adopted two years earliermutually address or ignore 72 percentof the 112 topics, leaving 28 percentof topics for which one is silent andthe other expressive. Fast forward167 years – through a period pockedwith periodic constitutional revision inFrance –and we observe that theFrench constitution of 1958 sharesonly 58 percent of the same topics asdoeswith the little-changed UnitedStates constitution. Across all non-occupation dyads in the data, theaverage similarity score is 0.70 (70 %agreement) and ranges from 0.41(Mozambique 2004 and Liberia 1825)to 0.97 (Bolivia 1948 and Venezuela1857).7 (The years mark the date ofpromulgation of the state’s constitu-tion and are also the time points atwhich the constitutions are com-pared).The similarity scores for the constitu-tional dyads exhibit a modest conver-gence effect, albeit with a fair amountof dispersion, when compared withthe larger sample. Across 29 of the42 occupational dyads for which wehave data, the average similarityscore is 0.75, ranging from 0.58(Afghanistan (2004) and its occupierthe United States (1789)) to 0.88(Albania (1939) and its occupier Italy(1848)).8 Other occupation dyads withhigh similarity scores include Poland(1952) and its occupier the SovietUnion (1936) at 0.82, Laos (1991)and its occupier Vietnam (1980) at0.79, and Lithuania (1938) and itsoccupier Germany (1919) at 0.79.Most of the similarity scores for theeight cases in the data (of a total offourteen) in which the United Statesplayed the role of occupier are con-siderably lower than the non-occupa-tion average of 0.70. The exceptionsare Japan 1946 (0.73), Germany1919, (0.74), and the DominicanRepublic 1924 (0.76). Sadly, we donot yet have data on the 1918 consti-tution of Haiti, which a young FranklinDelano Roosevelt allegedly claimedto have written while serving asAssistant Secretary of the Navy dur-ing the US occupation.9 Turningtowards another superpower and fre-quent occupier, we see that therecord of the Soviet Union is also notone of constitution imposition. Exceptfor Poland 1952 (0.82) and its prede-cessor, Poland 1947 (0.75), the con-stitutions of Soviet-occupied statesare not especially similar to that oftheir occupier. A good, or at leastintriguing, comparison is Afghanistan.While the United States-Afghanistan(2004) dyad marks the extreme withrespect to dissimilarity (0.58), theSummer 2008 Draft:Summer_2007_APSA-CP_Newsletter__August_6_FINAL.qxd 8/12/2008 10:02 AM Page 89APSA-CP Vol 19, No. 2Symposiumthat occupiers neither impose theirown institutions nor disturb terribly theinstitutional trajectory of the occupiedstate. Nonetheless, it is evident thatthe average effects obscure someinteresting variation in both of thesesenses – variation that merits furtherscrutiny. Moreover, occupations mayhave more targeted, but consequen-tial, effects on the occupied state’sconstitution. We speculate aboutsome such effects in our discussionbelow.How Long Do OccupationConstitutions Last?Who would have thought that aJapanese constitution promulgated atgunpoint and, in part, crafted by agroup of American military officers in1946 would still be in effect (not tomention formally unchanged) in2008? After all, the life expectancy ofconstitutions – regardless of how theyare produced – is roughly seventeenyears.12 For any number of reasons,one would expect transplanted institu-tions to be more vulnerable. Thiswould seem to be especially so forconstitutions, wrapped up as they arewith national identity. Surely, theJapanese case must be exceptionalin its longevity.Indeed, it is. At thirteen years, theexpected lifespan of occupation con-stitutions is shorter than that of otherconstitutions. Moreover, this lifeexpectancy may even be an overesti-mate as it includes the years thatconstitutions were in effect under theprotection of the occupier. The “natur-al” life expectancy (that is, excludingthe years under formal occupation) ofoccupation constitutions is only 5years. In this sense, one might sus-pect that the security umbrella thatthe US has extended over Japan overthe years has indirectly preserved itsconstitution. Of course, it may also bethat the drafters of the 1946 docu-ment stumbled upon a remarkablySoviet-Afghanistan (1987) dyad alsoexhibits below-average similarity(0.67).Thus, on average, the constitutions ofoccupied states seem to inherit littlefrom their occupier.10 This surprisesus. Equally surprising is the degree ofcontinuity between the occupiedstate’s previous constitution and theoccupation product. Generally, consti-tutional revisions compare with theirpredecessor by a score of 0.81. Withoccupation constitutions, this scoreaverages only a tad below this at 0.80and ranges from 0.62 (Hungary 1949and 1946) to 0.97 (DominicanRepublic 1924 and 1908) acrosstwenty-two occupation constitutions.The Japanese case is telling. WhileMacArthur’s staff undoubtedly had aheavy hand in crafting the Japanesecharter, their product bears strikingsimilarity to the Meiji constitution of1889 (0.81). Indeed, of the 62 consti-tutions in force at the time of draftingfor which we have data (out of a uni-verse of 74), the Meiji constitution isthe eighth most similar. This is a star-tling reminder that, while externallyimposed, the Japanese constitution of1946 bears a distinctively domesticstamp.11 And, as the distribution ofscores suggests, the Japanese caseis not unique. To return to the Afghancases of 1987 and 2004, both consti-tutions – supervised by the SovietUnion and the United States, respec-tively – were quite similar to theirhome-grown predecessor (0.82 and0.80, respectively).stable balance between domesticinterests in Japan. Whatever thecase, the document’s durability is fair-ly exceptional. Several other post-WWII constitutions have also provedcomparatively resilient (e.g., Austriaand Italy) as well as several constitu-tions resulting from situations of occu-pation in Latin America in the 19thcentury (Mexico’s constitution of 1867and Paraguay’s of 1870). However,these cases are – like the Japanese1946 document – atypical.Taken together, these results suggest“[...] on average, the consti-tutions of occupied statesseem to inherit little fromtheir occupier.”Conclusion and DiscussionAn exploration of the incidence, con-tent, and stability of occupation consti-tutions suggests that the occupier’seffect on their host’s core institutionsis fairly modest. To summarize: (1)only one quarter of occupations actu-ally result in new constitutions; (2)those constitutions that are producedare, as we might expect, short lived;(3) contrary to our expectations, occu-pation constitutions bear only a slight-ly resemblance to the constitution ofthe occupying country and moreclosely a far greater resemblance totheir own prior laws. Nonetheless, it is“[...] the expected lifespan ofoccupation constitutions isshorter than that of otherconstitutions. Moreover, thislife expectancy may even bean overestimate as itincludes the years that con-stitutions were in effectunder the protection of theoccupier.”Summer 2008 Draft:Summer_2007_APSA-CP_Newsletter__August_6_FINAL.qxd 8/12/2008 10:02 AM Page 9APSA-CP Vol 19, No. 210Symposiumthe more coercive context wedescribe here.3 The Comparative ConstitutionsProject. For details, see the projectwebsite at comparativeconstitution-sproject.org.4 We limit ourselves to cases of for-eign military occupation in which asovereign state is occupied by one ormore other states, thus excludingcases of colonialism and occupationby multilateral forces.5 We include here only “replace-ments,” and not amendments, of con-stitutions. This is sometimes a blurreddistinction. We reserve the termamendment for those changes inwhich drafters follow the amendmentprocess of the old constitution andcall replacements those changes inwhich they work from scratch. Inpractice, we do not always know thedetails of the adoption process and,in such cases, we go by what histori-ans and constitutional scholars identi-fy as a new, or replaced, constitution.6 For cases in which multiple statesoccupied another, we select only thatdyad that includes the primary occupi-er.7 Not counting comparisons of consti-tutions within states, whose similaritycan reach 0.99 in places.8 Again, years represent the date ofthe constitution’s promulgation.9 Hans Schmidt (1995: 111) suggeststhat there is little basis for FDR’sclaim (allegedly made during his firstpresidential campaign) and credits theOffice of the Solicitor in the StateDepartment for most of the drafting.10 But even this small effect may bespurious since the occupier’s consti-tution might be more influential forreasons other than its political domin-ion over the guest. A more relevantcomparison is one between occupa-tion dyads and those dyads that com-pare the same occupiers’ constitu-tions with those of non-occupiedstates. However, the average similari-ty score for these latter dyads (0.70)is no different from the overall mean,thus corroborating the previous esti-mate of the average occupationeffect.11 This finding accords with the fili-greed account of Moore andRobinson (2002), who emphasize thecooperative role of Japanese actorsin constitutional re-design.12 Baseline survival estimate from amodel of the 821 constitutions writtensince 1789. See Elkins, Ginsburg,Melton (forthcoming) for more details.ReferencesElkins, Zachary, Tom Ginsburg, andJames Melton. Forthcoming. TheLifespan of Written Constitutions.Cambridge University Press.Moore, Ray A. and Donald Robinson.2002. Partners for Democracy:Crafting the New Japanese Stateunder MacArthur. Oxford UniversityPress.Schmidt, Hans. 1995. The UnitedStates Occupation of Haiti, 1915-1934. New Jersey: Rutgers UniversityPress.Weyland, Kurt. 2005. “Theories ofPolicy Diffusion.” World Politics 57:2.possible that this analysis missesmore subtle, but still consequential,effects of occupation. In particular, itcould be that the occupier’s alter-ations are more targeted, leavingalone the basic structure of gover-nance but tweaking a particularly criti-cal provision. We see this to someextent in each of the cases that wehave examined in any detail. In theJapanese case, for example, the“peace clause” (Article 9) representsa key United States demand for mili-tary demobilization. In other cases,we see that occupiers have implantedprovisions in constitutions that guar-antee the occupier’s material interestin trade or investment. The provisionsfor treaty approval in the Iraqi consti-tution, which are conducive to oilagreements with the United States,are critical in this sense. Similarly,FDR’s 1918 Haitian constitutioneased land holding rights for foreign-ers, an opening that would allowAmerican investors to acquire landsfor highly anticipated agriculture ven-tures (Schmidt 1995: 111). Perhaps,these more targeted impositionsmake sense from an occupier’sstrategic perspective. Given the longodds of transplants’ surviving, insist-ing on a limited number of crucialprinciples or provisions might verywell maximize their impact. In hisinstructions to his staff, GeneralMacArthur had scribbled threerequirements for the new Japaneseconstitution in a short memo, amongthem military demobilization.Certainly, the product of that limitedapproach has endured.Notes1 We thank the editors, MichaelCoppedge and Anthony Messina, fortheir helpful comments.2 Elkins is completing a manuscriptthat describes the global spread ofconstitutional ideas under more vol-untary circumstances in addition toSummer 2008 Draft:Summer_2007_APSA-CP_Newsletter__August_6_FINAL.qxd 8/12/2008 10:02 AM Page 10

Military Occupations and Their Constitutional Residual

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