The Meiji and current (hereinafter called the MacArthur) constitutions of Japan are very much products of the tenor of the times and the political realities which were extant when they were promulgated. There are a plethora of similarities common to them and their genesis; such as, the intrusion of western influence. Which, although it was particularly overt in the case of the MacArthur constitution was a critical factor in the Meiji as well. It is interesting to note that the United States was instrumental in both constitutions. First in Meiji as a result of opening Japan from its Tokugawa isolation and the Harris treaties and then, in 1946 in the MacArthur constitution, by its victory in World War II over the Japanese. On the other hand, there are crucial differences between the two constitutions and the bases for their drafting and these shall also be explored below.
Initially, we need to investigate the climate surrounding the origins of the Meiji constitution. After the centuries of unchanging government under the Tokugawa bakufu (military or 'tent' government, also known as a Shogunate) there was need for a change, brought on by both internal and external factors. However, it would be desirable that the new structure would have the stability of the old regime, concurrent with the ability to cope with the difficulties which had arisen during that time.(2) The Tokugawa order had depended on politics and economics paralleling each other closely and isolation to maintain this relationship. Land was the base of wealth in this regime, rice was the coin of the realm and no foreign contact was allowed to disturb the functioning of the system. While the balance between politics and the economy could be preserved, no problems were experienced. However, when the economy and politics diverged (there had been a slow, long term diminution in the prestige of the Shogun, long term economic decline and an erosion of feudal loyalty) and the West came intruding into this closed society with their innovations in economics and politics, problems sprang up like weeds.(3) These included the samurai debt crisis, the dependency of the aristocracy on the merchant class, stagflation and a recognition of industrial-military inferiority.
Four conditions precipitated the disintegration of the Tokugawa bakufu which preceded the Meiji Restoration. The first was the rise of the merchant class. There was a crisis created by a growing disparity between political power and social prestige on the one hand and the burgeoning economic power of the merchants on the other. The second was the development of a different economic and social order which this disparity produced. Additionally, the Japan of the early nineteenth century had developed both nationalism and commercialism, but the political environment had not changed in order to accommodate these developments. The third was the challenge of the West and its insistence on dragging the Japanese onto the world scene. The last was the condition wherein politics and the economy were too closely intertwined to allow for a revolution of the merchants and, therefore, transformation had to be generated within the political structure itself.(4)
In great measure, the imperial restoration movement generated the impetus for the shift from feudalism. This movement emphasized a return to traditional values, as its advocates saw them. First and foremost was the Confucian idea of filial piety which said the Shogun was a "mere (my emphasis) delegate of the throne." Added to this was the new twist that the focus of one's loyalty should be on the emperor even more than on the ideals of filial piety or feudal obligation. In these tenets was instituted a form of Confucianism with overlays of Shintoism.(5) Further influencing this movement was the Japanese tradition that structure and continuity were important (e.g., retention of the imperial house through its centuries of powerlessness) and that a lineage basis was critical for social stability and political order.(6) Eventually, Douglas MacArthur used this as an argument for the retention of the emperor in post-WWII Japan. In the Confucian principle of the obligation of a child to its parents known as "on" we can recognize the importance of this tradition. This obligation is characterized as "deeper than the ocean and higher than the mountains" and imparts the duty of filial piety. While the attitude was and is not as prevalent in the lower classes of the Japanese, it was an extremely powerful force in the higher social classes of this time and exists even today. The proponents of restoration took these patriarchal, authoritarian, hierarchical traditions and translated them into part of the legal code of society at the time of the restoration.(7) This also exemplifies the "exclusive and receptive tendencies" of the Japanese. Exhibiting their exclusive tendencies in the "persistence of way of life...peculiarly Japanese" and the receptive tendencies in "open-mindedness toward foreign influences."(8)
This receptiveness allowed the economic system of the West to significantly influence the re-emerging nation and many aspects of it were imported directly. The new government's revamping of the warrior class and its perquisites was of great consequence in the stabilization and revitalization of the economy along with the importation of economic ideas. With the rise and flourishing of the merchant class, the ideas of capitalism and the laws of supply and demand gained ready acceptance. Moreover, the new government, after its consolidation of power was not above providing fiscal, tax, and subsidy incentives to the enterprises it felt were furthering the national interest. This was of benefit to the new oligarches also, inasmuch as it created a bond between industry and the government.(9)
With the triumph of the restoration, although the power that the emperor was to have been given was, in actuality, wielded by a select oligarchy composed predominantly of men from the Satsuma and Choshu daimyos in addition to the Meiji emperor, there was a need to restructure the political edifice of Japan. The Western political ideas introduced to the Japanese as a result of their opening to the world had incredible impact on the young oligarches, particularly the institutions of representative government.(10) The emergence of the Bummei kaika movement, which held forth on the benefits of civilization and enlightenment was inspired by these concepts.(11) In the same vein, the writings of Fukuzawa Yukichi, a constitutional scholar, linked liberalism and nationalism and called for the establishment of a representative council, chosen by the people, which would, in theory, create a unity of feeling between the government and the people. These would precipitate the conditions which would, only then, enable the country to be strong. That is, political participation would increase the power of the state.(12)
In the early 1870s pressure for a representative assembly started from displaced samurai and presented a challenge to Satsuma-Choshu (Sat-Cho) hegemony. A movement espoused by Itagaki Taisuke emerged demanding "freedom and popular rights" (jiyu minken) for the people. In 1878 Itagaki even went so far as to found an opposition party, something unheard prior to this point in Japanese history. The jiyu minken was very popular as an advocate of the establishment of parliamentary representation and a constitution. Still, Itagaki was seen as part of governing class and he did share their ideas of government. Thus, it was more the idea that he was in opposition and had created a political party that was new.(13)
The oligarches, while not completely amenable to the notion of popular representative government, did believe that a constitution for the new state would be in order and so established the Senate (Genro-in) as a national advisory body and as a vehicle to attempt to draft a constitution. In 1878 the unprecedented step of having elected assemblies at the prefectural level was taken and in 1880 this was extended down to the local (town and village) level. These bodies were the first non-western elected representative bodies in the world. The popularity of the parliamentary movement also spread with wider dissemination of knowledge of Western institutions. There was some confusion within the proponents of popular participation over what the limits of participation were. Since there had been no prior experience in the general exercise of political rights, this is not surprising. However, as is not unusual at times like these, there were those who believed that radical methods, up to and including assassination, were acceptable expressions of political will. These types of action were, naturally, seized upon by the oligarchy as evidence that extensive popular political participation was unwise and it allowed them to enact and enforce methods of suppression which were detrimental to the process itself. This repression of opponents of the regime grew stronger throughout the decade of the 1880s, even as the processes for the drafting and ratification of the constitution were underway.(14)
In 1875 the emperor had issued a promise that there would be a constitution granted to the Japanese people and a committee was established by the Genro-in to effect a draft. The draft constitution which the Genro-in committee produced in late 1880 proved to be much "too progressive" and "too English" for the tastes of the oligarchy, which by now was turning toward those conservative types of measures which would assure their continued presence in power. They felt that the draft ceded too much power to the proposed legislative body (the Diet), so they rejected it. Okuma Shigonobu, one of the architects of the draft constitution and a non-Sat-Cho in the oligarchy, was insistent upon the institution of a British style constitution, proposing its immediate implementation in March of 1881. When it was rejected by the oligarchy, he was purged from the government. Okuma and other constitutionalists then formed political groups to agitate for a constitution, thereby creating the outline of incipient political parties.(15)
This is not to say that the oligarches were opposed to a constitution per se. However, their attitude was that one based on the English model was unsuitable for Japan. Thus, there was division over the form that the constitution was to take, not whether or not there was to be one. The Sat-Cho oligarches favored a constitution based on the Prussian model of Bismarck and, as we have seen, the other faction, led by Okuma, preferred one on the lines of the British. By October of the same year, with pressure mounting for some sort of model to be chosen and the onus of a scandal concerning government property in Hokkaido, the oligarches had the emperor issue the Imperial Rescript of 1881, promising a constitution and parliament within nine years.(16)
With this proclamation the debate over the form the constitution should take became even more heated. And, as mentioned previously, with the disorder came government repression. Editors were arrested, public meetings were restricted, etc. The rescript itself was too general and incited more agitation for representative government.(17) Lamentably, the political parties of the opposition were unable to unite long enough to give any coordinated opposition to the Sat-Cho oligarchy. Of course, the Sat-Cho were doing all they could to forestall any incipient cohesion in the opposition. This had the result of permitting the Sat-Cho to retain all the top leadership positions. The opposition parties appeared and disintegrated frequently and were completely impotent. Thus was the oligarchy able to remain in power throughout this most critical decade(18)
In the government, however, with the departure of Okuma, there was considerably more harmony. Ito Hirobumi had now ascended to a position of power and had specific ideas on how to go about establishing the constitution. He wanted the constitution to address the Japanese situation specifically, while including some Western constitutional concepts. However, inclusion of these concepts would not be to the extent that the constitution could be said to be following any one Western model "slavishly". He was enamored of the Prussian model because Bismarck's Wilhelmine constitution restricted political rights to the benefit of the state, plus in its Article II it subordinated individuals' freedom to their responsibilities to the emperor and, in addition, it upheld imperial absolutism.(19)
Ito also had a set of guiding principles thoughtfully provided to him by his colleague, Iwakura Tomomi. During the crisis year of 1881, Iwakura had considered what requirements it would be necessary to fulfill in order to produce a constitution with which the oligarchy could be happy. At the conclusion of those deliberations, he assembled a list of eight points:
With these principles in hand, Ito toured Europe in 1882 in order to familiarize himself and his accompanying commission with the differing constitutions there. The commission concentrated on Berlin and Vienna with side trips to England and France.(22) He was particularly taken by teachings the Viennese legal scholar, Lorenz von Stein and his theory of "social monarchy", which postulated the emperor as an arbiter between competing interests of groups in society to prevent exploitation of any one group by another.(23) Since we have seen Ito's proclivity toward the Prussian constitution, it is not difficult to predict what his recommendations were on his return.(24)
Even before the constitution was drafted the oligarchy was moving to create a framework which would be in place when the constitution was ready. It did help, of course, that they had prior knowledge of the shape that the constitution would take. There were three structures they initiated to facilitate the change, to be in line with the tenets put down by Iwakura and to support the imperial system. First, in 1884, they established a new peerage to secure a base of members for appointment to the upper house, which was to be a check on the popularly elected lower house. This new nobility was to be based on the Prussian arrangement and to include approximately 500 men. The oligarches coöpted the conservative side of the political spectrum by including many of its proponents in the new nobility. Next, a European style cabinet, made up of the heads of the ministries, was instituted by imperial decree. Of the 10 men who composed this first cabinet, 8 were of the Sat-Cho oligarchy. One unique aspect of this cabinet was that its Prime Minister was responsible directly to the emperor for the administration of the country. The effect of the founding of this cabinet in December of 1885, was to wipe out the power of the court nobles at a stroke. Coincidentally, the first Prime Minister was Ito Hirobumi. The last edifice to be erected in this series was a new civil service, based on merit. Positions in this civil service were to be won by competitive examination. With the advent of this structure in 1887, everything was in place for the coming constitution. Further, as the oligarches had planned, all of these organizations emphasized that imperial authority was central to the new system.(25)
With all these new organizations being put into place there is one event that overshadowed the rest. The actual drafting of a constitution started in 1886. The deliberations of the commission that was entrusted with the task were held in secret. The chair of these proceedings was none other than our old friend, Ito Hirobumi. Ito also had the services of Herr von Stein and his student Herrmann Roesler in his efforts.(26)
When the committee drafting the constitution was finished its work, the draft had to be ratified. This thought provoked some consternation on the part of the oligarches. for who would be in a position to do such a thing? Fortunately, there had been a precedent of a council of advisors to the emperor in the past and thus, a Privy Council was established to judge the draft constitution in the name of the emperor in April of 1888. Moreover, now that his work on the committee drafting the constitution was done, who better to be named president of the Privy Council than Ito Hirobumi. The sessions required for ratification were also conducted in secret, as per the advice of Herr von Stein, who counseled not to hold a constitutional convention.(27)
There was considerable public agitation over this and when it was turned to action in 1886 and 1887, the government reacted with more stringent measures, giving more power to the police and further cracking down on political activity.(28) This was facilitated by Yamagata Aritomo, who had been instrumental in the centralization of the police. He had also revamped the army on the German model, complete with a general staff and answerable only to the emperor in military matters. This established the independence of the military which was outline by Iwakura, would be formalized in the Meiji constitution and would be the cause of much difficulty for the empire in subsequent years.(29)
The constitution of the Empire of Japan was promulgated on February 2, 1889, the traditional date of the anniversary of the founding of the Japanese imperial dynasty, by the Meiji emperor as his gift to the Japanese people.(30)
The new constitution was not very much removed from the principles which Iwakura had outlined in 1881. It was based on the "social monarchy" theory of Lorenz von Stein; however, in Japan there was not as much social "responsibility", as von Stein would have it, but more social "harmony." This was typified by the return to emphasis on obedience to authority and the subsuming of individual rights for the benefit of the state. This accent on harmony points to the underlaying motivation that men seeking to strengthen a state find dissent seditious and attempt to stifle it in terms of patriotism and loyalty.(31) Naturally, the oligarches found this to be to their benefit as well. The constitution was, in a major way, a legal basis for their continuation in power.(32) Of course, it was certainly not essential that the Sat-Cho oligarches provide this constitution, it was a gift from them to the people, clothed though it was in the wrapping of a gift from the emperor, stemming from their slowly disappearing liberalism that brought them to power with the restoration.(33) However, this was, as drafted by Ito and to paraphrase Lincoln, a government of oligarches, by oligarches, for oligarches even though it was promulgated in the name of the emperor and ostensibly given to the people. Baron Hozumi Nobushige says the law embraced theocratic, patriarchal constitutionalism. That is, the emperor was not divine but sacred and inviolable which, in theory, was the basis for an autocratic monarchy; but, in practice, just having a constitution precluded absolutism(34)
The most important aspect of the provisions was that sovereignty lay with the emperor by right of divine descent (although not, as in Europe, by divine right). Imperial succession was the basis for sovereignty in both Imperial Household Law and in the constitution, which were both considered to be above ordinary law. This legitimized the concept of kokutai and made the emperor the source of all authority under the constitution. Other powers were also explicitly given to the emperor. They included: direct, supreme command of the armed forces with no oversight by the cabinet or Diet; the power to declare war, make peace and treaties; the capability to set up the administrative branch of government; the ability to veto legislation and prorogue the Diet, and to issue emergency orders with the force of law or even to issue laws when the Diet was not in session. Further, his executive power to issue regulations for the execution of laws was unlimited. A last important point was that the emperor did not depend on the Diet for his budget nor that of the imperial household. These were outside of the purview of the Diet and funded without need of their approval.(35)
Additional resources were given to what could be considered the executive branch of the government which were not specifically reserved to the emperor. The government (cabinet) had far reaching prerogatives and responsibility not to the Diet, but only to the emperor. The ministers of state were responsible for their own portfolios and only jointly responsible for issues of overriding importance to the state; therefore, although there is a cabinet which in essence ran the government, there is in fact no provision for a cabinet in the constitution. Even so, the constitution provided for great latitude in the functioning of the cabinet; since, if the Diet did not approve a budget the government could continue, using the prior year's budget. The government could also veto laws, delay them or even simply not provide funds for their enforcement, thereby effectively rendering them impotent. The government's own bills were to be given preference and representatives from the government could submit bills and speak before the Diet at any time.(36)
The government also had one further item at its disposal and this significantly curtailed the power of the emperor. All issuances from the emperor had to have the countersignature of the minister responsible for the area affected. Thus, even though the emperor seemed to have been given immense amounts of power, the administration of the government was in the hands of the cabinet, supreme command of the armed forces, the privy council and imperial household ministry. All of these organs were controlled by the oligarches and this small group of supremely powerful men came to be known as the Genro (not to be confused with the genro-in, which was the name given to the Senate established in the early stages of the restoration). The effect of this was to confirm the oligarchy in power. A quote from Ito at this time is most revealing. He stated, "...joint rule by the king and the people must, in Japan, be set aside." The effect was that after the restoration had imbued the emperor with power once again, this action re-relegated him to figurehead status.(37)
Turning to the assembly authorized by the constitution, it can be seen that the oligarches were successful in slaking the popular thirst for a representative body, while only ceding minimal real power to that assemblage. The Diet was established as a bi-cameral legislature composed of a House of Representatives and a House of Peers. The new nobility generated by the oligarchy would man the Peers and they were appointed by the emperor. The Representatives were to be popularly elected by male suffrage of those over 25 who met the property standard of paying 15¥ per year in taxes. These qualifications limited the eligible voters to 1% of the population. In order to pass a law the Diet had to have approval of both houses. This made any liberal law-making a non-starter since the Peers were predominantly aligned with the government. They did have budgetary approval powers within the limits described above, which did give the Diet some real power. However, they could only act as spoilers, denying new funds or taxes, due to the provision that the government could use the budget from the prior year if no new one were passed. Additionally, the Diet, as mentioned, had no control over imperial expenses.(38)
The Meiji constitution did have an extensive section on civil rights. Unfortunately, these were a chimera. As it states in the constitution concurrent with the description of these rights, the rights are all limited by statements such as: "...within the limits of the law" or "...within limits not prejudicial to peace and order." Thus, although the bill of rights is superficially western none of those rights were constitutionally guaranteed."(39)
Additionally, the provision for amendment to the constitution was dependent upon the will of the emperor to change it. Since the emperor was imbued with sovereign and almost absolute power and was provided with safeguards for imperial prerogatives in the constitution there would be no incentive for him to do so.(40)
The Meiji Constitution, although it has all the trappings of western democracy, is still an oligarchical, authoritarian and paternalistic government. However, given the place and time, Reischauer contends that it was a good balanced constitution. It did have the major advantage that it was a completely Japanese product, created by Japanese taking cognizance of their own traditions and history while incorporating new concepts introduced from the West. Once more we see that proclivity in the Japanese character for "exclusive" and "receptive" tendencies.(41)
In a commentary and exposition in his 1935 book on the constitution Tatsuji Takueshi, professor of international relations at Kwansei Gakuin University of Nishinomiya Japan, contends that the constitution was a compromise between the monarchical traditions of Japan and the constitutionalism of the West. He states that it embodies the kokutai, or Japanese polity, based on the continuous rule of the imperial dynasty from time immemorial, and that it has 3 fundamental characteristics. Those characteristics are, first, monarchism, second, constitutionalism and, lastly, a unitary nature. The monarchical essence is contained in the provisions that support the autonomy of the imperial household, the independence of supreme command of the armed forces (tosui taiken), the limitations on the power of the diet and the reservation of the power to amend the constitution to the emperor. The constitutional aspects, which, according to Tatsuji, clash with the idea of kokutai, are: a government with the consent of the governed; parliamentary responsibility of ministers of state;(42) a government of laws having a parliament (Diet) to represent the views of the populace (although the emperor is able to dissolve it to "restrain the autocracy" of the representatives in addition to the check of the equal powers of the House of Peers); that government of laws is also to delineate the rights and responsibilities of the citizens, modifiable only (my emphasis) by law and not subject to the arbitrary discretion of the executive.(43) As to the a unitary nature of the government it is contained in the nature and effect of the constitution in that it is the supreme law of the land,(44) it cannot be modified except by the emperor,(45) and in that it has no provision for interpretation (no judicial review). There is one other aspect that Tatsuji touches on, and that is the place of Imperial Household Law. He states that it stands below the constitution and above ordinary law. In actuality, this stands beside and exempt from the constitution.(46)
One of the problems inherent in the Meiji constitution was its inability to rein in the military. This, as we know, led to the disastrous consequences of the Second World War. Ultimately it also led to the establishment of the new constitution. The political causes which precipitated this are well known and it is unnecessary for us to investigate them in the depth we gave to the conditions prior to the founding of the Meiji. However, a brief look at the conditions immediately prior to its promulgation is in order.
After the war the occupying powers were looking to set up system similar to the occupation of Germany. General Douglas MacArthur (SCAP), in charge of the occupation, was not of that same mind. Also in conflict with MacArthur was the group that wanted to see an end to the imperial house and a completely popular representative democracy. This group included the Department of State, the USSR and Australia.
Initially SCAP wanted to rule Japan through the occupation apparatus, but Yoshida Shigeru was able to convince him that it would be easier to have SCAP rule indirectly through the existing government. Then Washington issued directive 150/1 from the State War Navy Coordinating Committee (SWNCC). This called for government reform, a purge of the ruling class, the implementation of the Potsdam declaration, the removal of the emperor from his throne, the release political prisoners, the arrest of war criminals, a move to popular government and the break up of the zaibatsu (monopolistic commercial/industrial firms). Although this caused SCAP to become concerned over the stability of the country, he allowed the directive's measures to proceed while he worked to draft a new constitution.
Besides moving Japan to a representative democracy, on which point he agreed with his opponents, he had two points which he felt were paramount. First, he believed in the need to retain the emperor to preclude civil disruption and, secondly, in order to assuage the critics he had to preclude a return of Japanese militarism. For the latter he included the famous Article 9 in the constitution which renounces the use of war by Japan.
He did give the job of drafting the new constitution to the Diet, but they were unable to produce a draft that did not resemble the Meiji Constitution. Therefore, a draft was "suggested" by SCAP and was approved by the Diet in September of 1946. It was then promulgated by Emperor Hirohito in the name of the people of Japan on November 3, 1946 and went into effect on May 3, 1947. Thus, MacArthur, like the good soldier he was, stole the march on the opposition and presented the new government of Japan to the world as a fait accompli.(47)
The (MacArthur) Constitution of Japan is considered to be the supreme law of Japan with nothing above it. It provides for an extremely powerful, popularly elective, bi-cameral legislative assembly (Diet) with universal suffrage of those over 20 years of age as the electorate. The Diet is the most powerful of the three branches of Japanese government and all financial matters must pass through it. The House of Representatives is the dominant of the two houses in the Diet. The constitution eliminated the nobility and any hereditary rank or privilege. In its largest section it grants an extensive list of human rights (far more than in the U.S. constitution, for example) which are guaranteed by the constitution and unable to be abrogated except by amendment, which although simpler than under the Meiji constitution, is nevertheless extremely difficult. Moreover, the people are considered to be equal before the law. It provides for an independent judiciary with the power of judicial review. The executive power is exercised by a cabinet which is taken from the House of Representatives of the Diet and is responsible to the Diet. The cabinet is structured on the British model and the Prime Minister is the head of the majority party in the Diet. It also furnishes considerable local autonomy with local elections of governors and assemblies, however, there has been something of a re-concentration of power in Tokyo.(48)
Now we turn to the powers of the emperor. In the MacArthur constitution he is stripped of all "powers related to government." His position is spelled out as the symbol of the state and unity of the people and this position as symbol obtains from the people. His acts must be approved by the cabinet, which is not such a major change from the Meiji. His duties are mostly ceremonial and symbolic and the actual power of rule is exercised by the government with the consent of the people, who are sovereign. It was the opinion of MacArthur that keeping him eased the transition to the new state, while his changed status weakened myth and provided for the secularization of that state. State Shintoism was disestablished without upheaval due to these measures.(49)
A major provision of the new constitution is the one mentioned above which MacArthur included to outflank his critics. That is the famous Article 9. This article renounces war and the use or threat of force as a sovereign right of the nation by the Japanese government for the settlement of international disputes. In addition, it stipulates that no military or war potential will ever be developed by Japan nor will the right of belligerency of the state still be recognized. This is a wild departure from any constitution or government pronouncement from any nation on the planet. It also caused problems for the world powers and MacArthur when Japan became a battlefield of the cold war. In the intervening years the Japanese Supreme Court and MacArthur have both cavilled on this point saying that the renunciation does not pertain to legitimate self-defence. This has opened the door for some rearmament and armed forces for Japan. However, according to Matsumoto Shigeharu of the Japanese International House, most Japanese do not favor this rearmament and the majority support governments with a pacific bent for their country.(50)
The contrasts between the Meiji and MacArthur constitutions are many and profound. However, there are some areas in which they are similar. They were both handed down from on high, the Meiji by the oligarches through the emperor and the MacArthur from SCAP through the Diet and emperor. As pointed out earlier they were both precipitated by the intrusion of the outside world into Japan. Of course, there is a large obvious difference between the extent of that intrusion in the two cases. It could be said that the MacArthur constitution represented a revolution from the outside, whereas the Meiji was home grown. Ironically, the role of the emperor did not change much in a pragmatic way in the application of the two constitutions, but the theory behind the two represented a quantum change in the position of the emperor.(51) One other similarity can be seen in the phraseology that most governments use to hedge their obligations to observation of human rights. In the Meiji the hedge was clearer and subjected the rights of the individual to law and public order. In the MacArthur the qualification is a bit more subtle, but extant nevertheless in the phrase in Article 13, which states that the pursuit of life, liberty, and happiness are granted "...to the extent that it does not interfere with the public welfare."(52)
The two constitutions clash in many areas in addition to their view of the emperor. This is evident immediately from the differences in the preambles. The Meiji emphasized the divine origin of the Japanese people and unbroken lineage of the emperor, basically the kokutai, and the emperor's gift of laws to the people. While the MacArthur constitution pronounces that the people set up government through their elected legislature, renounce war as viable governmental activity and claims sovereign power for the people. The Meiji constitution reserves sovereign power to the emperor and the MacArthur constitution, which in theory was issued by Japanese people (in reality by SCAP), says "sovereign power resides with the people." According to Professor Kazuo Kawai of Ohio State University this phrase is a "... most explicit expression of the doctrine of popular sovereignty, a doctrine completely alien to Japanese thought." Meiji calls the emperor "sacred and inviolable" where MacArthur calls human rights "eternal and inviolable." In Meiji the emperor is considered to be the state and above the constitution. In MacArthur the emperor is the symbol of the state and of the unity of the people "...with whom resides sovereign power."(Chapter 1, Article 1)
In the realm of practical government, the Meiji had laws executed by ministers of state responsible to the emperor; the emperor issued legislation with Dietary consent. In theory; the House of Peers was there to protect the state and the Representatives to speak for it (notice no mention of the people); the ordinances issued by the emperor were not subject to the constitution, there was no judicial review and the courts operated in the name of the emperor. In contrast to the MacArthur, the Diet is paramount and makes the laws, acquiring its powers from the ones taken from the emperor and oligarchy; both houses of the Diet are subject to popular elections; the cabinet is responsible to the Diet and the Supreme Court is a separate branch and has the power of judicial review.
Under the Meiji constitution there were a lot of rights enumerated, but the duties of subjects over-arched those rights and they were also conditional to "public order" provisions and could be subsumed by law, decree or in emergency. In an emergency the emperor's word was law. In the MacArthur, although there is provision for emergency suspension of rights, in theory, they cannot be circumscribed by law. Additionally, they are broader and more all inclusive than previously.(53)
Whereas the Meiji constitution was drafted and ratified in secret the MacArthur was published, approved by open session of the Privy Council, passed by both houses of the Diet and promulgated by the emperor to be sure that it had substantial legal foundation.(54)
The Meiji tried to accommodate a new economic and social order into political trappings of a modern government. It sought to maintain the oligarchy by exalting the emperor. Its greatest advantage was that it was totally compatible with Japanese ideology and supported by Japanese social organization, its disadvantage was that it was authoritarian and, as mentioned, allowed the eventual military takeover. The MacArthur constitution was incredibly liberal, even though MacArthur himself was a conservative. The influences of the U.S. Constitution on MacArthur's draft are obvious. Burks equates this liberalism with the philosophy of the New Deal and holds that it is not really suitable to Japanese tradition. While this may be so, there are those that believe that MacArthur was more influenced by the roots of his own upbringing and political philosophy than by the New Deal and that he was attempting to glean the best of the American and British constitutional traditions, reconcile them with Japanese needs and improve wherever he felt he could.(55)
Be that as it may the Japanese people seem to have responded enthusiastically to their new constitution and to have ridden it to the pinnacle of world economic and political power.(56) It would appear that far from being an hindrance, Article 9 has allowed Japan to concentrate on construction while the rest of the world has focused on destruction, to Japan's great benefit and the detriment of the rest of the world, including the U.S.
(1) The full text of the Meiji Constitution (The Constitution of the Empire of Japan) can be found in Beckman, George M. The Modernization of China and Japan. NY: Harper & Row, 1962, pg 649 and Tatsuji Takeuchi. War and Diplomacy in the Japanese Empire. Garden City, NY: Doubleday, Doran & Co., Inc., 1935, pg. 477.
The full text of the MacArthur Constitution (The Constitution of Japan) can be found in Henderson, Dan Fenno. The Constitution of Japan: It's First Twenty Years: 1947-1967. Seattle: University of Washington Press, 1968, pg 301.
(2) Craig, Albert M. & Reischauer, Edwin O. Japan: Tradition and Transition. NY: Alfred A. Knopf, 1963, pp. 166-167.
(3) Beckman, George M. The Modernization of China and Japan. NY: Harper & Row, 1962, pg. 101.
Killigrew, John 3/22/95.
(4) Beckman, pp. 102-104, 107.
Killigrew, John. SUNY College at Brockport. 3/22/95.
Reischauer, Edwin O. Japan: Past and Present. NY: Alfred A. Knopf, 1946, pg. 108.
Nobutaka Ike. Japanese Politics. NY: Alfred A. Knopf, 1953, pg. 5.
(5) Beckman, pp. 110, 111.
(6) Nobutaka, pg. 18.
(7)Nobutaka, pp. 18, 20-21.
(8) Burks, Ardath W. The Government of Japan. NY: Thomas Y. Crowell Co., 1961, pp. 16-17.
(9) Craig & Reischauer, pp. 166-167.
Killigrew, John 3/24/95.
(10)Ibid.
(11)Ibid.
(12)Ibid.
(13)Beasley, W. G. The Rise of Modern Japan. NY: St. Martin's Press, 1990, pp. 72-73.
Craig & Reischauer, pp. 168-169.
(14)Ibid.
(15)Craig & Reischauer, pg. 168, 170.
Beasley, pg. 74.
Killigrew, John 3/29/95.
(16)Craig & Reischauer, pp. 168, 170.
Beasley, pg. 74.
Killigrew, John 3/29/95.
Beckman, pg. 293.
(17)Craig & Reischauer, pg. 168.
(18)Craig & Reischauer, pg. 172.
(19)Killigrew, John 3/24/95.
(20)Beckman, pg. 292.
(21)Ibid.
(22)Craig & Reischauer, pg. 172.
(23)Beasley, pg. 77.
(24)Beckman, pp. 297-298.
Craig & Reischauer, pg. 173.
(25)Beckman, pp. 297, 299-303.
Craig & Reischauer, pp. 174-175.
(26)Ibid.
(27)Ibid.
(28)Beckman, pp. 301-302.
(29)Craig & Reischauer, pg. 175.
(30)Craig & Reischauer, pg. 175.
Beckman, pg. 302.
Reischauer, pg. 124.
Beasley, pg. 77.
Burks, pg. 16.
Tatsuji Takeuchi. War and Diplomacy in the Japanese Empire. Garden City, NY: Doubleday, Doran & Co., Inc., 1935, pg. 3.
(31)Beasly, pg. 77.
(32)Beckman, pg. 302.
(33)Reischauer, pg. 124.
(34)Burks, pp. 16-18.
(35)Beasley, pp. 77-78, 80.
Beckman, pp. 302-303.
Reischauer, pp. 124-125.
Craig & Reischauer, pg. 175.
(36)Ibid.
(37)Beasley, pp. 77-78, 80, 83.
Beckman, pp. 302-303.
Reischauer, pp. 124-125.
Craig & Reischauer, pg. 175.
Tatsuji, pg. 19.
(38)Beasley, pp. 77-78, 80, 83.
Beckman, pp. 302-303.
Reischauer, pp. 124-125.
Craig & Reischauer, pp. 175-6.
(39)Beasley, pg. 80.
Beckman, pp. 303, 650.
Craig & Reischauer, pg. 175.
Meiji Constitution: Articles XXII-XXX.
(40)Beasley, pg. 80.
Craig & Reischauer, pg. 175.
(41)Reischauer, pg. 125.
Craig & Reischauer, pg. 175.
(42)I found this statement interesting since there is none in the Meiji constitution.
(43)While his contention seems to be upheld by the provisions of the constitution, there are loopholes which are big enough to sail a maru through; which gave the executive broad areas of arbitrary discretion. There is a one word comment I could apply to his statement here which has to do with bovine fertilizer.
(44)Again, a debatable assertion.
(45)Or by ignoring it.
(46)Tatsuji, pp. 3, 14.
(47)Killigrew, John. 5/1/95.
Beckman, pp. 625, 627.
Reischauer, pp. 202-203, 206.
(48)Craig & Reischauer, pp. 281-287.
Henderson, Dan Fenno. The Constitution of Japan: It's First Twenty Years: 1947-1967. Seattle: University of Washington Press, 1968, pp. 301-314.
Beckman, pp. 627-629.
Reischauer, pp. 202-203.
Burks, pp. 18-21.
Consitution of Japan: Articles 1-8.
(49)Craig & Reischauer, pp. 281-287.
Henderson, pg. 302.
Beckman, pg. 628.
Constitution of Japan: Article 9.
Burks, pg. 32.
(50)Ibid.
(51)Craig & Reischauer, pg. 281-282.
(52)Constitution of Japan: Article 13.
(53)Burks, pp. 16-20.
(54)Ibid.
(55)Ibid.
(56)Craig & Reischauer, pg. 183.