Abstract

Scholarship engaging the controversial question of whose interpretation of the constitution shall prevail has focused on three models: judicial supremacy, legislative supremacy, and departmentalism. Of late, the literature has centered on questions regarding the authority and/or status of the judiciary. This study argues that this important debate has neglected the prospect of a fourth model of constitutional review: de facto executive supremacy. To make its case, it examines Japan’s Cabinet Legislation Bureau—an executive branch-based institution that has acted as Japan’s de facto supreme interpreter of the constitution and draft statutes, despite the existence of a judicial branch explicitly empowered constitutionally to do so. Supplemented by comparative analysis with France’s Conseil d’État and the U.S.’ Office of Legal Counsel, this article emphasizes the role of executive institutions in the law-making process in both theory and practice and discusses potential implications of considering de facto executive supremacy as a legitimate model.

Keywords: executive branch, constitutional review, constitutions, judicial politics, Japan