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Sovereignty and Democracy in the Japanese Constitution

Published online by Cambridge University Press:  02 September 2013

Kazuo Kawai
Kazuo Kawai
Affiliation:
The Ohio State University
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Extract

Some revision of the present Japanese constitution probably cannot long be put off. Often referred to as the “MacArthur Constitution,” it is open to the charge that it needs to be brought into accord with Japan's restored status of independence.

Although the immediate pressure for change is directed at the existing constitutional ban on rearmament, a more important change that can be anticipated will concern the position of the emperor in relation to the locus of sovereignty. This bears directly on the basic nature of the Japanese state, the central problem of the most bitter controversy in Japanese constitutional history. This problem, now dormant, is likely to be revived very soon, for the present constitution's treatment of the status of the emperor is highly vulnerable on substantive, procedural, and historical grounds.

Type
Research Article
Information
American Political Science Review , Volume 49 , Issue 3 , September 1955 , pp. 663 - 672
Copyright
Copyright © American Political Science Association 1955

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References

1 Preamble, The Constitution of Japan.

2 Chapter I, Article 1, The Constitution of Japan.

3 Chapter I, Article 1, The Meiji Constitution.

4 Chapter I, Article 3, The Meiji Constitution.

5 Chapter I, Article 4, The Meiji Constitution.

6 See Kawai, Kazuo, “Mokusatsu, Japan's Response to the Potsdam Declaration,” Pacific Historical Review, Vol. 19, pp. 409–14 (Nov., 1950)CrossRefGoogle Scholar.

7 Italics added. See Kawai, Kazuo, “Militarist Activity between Japan's Two Surrender Decisions,” Pacific Historical Review, Vol. 22, pp. 383–89 (Nov., 1953)CrossRefGoogle Scholar.

8 SCAP, The Political Reorientation of Japan (Washington, 1950); Appendices, p. 415Google Scholar.

9 See Byrnes, James F., Speaking Frankly (New York, 1947), pp. 206ff.Google Scholar

10 See Kawai, “Militarist Activity between Japan's Two Surrender Decisions.” This interpretation was assiduously maintained in the emperor's historic radio broadcast of August 15, 1945 announcing the surrender, in the passage: “Having been able to safeguard and maintain the structure of the Imperial State, We are always with ye, Our good and loyal subjects.”

11 Department of State, Occupation of Japan: Policy and Progress (Washington, 1946), Appendix 3, pp. 53–55Google Scholar.

12 See Wildes, Harry Emerson, Typhoon in Tokyo (New York, 1954), pp. 38–50Google Scholar, for the most revealing recent account of the drafting of the constitution.

13 SCAP, The Political Reorientation of Japan (Washington, 1950)Google Scholar, presents in two large volumes the official policy with respect to the handling of the problem of the constitution.

14 Some of the members of the Far Eastern Commission, notably the British, apparently felt that even the method which was followed did not provide for sufficient legal continuity in relation to the old constitution. See United Press dispatch from Washington in Pacific Stars and Stripes (Tokyo), August 30, 1946Google Scholar.

15 Draft Constitution of Japan, in Nippon Times (Tokyo), March 8, 1946Google Scholar. Italics added.

16 “ … kokoni kokumin shiko ishi ni sengen shi …”

17 Preamble, The Constitution of Japan. Italics added.

18 Quoted in Yokota, Kisaburo, “Sovereignty under the New Constitution,” Contemporary Japan, Vol. 16, pp. 136–37 (April-June, 1947)Google Scholar. Italics added.

19 See Quigley, Harold S., “Japan's Constitutions: 1890 and 1947,” this Review, Vol. 41, pp. 867–69 (Oct., 1947)Google Scholar.

20 For example, Ball, W. Macmahon, Japan, Enemy or Ally? (New York, 1949)Google Scholar, Chs. 3 and 6, voices the suspicion that there was a deliberate plot on the part of the Japanese leaders to thwart the Occupation.

21 Chapter I, The Meiji Constitution.

22 Chapter IV, Article 55, The Meiji Constitution.

23 Preamble, The Meiji Constitution.

24 Most of the foregoing material on Minobé and the “organ theory” is derived from the work of my colleague, Miller, Frank O., “The Constitutional Theory of Minobé Tatsukichi” (diss. in preparation, Univ. of California, Berkeley)Google Scholar.

25 See the testimony of Miyazawa, Toshiyoshi in “Nihon Hogaku no Kaiko to Tembo,” Horitsu Jiho, Vol. 20, no. 12 (Dec., 1948)Google Scholar.

26 It might be objected that the “organ theory” was not necessarily democratic and that Minobé himself was hardly a democrat by temperament. But circumstances caused the “organ theory” and Minobé to play the role of spearheads of the trend toward democracy.

27 Nippon Times (Tokyo), Oct. 16, 1945Google Scholar.

28 See, for example, the proposal of Progressive (now Democratic) party leaders that the emperor be changed from “symbol of the State” to “chief of State,” in Nippon Times, July 17, 1954.

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