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The Commission on the Constitution and Prospects for Constitutional Change in Japan

  • Robert E. Ward


Ever since its first draft was written by a small group of Americans and presented to the Japanese Government in February, 1946, the present constitution of Japan has been a source of political controversy. Even under “normal” circumstances the enactment of a new constitution in modern democratic societies is almost certain to exhume and revivify all sorts of latent political conflicts and to add to these its own measure of new dissensions. Controversy is even more probable in the case of a constitution drafted by aliens and conquerors for a nation completely subject to their occupation and control and, in the Japanese case, the nature of the document itself still further increased this probability. The American-authored constitution of 1947 was in spirit and provisions almost a complete inversion of its predecessor, the Meiji Constitution of 1889. Where the latter did its brilliant best to protect the legal and political heartlands of the imperial system and a traditionally oligarchic and authoritarian form of government against popular encroachments, the former uniformly espoused concepts and institutions that are among the world's most democratic and progressive. It is difficult to conceive of two modern constitutions more diametrically opposed in spirit and in basic mechanics. The new constitution thus labored under the dual handicaps of alien authorship and of a radical departure from the traditionally ascendant norms and institutions of Japanese politics. It provided ample substance for bitter controversy.



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1 For English-language accounts of the manner in which this constitution was originally written and enacted, see: McNelly, Theodore, Domestic and International Influences on Constitutional Revision in Japan, 1945–1946 (Ann Arbor, University Microfilms, 1952), micro., and The Japanese Constitution: Child of the Cold War,” Political Science Quarterly, LXXIV (June, 1959), 176195; Tatsuo, Satō, “The Origin and Development of the Draft Constitution of Japan,” Contemporary Japan, XXIV, (1956), 175187 and 371–387; and Ward, Robert E., “The Origins of the Present Japanese Constitution,” The American Political Science Review, L (Dec., 1956), 9801010. The official Government Section version is set forth in GHQ, SCAP, Government Section, The Political Reorientation of Japan (Washington, D. C., 1949), I, 82118. The most detailed and authoritative account from the Japanese standpoint is contained in Tatsuo, Satō, Nihonfoku Kempō Seiritsushi (History of the Establishment of the Constitution of Japan), (Tokyo, 1962). Volume 1 covers developments to approximately the end of 1945, while Volume 2, continues the story into early February, 1946.

2 SCAP stands for Supreme Commander for the Allied Powers. The term is used to refer individually to either General MacArthur or General Ridgeway, the two occupants of this office, and collectively to the General Headquarters that they commanded. For SCAP's claims with respect to popular and parliamentary support for the constitution, see The Political Reorientation of Japan, op. cit., I, 109–111, and II, 660, 669, and 682.

3 The precise balance and shadings of opinion within the Cabinet on this subject are not clear. In general, however, the most detailed and reliable insights into official Japanese attitudes and motives with respect to the acceptance of the constitution are to be found throughout the voluminous proceedings of the subcommittee of the Japanese Government's official Commission on the Constitution that was explicitly charged with investigating the manner in which the new constitution came into being. This group spent about four years on the analysis of all available documents and interviewing the principals concerned both in Japan and abroad. The results are set forth in: Commission on the Constitution, Kempō Seitei no Keika ni kansuru Shōiinkai Gijiroku (Proceedings of the Subcommittee on the Establishment of the Constitution), (Tokyo: 1958–1961), 49 vols. Summary versions of the findings appear in the preliminary and final reports of the Commission on the Constitution. See especially Supplementary Volume No. 2 of the Final Report. Satō Tatsuo also gives an admirable account of this matter in his above-cited work in Japanese. This is based largely on the Commission's materials plus Mr. Satō's personal experience. See particularly the records of contemporary cabinet reaction by Ashida Hitoshi.

4 See Roppō Zensho, 1964 (A Compendium of the Six Codes, 1964), (Tokyo, 1964), 54.

5 The text of the final report proper is entitled Kempō Chōsakai Hōkokusho (Report of the Commission on the Constitution), (Tokyo, 1964), vi + 1,161. The body of the report is divided into four sections: 1) Establishment and Composition of the Commission; 2) Functions, Organization and Management of the Commission; 3) Research and Deliberations Conducted by the Commission; and 4) Various Viewpoints Expressed in the Commission. Included also are twenty-nine attachments and fourteen tables setting forth relevant legislation, internal administrative and procedural regulations and agreements, schedules, negotiations with the Socialist Party in regard to their participation in the Commission, changes in the membership and staff of the Commission and its subgroups, assignments of internal responsibility, and brief schedules and agenda of plenary and subcommittee schedules. There are in addition to this main volume twelve separately published supplementary volumes that together amount to an additional 4,189 pages. Most notable of these perhaps is the first: Kempō Chōsakai ni okeru Kakuiin no Iken (Opinions of Members of the Commission on the Constitution) which sets forth the viewpoints of individual members of the Commission on the problems and controversies involved in constitutional amendment. This provides an analysis of members' views classified as revisionist or antirevisionist. The final report proper, although revisionist in tendency, usually avoids the presentation of views explicitly in this light or in terms of the number of members who espoused or opposed them. Other supplementary volumes cover such matters as the final report of the subcommittee on the establishment of the constitution and similar final reports on the actual working of the various sections of the constitution, basic problems, proposals for changes in the constitution, the basic validity of the constitution, domestic public opinion with respect to constitutional amendment, and consultations with foreign specialists on the Work of the Commission. The Commission has also published an official summary of its work and findings under the title Kempō Chōsakai Hokokusho no Gaiyō (Summary of the Final Report of the Commission on the Constitution), (Tokyo, 1964), 176. A useful summary of the four sections of the Final Report has also been compiled by the Asahi newspaper and published as Part II, pp. 17–23, of its edition of July 4, 1964. The cost of the Commission's seven years of work is estimated at about ¥270,000,000 ($750,000).

6 See, for example, the specimen of Hatoyama's views quoted by Satō Isao in “Hōkokusho wa nani wo akiraka ni shita ka?” (What has the Final Report shown?”), Asahi Jānaru, VI (July 12, 1964), 13. Much of this issue is devoted to commentaries on the Final Report of the Commission.

7 For a useful insight into the attitude and arguments of the Socialist Party in this connection, see the above-cited Final Report of the Commission, pp. 954–971.

8 The 1964 issue of Kokkai Techō (Handbook of the National Diet), (Tokyo, annual), 179182, listed the factional affiliations of these thirteen within the Liberal Democratic Party as follows: Ishida Faction: 3; Kono Faction: 2; Miki-Matsumura Faction: 2; Sasshin Remmei: 2; Satō Faction: 1; Fujiyama Faction: 1; Ōno Faction: 1; and Ishii Faction: 1.

9 For an authoritative account of these troubles by a staff member responsible for drafting much of the Commission's final report, see Satō Isao, “Kempō Chōsakai no Ayumi” (“In the Steps of the Commission on the Constitution”). Jurisuto, 289 (Jan. 1, 1964), 103–113.

10 Actually the question of how many and who stood for or against particular types of constitutional change was somewhat academic by the time the final report appeared. The newspapers had long since provided quite detailed and accurate box scores for all concerned. See, for example, the Nihon Keizai Shimbun for February 7, 1964, or the Asahi for February 13, 20, 28, and March 12, 1964.

11 Some of the principle exchanges involved were: 1) Takayanagi Kenzō, “Kempō no Mondaiten ni tsuite no Iken” (“An Opinion on some Constitutional Problems”), Kempō Chōsakai Dai 114-kai Sōkai Gijiroku (Proceedings of the 114th Plenary Session of the Commission on the Constitution), (June, 1963); reprinted under the title of “Kempō ni kansuru Chikujō Ikensho” (“A Detailed Commentary on the Constitution”), in Jiyū for September, 1963, 36–97, and October, 1963, 64–91, and also in Jurisuto, 289 (January 1, 1964), 28–59. 2) Aichi Kiichi, “Kempō Mondai ni taisuru Watakushi no Taido,” (“My Position on Certain Constitutional Problems”), Toki no Katari (July, 1963), 24–30. 3) Yagi Hidetsugu and 16 other members of the Commission on the Constitution, “Kempō Kaisei no Hōkō” (“The Goals of Constitutional Revision”), (September 4, 1963), mimeo.; reprinted in Kempō Chōsakai Dai 119-kai Sōkai Gijiroku (Proceedings of the 119th Plenary Session of the Commission on the Constitution), (September 16, 1963). 4) Takayanagi Kenzō, “Kempō kaisei no hōkō ikensho to daisuru ikensho wo yonde” (“On reading the Manifesto entitled ‘The Goals of Constitutional Revision’”) Hōritsu Jihō (January 1964). 5) 29 members of the Commission on the Constitution, “Kempō Seitei no Keika ni kansuru Shōiinkai Hōkokusho no ‘Ketsuron’ ni taisuru Kyōdō Ikensho” (“A Joint Manifesto against the Conclusions of the Subcommittee Report on the Establishment of the Constitution”), Kempō Chōsakai Dai 123-kai Sōkai Gijiroku (Proceedings of the 123rd Plenary Session of the Commission on the Constitution), (March 4, 1964). 6) Takayanagi Kenzō, “Oshitsuke Kempō Ron wo hitei suru” (“A Dissent from the Imposed-Constitution Thesis”), Jiyu (May, 1964), 84–92. The statements and articles by Professor Takayanagi set forth his particular variant of the case against constitutional change, while the remainder are more or less responsive presentations of the prorevisionist case by individual members of the Commission or groups thereof.

12 The following analysis of the individual stands taken by the members of the Commission follows that of Mr. Yabe Teiji, chairman of the Drafting Committee for the Final Report. This has been summarized in the Asahi for July 4, 1964, p. 20.

13 Three were present or former professors (including Dr. Takayanagi, the Commission's chairman), two were lawyers, one a former Supreme Court justice, and one (the Commission's lone woman member) a distinguished critic and commentator.

14 See Footnote 11 (Subsection 5), for a citation to the text of this memorandum.

15 In fact most of the anti-revisionist group also accepts it as an abstract proposition. They differ, however, in their estimate of the dangers or adverse consequences attendant upon trying to put it into effect.

16 Mr. Kamikawa is a distinguished professor emeritus of international relations from Tokyo University; Mr. ŌOishi is one of Japan's outstanding authorities on constitutional law from Kyoto University; Mr. Hirose is a former Welfare Minister and a professional bureaucrat who retired after one of the most brilliant careers in the recent history of the Japanese civil service.

17 Professor Kamikawa's draft constitution—Nihonkoku Kempō Shian (A Draft of a Constitution for Japan)—has been reprinted in Kempō Chōsakai Dai 119-kai Sōkai Gijiroku (Proceedings of the 119th Plenary Session of the Committee on the Constitution), (September 16, 1963). Mr. Hirose's draft has undergone several revisions, the most recent of which may be found in his book, Kaiken e no Zenshin (Towards Constitutional Revision), (Tokyo, 1963), 72149. Professor Ōishi's draft is published in his book, Kempō Kaisei no Kompon Mondai (Basic Problems of Constitutional Revision), (Tokyo, 1962), 133151. All three drafts are also published as an appendix to Supplementary Volume No. 1 of the Commission's Final Report. See ftn. 5.

18 For the basic memorandum summarizing their views, see Footnote 11 (Subsection 3).

19 Most of the proposed changes discussed command substantial support in the Commission. Due to shadings of individual views and failure by some members to take a stand on some issues, it would be difficult and perhaps misleading to attempt to measure precisely what degree of support each proposal enjoyed within the Commission. However, those interested in the stands taken by particular members or in a rough box-score on some of the more crucial issues are referred to the appendix to the Commission's Final Report cited in Footnote 5 or to the newspaper accounts cited in Footnote 10.

20 The views and arguments of the small group of anti-revisionists are here most reluctantly sacrificed to the demands of time and space. Throughout the Commission's sessions these “seven samurai” produced some of the most informative discussions and keenest insights of all.

21 In the present writer's judgment, many of the Americans involved in the writing of the constitution were perfectly well aware of this “classic” bias at the time but felt that it was advisable to swing the pendulum too far in this direction rather than not far enough. This would allow latitude for future Japanese-inspired adjustments that might then rest content with a judicious pruning of the structure rather that a total uprooting. One imagines that these same Americans may well be surprised by the degree of sanctity and immunity to tampering that their creation has now achieved.

22 The attitude of the Socialist Party to the Final Report of the Commission on the Constitution is well exemplified in an article by Mizoguchi Kōzō, “Kempō Chōsakai no Tōshin to Goken Undō” (“The Report of the Commission on the Constitution and the Protect-the-Constitution Movement”), in Gekkan Shakaitō, 83 (May, 1964), 19–28. For the reaction of the Communist Party, see the May 1964 issue of Zenʻei, passim.

23 The five thousand-odd pages of the Final Report and its appendixes described in Footnote 5 comprise but a small fraction of the total documentation produced by the Commission. A complete list of all titles distributed outside of the Commission itself is given on pp. 1,018 to 1,041 of the Final Report. (This does not cover some items intended only for internal use.) Note that this includes 506 volumes of records of hearings alone, classified under eighteen different committees. In addition to the committee hearings there are approximately 273 other titles of research materials classified as follows (numbers in parentheses indicate the numbers of titles in the category concerned): the constitution of Japan (5), the establishment of the constitution (124), the actual workings of the constitution (114), problems with respect to the revision of the Japanese constitution (8), materials concerning public hearings and public opinion (10), materials relating to the Commission on the Constitution (3), annual reports of the Commission (7), index to research reports on the actual workings of the constitution (1), and summary of the Commission's Final Report (1).

24 Law No. 132 of July 2, 1964 provided for an increase of nineteen seats in the total membership of the lower house, from 467 to 486. Consequently, with the Thirty-First General Election—when the law is scheduled to take effect—a two-thirds majority vote in the House of Representatives will require 324 rather than 312 votes.

* The author is Professor of Political Science at the University of Michigan. He would like to express his gratitude to the Carnegie Corporation of New York for financial support in connection with the gathering of material for this article. He is also indebted to the members and staff of the Japanese Government's Commission on the Constitution (Kempō Chōsakai) for much generous assistance in the form of research materials and interviews. Professor Takayanagi Kenzō, Chairman of the Commission, and Mr. Ōtomo Ichirō, Councillor, were especially helpful. The author alone, of course, is responsible for the data and interpretations set forth.

The Commission on the Constitution and Prospects for Constitutional Change in Japan

  • Robert E. Ward


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