We, the Japanese People: World War II and the Origins of the Japanese Constitution 0804734542, 9780804734547

This is the definitive story of how the United States attempted to turn Japan into a democratic and peace-loving nation

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We, the Japanese People: World War II and the Origins of the Japanese Constitution
 0804734542, 9780804734547

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Japanese

VOLUME TWO •

TOKYO

Japanese

World War II and the Origins of the Japanese Constitution

D A L E M. H E L L E G E R S

V O L U M E TWO •

TOKYO

Stanford University Press Stanford,

California

2001

Stanford University Press Stanford, California © 2002 Dale M. Hellegers Printed in the United States of America on acid-free, archival-quality paper. Library of Congress Cataloging-in-Publication Data Hellegers, Dale M. We, the Japanese people : World War II and the origins of the Japanese constitution / Dale M. Hellegers. p. cm. Includes bibliographical references and index. ISBN 0-8047-3454-2 i. World War, 1939-1945—Armistices. 2. World War, 1939-1945—Japan. 3. Japan— History—Allied occupation, 1945—1952. 4. Constitutions—Japan. I. Title. D8i3j3 H45 2001 940.53'i44'o952—dc2i 2001042977 Original printing 2001 Last figure below indicates year of this printing: 10 09 08 07 06 05 04 03 02 01 Designed and typeset by Princeton Editorial Associates, Inc., Scottsdale, Arizona

To the memory of my father, Lieutenant Jay C. Moss, who fought the war but never knew the peace.

CONTENTS

V O L U M E TWO •TOKYO

10. Under Siege: The Early Days of Occupation

405

11. "Dust and Ashes": The Konoe Affair

438

12. "Opaque, Bureaucratic Secretiveness": The Shidehara Government Looks at Constitutional Reform

461

13. Atomic Sunshine Boys: The Rise of the Government Section

487

14. A "Top Secret" Constitutional Convention

518

15. "For Your Convenience and Protection": Negotiating with the Japanese Government

527

Epilogue

545

APPENDIXES

APPENDIX A The Preamble

553

APPENDIX B The Emperor and Miscellaneous Affairs

557

APPENDIX c

Renunciation of War

576

APPENDIX D

Civil Rights

580

APPENDIX E The Diet

612

APPENDIX F The Executive

630

APPENDIX G The Judiciary

645

APPENDIX H

657

Public Finance vu

vm

Contents APPENDIX i

Local Government

APPENDIX j

A Comparison of the MacArthur Draft and the Japanese Government Draft of 2 March 1946

A Note on Citations and Abbreviations Notes to Volume Two Selected Bibliography Index

666

7*3

795 809

Japanese

VOLUME TWO •

TOKYO

CHAPTER 1O

Under Siege: The Early Days of Occupation

V-E DAY HAD JUST BEEN ANNOUNCED. Of the original Axis triumvirate, only Japan now remained, battered, bloody, but as yet unbeaten. No outside observer, perusing stacks of policy and operational papers mimeographed on cheap wartime newsprint, could have deduced from these texts how close to defeat the Japanese were: the progress of American soldiers in retaking enemy territory far surpassed Washington's ability to lay plans for dealing with their conquests. The upheaval in policy planning that would follow the Potsdam Declaration, two atomic bombs, and Tokyo's offer of surrender was still months away. In the spring of 1945, merely three of a projected sixty-nine civil affairs guides for Japan were completed, and students at Harvard's Civil Affairs Training School played policy games by composing handbooks for a hypothetical military government under "General MacNimitz," the coined cognomen reflecting uncertainty as to which of the two leading contenders, General Douglas MacArthur or Admiral Chester Nimitz, would get the final nod.1 Draft directives for the military government of Japan gathered dust on Pentagon desks. Nothing was set—until the Joint Chiefs of Staff (JCS) gave the nod to the invasion, code-named Operation OLYMPIC, and haste replaced inaction. Now that the home islands were to be invaded, military government would follow the tanks and bazookas. On 9 May, the JCS notified General MacArthur that he would be responsible for military government of the Japanese islands.2 A few days later, Army Chief of Staff Marshall wired MacArthur that he should designate a general to serve as his chief military government officer for Japan and send him to Washington for discussions, because "[experience in Europe clearly indicates the necessity for arriving at United States basic policy well in advance of surrender or total defeat of Japan and prior to

Volume Two • Tokyo inevitable requests for participation by other nations."3 Not long after, Brigadier General William E. Crist, then deputy commander for military government in Okinawa, was under consideration for MacArthur's chief military government officer.4 In April, Crist wrote the head of the War Department's Civil Affairs Division (CAD) some naively complaisant reports about the progress of installing military government in Okinawa. There had been an "almost complete lack of initial resistance" and "relatively light casualties among civilians"; Crist reported that American forces "have now practically completed the occupation of the northern part of the island, except for a certain amount of mopping up. .. ."5 In fact, the island would not be officially secured for two more months, and Japanese and Okinawans would still be emerging from caves well after Japan's surrender. "[N]o suicides are known to have occurred among the civilians on Okinawa," Crist wrote,6 having not an inkling that Okinawan fathers and mothers, brothers and sisters, would soon be crushing each other's brains with rocks and garden hoes, blowing themselves up with Japanese grenades, or plunging off coastal cliffs.7 The Brigadier saw the Okinawan civilians as "passive rather than fanatical," lacking that obsessive Japanese devotion to the Emperor and Shintoism and exhibiting no animosity toward Americans.8 To Crist, they were primitive rustics. In a highly developed society like Japan's, he foresaw that social dislocation would be more far-reaching. There military government would have to operate "on a disaster relief level" because of extensive destruction from bombing and massive population displacement. If there was a prompt capitulation, he thought, "we shall certainly need the governmental specialists and need them in a hurry"; but Crist discounted this possibility: his thinking was geared to setting up military government over "an actively hostile population" still smelling cordite in the air.9 Wryly named BLACKLIST, MacArthur's plan for occupying Japan was hastily cobbled together in late June, relying largely on an early draft directive drawn up by the Civil Affairs Division. Designed to handle the contingency of a sudden Japanese surrender, BLACKLIST had a target date of 15 July: the Commander in Chief, Army Forces, Pacific (CINCAFPAC) must be prepared to impose surrender terms at any time after that date using amphibious landings against anticipated moderate opposition.10 Lieutenant Colonel Andrew Goodpaster, sent out to the Pacific by War's Operations Division (OPD) on temporary duty, brought back a brief of BLACKLIST; he also brought back a litany of complaints against the Navy and the bad news that MacArthur's combat units suffered "a sizable understrength" for the planned invasion of Kyushu and that a "large proportion of officers and men who have come up from New Guinea are 'burned out' and should be replaced."11 Several items in MacArthur's plan for occupying Japan troubled the skeleton crew left behind in Washington while War's top staff attended the Potsdam Conference, so wistfully (but appropriately) code-named TERMINAL. CINCAFPAC anticipated a twelve-day delay between Japan's surrender and the beginning of his landings, a hiatus War thought too long and one that might be shortened by airlifting in advance troops. CINCAFPAC also planned on placing troops in several areas not within supporting distance of each other, and War wondered if MacArthur was paying adequate attention to measures that would ensure compliance with the terms of surrender by Japan's "undefeated, well-equipped, trained, fanatical army."12

I

The Early Days of Occupation BLACKLIST'S draft annex for military government echoed parts of SWNCC 150, a still evolving document drafted by the State-War-Navy Coordinating Committee as the basic statement of U.S. policy toward Japan, and the 30 June draft directive from CAD based upon it. BLACKLIST contemplated a largely all-American show with only limited and belated foreign participation. Military government would have three phases: an initial postsurrender year of consolidation under General MacArthur, acting on behalf of the Allied Powers; a period of approximately three years in which Japan's demilitarization and disarmament would be enforced and military government would operate under an Allied Control Commission, of which the U.S. member would act as executive in implementing policy decisions; and consummation of a peace treaty and removal of the remaining Allied garrison forces from Japan. Military government would utilize Japanese administrative machinery and Japanese officials, making them responsible for carrying out its policies and directives while nudging them "towards the development of local responsibility." BLACKLIST was vague about the authority of military government, which presumably would be covered by a future directive to MacArthur. It did provide, however, that CINCAFPAC would be military governor and would possess "supreme executive, legislative, and judicial powers over Japan proper." Regional commanders were authorized to suspend any laws or ordinances that interfered with their mission, which was still seen as a combined one of pacifying and occupying.13 TERMINAL was beginning to change that picture. As the Potsdam Declaration drastically altered SWNCC 150 and the directive for military government based upon it, so too did events at the Conference affect MacArthur's concept of his job. Although at TERMINAL the Joint Chiefs reassured Truman of the readiness of their forces to move into Japan quickly, MacArthur and Nimitz, commander of the Navy's Pacific forces (CINCPAC), jockeyed for position to be the first onto the home islands. On 25 July, General Marshall cabled MacArthur: "It appears likely that decisions may be reached in the near future on the Occupation, control and treatment of Japan after Japanese capitulation. Problems include the extent of the occupation which we need to undertake and the extent to which existing Japanese governmental ministries and organizations should and can be utilized. . . ,"14 Neither MacArthur's headquarters nor Washington had ever contemplated full direct military government of Japan—there simply were not enough trained civil affairs officers or interpreters for a job so massive. But now, with the pressure on him to move into Japan quickly, making extensive use of the Japanese government became even more attractive to MacArthur. He wired Marshall back that the limited size of his occupation force "dictates a maximum utilization of existing Japanese governmental agencies and organizations. . . . Premature dislocation of governmental machinery would involve an undesirable augmentation of forces and multiplication of the difficulties of control." In a move that made military sense (but would also strengthen his position against Nimitz), MacArthur suggested that multiple demands upon the Imperial High Command across various Asian theaters "all render essential the appointment of a single coordinating authority for occupations in Japan proper, Korea, China coast ports, and Formosa."15 By courier he sent War a copy of his latest plan for occupying Japan and parts of Korea.16

407

Volume Two • Tokyo Meanwhile, from TERMINAL, where the Potsdam Declaration had just been released and the machinery for atomic bombings set in motion, the Joint Chiefs advised both MacArthur and Nimitz that it was "now a pressing necessity" that their plans for dealing with a Japanese surrender be coordinated. If Japan did surrender, theJCS directed, "immediate naval occupation of critical parts of Japan is desirable." Moreover, the "formal surrender or enforced submission of the Japanese Government will be received jointly by General MacArthur and Admiral Nimitz," and representatives of CINCAFPAC and CINCPAC would deal jointly with Japanese Imperial Headquarters until MacArthur had actually landed in Japan and personally assumed the military governorship.17 Outraged, MacArthur moved to seize the tactical high ground. He cabled back that the Joint Chiefs' message "causes me grave concern," because it meant "the preliminary occupation of Japan is to be undertaken primarily by Naval Forces"—which the General branded "strategically wrong," "psychologically offensive," and "professionally unsound." He also balked at the idea of using airborne landing forces as involving "hazards entirely unwarranted," adding "I cannot see any reason for precipitate action in occupation. . . . Our plans must contemplate occupation with units immediately and progressively available."18 The War Department was in the dark. MacArthur's full BLACKLIST plan had not yet reached Washington, and although MacArthur's histrionics made it look as if Nimitz was trying to push a "naval occupation" of Japan, no one outside the Pacific knew what was taking place in Manila, where the Admiral's representatives were discussing occupation plans with MacArthur's staff.19 On 3 August, MacArthur wired Marshall that the talks with Nimitz revealed fundamental differences. While MacArthur agreed that "there should be no avoidable hiatus period in the display of military force between the date of enemy capitulation and the arrival of United States forces," he felt Nimitz's fleet could fill the interim by taking visible positions offshore. But there should be no "light landings," MacArthur admonished, because "sound military judgment dictates that the occupation should be effected in force in order to impose our will upon the enemy and to avoid incidents which might develop serious proportions."20 Arguing that the token forces proposed by Admiral Nimitz would not be powerful enough to counter opposition from a headstrong Japanese Army, MacArthur offered to fly into Japan on the first day of occupation and assume command.21 Thus came about MacArthur's daring flight into Atsugi Airbase on 30 August, well in advance of the bulk of his occupation troops, though not of the press corps. Impressing the Japanese was only part of its point. Beating Nimitz into Japan—and sparing himself the chagrin of having even briefly to share with his naval nemesis the authority of Supreme Commander for the Allied Powers (SCAP)—was the real objective. And to the extent that he could rely on the extant apparatus of Japanese administration to do the work of the occupation, MacArthur correctly assumed he would be able to enter Japan quickly and easily, with a small contingent of men rather than a substantial phalanx of advance forces that he lacked the shipping to transport. It made more attractive a course chosen, by default, for lack of sufficient trained occupationnaires.

The Early Days of Occupation In its penultimate version shortly before Tokyo's offer of capitulation, BLACKLIST reflected this new estimation of the value of working through the enemy. A fairly detailed blueprint for the installation of a military occupation, it assumed that Japanese authorities would relinquish all governmental power to the American commander in chief, evacuate Japanese-occupied areas, surrender war-related installations and supplies, and continue to maintain law and order. Notwithstanding that there was "reasonable probability" of a sizable active resistance within Japan proper by "suicidal elements" of the Japanese military "who will take advantage of any weakness on the part of our forces,"22 the Military Government Annex of the plan proposed to use "reliable Japanese officials and, insofar as practicable, Japanese administrative machinery" to carry out the policies of the occupation.23 Incorporating recommendations made over the past year by the State Department's Interdivisional Area Committee on the Far East, the Annex directed that all Japan's "policy-making public officials" be removed from office, that "flagrant exponents of militant nationalism and aggression" not be permitted to hold public office or any position of responsibility in the private sector, that the courts and police be purged of "undependable and undesirable elements," that the Emperor and his immediate family be removed from Tokyo under protective custody and property owned by the Imperial Household be considered public, and that Japanese diplomatic and consular officials abroad have their authority terminated and be recalled to Japan and their records and files be made available for Allied inspection.24 BLACKLIST'S plan for military government included nothing specific about democratizing the Japanese political structure, although it did state that U.S. policy was to encourage the formation of democratic labor organizations. "As soon as practicable," the plan read, "CINCAFPAC will permit freedom of speech, press and religion and (eventually) freedom of assembly. . . . " All political activities would be subject to MacArthur's approval; those "with liberal tendencies sympathetic to the objectives" of the Allies would be encouraged.25 A separate annex called for MacArthur to issue a proclamation to the Japanese people stating that the Emperor and the Imperial High Command acknowledged the defeat of Japan's armed forces and surrendered unconditionally.26 War had only a few quibbles with MacArthur's plan. CAD's Colonel Mark deWolfe Howe thought that CINCAFPAC contemplated "tighter control of echelons of government below the highest than will be desirable. ..." The Chief of the Civil Affairs Division and the Assistant Secretary of War agreed. Howe suggested more fully utilizing native administrative machinery, but he also advised scrapping some of that machinery, namely, the Privy Council and Ministries of War, the Navy, and Greater East Asia. Like the Assistant Secretary, Howe also felt that all proponents of nationalism, not merely "flagrant" ones, should be removed from office, although CAD doubted that the State Department would concur.27 Civil Affairs Division was comfortable with an even looser occupation than MacArthur's headquarters had in mind. Japan's surrender shortly made War's vision govern. To calm the pique in the Pacific over command, the Joint Chiefs made Nimitz and MacArthur jointly responsible for dealing with Imperial General Headquarters and the Japanese government, at least until MacArthur would be able to land in Japan.

409

Volume Two • Tokyo The General was also given responsibility for executing the terms of surrender in Korea, an area almost entirely overlooked in planning for military government.28 MacArthur and Nimitz were still squabbling over the details when Japan, bombed and beaten, offered to surrender.

Negotiating a Surrender and Revising BLACKLIST Within days Prime Minister Suzuki Kantaro was out, and the Emperor asked Prince Higashikuni Naruhiko, a general in the Japanese army, to form a new Cabinet to effect the surrender. Under pressure from SCAP to lose no time in sending representatives to Manila to negotiate the details of surrender, Higashikuni dispatched a delegation under the Vice Chief of the Army General Staff, Lieutenant General Kawabe Torashiro. Troubled when the delegates did not show up on the appointed day, MacArthur remarked that "'if they did not arrive tomorrow, we might have to go after them.'" Japan's delay in starting surrender negotiations was playing into Soviet and British hands, he feared, permitting the Soviet Union to refuse to stop fighting in Manchuria and Britain to move back into Hong Kong in force, "'thus giving any other power a precedent for taking aggressive action against almost any other weaker nation.'"29 On 19 August, at MacArthur's headquarters Kawabe and the other Japanese emissaries reported that their people were wholly unprepared for defeat, and they feared firefights unless they were given forty days to clear the Kanto Plain of "[h]ot heads at home."30 To avoid incidents, Japanese forces on the home islands would be demobilized and disarmed by Japanese; American troops would move into areas only after they had been cleared.31 General Robert Eichelberger, whose Eighth Army would be occupying the Kanto region, delivered his assessment of what the Americans would find in metropolitan Tokyo: "I look forward to a city considerably devastated by war with the remaining population under poor control, the public parks filled with homeless, and all suburban areas jammed with refugees. It may well be that the utilities will be out of commission and the remaining people in a nasty mood." Eichelberger recommended that advance echelons of MacArthur's headquarters stay out of Tokyo until the situation clarified and sufficient American troops were available to police the city.32 Japanese emissaries in Manila "were not prepared to discuss the surrender in detail but were under the impression their presence was merely to arrange an armistice." Their attitude, Eichelberger noted in his diary, "is definitely not one of a defeated nation": they "regard the defeat as a setback and nothing more."33 Back in Tokyo, the new Prime Minister moved into his official residence, a gloomy building of few windows whose interior was rendered even more oppressive by fire damage and blackout curtains. From his balcony, Higashikuni could survey the mansion's blackened gardens and the brick, stone, and concrete shells of surrounding buildings. Stepping outside for a breath of air or a glimpse of sky, he would see the charred and rust-colored ruins of war; when he could no longer bear "this melancholy landscape," the Prime Minister would retreat inside. While his emissaries were arranging surrender in Manila, he squelched an attempted uprising by a group of junior

L

The Early Days of Occupation Army officers who planned to occupy the Imperial Palace. Their scheme, he told them, contravened the Emperor's desire that the Potsdam Declaration be accepted and Japan's occupation effected without bloodshed. When the blackout ended in Tokyo on 20 August, Higashikuni was relieved: "It made me feel the war finally had ended. You felt as if the world was gradually brightening up." But when Kawabe's return was delayed, apprehensiveness returned: perhaps die-hards in the Air Forces had fired upon the surrender mission. Relief flooded back when Kawabe returned safely to report that the surrender terms were not as bad as feared and that the attitude of the victors, at least of the Americans, portended good treatment.34 During surrender negotiations at MacArthur's Manila headquarters, the concept of operations described in BLACKLIST "materially changed."35 For lack of sufficient trained personnel, MacArthur already had planned for an occupation that relied heavily on the Japanese bureaucracy; now he would rely on it entirely. His new plan for military government stipulated that the Supreme Commander for the Allied Powers would "exercise control over Japan and the Japanese, to the greatest practicable extent, through the Emperor and the various instrumentalities of the Japanese Imperial Government which prove suitable for this purpose." SCAP would "issue all necessary instructions to the Japanese Emperor or to the Imperial Government and every opportunity will be given the Government and the Japanese people to carry out such instructions without further compulsion."36 Instead of organizing and supplying relief to a dislocated society, as Crist envisioned early on, the occupation forces would serve as an agency to secure Japanese compliance with directives from SCAP. Gone was all talk of replacing officials, purging the courts and police, taking the Emperor into protective custody, or treating Imperial properties as public. Gone, too, were instructions to the occupation forces not to express their views publicly on the future of the Emperor or the Throne. The revised Military Government Annex was a spare document. A major purpose of military government, it said simply, was to advance the postwar objectives of the Allies, which included abolishing Japanese militarism and militant nationalism; encouraging "liberal tendencies and processes such as freedom of religion, press, speech and assembly"; ensuring that Japan "will not again become a menace to the peace and security of the world"; and fostering "the eventual emergence of a government which will respect the rights of other nations and Japan's international obligations." The Japanese economy would be "controlled only to the extent necessary" to achieve Allied objectives, meet the needs of occupying forces, and prevent disease and starvation. Japanese civilians would "be completely free from all unwarranted interference with their individual liberty and property rights."37 Someone in MacArthur's headquarters had decided that earlier drafts were far too specific when it came to telling what the occupation was going to do to Japan. MacArthur's strategy now was to play his cards close, at least early on. He was not about to issue fully articulated instructions that would give the Japanese a foretaste of what was to come. Instead of including spliced bits of JCS directives and State Department policy papers into his military government plan, as had been done earlier, the new Military Government Annex simply alluded to the Potsdam Declaration and the terms of surrender. When the War Department sent him a draft of the proposed Basic Ini-

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Volume Two • Tokyo tial Post-Surrender Directive, the Supreme Commander voiced his "gravest concern" with this "rigid and stringent directive," which went into "the most minute detail [s] of execution," depriving him of a field commander's right to read local conditions and exercise his judgment accordingly.38 There was "no immediate urgency" for accomplishing any of the Directive's requirements, the Joint Chiefs calmly wired back: enforcement could wait until MacArthur had "satisfactorily established control over the Japanese Government. . . ."39

MacArthur's Uncertain Authority "It is contemplated that the occupation of Japan will take place without violence and the Japanese government will continue to function," read the intelligence plan for the occupation of Japan prepared by the G-2 for the Sixth Army, which was scheduled to occupy Kyushu and western Honshu. Nonetheless, there were "certain conditions peculiar to Japan" that might interfere with a peaceful occupation and planned utilization of the Japanese government, from frenzied "Japanese dislike of Occidentals" to the untested "practical influence" of the Emperor's prestige." The occupying forces should hope all would go peacefully, the paper cautioned, but assume that "active post-surrender resistance of considerable proportions" was possible, "particularly by suicidal elements of the armed forces and fanatical patriotic groups."40 Paranoia is an occupational hazard of G-2S, so a discount factor must be applied here. Still, the type of occupation being attempted was unique, and for staff used to doing things a certain way, according to certain procedures, it posed novel problems. Classic military government starts out on the periphery and moves inward; it begins decentralized and ends up more or less centralized once all enemy territory has been pacified. Training for classic military government and civil affairs equips officers to deal with decentralization and chaos; it does not prepare them to face a fully functional, intact, highly centralized government manned by their former enemies. Guidelines were nonexistent, noted one officer: "There were the standard military government manuals which said, in effect, 'Bury the dead horses. Appoint somebody as police chief and somebody as mayor, and try to get a good public health officer. Then you're on your own!'"41 Surrender, although welcome, brought torpor— and indecision. A "sense of letdown fueled the Occupation," as one officer put it.42 "A little more order is coming at headquarters but there is so much inertia everywhere," wrote another officer responsible for getting Tokyo ready to receive MacArthur and his staff. "Everyone can tell me why things can't be done and what is wrong with my ideas but not a single suggestion is forthcoming."43 Nor did any of MacArthur's planning adequately prepare him for the scope of his unprecedented authority as Supreme Commander for the Allied Powers. Or the extent to which it might be contested by Japan. Even before MacArthur set foot on Japanese soil, his authority to impose certain requirements upon Japan was being questioned by the Japanese government, and MacArthur had to appeal to Washington for an elucidation of his powers, as we saw in Chapter 6. Although President Truman made it clear that the Potsdam Declaration and the terms of surrender constituted no contract with Japan and that MacArthur's authority over the Emperor and the Japa-

The Early Days of Occupation nese government was supreme and not subject to "any question on the part of the Japanese as to its scope,"44 the General still seemed to entertain doubts. His faltering in the face of Tokyo's refusal to turn over Japanese diplomatic properties to the Allies made War apprehensive that the Supreme Commander suffered from "a possible basic misconception of his powers and authority."45 For the first few months of Occupation, the Supreme Commander would not be the American caesar he later became. In addition to putting his own inhibitory interpretation upon the Potsdam Declaration, MacArthur stepped beyond the bounds of his responsibilities to assume the role of counselor to those crafting policy for military government: he opined to War that its draft of a proposed basic directive on the Occupation "appears to me to go in certain respects far beyond the principles set forth in the surrender terms and the Potsdam Declaration."46 Even while believing (or claiming to believe) that he was restricted by the terms set at Potsdam, MacArthur frequently rebelled against directives from the JCS and sought discretionary authority, regarding matters of timing at first and matters of substance later.47 Fearful of unbalancing a control he still thought precarious, he asked the JCS for the right to time his arrests of war crimes suspects to avoid "serious disturbance of important programs."48 There were difficulties in getting sufficient American troops into Japan quickly enough to provide even a semblance of control. Shipping scheduled for Operation OLYMPIC was still in West Coast ports or scattered across the Pacific; Allied aerial drops had effectively sealed many Japanese ports with pressure mines that could not be swept and that interfered with sweeping operations for regular mines.49 Yet it is hard to know whether MacArthur was truly apprehensive for the safety of his men or whether he was portraying himself as such to get Washington to back away from ordering him to do distasteful things. His sanguine statements about the duration of the occupation and his ability swiftly to reduce—and send home—American occupation troops belied the words of anxiety liberally sprinkled throughout his cables to the Pentagon. MacArthur's dubious grasp of his own authority may also have affected his penchant for letting the Japanese plan and execute just about everything. When applied to constitutional reform, this approach came perilously close to ruining his tenure as Supreme Commander. But it was in evidence from the start. Thus, his initial (and unsuccessful) approach to dissolving Japanese cartels (zaibatsu) was a "consent decree," as McCloy called it, "to be carried out under the supervision of SCAP but [with] work to be done by Japanese Government officials as is the case of virtually all orders issued by SCAP," because the Supreme Commander lacked personnel to do the job.50 The State Department fired back that MacArthur should take no action on the zaibatsu until he received further advice, as what action to take was a complex problem that was under discussion in Washington that very week. State wanted SCAP to order dissolution and make no commitments to the zaibatsu; instead, MacArthur was approaching the problem as if there were a contractual relationship between SCAP and the Japanese government.51 Staff reflected his diffidence. Nearly two months into the Occupation, polite Americans at SCAP General Headquarters (GHQ) sometimes had to be reminded that in dealing with the Japanese government they were to order compliance, not request it.

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Volume Two • Tokyo

Missing Maps and Fool's Errands If MacArthur's fragile physical hold on Japan doubled his doubts about the extent of his legal authority, lack of policy guidance from Washington trebled them. Shortly before Japan's surrender, most of the topics pertaining to Asia on the agenda of the State-War-Navy Coordinating Committee were still awaiting presentation of initial draft papers by the State Department: not one of several dozen papers on the Far East had yet been finalized.52 By the start of the Occupation of Japan, SWNCC's record had not improved significantly. Yet it was not merely that State, War, and Navy were slow to process the papers that clarified and embellished the sketchy United States Initial Post-Surrender Policy and the draft directive based upon it; the information pipeline was so dry that MacArthur's headquarters learned about what was going on in the Allied Occupation of Germany largely through the newspapers. As of October 1945, SCAP had received copies of U.S. military government directives and publications issued in Germany only through the beginning of July.53 All of this was material useful for divining the direction of American policy, but MacArthur did not enjoy its benefit. Lack of policy details threatened SCAP with mortification. Under the terms of the Potsdam Declaration, the Japanese government was supposed to remove obstacles to democratic tendencies. But what constituted an obstacle? Or a democratic tendency? If the Japanese interpreted this dictum as permitting a return to the status quo of the 19208, should—or could—SCAP find that acceptable to the U.S. government or to the other Allied powers? Believing they had been given a mission but no map, MacArthur's men felt that Washington diplomats were up to their "old tricks" of leaving points "sufficiently obscure that it was impossible to know what was wanted. Then if anything went wrong, the State Department could say their instructions weren't carried out."54 CINCAFPAC headquarters saw this as bureaucratic gamesmanship designed, as always, to put MacArthur at a perilous disadvantage, especially when the absence of guidance was followed by the pressure to do more—arrest more war criminals, democratize the Japanese governmental system, dissolve Japan's oligopolies, and so on. If the fighting had ended too quickly for Washington's policy crafters, they might bury their lack of readiness under blame for SCAP's incompetence. Disliking the whole novel idea that a war's losers could now be tried for instigating war and unclear about what was expected of him, the Supreme Commander thought of stealing a march on Washington by indicting General Tqjo and members of his cabinet simply for murder.55 The war crimes directives to the Supreme Commander were couched "in such broad and general terms," complained MacArthur's chief of staff, "that he is unable to determine those individuals that the American Government or the Allied Governments wish to prosecute." Being pushed by Washington to make more arrests, but with "no idea" who he was supposed to arrest or why, MacArthur turned to his Political Adviser for help.56 His purpose was not simply to obtain definitive guidance: if SCAP faced brickbats, he wanted to be sure the State Department was also in the line of fire. Nowhere was this truer than in the misbegotten occupation of Korea, an afterthought in which State's interest was much keener than the U.S. Army's. Fearful that vital American interests would be imperiled if Soviet thrall replaced Japanese colo-

The Early Days of Occupation nialism, State planned an international trusteeship for Korea, an ideal War lacked sufficient forces to secure. Instead, at an all-night session of the State-War-Navy Coordinating Committee, OPD representatives hit upon the thirty-eighth parallel as a feasible dividing line between Soviet and American zones of military occupation. When the Soviets agreed, no one was more surprised than the Americans who had proposed it, for the parallel was farther north than the sparse forces of the Twentyfourth Corps under Lieutenant General John R. Hodge could possibly reach.57 As the historian Bruce Cumings notes, "Korea got the occupation designed for Japan," ultimately even down to military government teams trained in the Japanese language and culture.58 Absent policy guidance from Washington, Hodge initially planned to apply MacArthur's directive for military government in Japan to Korea: as the Supreme Commander was utilizing the Japanese administrative apparatus in the homeland, so Hodge would utilize it in Korea.59 Without military government officers trained for Korea and with no Korean government in exile capable of taking over from the Japanese, there was litde else that MacArthur or his field commander could do. But this was the apparatus of a colonial government much resented by the Korean people, and its retention signaled that Koreans were to be treated not as newly liberated friends, but as enemies. To say, as one SWNCC memorandum did, that the decision to retain the Japanese Governor-General and his staff of Japanese officials and Korean collaborationists had an "unfortunate effect" on America's position in Korea was to understate the obvious.60 By using Japanese as his main sources of information and tolerating "a distressing show of camaraderie between American and Japanese officers," by instituting a curfew for the restive natives, and by being quoted in the Seoul press as saying that "'Koreans are the same breed of cats as the Japanese,'" the blunt and dictatorial Hodge only worsened the enmity developing between his forces and the people he was supposed to be leading to freedom.61 Both MacArthur and the State Department promptly ordered him to replace all Japanese officials. Hodge complied, meanwhile remonstrating that this reversal might lead to chaos.62 The debacle made both MacArthur and Hodge look inept and ignorant of American postwar policy. The earliest dispatch from State's acting Political Adviser in Korea, Merrill Benninghoff, noted that since the Japanese surrender, the Koreans seemed to have gone on permanent holiday; no one was working, and wages and prices were skyrocketing. From up north in the Soviet zone, there were "constant reports of indiscriminate rape, pillage and looting." Agitators were attempting to bring chaos to the U.S. occupation zone in an effort to turn the Koreans against America.63 Hodge and his Political Adviser recommended repatriating a group of Koreans then living in exile in Chungking to create a provisional government that could function under Allied sponsorship; but State, still wedded to the idea of establishing an international trusteeship over Korea, resisted. Hodge and MacArthur felt they had been given a fool's mandate: dividing Korea at the thirty-eighth parallel, even as a temporary expedient for effecting the surrender of Japanese forces, had created distrust of Allied intentions among the Koreans, and continued talk of a trusteeship only deepened the offense. The Korean people wanted independence, and wanted it now. Washington, Hodge's acting Political Adviser implied, was ignorant of history: Japan's rule over Korea was but a thirty-five-year blip

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Volume Two • Tokyo in the history of an otherwise proudly independent people.64 Worse, splitting the country in two at the thirty-eighth parallel called up memories of a tentative agreement reached between Russia and Japan early in the century to divide Korea between themselves along precisely the same boundary.65 Ordered to establish liaison with local Soviet commanders and work out problems between the two zones, Hodge tried and failed. At first contact, the Soviet commander entertained Hodge's officers, but nothing of substance came of it.66 Later, Hodge's representatives (and newsmen) were refused entry to the Soviet zone. MacArthur concluded that there was "very little real prospect" that Hodge would achieve any comprehensive plan for cooperation with the Soviet command in Korea. "The basic difficulty is not a question of expedient but of fundamental principle," he cabled War. "Russia is determined to throw her full power and influence upon the establishment of Communism throughout Korea. . . . She is utterly opposed to the Democratic concept and this clash in ideology cannot be composed by local military commanders in the field."67 Meanwhile, as refugees from the North, including fleeingjapanese, flowed south, the American zone ended up with three-quarters of the Korean population. But it was heavily dependent on the north for its electrical power and coal, and these were not flowing south as winter approached. Amid reports that the Soviets were dismantling generating plants along the Yalu River, the source of approximately 50 percent of the South's power, the border between the two zones was effectively closed, affecting railroad traffic, communications, and coastal shipping.68 Living conditions in the South grew worse; unrest simply grew, to the point where being pro-American was considered collaborating with the enemy by many Koreans. "As 1945 ended," Cumings concludes, "the Americans in the south blamed the Russians for their predicament, but they really had no one to blame but themselves."69 Hodge persisted in believing that the Korean People's Republic, a leftist organization that had earned recognition in the North and had a strong following in the South, was a marionette controlled by Moscow, contrary to evidence available. Thus he ruled out the one native organization that stood a chance of maintaining order and reforming Korea, instead allying himself with Korean plutocrats and collaborators who saw their future in preserving status and authority garnered under their former colonial masters. A steady stream of Japanese and Korean officials ousted from the North reinforced the lesson that salvation lay in forestalling reform.70 Their intelligence, refracted through Hodge's prejudices, reached Tokyo and Washington as gross distortions and simplifications of what was happening in the two Koreas. Hodge complained that the Soviets had closed the border; he did not mention that his own forces had set up roadblocks on their side four days after arrival in an effort to prevent infiltration from the North.71 Hodge clamored that the Red Army was depriving his zone of electricity and badly needed raw materials; he did not mention that his disastrous introduction of a free market in rice had destroyed a bumper harvest, making it impossible for his sector to supply grain the Soviets had counted on to feed the North and bringing the threat of starvation to the customarily rice-rich South.72 As Cumings observes: "A reading of the record of various Russian-American disputes and alleged violations by each side in these months suggests a fairly equal dis-

The Early Days of Occupation tribution of hostility and compatibility, provocation and cooperation, trust and distrust."73 Washington, experienced in dealing with the Soviets, could apply discount factors to much of what Hodge and his advisers reported; Tokyo could not. Loose Ends and Vanishing Personnel One of the loosest ends of these early weeks was the extent to which MacArthur was engaged in his new job. His mind often seemed elsewhere—dwelling on Nimitz's unsuccessful attempts to beat him into Japan, imagining Truman was using Undersecretary of State Dean Acheson to attack him, complaining that the New York Herald Tribune was hostile to him "for some reason which he never understood," raging against the Soviet Union.74 In early 1945, MacArthur had sought to convince Washington that Soviet entry into the war was a necessary prerequisite to any invasion of Japan; months later he had decided that self-interest ensured Soviet participation. Immediately after the atomic bomb hit Hiroshima, the betting was on in his Manila headquarters that Moscow would advance its declaration of war out of fear she might miss being "in on the kill after all."75 Early in the Occupation, "it was generally conceded at the highest level at GHQ that the Japanese would have surrendered in another six weeks or so, even without the use of the atomic bomb." It was also believed that "Russia had definite plans to keep right on advancing in eastern Asia once she had decided to declare war on Japan." Hastening Japan's surrender was only one of two beneficial effects of using atomic bombs, MacArthur and staff concluded; the second, and possibly more important, was forcing Russia to reconsider her ambitions in Asia.76 MacArthur's hatred of the Soviets seemed almost visceral; yet it was perhaps no worse than his antipathy toward any colonial or neocolonial bully. The head of the Soviet military mission to Tokyo, Lieutenant General Kuzma Derevyanko, was indeed the butt of irksome GHQ pranks and slights, as MacArthur biographer D. Clayton James shows.77 But that may have been less because he was Russian than because he was an intrusive foreign presence and an intolerable reminder that the Supreme Commander did not have an entirely free hand in Japan. Even when headquartered in Australia and heavily dependent upon his hosts, MacArthur had not integrated his headquarters staff with Dominion officers; there was no reason to suspect that he would respond well to efforts to make the Occupation of Japan truly multinational. On 19 October, Major General Clovis E. Byers, Chief of Staff for the Eighth Army, found MacArthur "on a high," rejoicing, "'[T]he Russian-backed communist war against me has made me. I'd like to pin a medal on their tails.'"78 But that feeling of being constantly under fire was never far from the surface. '"Don't think for a minute that I will quit now,'" he told Byers and General Eichelberger. "'At one time I might have done so but the President, the State Department and Marshall (GCM) have all been attacking me.... I do not intend to quit on this job. I can do it. I know I can succeed in it and I do not propose to be run out by anybody.'"79 A close Roosevelt adviser who had met with MacArthur earlier in the year made a lay diagnosis of "an acute persecution complex at work."80 The end of the war had not changed the General. Whatever transpired in Washington or abroad, seen through the prism of MacArthur's narcissism, became personalized, usually as a threat.

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Volume Two • Tokyo Talk of MacArthur's going home for a triumphal visit figured strongly through the first month of occupation. The Supreme Commander coyly kept his staff guessing whether he would accept an invitation to address Congress and whether any of them would be invited to accompany him.81 His own presidential aspirations still closely guarded, MacArthur speculated freely (and with jealousy oozing from every pore) on the ambitions of others, especially General Dwight D. Eisenhower, a likely replacement for Marshall as Army Chief of Staff. At first, MacArthur believed Eisenhower would never get the nod from Truman because he thought the President too envious of Ike's popularity at home.82 That judgment proved wrong, to MacArthur's chagrin. When the new Army Chief, his one-time subordinate in the Philippines, offered the demanding post of Deputy Chief of Staff to an AFPAC field commander who had won many a victory for MacArthur in the Pacific, the Supreme Commander restrained the officer from accepting the plum by threatening to put his men under a despised rival.83 With scarcely less charity, he kept his staff up in the air about rewards for faithful wartime service. Trying to ferret out what was holding up his Distinguished Service Cross, General Robert Eichelberger heard conflicting stories: he wanted to put the blame on MacArthur's Chief of Staff, General Richard K. Sutherland, but he had to acknowledge that the obstacle was probably MacArthur himself.84 "Basically I think SCAP likes me and respects me," Eichelberger wrote his wife, "but of course again I am the only person in the field that could take his place. Therefore you will find him reluctant to pass out decorations and promotions just as he was reluctant to do so on the battlefield. . . . From time to time he may have better reactions and more generous ones but basically he has a tremendous defensive mechanism."85 The chaos of America's postwar demobilization added to morale problems among combat troops now ready to trade in their rifles and fatigues for cars, suits, and jobs where no one shot at them. By mid-September, the U.S. Army was discharging over 13,500 men a day and expected to turn six million soldiers back into civilians by i July.86 MacArthur's headquarters had no idea how many men it would be losing, but everyone knew the pressure to bring the boys home would be intense. No sooner had the Army defended the equity of its point system before the House than it had to do the same thing before Senators "popping off about army derelictions and delays in the demobilization program."87 One officer at SCAP Headquarters noted that if the number of points required to rotate home were lowered by the Army—as experience suggested it would be—his department would lose 75 percent of its men one month into the Occupation.88 Even with the men they had, most staff sections were severely short of personnel, and congressional pressure to rush men home regardless of the situation in Japan was hurting morale.89 At the start of the Occupation, SCAP's Military Government Section estimated that it needed fifty officers and fifty enlisted men for its advance echelon in Yokohama. It had sixteen officers and eight enlisted men.90 Additional personnel sometimes came—but their equipment did not. SCAP's war crimes unit received twenty-four enlisted men as clerks, but had only six typewriters for processing mountains of legal paperwork. It mattered little: most of their newly minted clerk-typists could not type.91 Civilian specialists and replacements for troops eager to go home

The Early Days of Occupation were slow to arrive. As of late September 1945, one section was still awaiting assignment of ten civilians requested in November 1944, nearly a year earlier.92 The Allied Translator and Interpreter Section, which supplied GHQ with trustworthy linguists, was losing up to two hundred people monthly; trained replacements would not be available until the summer of 1946.93 Acute personnel shortages created bitterness between Tokyo and Washington. A War Department officer on temporary duty with MacArthur's headquarters encountered resentment "for what they feel is our undue delay in getting people off to them by the next ATC [Allied Transport Command] plane. It will require tact, patience, and missionary work to make them realize some of the difficulties we experience in securing the caliber people they need and must have in order to do the job right. . . . "94 Wrote one State Department officer newly posted to Tokyo: "'It is simply pathetic how few people there are here who know Japan or who have had any experience here. I am appalled and astounded at the problems and the lack of qualified people."95 By transferring most of his initial contingent of military government officers to Korea to cope with a culture and language in which they had received no training, MacArthur probably multiplied his problems in dealing with the Japanese government. Officers untrained for anything except combat began the long process of learning something about the areas they were supposed to superintend—how Japanese courts functioned, how the political parties and governmental system worked, and so on—only to be shipped back home after a month and replaced by others who had to start from scratch. The Short, Unhappy Life of the Military Government Section When asked to name a chief military government officer back in the spring of 1945, MacArthur declined. Of the three candidates War proffered, he selected Brigadier General William E. Crist, a tall, good-looking former Chinese language officer who had worked in the Military Intelligence Division in Washington, had served as General Deane's aide for the ill-fated U.S. Military Mission to Moscow, and was deputy commander of military government in Okinawa, which was under Nimitz's jurisdiction, not MacArthur's. At the time of Grist's selection, military government was still supposed to be set up in the wake of invasion, and Okinawa was the closest analogue to Kyushu that MacArthur was likely to find. MacArthur had not been to Okinawa; he neither knew, nor perhaps even cared, how good Crist had been at his job. As of early July, the War Department had done no planning in detail for the organization of military government in Japan. Arriving in Washington, Crist galvanized the work of War's Civil Affairs Division on a basic directive to MacArthur and unsuccessfully attempted to recruit Joseph Grew as political adviser to the occupation of Japan.96 CAD wanted the General to remain in Washington at least until 12 August, but on 8 August, two days after the Hiroshima bombing, MacArthur cabled that Crist was urgently needed at his Manila headquarters.97 Just three days earlier, the Military Government Section had been set up in Manila under the temporary command of Lieutenant Colonel Carl E. Erickson, a former Minnesota lawyer and state legislator. Crist, then in Europe touring occupied Germany, rushed back to the Pacific, arriving at Manila on 17 August. "[H]ow fast he is moving," wrote one GHQ

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Volume Two • Tokyo officer in admiration of Grist's energy.98 Crist might as well have rushed into a pride of hungry lions. Reserved, unaggressive, and lacking the skills of a political in-fighter, he did not last long." The records of the earliest days of the occupation are fragmentary, making it difficult to reconstruct the reasons for Grist's banishment from favor. His personality was no ally. Even less helpful were those who surrounded MacArthur and feared any interference in their relationship to a man most viewed as God's closest rival. There is probably no way Crist could have survived the withering contempt and obstructionism of MacArthur's palace guard. By protecting the Supreme Commander, they protected their own power. Under standard Army procedure for military government, Grist's Military Government Section (MGS) should have been set up as a general staff section, G~5, that would have stood as coequal to the other four general staff sections, G-i through G-4-100 Instead, it was established as a special staff section: that made its every action subject to scrutiny by whatever general staff section felt like claiming a proprietary interest in what Crist was planning. Their permission became necessary, even for the routine sending of a memorandum to MacArthur's Chief of Staff, making independence impossible for Crist and his men. Worse, the Military Government Section, with its numerous functional branches and technical subdivisions that mirrored all the responsibilities of civil government, stood to grow by leaps. As Japan came under secure Allied control, military government would only burgeon, whereas the general staff sections would watch their responsibilities and power dwindle. Colonels and generals who had seen MacArthur through much of the war would start losing their jobs; civilians would pour in from the States to take over nonmilitary tasks that grew daily in importance. The Chief of the MGS stood to become an increasingly powerful man, gatekeeper for all decisions regarding the governing of Japan. Whether on his own or urged by other MacArthur cronies, Chief of Staff General Richard Sutherland realized that by getting rid of the gatekeeper and by breaking up his section into small technical units, each responsible for a different aspect of the surrender terms imposed upon Japan, he could make himself, in effect, chief military government officer for Japan, because he would be the one controlling the flow of paper to MacArthur. It may also have occurred to Sutherland (or his boss) that by creating multiple specialized sections Headquarters could reward a lot of MacArthur stalwarts with chieftainships.101 Crist made it easy for them. Scheduled to make a radio broadcast from Manila on the structure of the occupation, he reportedly dithered so much over word choice that Sutherland finally canceled the entire project.102 Affable enough, but excluded from MacArthur's inner circle, and a bit of a loner who lacked "the knack somehow or other of bringing his staff into his thoughts,"103 Crist became "a stickler for spending all one's waking hours, except for meals, at the job."104 It was a recipe for burnout, especially as more and more MGS decisions and recommendations were second-guessed by the AFPAC general staff and bucked back to the Section. When the nature of Japan's sudden surrender altered everything, necessitating neither a combat invasion nor the type of semidirect military government for which AFPAC had planned, Crist and his staff labored to rewrite the instructions to the American tactical forces who would be moving into Japan in a matter of days. CINCAFPAC's Military Government

The Early Days of Occupation Annex, published on 28 August, took note that the Occupation would operate entirely through the Japanese government.105 Using native machinery, however, did not necessarily mean retaining the same officials who had operated it throughout the war. There was considerable debate within MGS over how many of these should be purged from office. An officer helping Crist in Manila knew from hard experience with the military government of Sicily that "you should fire all of the civil officials, particularly the policy-making ones, otherwise you're not going to be able to do what you want. They'll fight you."106 Ousting the top layer of Japanese officialdom agreed with everything military government officers had learned in school and on the job. But now the rules were being changed. Crist told his staff that initially '"our function is going to be advisory. . . . We want to avoid disrupting Japan too much.'"107 Military Government Section worked from 8:30 A.M. to 11:30 P.M. trying to accommodate the changed situation, but the Supreme Commander's cautious policy of centering responsibility "only at the very top," and the inferior position accorded MGS as a special staff section, meant that most of its plans, recommendations, and proposed instructions were being constantly rewritten as the various Gs interjected their own ideas.108 Military Government Section had prepared proclamations from the Throne in Japanese and English for the advancing troops to post. "'I will not sign them. Only the Emperor can sign those,'" MacArthur said as he rejected the documents a day or two before the formal surrender ceremony.109 The proclamations were recast as addresses to the Japanese people from the Supreme Commander. These, too, ended up in the scrap heap when Foreign Minister Shigemitsu Mamoru persuaded SCAP to let the Japanese government issue its own proclamations. MacArthur, thinking his own direct address might undercut the authority of the Throne, went along.110 In addition, one proclamation provided for Military Courts of Occupation, a proposal that seemed to reverse the policy of working through the Japanese government and that GHQ feared might absolve that government of responsibility for protecting American GIs as well as upholding law and order.111 It became increasingly clear that Crist would never be given a chance to prove himself. "Military Government Section did not move by giant strides during its first two weeks in Japan. . . . We were inching along for a number of reasons—none of which seemed to make the slow days go faster for us in Yokohama . . . ," wrote journalist Richard Tregaskis, who was following the installation of the occupation for readers of the Saturday Evening Post.nz At first Tregaskis attributed the laggardly pace to Headquarters' caution about moving too fast before the forces of occupation had consolidated their control over Japan: "until we reached full strength, we could afford to play with the soft pedal." But Military Government Section never shifted gears. Operating "principally as a checking and advisory agency," lacking authority to initiate anything, and hamstrung by the realization that "all their decisions have to be approved and acted upon by higher headquarters," MGS found itself facing Japanese bureaucrats who tenaciously bargained for every concession.113 There were forewarnings of trouble. On i September, Crist sought permission to inaugurate a series of publications, including directives to military government officers in the field, bulletins on matters of interest, a gazette giving official texts of all

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Volume Two • Tokyo proclamations and orders, and administrative memoranda.114 One week later, the Deputy Chief of Staff curtly refused: "I believe such publications are unnecessary in view of current conception of administration of MG activities."115 The staff was flummoxed—what did this mean, and why deny the field commanders and their military government units the benefit of the information MGS was starting to amass?116 Isolated from field units, from other Headquarters sections, and even from the Japanese, the men of Military Government Section watched their morale crumble. "'I'm tired of looking up from my desk and seeing a blank wall,'" complained Grist's aide. "'I might as well be in Washington as in Japan.'"117 MacArthur's headquarters were still in Manila when GHQ began laying plans to cannibalize MGS. Colonel Raymond C. Kramer, a bright, dynamic, and ambitious former merchandising executive who was then serving under MacArthur's Deputy Chief of Staff, pointed out in mid-August that "major economic problems of a type not previously encountered" were likely to occur in the occupation of Japan. There would be missions from the United States and possibly from other Allies to study Japanese manufacturing techniques, missions to determine which industries might be permitted and which should be closed. Who would handle the requests from Washington for such studies? Who would coordinate economic activity between Japan and parts of her former empire? Who would be responsible for making the Japanese self-sufficient economically? Kramer recommended that temporarily, at least, the Deputy Chief of Staff himself handle "such economic problems as do not normally fall into the established staff sections. . . ,"118 Crist had not yet been officially installed as Chief of Military Government Section, but the Section was already operating under an Acting Chief and would soon have trained civil affairs personnel who were capable of handling such issues. Yet in Kramer's eyes the Section might as well not have existed. As a former officer in MacArthur's Manila headquarters had feared, Kramer and others "got the better of" Crist.119 On 9 September Kramer wrote the Chief of Staff that he had analyzed and broken down "the several instruments governing the post surrender activities" of SCAR In addition to the general staff sections that were handling military matters such as demobilizing Japanese armed forces and interning war crimes suspects, accomplishing America's objectives would require eight special sections, which Kramer listed as political, economic, legal, agriculture and fisheries, social, labor, civil relief, and enemy property.120 To implement the economic and financial terms of his directive from the Joint Chiefs, SCAP would need inventories and regularly updated reports on supplies, equipment, resources, and manpower in Japan.121 This was no different from many of die recommendations Military Government Section was making, but coming from Kramer it produced results Grist's memoranda never did.122 As one of his staff officers later commented, although Crist was no prodigy of intellect or political acumen, "if he had really absorbed the ideas of a competent staff and gone to bat for them, that would have been all right. But I'd have to say he didn't." The MGS staff felt "he'd let us down" by pledging his support but then proving a miserable advocate when it came to persuading higher authority.123 Kramer followed up with a plan to establish a temporary "Economic and Scientific Board" to implement economic and financial directives from Washington and co-

The Early Days of Occupation ordinate any missions on matters not exclusively military.124 This was to be a stopgap until SCAP set up permanent staff in the form of an "Economic and Financial Control Section" that would rely heavily on civilian expertise "to establish the economic and financial control necessary to implement the Surrender Directives." Outlining the organization of the proposed new section, Kramer submitted a wish list of six highpowered executives, ranging from Cyrus Eaton of Otis and Company to Paul Mazur of Lehman Brothers, for SCAP to request from the War Department. Modestly, he left blank the space for naming the Chief of the section.125 Military Government Section moved up from temporary quarters in Yokohama to new and presumably permanent offices in Tokyo only to be greeted by General Order No. 170, "a kick in the choppers" that announced the establishment of the Economic and Scientific Section (ESS) under Colonel Kramer.126 On 15 September, ESS was activated, drawing off MGS's financial experts; establishment of the next special staff section, the Civil Information and Education Section (CIES), followed in a few days, with this new section replacing the Education Branch of MGS—and siphoning off more personnel. On 26 September, Sutherland addressed the entire MGS staff in the auditorium of the Dai-Ichi Building, MacArthur's new headquarters in Tokyo. His message was brief and brusque: there would be no Military Government Section. It was being supplanted by a bevy of separate sections, which ironically paralleled MGS's own divisions. Many of its personnel would be transferred to those special sections (though few who had been in charge of MGS subdivisions ended up in positions of commensurate responsibility). Most military government officers were being transferred to Korea, where what they had learned about Japan would be largely useless, but where at least they would be given a chance to exercise the civilian skills for which they had been recruited.127 A well-known correspondent whose Guadalcanal Diary was considered one of the better books on the Pacific war, Richard Tregaskis had tracked Military Government Section since August and watched the Section go from high hopes and frenetic activity in Manila to idleness and isolation in Yokohama and Tokyo. MacArthur's recent controversial statement that he would be reducing the occupation forces to a skeletal two hundred thousand, coupled with Sutherland's plan for dissolving MGS, led Tregaskis to conclude that SCAP intended a "cut-rate peace" that would "leave the machinery of government in Jap hands virtually untouched," a violation of the spirit, if not the letter, of Washington's directives. Tregaskis further concluded that MacArthur was cynically currying favor with the folks back home who could not see beyond wanting their boys back.128 On 2 October 1945, by General Order No. i, MacArthur set up SCAP GHQ, an organization that paralleled AFPAC GHQ except for having ten special staff sections, all of which were now under the thumb of the general staff.129 The MGS staff, demoralized, saw the reorganization as a reflection on General Grist's abilities. Military government officers not transferred to Korea or to other special staff sections ended up in Government Section (GS), the residuum of Grist's paper empire. Many wanted "to get out of here," recalled Grist's executive officer. "Other sections are much stronger led and have the Chief of Staff s and the C-in-C's confidence, and we aren't going anywhere . . . all of us were just looking around and wondering how much longer we could stay

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Volume Two • Tokyo in this situation, thinking that General Grist's days are numbered. . . ."13° Trying to put the best possible face on it, the final report of Military Government Section concluded: "To have maintained the MG Section of GHQ with all its technical and functional Divisions would have meant funneling almost all non-military activities through the Chief MG officer," namely, General Crist. "By making each group of functional specialists a Special Staff Section of GHQ," it continued, the Chief of Staff—namely, General Richard K, Sutherland—"actually becomes . . . the Chief MG officer for the Supreme Commander."131 The formidable Sutherland, gatekeeper for MacArthur during the fighting, was now gatekeeper for the Occupation, at least on paper. Ostensibly laid out along functional lines to suit the requirements imposed by JCS directives to MacArthur, the new SCAP sections found their boundaries of responsibility poorly drawn, their allocations of authority sometimes perverse. SCAP's responsibility for modifying Japan's feudal and authoritarian tendencies went to the "Political Section," that is, the office of MacArthur's Political Adviser, an office staffed by State Department employees, none of whom had MacArthur's favor and all of whom were viewed as potential enemies by the General's more right-wing associates. Thus, it was the Political Adviser's office that first became embroiled in constitutional reform, not the Government Section, which seemed the more likely choice.132 Conversely, the new Government Section was given the task of severing Japanese diplomatic relations with neutral nations and gaining control over Japanese diplomatic and consular properties and archives, a task better left to experienced Foreign Service officers, such as those in the Political Adviser's office. With boundaries inexact, jurisdictions frequently overlapped, and some sections were more aggressive trespassers than others. On 4 October, SCAP headquarters issued a groundbreaking directive to the Japanese government requiring it to remove restrictions on political, civil, and religious liberties in Japan. This "Civil Liberties Directive" was the first concrete indication that SCAP envisioned doing more than maintaining the ante bellum status quo in Japan. It created a sensation and drew great press. Although it provided a foundation for much of Government Section's later work, it had not been issued by GS or by its predecessor, the Military Government Section. This epochal directive came instead from the Planning Unit of AFPAC's Office of Counter Intelligence, one of whose main functions was censorship of Japanese media. Even though the General Order of 2 October that set up Government Section and other special staff sections suggested that much of this work should fall within GS's purview, it became apparent that Counter Intelligence had no intention of relinquishing control and was already pursuing studies of the Diet, election laws, political parties, and Cabinet members.133 That Counter Intelligence and Government Section risked duplicating each other's work was the least of SCAP's problems. More pressing ones were who was really in control and whether fuzzy jurisdictional lines would confuse the Japanese—or allow them to play one side against the other. How well General Crist might have performed given fewer obstacles and more encouragement is not altogether clear. He seems to have taken his own advice to staff never to go outside the channels of command,134 and it was those channels that did him in. When military government officers in the field groused about GHQ's changing the rules and putting demands on them that they were not equipped to handle,

The Early Days of Occupation when they complained that SCAP was issuing orders to their commanders that required local Japanese action without bothering to inform the Japanese government of what was going on, Crist did virtually nothing. Even on the simplest, most commonsensical matters, Crist, instead of directly advising the field, would write memoranda to the Deputy Chief of Staff proposing recommendations and seeking authorization to make them.135 Although military government units were supposed to oversee implementation of SCAP's orders to the Japanese, communications were "so primitive" that field officers relied on "versions of the SCAP directives which had been published in the Nippon Times."136 Officially receiving a directive from Tokyo weeks after its issuance to the Japanese, field units rarely received any follow-up from SCAP or their command headquarters on how to interpret it.137 Despite field complaints that keeping in touch with GHQ by wire and letters was proving slow and clumsy, Crist would not even take it upon himself to authorize use of the telephone.138 He was a prisoner of punctilio. Preoccupied with organizational problems and lack of data, Crist put MGS and its successor, the Government Section, through numerous internal reorganizations rather than dealing with substantive problems. To impress the folks back home, SCAP issued a daily report on its "non-military" activities; Government Section contributed little during these early months of occupation. When Crist did make a policy recommendation, such as advising SCAP not to permit the Japanese government to replace the totalitarian Regional Governments General with another administrative control device inimical to fostering local responsibility, he found himself overruled by the general staff. Like the rest of GHQ, Crist was lost when it came to calibrating his relationship with Japanese officials: he did not know how to enforce compliance with directives. Crist learned that the Japanese Ministry of Health was having a hard time getting the Japanese Army and Navy to release surplus medical supplies for civilian use, notwithstanding orders from SCAP that these be turned over to civil government.139 His successor, Courtney Whitney, would have browbeaten whatever Japanese officials stood in his way to getting results; Crist did no more than bring the matter to the Chief of Staff's attention. Government Section was supposed to advise the Supreme Commander on "the structure of civil government in Japan," including "the degree and type of representation of the people in government,"140 but Grist's demoralized staff did not even begin meeting with members of the Japanese House of Representatives until late October—and then the meeting was initiated by a colonel in Counter Intelligence. Perhaps because Kramer had undercut him, Crist turned pettish. When Kramer asked Government Section to compile census data in anticipation of national elections—for which GS was responsible—Crist bluntly refused. Kramer proposed a directive that would have ordered the recalcitrant Section to do its job.141 Word of MacArthur's disregard of his Chief Civil Affairs Officer was not long in reaching Washington. "I learn that Crist is not being utilized . . . ," General Hilldring informed the Assistant Secretary of War. "I understand that others are performing a large measure of these functions, obviously without benefit of qualified staff." Hilldring had seen the cables from Japan announcing the establishment of the CIES and ESS as special staff sections independent of MGS; he knew from an advance copy of an article by Tregaskis that Sutherland intended to disband MGS, although this had not yet been

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Volume Two • Tokyo confirmed: "The tenor of [the] Tregaskis article is that the decision not to make conventional use of military government personnel presages a soft peace. . . . Obviously, if the theater decides not to utilize military government personnel, repercussions will be automatic and highly critical of both the theater and the War Department."142 War dispatched Colonel Daniel Cox Fahey, Jr., to reconnoiter for Assistant Secretary McCloy's upcoming trip to Tokyo—and to see what was going on in MacArthur's headquarters. Formerly a Washington landscape architect, Fahey had been a planner and troubleshooter for OPD, but had recently transferred to Civil Affairs Division, where he was serving as General Hilldring's alternate to the Subcommittee for the Far East. The Colonel was someone who could advise MacArthur discreedy and from the War Department's perspective on policies then gestating in Washington. He could also critique the organization of SCAP headquarters with equal prudence. When Fahey arrived in Japan in late September, Crist warned him off a temporary assignment to the Military Government Section: '"Don't tie in with me,'" he said. "Til just be the kiss of death.'"143 After surveying GHQ, Fahey reported to MacArthur's Chief of Staff that SCAP should strengthen its nonmilitary organization, separate civil from military matters, and actively recruit civilian specialists to ensure the "optimum combination" of civil talents with military ability to get things done. When American forces entered Japan, Fahey remarked, they were organized to fight rather than to supervise the Japanese government or administer Korean affairs. Although the Supreme Commander had recognized this and modified his organization to strengthen political, economic, and financial supervision, there was still a need for "a concerted effort" to distinguish purely military functions from civilian matters in both Japan and Korea. Fahey sounded a gentlemanly warning: the military was often eager to assume responsibilities for which it was not suited and of which it was reluctant to relinquish control once assumed, but General Sutherland must try to discourage both tendencies.144 He did not dwell on what the General might have done to abet those proclivities. In mid-November, two weeks after returning from a trip to Korea, Crist was hospitalized with what looked like a severe case of shingles induced by his "extremely nervous condition." Lieutenant Colonel George Buell, a CAD officer on temporary duty with SCAP, wrote the War Department that Crist would soon be coming before an Army medical board, "with considerable likelihood that he will be recommended for return to the States." "In all confidence," he added, "I tell you that this is a happy solution."145 A day later, Buell had to add a postscript: "Alas. No happy solution. W.E.C. [Crist] told the Board he wants to stay and try it again for awhile."146 Crist lasted for nearly three more weeks, his testiness apparently growing with each. One of his last acts was to draw up a memorandum recommending his Section's dissolution because it was doing nothing worthwhile.147 On 13 December, he was replaced as Acting Chief of Government Section by Colonel Bruce E. Clarke, head of the Section's Korean Branch.148 A permanent Chief, General Courtney Whitney, joined GS on 15 December. Relations with the Japanese Government: Steps and Missteps MacArthur's early efforts to impose press censorship and establish freedom of speech provide a microcosm of the Supreme Commander's problems with the Japanese gov-

I

The Early Days of Occupation ernment and his difficulties in balancing military security with policies of removing wartime restrictions and democratizing the enemy. He began slowly, tightening controls over Japanese media only gradually, waiting until his military hold on the country was secure. Using an approach that was gentlemanly and dependent on Japanese self-restraint, SGAP discovered that his orders were not infrequently ignored. Sometimes the Japanese misunderstood what was expected of them: MacArthur seemed to assume that they could (or should) intuit what he wanted, so his staff never offered any detailed explanations—indeed, given the sketchy nature of American policy development, it is unlikely that detailed explanations were within their power. Sometimes, however, the transgressions were deliberate, as if the enemy considered SCAP's instructions a mere opening bid, to be followed by bargaining in which each point would be fought for as hard as a Pacific atoll. MacArthur would then realize, belatedly, that he had misjudged, at which point he would toughen his stance. It was a pattern repeated throughout the early days of the Occupation. Some of SCAP's first policy instructions from Washington dealt with controlling the flow of information in Japan. SWNCC and the Office of War Information jointly recommended that MacArthur keep "trustworthy pro-democratic" Japanese media personnel in place to assist him in disseminating "news and information supplied from Allied sources." Japanese information services to be retained included the news agency Domei, the Cabinet Bureau of Information, and the Japan Broadcasting Corporation, all of which should be "readied for continuation or for conversion to your direct administration." General Headquarters, SCAP, was to become the "[s]ole and exclusive source of world news or pictures published or broadcast in Japan"; contributions from other Allies would possibly be "considered at [a] subsequent date." As to content, nothing could be published that might be "prejudicial to public order and safety," a blanket charge that prohibited criticism of the surrender terms or of Allied control measures, anything implying disunity among the four major Allies in their policy toward Japan, and any praise or pity for Japanese taken into custody by Allied authorities. Enforcement was to be through post-censorship (that is, censorship after publication). In addition, motion pictures were to be banned,149 a decision with which MacArthur personally disagreed. On instructions from the Supreme Commander, General Elliott R. Thorpe, AFPAC's Chief Counter-intelligence Officer, assumed responsibility for censoring the Japanese media. At this point, with SCAP headquarters still in Yokohama and the ink barely dry on the documents of surrender, the sole prohibition Thorpe recommended was against "information that disturbs the public tranquility." That elastic phrase enabled the censors to suppress just about anything they thought detrimental to the occupation, yet it carried "a connotation of primary interest in Japanese welfare." The penalty for violation would be suspension from publication for a specified period.150 Tighter control than postpublication review was to be exercised over Domei News Service, however: every Domei article would be "censored rigidly" prior to publication by Civil Censorship Detachment officers stationed right at the Service.151 Domei, established in 1936, had replaced two competing news services with a single governmentcontrolled operation that received directives through the Board of Information and was directly answerable to the Prime Minister. The Service enjoyed a monopoly over

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Volume Two • Tokyo the dissemination of foreign news to Japanese papers, which could not exist without the product it supplied. In addition to being a wire service, Domei owned over fifty provincial newspapers and had an interest in a Tokyo daily. Its foreign correspondents, instructed to work closely with Japanese Foreign Office staff abroad, were able to transmit important copy through diplomatic channels rather than commercial wireless.152 In the early days of SGAP, Domei merrily broadcast even to the United States, scooping the Allied press corps in Japan and providing U.S. newspapers with most of their information (albeit distorted) on the Occupation.153 On 10 September, nearly one week after the surrender ceremony, the Supreme Commander proclaimed freedom of speech and inaugurated censorship of the press in the same directive. Characteristically, the Japanese government sought to delay the latter; SCAP refused.154 Instructions issued by AFPAC to its censors were more detailed than what Thorpe had suggested a week earlier. Prohibited was the dissemination of news "which fails to adhere to the truth or which disturbs public tranquility," reports on Allied troop movements other than official GHQ releases, "false or destructive criticism of the Allied Powers," and rumors. Short-wave broadcasts were banned. All Japanese-language papers were to be post-censored, but the English-language Nippon Times would be pre-censored. Reminding the censors, "[Y]ou are not an editor, but are charged with preventing false or harmful information from reaching the Japanese public," the AFPAC instructions warned them to make sure each deletion was justified.155 Domei's short-wave news broadcasts beamed to the United States were discontinued; four days later, its Morse code broadcasts outside Japan ended. Yet as Colonel Donald Hoover, the Chief Civil Censorship Officer, observed, suspending all overseas Japanese broadcasts "was cutting off defeated Japanese soldiers abroad from news of the homeland," which in itself "constituted a threat to tranquility." This point, however, did not originate with GHOj it was made by the Japanese.156 When the Japanese proposed resuming overseas broadcasts in Japanese, SCAP said no—with the understanding that permission might be forthcoming in the future when conditions were more settled.157 Five days into media censorship and unhappy with Japanese compliance, GHQ reprimanded representatives of the press for their "lack of good faith in handling the news." More to the point, Civil Censorship suspended Domei for slanting the news to suggest that GHQ was negotiating with the Japanese government.158 Colonel Hoover bluntly reminded Japanese officials that their country was "a defeated enemy" under Allied rule, not a sovereign nation: "The Supreme Commander will dictate orders to the Japanese government. He will not negotiate with it. Negotiations take place among equals, and the Japanese are not to be led to believe that they already have regained the respect of the world or the status whereby they can 'negotiate' over orders of the Supreme Commander."159 But Hoover and his boss were willing to concede that the Japanese had a valid point about the danger of suspending Domei's broadcasts to overseas theaters full of distraught troops cut off from news of home. Resuming Domei's service would keep these forces informed and prepare them for conditions in the homeland upon their return; maintaining a news blackout would only force them to assume the worst.160 Still, GHQ was not happy about a Faustian bargain that preserved Domei's power in

The Early Days of Occupation order to keep troops abroad pacified. Even within Japanese journalistic circles Domei had an unsavory reputation. Considered a creation and tool of the government, it employed its monopolistic control in a "very highhanded method." President Furuno Inosuke was also high on the list of Japanese journalists who should be considered cat's-paws of the militarists and treated as war criminals.161 If retaining Domei opened SCAP to charges of being soft on the enemy or against free enterprise, however, closing it down posed a different public relations problem. Severing Domei's ties with its extensive network of foreign correspondents meant that it would have no access to news from abroad (and thus neither would Japan's newspapers) unless the agency monitored an Office of War Information station broadcasting from California, was fed news by the U.S. Army service, or purchased news from an international service. Washington's instructions on news censorship presupposed that GHQ would be the sole conduit of world news to the Japanese media. This was a role SCAP was not willing to accept; but if Domei contracted with an American news service, Thorpe warned, "it might be said that we had cut off their source of overseas news in order to give an American agency a monopoly."162 This was a clever argument to make: when the order to suppress Domei had come down from MacArthur himself, Thorpe thought he saw the influence of an American reporter who sought to supplant Domei with a U.S. wire service.163 Thorpe also thought the time had come for SCAP to begin taking a positive line: having told the Japanese press what not to print, it should now "give them information pointed toward accomplishing specific objectives drawn from the Supreme Commander's directives to the Japanese Government and from the Potsdam Declaration." In effect, AFPAC censors should step into the place occupied by Japan's Board of Information, an agency that was supposed to disseminate official news but ended up censoring the press through covert pressure.164 On 20 September, Thorpe recommended removing the prohibition of Domei broadcasts overseas to permit their resumption under full pre-censorship.165 Placing Domei under censorship, however, did not immediately alter "the character and handling of the news the agency tried to disseminate." Domei continued to angle its news to emphasize certain propaganda lines, such as that Japan might have won the war but for the atomic bomb; that Allied troops had committed atrocities; that other Allied Powers, such as Russia, were working against American interests; that crime had increased since the arrival of the occupation forces; and that Japan "by agreeing to the Potsdam surrender terms gained the right to negotiate with the Allies as an equal." SCAP censors suppressed a "considerable amount" of Domei copy. Publication of an occupation press censorship code on 21 September allowed censors to point out the specifics of a violation, and a warning to Domei's editor in chief a few days later largely brought an end to bending the news in the service of propaganda themes.166 Another problem with Domei surfaced, however. Although the Service had been forbidden to disseminate news originating from its foreign correspondents, no orders had ever been given to stop their reporting. Domei's Sweden and Switzerland bureaus were busy sending back everything they could get their hands on regarding foreign editorial comment on the Occupation of Japan, much of it unfavorable to MacArthur. Not only did Domei officials have access to all this material, but there was evidence

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Volume Two • Tokyo that Domei's correspondents were serving as unofficial replacements for a diplomatic staff called home, filing their reports for the benefit of the Japanese Foreign Office. Given "the history of the government-inspired propaganda machine" that Domei represented, Thorpe recommended suppressing the flow of news from Domei's correspondents abroad. Sutherland, however, disagreed, believing this "inadvisable so long as we permit this Foreign [News] Service to operate."167 SCAP's tolerance of Domei soon came under fire—from the Japanese. In a letter to the Supreme Commander, an irate citizen questioned why the Allies were not taking any action against the news service whose "poisoned propaganda" had helped drive Japan into its "miserable situation." Domei executives, the writer contended, were "really the first class war criminals," and the Allies should be using the same strict measures against them as against the secret police, basically shutting them out of journalism.168 Meanwhile, SCAP was discovering that it was easier to issue directives than obtain compliance with them. One of the largest Tokyo dailies, the Asahi Shinbun, was suspended for two days for publishing articles suggesting that the United States was as guilty as Japan of war crimes because of its barbaric use of atomic bombs, that reports of Japanese atrocities in the Philippines were "hardly believable," and that Japan was "an abused equal" of the Allied powers.169 The Asahi promptly protested the suspension, claiming that Civil Censorship's translations were "utterly contrary to the [Japanese] texts in meaning and implications" and that parts were taken out of context. But it was the Board of Information, not the paper, that requested a shortening of the suspension, as the AsaMs editorial director, Suzuki Binshiro, pointed out, implying that he found some merit in the punishment, or at least did not see eye to eye with the Board.170 From this break in solidarity it emerged that orders for the "propaganda line news treatment" had come from a coterie of Asahi employees "with direct government authority." The suspension, it seemed, "actually was welcomed by the 'liberal' professional journalists," who were eager to expunge government dictation from the news business.171 Through that one simple breach, the Civil Censorship Detachment began to learn, largely via leaks from Japanese journalists, of domestic laws regulating freedom of the press and of informal techniques for suppressing unwanted news stories. But SCAP Headquarters paradoxically found itself in the discomfiting position of siding with the enemy suppressors. In late September, the Japanese government's Board of Information refused Domei permission to distribute an interview between two American reporters and the Emperor. Domei turned to the SCAP censors, expecting they would right matters. They did not. Civil Censorship upheld the Board, and Chief of Staff Sutherland concurred, "since SCAP cannot be placed in the position of sanctioning law violations," apparendy even if the Japanese law being violated itself contravened SCAP directives.172 It was a stunningly bad call, but until SCAP could issue a directive regarding the Board of Information's continuing efforts to regulate the news, MacArthur apparently felt he had no choice. Displaying unusual boldness, three of Tokyo's five major papers decided to defy the Board of Information and run the story of the Imperial interview in their Saturday morning editions. The Japanese Home Ministry ordered them to

The Early Days of Occupation stop publishing because they were violating a previous agreement "to suspend, voluntarily, from publication any story on the interview with the Emperor." Through the Asahi, whose editors now had a pipeline to SCAP, the papers were notified that they could go on the street at i P.M., MacArthur having signed, less than two hours earlier, a directive ordering the Japanese government to suspend enforcement of laws restricting freedom of the press. Furthermore, according to the directive, only "such restrictions as are specifically approved by the Supreme Commander will be permitted in censorship of newspapers and other publications . . . or any other form of the written or spoken word."173 Only two days previously, Captain William Mayers of CCD's Press and Broadcast Division had called upon Hosokawa Tadachika, editor in chief of the Asahi, who ran through various restrictions on press freedom in Japan, including Board of Information bans on publishing certain types of stories. Most of the interdicts had been put in place to prevent reporters from printing anything but official news releases: any journalistic digging was punished by suppression. There were also specific proscriptions on publishing news about munitions relinquished to the Allies, domestic petroleum stores, the transfer of Japanese gold and silver bullion abroad, the capabilities of a Japanese submarine—all categories that bore on Japan's war-making powers and that might provide the Americans with figures independent of those handed them by the Japanese government. There was, too, abundant evidence that certain stories, including stories based on interviews between foreign reporters and Prince Konoe Fumimaro, then a member of the Cabinet, were being systematically excluded from the Japanese press.174 As Civil Censorship realized, the Board was being manipulated by high Japanese officials "to forbid the publication of news which they consider disadvantageous to themselves."175 The Board of Information was down, but not out. On 30 September, Ease Toshikazu, a director of the Board, met with CCD officials to complain that SCAP's directive removing legal restrictions on freedom of the press left the Japanese without libel laws or even a basic law governing the press. Once those laws the Americans found offensive were repealed, Ease argued, the Home Ministry, the Foreign Office, and the Board of Information "would find themselves absolutely stripped of all power to act to enforce the orders already issued by the Supreme Commander" with respect to the media. Civil Censorship reminded Ease that neither the Board of Information nor any other Japanese government agencies were by themselves to "take any direct action in press matters." If they had reason to believe that public tranquility would be hurt by a particular story, they should contact Civil Censorship.176 By early October, Counter Intelligence was talking of abolishing the Board of Information as "a warcreated agency" that "now serves no useful purpose" and of letting SCAP's Civil Information and Education Section take over such Board functions as were deemed desirable.177 In keeping with MacArthur's policy of encouraging Japanese initiative, however, GHQ decided that "the new Prime Minister should have a chance to do it."178

Relations with Washington: Bad Press and Little Betrayals Two weeks into the occupation, General Eichelberger made the mistake of holding a press conference in which he opined that "the occupation, in my mind, would last not

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Volume Two • Tokyo more than a year."179 Two days later, MacArthur suggested that "the job out here would last three years." Was the Supreme Commander obliquely rebutting his earlier statement to the press, Eichelberger wondered?180 A few days later, Eichelberger learned that his boss "had been needled by the State Department" over his own statement to the press that the occupation forces would be down to two hundred thousand men within six months. MacArthur was now convinced that Washington wanted "to keep a big army over here" and "run a military government similar to the one in Germany."181 "The thing the people back home don't understand is that Japan doesn't need further hating," wrote Eichelberger's Chief of Staff. "They are behaving perfectly. More troops aren't the answer."182 Notwithstanding the stinging criticism MacArthur drew at the time for his statement on troop reduction, less than two months later the Supreme Commander was being asked to reduce his forces to fewer than two hundred thousand.183 Rebukes of SCAP were not limited to State or to private cables; they permeated the press at home and abroad. When MacArthur ordered Imperial Army Headquarters abolished in mid-September, Baltimore Sun reporter Robert Cochrane damned the General with faint praise by writing that he had finally "bared the iron fist which has been inside the apparent velvet glove policy toward conquered Japan."184 When SCAP imposed censorship upon the Japanese media, Cochrane wrote: "There was cheering here among those [Allied reporters] who had chafed under censorship restrictions while Radio Tokyo and Domei news agency went their merry way. . . ,"185 Cochrane, a tough, experienced war correspondent, felt the Supreme Commander had earned his bad press by persisting in censorship of Allied reporters well past the end of the war: "The censors would not pass one item, one story, one paragraph, one sentence critical of the General," he recalled. They would tell correspondents, "'We expect this man to be president of the United States, and if you want to criticize him, you go home and do it.'"186 Cochrane was far from being MacArthur's sole critic among a press corps out for revenge as well as good stories. MacArthur frequently complained about the unfairness of his media coverage, and many in the Occupation would have agreed with him. A young Japanese-language specialist serving with the Naval Technical Mission in Tokyo wrote a friend: "So far I can't agree with reports published back home that the Japanese are giving MacArthur the runaround or that he's giving them a soft occupation. Everyone is scared stiff of the General.... The military government itself could hardly be more tough and autocratic than it is; no one will make a move in business or politics without its approval." The more likely danger was not that the Occupation might be too lenient, but that the Japanese would go "from one authoritarian regime to another without being freed from their dependence on direction from above."187 "Personally I feel that a tremendous amount has been done in seven weeks," General Eichelberger reported to his wife in mid-October, ticking off the demobilization of the Japanese Army and destruction of war equipment, abolition of the Japanese General Staff, seizure of the banks, and jailing of a number of war criminals. "I believe it would have been easy for us to have had a lot of minor fighting if we had come in here swinging our fists. The same thing applies now. Beat them up and some hotheads are going to blow up tunnels."188 But notwithstanding the early difficulties of the Occupation, there was a tendency on the part of GHQ to assume that issuing orders ensured their execution. It

The Early Days of Occupation was not simply, as MacArthur liked to claim, that "the press was prone to sensationalize the bad news and seldom treated good news with the same enthusiasm" or that reporters had "a recognizable, built-in, negative bias."189 Such statements ignored the legacy of mistrust engendered by MacArthur's wartime communiques, figments of a self-promoting mentality that had the General at the front when he had never left GHQ or that declared battles over prematurely so as to deflate his casualties. Under wartime censorship, reporters in the Pacific had not been able to write about the disjunction between CINCAFPAC's public relations and what was actually happening; now they could. Whether owing to the will to believe or to lack of knowledge and experience or simply to a desire to tell the Commander what he wanted to hear, reports to and from SCAP continued the tradition of CINCAFPAC puffery. An early (and, unfortunately, typical) Operations Report, which was sent daily to the War Department for its information, noted without a trace of irony that the attitude of the Japanese press toward the Occupation was "increasingly favorable and cooperative." Furthermore, "Liberal groups in fields of education and press [are] actively formulating plans for needed reforms in line with Occupation policies," it breathlessly recounted. And "Public attitude towards new Japanese government [is] improving as house cleaning of personnel continues and old regime is ousted from all government posts."190 This example was characteristic of the way in which GHQ reports uncritically adopted items in a censored press as evidence that the Occupation was succeeding and inflated tentative gestures into full-fledged movements that would surely accomplish Allied goals. When the London Observer suggested, to the contrary, that the majority of Tokyoites were "under the impression that [SCAP is] introducing a system in Japan that gives power to the old forces," MacArthur fired off an eyes-only cable to Marshall accusing Reuters, the news agency carrying the story, of "indulging in propaganda politics" and insisting that "this type of undermining . . . be brought to the attention of the British government."191 To Colonel Larry Lehrbas, one of his public relations advisers, MacArthur once gave this counsel: "'Never get into an argument with the press. Those people sometimes make outlandish or provocative or on rare occasions even untrue statements in an effort to start a controversy. If you argue, they keep the controversy going in their own one-way medium where you can't reply and there is no end to it.'"192 Sadly, MacArthur rarely heeded his own advice—or let others follow it. SCAP became known not only for contesting stories but also for abusive and even vindictive treatment of reporters who penned items critical of the Occupation. In addition to expelling at least seventeen foreign correspondents from Japan in the course of the Occupation, his underlings raided the residences of press corps members, sent derogatory letters to their employers, and branded those who excited the ire of MacArthur or his subordinates as security risks.193 Humiliation and the threat of humiliation were always powerful motivators in MacArthur's life. Early in the Occupation, feeling endlessly beleaguered, the General believed that he had been let down both by the Army and, especially, by the State Department. State had sent him a Political Adviser, George Atcheson, Jr., who was no Japan expert and who failed to warn him off an ill-fated association with Prince Konoe

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Volume Two • Tokyo Fumimaro (a story narrated in the next chapter). And the Secretary of State seemed busy selling out America's victory in the Far East to Moscow, all the while tolerating Soviet invective against MacArthur's occupation, tirades that SCAP thought were an obvious ploy to distract attention from Russia's predations in Northeast Asia. "The way they [the Soviets] keep us from complaining about their conduct is to keep on criticizing what General MacArthur is doing," Eichelberger wrote.194 The Supreme Commander saw himself as a scapegoat for political opportunism, left undefended by his own government. During the first few months of the Occupation, the Allied Powers had not yet agreed upon final control arrangements for Japan; although some type of international body would be established, the extent of its powers was not yet clear. In the interim, some Allies sent liaison missions to Japan to suffer from studied neglect at the hands of GHQ, which treated the Russians in particular "in a rather cavalier way," leaving them unconsulted and uninformed.195 In cables home and to staff, MacArthur raged about the Red Army's behavior in Korea and Manchukuo, its failure to repatriate captured Japanese troops, and the Soviets' refusal to allow Chinese to pass through Dairen, in violation of an agreement to keep that port open. Through a staff member, the Supreme Commander floated in the press a trial balloon suggesting that if an international control commission were put in place over Japan, he would leave.196 When Assistant Secretary of War McCloy visited MacArthur in mid-October, "electricity was flying" between the two men, and the Supreme Commander "took Secretary [of State] Byrnes' shirt off on a number of occasions, particularly with reference to giving in to the Russians."197 "I fought to get my words in," McCloy recalled, "and by sheer might and main succeeded. But before succeeding it became a sort of shouting contest." MacArthur wanted to run the Occupation "as a commander" with no international oversight or input; when told he could not, McCloy said, he became "much distressed that I had pressed him so far and had failed to support his point of view" and "talked seriously of abandoning his job and going home, etc." It was exceedingly difficult to get MacArthur to comprehend that there were issues involved that transcended the immediate needs of his theater, that "we could not take a unilateral position in the Pacific and still press for a satisfactory solution elsewhere in the world."198 McCloy was not the first to discover that MacArthur was inclined to confuse the welfare of the United States with matters of personal honor and face.199 Through the sheer rigor of disputation, the General could be brought around to conceding another's view—his mind was too sharp and farseeing not to grasp the logic of a wellreasoned argument. But such understanding was usually quickly undone, perhaps by an ego that sought (and received) constant blandishments from a coterie "more like a court than a staff' or by his self-imposed isolation from the outside world.200 McCloy's persuasiveness lasted only so long as McCloy sat in the General's office. By i November, Eichelberger correctly surmised that MacArthur would not return home to address Congress because he was "standing ready to see what happens about the Russian question."201 A few days later the Eighth Army commander learned that the State Department was finally "backing up MacArthur and that all Russia wants now is to save their face. They are perfectly willing to have the paramount power remain in the hands of MacArthur and have a so-called council without power."202

The Early Days of Occupation By mid-November, MacArthur himself was rejoicing that the Soviets probably would not be contributing troops to the occupation.203 He was also certain that any Allied council would be merely advisory.204 Just after establishment of the Far Eastern Commission and the Allied Council for Japan was announced at the end of 1945, Byrnes was asked by a reporter for MacArthur's reaction to the news. The Secretary of State replied that he had the "impression" that SCAP regarded the Council and Commission "as workable but that did not mean at all that General MacArthur liked the plan. . . ,"205 That was an understatement. MacArthur's victory was never as full as he should have liked. War's worst betrayal of SCAP came from what one participant called "a comedy of errors,"206 but that did not diminish the victimization MacArthur felt from some bureaucratic bungling. In early September, the Joint Chiefs had approved a policy calling for the destruction of all enemy war materiel and facilities that were not convertible to civilian use.207 As Secretary of War Robert Patterson explained to Capitol Hill, there were exceptions for "unique and new development items desired for examination or research." MacArthur had also been ordered not to destroy facilities producing implements of war until the details of reparations and restitution programs could be worked out to benefit Japan's victims.208 In October, the Joint Chiefs developed a policy regarding research on atomic energy, which they transmitted to SCAP on 30 October. The directive called simply for seizing all facilities for research on atomic energy and taking into custody all those engaged in such research; it also stipulated that no research on "atomic energy or related matters" would be permitted in Japan.209 A month later, SCAP replied cryptically that his forces had seized—and destroyed—five Japanese cyclotrons.210 Vannevar Bush, head of the Office of Scientific Research and Development, immediately informed the Secretary of War that the destruction was an egregious mistake: "Certainly I was not consulted and I feel rather sure that no one in my organization was consulted. . . . " Bush's Office had recommended keeping the Japanese cyclotrons in operation but restricting the activities of Japanese scientists to producing radioactive tracers for medical research.211 News of the destruction, "allegedly emanating" from MacArthur's headquarters, brought the reporters down on Washington. "War Department view is that no orders were issued for cyclotron destruction," Hull cabled Tokyo, "but rather that order was for 'seizure.'"212 Dr. Karl Compton, who had gone to Japan on behalf of the Office of Scientific Research and Development and whose recommendation had been to keep the cyclotrons, protested this modern Luddism in a letter to the Secretary of War. The cyclotron, he wrote, "is not an instrument capable of producing atomic bombs. It is a scientific laboratory tool inadequate, by a very large factor, to produce explosive quantities of anything."213 His letter was published in the 6 December edition of the New York Times. MacArthur responded as if stung. War misunderstood, he cabled back: SCAP had received "a specific order from the Secretary of War through special security channels . . . which directed the destruction of the cyclotrons. You apparently are not aware of this order." His headquarters, he added, "was opposed to the destruction of the cyclotrons and had no intent to do so under the general directive" from the JCS regarding enemy materiel. His office had issued a press release "to contradict the false

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Volume Two • Tokyo allegations in the American press which were not corrected in Washington, placing the responsibility for this decision upon the occupation forces."214 MacArthur was right. Early in November, Major Amos Britt had asked an administrative assistant to cable MacArthur that after "all technical and experimental data" were secured, the Japanese cyclotrons must be destroyed. Destruction had been approved by none other than Major General Leslie Groves, the gung-ho nonscientist who administered the Manhattan Project.215 But Groves had never bothered to clear his order with anyone in the War Department or with the Joint Chiefs. Formally and informally, the General was rebuked for failing to coordinate his "special instructions" with the Department and JCS before acting.216 Groves, a stranger to contrition, sniffed that MacArthur had made things "a lot worse" by "announcing to the newspaper men over there a Top Secret directive." When the head of OPD told him that War would have to support MacArthur because SCAP was "carrying the onus for having done this," Groves urged the Department to "keep quiet about it. To not talk." Above all, he wanted to keep the mix-up out of the papers because of problems with Congress over future control of atomic energy.217 The issue would not go away, however, as mail poured into War on the subject. Ultimately, Groves produced a self-serving press release that pinned the cyclotrons' destruction upon U.S. policy that Japan be prevented from engaging in any activity related to war. It was a stretch to fit cyclotrons into that category, but Groves made it fit, claiming that cyclotrons were "essential to the carrying out of effective atomic bomb research which our government believes should be prohibited to naturally belligerent and dishonest nations."218 At a press conference, Secretary of War Patterson accepted responsibility for an order he never saw and admitted MacArthur was not to blame for having executed a directive that was "not handled with the thorough consideration that the subject warranted."219 To the Cabinet, he blamed Groves for the mess, nonetheless standing firmly behind the principle that "a cyclotron was just as much an implement of war as a pistol." Secretary of Commerce Henry Wallace disagreed. "'I think the destruction of Japanese cyclotrons was an act of barbarism—as barbaric as the destruction of the library at Louvain,'" the Secretary retorted. Patterson, he concluded later, was ignorant about atomic research. The following day, having become a whipping boy for scientists around the world, Patterson admitted to Wallace that taking acetylene torches to the cyclotrons had indeed been a mistake.220

An Evolving SCAP Modus Operandi Many of the themes that recurred in MacArthur's approach to his job surfaced during these first few months of the Allied Occupation. The Supreme Commander combined a lingering uncertainty over the scope of his authority with naivete regarding the intense conservatism of the Japanese government and a desire to put the burden of initiative on the Japanese. These tendencies dictated an initially laissez-faire approach that was sometimes followed by frantic efforts to step in and dictate when it became apparent that the Japanese were not complying with his wishes. At least in the early

The Early Days of Occupation part of the Occupation, GHQ seemed always to be playing catch-up, reacting to Japanese transgressions rather than being proactive. Perhaps because he himself lacked detailed guidance in those first weeks and months, MacArthur refused to supply more than broad hints to the Japanese about what was required. For example, when the Japanese government, trying to pin down which types of political organizations would be tolerated and which would not, asked GHQ for suggestions or guidelines, GHQ refused to commit itself: SCAP would approve or disapprove specific plans submitted by the government, but it would not set forth its expectations in advance.221 SCAP rationalized this practice as giving the Japanese their heads to make changes that would remain acceptable because conceived and executed by Japanese; but it may have been that MacArthur's Headquarters was permissive because it had little concrete to offer as an alternative. As the occupation went on and SCAP benefited from an influx of civilian expertise, and as the Japanese dragged their feet over one change after another, SCAP's reform expectations both rose and became more particular. One of the strongest themes—and one of the longest-lived—was the Supreme Commander's willingness and ability to extemporize when he lacked adequate guidance from Washington. "He has ideas," McCloy observed, "and no amount of persuasion or direction can make him a mere automaton of policy." The General wanted directives from Washington cast in language sufficiently broad that he could "work out his own policy—and he is a policy maker," as McCloy noted.222 A corollary to having ideas was acting on them—and letting the U.S. government know afterward. As improvising locked SCAP into certain courses, the Supreme Commander could not readily change direction, if contradicted by Washington's subsequent directives, without embarrassing himself at home and losing face in Japan. MacArthur learned not to trust Washington or let it in on his plans but to present a string of faits accomplis that could not easily be undone without undoing the Occupation.

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"Dust and Ashes": The Konoe Affair

"'THIS LOOKS LIKE THE PAYOFF!'" General Douglas MacArthur told a greeting party of nervous generals and journalists when he stepped onto the tarmac at Atsugi airfield on 30 August.1 According to the General's hagiographer, MacArthur had spent the flight north to Honshu fleshing out his ideas for the occupation, ideas that sprang Minerva-like from the Supreme Commander's powerful intellect.2 Although MacArthur did conceive such principles as extending the vote to women, expunging "feudalism," and salvaging Japan's economy by denying it a military, most of the reforms he initially proposed derived from the U.S. Initial Post-Surrender Policy, which had been radioed to him the previous night during his stopover in Okinawa.3 They were not his uniquely, nor did they include constitutional reform. That came as a later development in Washington policy making, one that probably would have little affected Japan before 1946 had it not been for an incident that began bizarrely and ended bitterly. Bracketing General MacArthur's initial sortie into the uncharted territory of constitutional reform was the brief rehabilitation and abrupt fall of one of Japan's most controversial pre- and postwar figures, Prince Konoe Fumimaro. Konoe was a prince of royal blood, descended from the ancient Fujiwara clan that had ruled Japan from the tenth century through the twelfth, nurturing a refined, highly artistic court culture at a time when Europe dwelt in the Dark Ages. Three times Konoe had been Prime Minister of his nation, during which Japan had attacked Chinese troops at the Marco Polo Bridge, touching off the Sinojapanese War, and had tried to replace China's Kuomintang government with a puppet regime. In 1940, Prime Minister Konoe talked tough about the Tripartite Pact his government had signed with Germany 438

The Konoe Affair and Italy: if the United States saw the Axis alliance as hostile, war was inevitable, he proclaimed. But in 1941, he called repeatedly for top-level talks with President Roosevelt in hopes of saving the situation. Konoe resigned the premiership in mid-October 1941, after talks with the United States became deadlocked and he lost the support of his Minister of War, General T6J6 Hideki. Konoe had watched Japanese troops flood into China in 1937; thus, in 1941 he wanted them withdrawn as a gesture of goodwill toward Washington. His gesture split the Cabinet and ended his final stint as Prime Minister. Had Konoe genuinely been afraid of getting drawn into war with the United States, or had he been making a diplomatic exit, knowing that war was inevitable and wanting the blame for it to be laid on the Japanese Army? It was no clearer in 1945 than it had been back in 1941. Konoe's successor, General Tqjo, was Prime Minister at the time Pearl Harbor was bombed, but an operation of such magnitude had to have been planned during Konoe's tenure. Shortly after VJ Day, the Prince, now serving as Minister without Portfolio in the Higashikuni Cabinet, began laying plans to arrange an interview with SCAR4 Konoe first persuaded an old friend, Merrell Vories Hitotsuyanagi, to return from the mountain retreat of Karuizawa to war-ravaged Tokyo; then he dispatched him to SCAP's temporary headquarters in Yokohama with a message for the Supreme Commander. A naturalized Japanese of American birth, Hitotsuyanagi assured himself entree at GHQ by choosing an American Maryknoll priest as his traveling companion.5 In Yokohama, Hitotsuyanagi informed a MacArthur aide that Konoe, though eager to serve the Supreme Commander, dared not appear in public so long as T6J6 remained at large. During the war, he continued, Konoe had tried to impress upon the Emperor that, optimistic General Staff reports to the contrary, the Japanese Army was in deplorable shape. So shielded was the Emperor from adverse news about the war that he had learned of the tremendous firebomb damage to Tokyo only after realizing that newspaper descriptions of minimal damage to the Imperial Palace were fabrications. Through Hitotsuyanagi, Konoe averred that the present Cabinet, by and large, was sincere in its desire for peace and reform: the Prince cited as a possible exception the Foreign Minister, Shigemitsu Mamora, and his staff. Most of the nobility and practically all of Japan's farmers and workers looked upon the Americans as deliverers rather than conquerors, he claimed. Fulsome and disjointed though his message was, two points shone through clearly: Konoe saw himself as the power behind the Throne, and he wanted to be of help.6 Whether the Prince was friend or foe, however, was not clear from intelligence available. Possessor of "the most exalted non-Imperial social rank in Japan," Konoe had access to the Throne at all times. His power and popularity could be useful to SCAR, yet the Prince's prewar record undercut his reputation of being liberal and a pacifist. Although Konoe appeared in a guidebook on "friendly Japanese" prepared by the War Department's Military Intelligence Division, Occupation authorities were alerted that his activities "should be carefully scrutinized and his advice accepted with caution." Reputation notwithstanding, it was during Konoe's premierships that Japan had attacked China and precipitated a war in Asia, signed the Tripartite Pact with Germany and Italy, dispatched troops into French Indochina, and replaced political

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Volume Two • Tokyo parties with the totalitarian Imperial Rule Assistance Association.7 More than any other biographical squibs provided SCAP, Konoe's was ambivalent. The yellow flag was out. Hitotsuyanagi was not the Prince's only envoy. On 12 September, General Robert Eichelberger, MacArthur's Eighth Army Commander, was visited by an old friend, Lieutenant General Haraguchi Hatsutaro. Haraguchi, who had known Eichelberger from his days as a military attache at the Japanese Embassy in Washington, came bearing gifts and seeking favors. Through Eichelberger, Haraguchi arranged an appointment with the Supreme Commander for himself and Prince Konoe the following day at 5 P.M., MacArthur's preferred time for meeting with Japanese officials.8 The ostensible purpose of the meeting was to present a petition to SCAP regarding the Dojinkai, a medical association of which Konoe was honorary president, which was engaged in promoting health and proper sanitation in Japan's former colonies. Strict adherence to the terms laid down at Cairo and Potsdam would probably force discontinuance of the Dojinkai's overseas activities, but Konoe wished to plead that its members be allowed to remain abroad and continue their humanitarian work.9 In a meeting that lasted an hour, Konoe made his case for the Dojinkai but also tried to recapitulate for SCAP his political activities since 1937, an effort in which he was terrifically frustrated by the inadequacies of the Nisei interpreter provided by GHQ.10 Konoe and the Allied Supreme Commander did not touch upon future governmental reforms, an issue still premature for MacArthur, who had received little guidance from Washington yet. Bonner Fellers, then MacArthur's military secretary, "took a fancy" to Konoe from the start.11 Like most of MacArthur's close staff, Fellers found royalty almost seductive. Konoe's proximity to the Throne was a valuable asset, and he had given SCAP a tip on the Foreign Minister that may have played a role in Shigemitsu's ouster from the Cabinet. MacArthur himself appeared to have doubts concerning Shigemitsu's trustworthiness, and treated him with noticeable discourtesy.12 Early in September, the Foreign Minister had persuaded SCAP to rescind several proposed Occupation proclamations to the Japanese, one of which would have established American courts martial for the trial of persons accused of infractions of Occupation orders or hostile acts against Allied personnel. Such measures were unnecessary, Shigemitsu had argued, for his government, having bound itself to fulfill obligations incurred under Potsdam, was willing and able to perform the normal functions of civil administration.13 If he had indeed won a concession from SCAP, Shigemitsu lacked the good sense to keep his victory to himself. News leaked from the Japanese press into Western papers, undoubtedly embarrassing the image-sensitive MacArthur.14 Shigemitsu was in trouble not only with GHQ, however, but with his colleagues as well, for the Foreign Minister had also argued that since the Japanese government's relationship with GHQ was basically a diplomatic one, it should be handled exclusively by professionals from the Foreign Office.15 It was a nice maneuver to cut other officials out of dealings with the Americans and set himself up as the arbiter of Japan's response to Allied directives. Prime Minister Higashikuni marked MacArthur's coldness toward the elderly Shigemitsu, and he learned that the Foreign Minister's name appeared on an early list

The Konoe Affair of war criminals. This may not have been quite the kiss of death it seemed, for there were many such lists floating around, and inclusion on one or more as a "political criminal" (rather than for atrocities in the field) meant relatively little at this stage. Both Konoe and Higashikuni, for example, were on another list prepared by the U.S. War Crimes Office.16 Theater officers engaged in preparing SCAP's own roster of war crimes suspects tended to discount lists from Washington and elsewhere because they were usually hopelessly out of date, including figures long dead or known to be friendly, excluding others the staff in Japan considered of real importance, and even, in one case, ordering the arrest of "Chiba Ken," a Japanese prefecture adjacent to Tokyo.17 It would take months for SCAP to decide who should be tried as a Class A war criminal, but a hint that Shigemitsu was suspect, combined with his other problems, was enough to force him off the Higashikuni Cabinet.18 Higashikuni's was a caretaker Cabinet constituted for the single purpose of implementing the immediate surrender terms of die Allies. Or so it started out. But the Prime Minister apparently foresaw that certain reforms, such as relaxing restrictions on freedom of speech and the press, were mandated by the Potsdam Declaration and that release of political prisoners and reforms to the Japanese police system would probably be necessary as well.19 One of his first acts was to order the release of those arrested for lese-majeste, a remission of punishment that would extend to an indefinite number, including members of the former Japanese Communist Party.20 Higashikuni's purpose was only secondarily to comply with the terms of surrender; primarily he wanted to defuse potential criticism of the Throne by ensuring that those who had been punished for the sake of the Emperor would also be forgiven in his name. But Higashikuni was advised by his Ministers of Home Affairs and Justice that Japan's situation was then "far too revolutionary to permit releasing the prisoners or tolerating free discussion of Japan's political or economic system."21 When Higashikuni met with MacArthur on 29 September, he was asked what plans his government had for dealing with Japanese Communists who were expected to be returning soon from exile abroad. The government planned to do nothing, Higashikuni replied, since it recognized freedom of speech, assembly, and association for all; moreover, an order to release all political prisoners, including Communists, was then being implemented by the Japanese bureaucracy, which, unfortunately, was taking its time.22 When MacArthur and his Chief of Staff, General Sutherland, questioned the wisdom of taking no measures against the Communists, Higashikuni reportedly responded that it was best to let such people say what they wished.23 Although Higashikuni's account of his premiership is self-serving, portraying him as a convert to pacifism and liberator of the Left, sporadic thinking about reform actually was taking place within his government. Although the eminent Japanese legal scholars Takagi Yasaka of Tokyo Imperial University and Nambara Shigeru, soon to become the University's president, had led the Japanese government to believe that the Potsdam Declaration did not require revision of Japan's Constitution, Konoe and others advised Higashikuni that constitutional reform would indeed be a natural consequence of Japan's acceptance of the Allied ultimatum.24 Early in the Cabinet's brief tenure, Prince Konoe and Ogata Taketora, the Chief Cabinet Secretary, told the Prime Minister of their plan to create "a democratic and pacifist constitution in keeping with

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Volume Two • Tokyo the times."25 Higashikuni agreed: their first step would be to start examining the parliamentary system as it operated in Japan. Iwabuchi Tatsuo, who later founded the Kenpo Kenkyukai, a private study group advocating constitutional reform, and produced a draft constitution of his own, became adviser to Konoe's informal study group. Though not a Cabinet member himself, Iwabuchi had also been involved in ousting Foreign Minister Shigemitsu, evidently believing, erroneously, that his replacement, Yoshida Shigeru, might be more receptive to ideas for reforming the Meiji Constitution.26 Meanwhile, within the Cabinet's Bureau of Legislation, the powerful clearinghouse for all bills generated by the government, a quiet study of the effects of Japan's acceptance of the Potsdam Declaration was under way. On 18 September, Irie Toshio, then Chief of the Bureau's First Division, produced a paper on potential reforms that might be required to comply with Allied demands. Portions of the Meiji Constitution dealing with military matters would probably have to be rewritten now that Japan was being demilitarized; this might include replacing references to "civil and military officials" with ones to "government officials" and eliminating articles on such Imperial prerogatives as supreme command, making war, declaring peace, and determining the organization of the Army and the Navy. With an eye to broader Allied expectations, Irie asked whether certain constitutional limitations on civil liberties ought to be removed, whether the powers of the Diet should be expanded and the composition of the House of Peers altered, whether the Privy Council should be abolished, and so on. Irie's questions were provocative enough that his boss told him to keep his work close to the vest: the Cabinet had as yet shown no interest in constitutional reform, and Irie's initiative might be mistaken as evidence of an official governmental study on this issue.27 Other papers were discreetly circulated, but no publicity was given the subject and it enjoyed litde, if any, discussion within the Cabinet.28 The Higashikuni government did, however, begin making circumspect inquiries of outside legal scholars on the subject of revising the Constitution. In late September, Tokyo Imperial University's Miyazawa Toshiyoshi (who would later be involved with a reform project under the aegis of another Cabinet) submitted a paper on reform of the Japanese Constitution. Miyazawa assumed that reforms to the Constitution and its implementing laws would be dictated by the Potsdam Declaration's requirement that Japan foster democratic tendencies. Although the Meiji Constitution was not inhospitable to "democratic tendencies," their development would be immeasurably enhanced by certain changes, such as permitting the Diet to have a greater voice in the exercise of the Imperial prerogatives. Miyazawa pointed out such problem areas as the appointive upper house's tendency to frustrate the legislative wishes of the elective lower house, the ability of the executive to circumvent the Diet through budgetary maneuvers, and unrealistically short sessions for the Diet. He also foresaw difficulties with the Allied powers over emergency powers permitted the Emperor under the Constitution and pressure to restore the jury system to Japan.29 Another discreet inquiry went to Yabe Teiji, a professor at Tokyo Imperial University in political science. At the request of the Deputy Cabinet Secretary, Yabe drafted a tentative plan for constitutional revision, which he submitted on 3 October. Yabe noted two schools of thought. One held that constitutional revision would

The Konoe Affair be pushed by the Allied powers; therefore, nothing should be done until orders came from GHQ. The other believed voluntary reforms should be undertaken to preserve the central role of the Throne and its prerogatives. Yabe, convinced that a display of reparative fervor might forestall more drastic Allied demands, sided with the second school. His draft included quite a few symbolic elements, such as a new preamble stressing respect for popular rights and the importance of the people's will in setting the course of government. Yabe had no wish to disturb the Emperor's sovereign possession of all governmental power, but he held that the Emperor should not wield real power, but should serve as the center of the nation's moral universe. If the Japanese word tochivtere to be retained as descriptive of the Emperor's role, it should be translated into English simply as "reign" rather than "reign over and govern," the usage employed in translating the Meiji Constitution. Similarly, "The Empire of Japan" should become plain old "Japan," and all references to "Imperial" should be deleted in deference to Allied sensibilities. Yabe further recommended expunging from the Constitution references to the military and expanding the authorized powers of the Diet, including making exercise of the Imperial prerogatives subject to Diet approval. The upper house would be reorganized and made explicitly inferior to the lower house; the Diet would also be given de facto power to initiate constitutional amendments, although the Emperor would retain the right of formal initiation.30 The recommendations of these two professors were an interesting study in contrasts. Yabe's draft, given his background as a political scientist, concentrated on the relationship between legislature and executive, largely ignoring the problem of civil rights under the Meiji Constitution. Miyazawa, although slightly more sensitive to the possibility that civil rights might become an issue with the Allies, made no recommendations about them. That both men concentrated on the powers of the Diet and their relationship to the prerogatives of the Throne suggested a sensitivity to past abuses and problems, perhaps even an awareness of criticism from abroad. Neither, however, showed any appreciation of the depth of American sentiment on the subject of the Japanese Constitution. The two reports are of interest not only because their authors would shortly afterward become involved in competing projects for constitutional reform—Yabe working under Prince Konoe and Miyazawa in the Shidehara Cabinet—but because both were written before any suggestions had come from SCAP regarding the subject. In two meetings with the Prime Minister and one with Konoe, the Supreme Commander thus far had said nothing about the Japanese Constitution.31 A Commission from the Supreme Commander Prince Konoe met for a second time with General MacArthur on 4 October, by which time the Higashikuni Cabinet was engaged in a modest, if disorganized, exploration of possible reforms to the Constitution. Their meeting was called not to discuss that subject, however, but rather to afford Konoe a chance to expand upon statements he believed had been inadequately translated at their earlier session on 13 September. Taking no chances this time, Konoe brought his own interpreter, Okumura Katsuzo, a

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Volume Two • Tokyo Foreign Office official. The meeting was scheduled for 5:30 P.M., and Konoe entered it unaware that GHQ had just issued a directive on civil liberties that would end up toppling the Cabinet in which he served.32 The "Civil Liberties Directive," received by the Higashikuni government later that evening, ordered the immediate release of political prisoners and the removal from office of the Home Minister and top police officials; it also directed abolition of the Tokko Keisatsu, a special police unit involved in thought control, and nullification of the Peace Preservation Law and numerous legal restrictions on the freedoms of speech, the press, assembly, and religion. Release of the directive may have been speeded up because the American press in Tokyo had just latched on to the story of Japan's legion of political prisoners.33 But nothing Konoe said in the course of his meeting with SCAP suggested that he knew anything about the directive. Rather than attempting to persuade MacArthur of the wrongness of SCAP's action, Konoe offered his personal interpretation of the root causes of militarism in Japan. It was "a brief for the innocence of the traditional forces of conservatism" and a plea for a gradualist approach in pushing democracy on Japan. It was also a plea to preserve the "feudal" forces and the zaibatsu as stabilizing forces essential to keeping Japan from going Communist.34 In questioning Konoe, MacArthur zeroed in on the development of Marxist influence in Japan, its strength among the junior officer ranks of the military, and the role of the Soviet Embassy in directing Communist activity in Japan. Toward the end of the meeting, when he was finished answering the General, Konoe asked if the Supreme Commander had any suggestions or instructions regarding the organization of the government or the composition of the Diet. Behind Konoe's inquiry—but probably unknown to MacArthur—was a recent decision by the Higashikuni Cabinet to establish a council to study the Diet with a view to its reform.35 Konoe had asked about the "organization of government," but in translating his words for MacArthur, the interpreter apparently rendered the Prince's seifu no soshiki ("governmental organization") as "the constitution of the government."36 Misunderstanding the import of Okumura's homonymous English, MacArthur fired back that Japan's Constitution would have to be revised to incorporate "the essential elements of liberalism." The present Diet was reactionary, he continued, and even if it were dissolved, the same type of people would be returned to it under existing election laws. To allow for the introduction of new blood into the body politic, the franchise would have to be broadened to include women, and the rights of workers must be recognized.37 Konoe delicately suggested that there was "a problem as to means, for revision of the Election Law requires the consent of the Diet," which meant "it would be necessary to exert control over the Diet" to make it comply. The difficulty, as Konoe saw it, was that the existing Diet included none of those "stabilizing forces" he favored, such as the zaibatsu, forces that Konoe saw as serving a role analogous to that of Germany's Social Democratic Party in the aftermath of World War I. MacArthur replied with all the subtlety of a squadron of B-sgs overhead on a cloudless day: "I know little about the finer points of Japan's Constitution and laws. But if there was authority to launch Japan upon war, I assume there should also be authority to devise a means of resolving problems of this nature. To put it bluntly, both the Japanese Diet and Japanese Government exist only at the sufferance of the Allied Powers. We hope the necessary

The Konoe Affair steps will be taken by the Japanese Government through reasonable procedures; however, they must be taken as promptly as possible, or else we will carry them out ourselves, whatever discord this occasions."38 It was assumed at GHQ that the Higashikuni government "wasn't going to last very long,"39 and the General's tone and manner hardly suggested deep satisfaction with its performance. SCAP had kept the Prince waiting twenty minutes for the meeting while the General had been closeted with his Political Adviser, perhaps laying out a new tough line toward the Japanese government in an effort to defuse criticism back home of pusillanimity. After MacArthur delivered his salvo, Konoe deemed it politic to offer his services "to do as much as I am able for the sake of my country."40 The Supreme Commander's reply convinced the Prince that his offer had been accepted and that he had been given, in effect, a commission from SCAP to initiate constitutional reform. "Excellent!" MacArthur said. 'You are a scion of the 'feudal forces,' yet you are cosmopolitan and acquainted with the state of affairs in the world. And you are still young. Take your place in the vanguard of leadership! If you were to rally the liberal elements around you and lay before the public a proposal for constitutional revision, I think the Diet would go along."41 The carrot MacArthur offered—his praise for Konoe's relative youth and capabilities, his tacit seconding of the Prince's fear of Communism—might not in itself have had much effect. But the very next day, the Higashikuni Cabinet resigned rather than comply with SCAP's civil liberties directive. Then the General's stick—his threat to act alone if the government would not cooperate—began to look more frightening. Only a few days before the directive was issued, Higashikuni had been told by MacArthur personally that no alterations in the makeup of his Cabinet were necessary. Yet suddenly he was ordered to dismiss his Home Minister and approximately four thousand other officials, most of them senior police officers. Mortified at this blunt expression of SCAP's lack of confidence in his administration, the Prime Minister had no choice but to quit, regretfully realizing that the Supreme Commander, rather than His Imperial Majesty, would now get all the credit for freeing political prisoners.42 The Cabinet's resignation was the most exciting event at GHQ that day. It had been expected that the order to release all Japanese political prisoners would create "lesser repercussions," not the precipitate collapse of the government. MacArthur confided to Sutherland that "perhaps one or two more cabinets had to fall before things ran smoothly." The Supreme Commander hoped, he added, that "the Japanese would save Prince Kanoye [sic] to form the last and permanent cabinet."43 What he had seen thus far of Konoe, MacArthur liked. Within hours of Higashikuni's resignation, a successor had been selected. Baron Shidehara Kijuro's main qualifications to be the new Prime Minister were that he was free of any taint of war responsibility; had extensive experience in foreign relations, especially with the United States; and had thus far attracted no American animosity.44 The Shidehara Cabinet was "all elderly men of an era long past," Yabe Teiji reflected gloomily. "This doctrine of 'restoration' will not result in a New Japan," he predicted.45 Not part of the new Cabinet, Konoe continued to behave like an official of the Japanese government. Whether he saw himself as a representative of the outgoing administration or, more likely, as a personal emissary of the Throne is not clear. It is clear,

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Volume Two • Tokyo however, that SCAP knew of his continued role and implicitly sanctioned, or at least tolerated, it.46 After his meeting with SCAP, Konoe approached Takagi Yasaka, a professor of American constitutional law at Tokyo Imperial University, to act as his technical adviser. On 6 October, an ailing Takagi called on General Bonner Fellers, MacArthur's military secretary and a slight acquaintance. Fellers had no doubts that the General would likely demand certain reforms in his initial meeting with the new Prime Minister. He spun a tale of hardship: SCAP was coming under increasing pressure from the Allied powers and the American public; MacArthur had to show a tough attitude to Japan to forestall even harsher demands from the Soviet Union and other nations.47 In actuality, SCAP was not in a position at this point to do much more than make dramatic gestures, for the Allied Occupation of Japan was still operating in a virtual policy vacuum. The Potsdam Declaration had come into being only a month before the war's end, and the U.S. Initial Post-Surrender Policy was still going through basic revisions right up to the surrender ceremony. These were all SCAP had to go by; nothing had yet arrived from Washington to provide more detailed guidance or interpretation. Still, MacArthur had critics at home and abroad upbraiding him for lack of action, and he was anxious to still them. Takagi rightly suspected that the American temper was wearing thin and that some drastic demands would be forthcoming from SCAP just to show who was the boss. Yet he managed to persuade the pliant Fellers to have MacArthur segregate the issue of constitutional reform from whatever other demands SCAP might make and to handle it instead as a logical outgrowth of other reforms undertaken by the government. Constitutional reform, in other words, would be mandatory, but the Supreme Commander should not embarrass everyone by saying it was—at least not until the Emperor had been given a chance to act.48 Later that same day, Takagi also spoke with John Emmerson, a career diplomat recently transferred from observing Mao's men in China to the staff of MacArthur's Political Adviser. The Emperor, Takagi told Emmerson, was "sincerely desirous of achieving reforms acceptable to the Allies and these will be achieved in due course." Allowing the Japanese to develop their own reforms voluntarily would be more desirable in the long run than imposing them, he argued. After probing for the "general American reaction" to Prince Konoe—and drawing a properly noncommittal reply from Emmerson—Takagi closed by saying that "the Japanese were sincerely trying, under the Emperor, to carry out the wishes of the Allies and he hoped that, at least, it might appear that their efforts were spontaneous."49

Interpreting American Policy to the Prince Perhaps encouraged by Takagi's interview with Emmerson, and undoubtedly apprehensive about giving SCAP any impression that the Japanese were not "sincerely trying," Konoe called on MacArthur's Political Adviser, George Atcheson, Jr., late on the afternoon of 8 October, in the Adviser's spacious office in the Mitsui Bank Building. The Prince was accompanied by Ushiba Tomohiko, his private secretary, and sometime interpreter Matsumoto Shigeharu, a journalist and wartime chief of the editorial bureau of the Domei News Service. It immediately became apparent that Konoe was

The Konoe Affair taking seriously—and personally—MacArthur's remarks of 4 October. He had already approached the Lord Privy Seal, Marquis Kido Koichi, on the issue of constitutional reform and was acting as informal emissary from the Throne. Having not yet received his instructions on governmental reform from the State Department, Atcheson had to be circumspect. He knew relatively little about Japan, being a China specialist himself, but he did have two men on his then-embryonic staff with prior experience in Japan and knowledge of Japanese, Max W. Bishop and Emmerson. It was they who briefed the Political Adviser on the intricacies and inadequacies of the Meiji Constitution, they who contributed what litde knowledge was available in Tokyo about the state of policy planning back in Washington.50 Not until 13 October did Atcheson receive the latest word on American policy toward constitutional reform. That came in the form of a lengthy memorandum from a new staff member, Robert A. Fearey, who had just arrived from Washington with tales of conflict between the major Departments and of policies in flux. Happily for Atcheson, Fearey was also the author of SWNCC 228, the basic paper on constitutional reform that was then undergoing heated consideration back in the States. So the underprepared Atcheson did what any well-trained diplomat would do: he evaded. Offering his "personal, unofficial comment," Atcheson suggested that there could be no government that reflected "the freely expressed will of the people" so long as the Diet was not free to initiate and enact constitutional amendments and so long as the executive could enact laws when the Diet was not in session. Without prescribing any remedies, Atcheson presented the flaws in the Japanese constitutional system: the powers of the lower house were limited, and it was subject to dissolution arbitrarily; each civil right was "emasculated," and there was no provision for protecting the "people's rights" against governmental abuse; the House of Peers "was not democratic in any sense; there was no way to make the War and Navy Ministers (if there should be any in the future) responsible to the government; and the Privy Council was an extraconstitutional body that restricted popular rights.51 Trying to interpret SCAP's intentions more precisely for the serious and somewhat anxious Prince, Atcheson suggested that Konoe become a "public advocate" for reform. When Konoe's interpreter intimated that such a stance might raise problems of lese-majeste under Japanese law, which gave the Throne sole right to initiate constitutional amendments, Atcheson added that the Emperor could order Konoe to speak publicly in favor of reform, or perhaps even set up a commission to effect the necessary changes.52 This was an idea that appealed to Atcheson. In a cable to Washington, he noted that "as a practical matter, imperial 'initiative' of and sanction for an early and suitable revision of the constitution . . . would provide a firm basis for launching and establishment of a new organic law of government."53 Konoe might not have taken Atcheson's advice so seriously had the Prime Minister-Designate been an ardent advocate of reform. But Shidehara had made it clear to both Konoe and Lord Privy Seal Kido that, in his opinion, revision of the Meiji Constitution was neither necessary nor desirable: reinterpretation of that most malleable document would suffice. Kido, while agreeing with Shidehara in principle, noted that the Americans were bent on forcing changes.54 After meeting with Atcheson, Konoe was convinced the Japanese would face dictated reforms if much more time was lost;

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Volume Two • Tokyo Kido, realizing the situation was critical, promised to have the Emperor issue a proclamation on constitutional reform as soon as possible.55 The next day, 9 October, Konoe's private secretary, Ushiba Tomohiko, called at MacArthur's office to report that the Prince had discussed constitutional reform with the Emperor and that His Majesty had designated Konoe "to summon constitutional experts with a view to liberalizing the Constitution." Ushiba laid out a four-point program for accomplishing this. First, a "liberal constitution" would be prepared, then the Election Law would be revised and a new Diet elected, and finally, the draft constitution would be submitted to the new Diet for approval.56 On 10 October, the Emperor gave his willing approval to a special court appointment to the Office of the Privy Seal for Prince Konoe. On 11 October, the Emperor personally ordered Konoe to examine the question of whether the Constitution needed revising and, if so, to what extent.57 The Prince's commission was announced at noon.58 Covering all bases, Ushiba had already called on both Fellers and the Political Adviser's office to inform them about plans for constitutional reform under the Imperial aegis. These included attaching Prince Konoe to the Office of the Lord Keeper of the Privy Seal so as to provide the Prince with an institutional cover for his project. This was "a typically 'Japanese' way of doing things," Ushiba explained: the Emperor had already decided that the Constitution needed revision, "but since technically this should be done by the Cabinet, he was appointing Prince Konoe to make recommendations."59 Thus it came as no surprise to either SCAP or his Political Adviser when Konoe's appointment was made public. Both had been forewarned; neither had raised any objections.60 This was a detail SCAP later sought to forget, but Professor Takagi and Konoe's private secretary had been meticulous in keeping both offices apprised of Konoe's new job and his projected study of constitutional reform. Atcheson heartily endorsed the Imperial support that went along with the appointment, believing this would smooth the path for needed changes. There were no precedents for handling the matter differently, for since its promulgation the Meiji Constitution had never been amended.61 Neither Atcheson nor his staff anticipated that the Japanese government might consider Konoe's project an usurpation of its responsibilities or that there might be any public reaction against the noblesse oblige of Konoe's undertaking.

Konoe's Constitutional Reform Project Just as Konoe had made quick, diplomatic approaches to MacArthur's staff and the Office of the Political Adviser (POLAD), the Prince moved with equal rapidity, if less shrewdness, to assemble his team. His first need was for a Japanese scholar of constitutional law of considerable eminence and liberal reputation. Two seemed eminently qualified: Dr. Minobe Tatsukichi, professor emeritus at Tokyo Imperial University, and Dr. Sasaki Soichi, former professor at Kyoto Imperial University. Both had individualistic styles of scholarship and outlook that had won numerous adherents, notwithstanding the strong, often prickly personalities that lay underneath. Both had survived encounters with the Japanese military and its bureaucratic allies in the mid-iggos. Most important, both had once stood for the eventual establishment of parliamentary

The Konoe Affair democracy in Japan, either through evolution, as in Minobe's case, or through gradual revision of the laws and the Constitution to correspond to changing social conditions, as in Sasaki's. In contrast to an early twentieth-century group of absolutist scholars spearheaded by Uesugi and Hozumi, Minobe contended that "L'etat c'est mo? was never a valid definition of sovereignty. Sovereignty, he believed, reposed in the state rather than in a single individual or family line. Thus, rights inherent in a sovereign entity were exercised by the organs of that entity, of which the Japanese Emperor was but one, albeit the supreme one. Minobe's "organ theory" had attracted a number of followers during the 19205; but with the rise of militarism during the 19305, it had become transmogrified into a symbol of disloyalty to the Throne and of lack of faith in the grandeur of Japanese traditions. Minobe found himself under political and legal attack, vilified and threatened. His books were proscribed, and he was forced into seclusion after resigning his seat in the House of Peers and issuing a tortured recantation in return for the government's dropping charges of lese-majeste against him. That Minobe's "organ theory" was the symbolic focus of the attack upon him obscured the real reason for the public furor, namely, his advocacy of parliamentary democracy and his denial of the military's cherished special relationship to the Throne, which allowed them to remain independent of civilian control. Like some of Minobe's pupils, Sasaki and his associates had been subjected to suspensions and government scrutiny of their teaching.62 After twenty years of teaching at Kyoto Imperial University, Sasaki finally left there to protest the ouster of a colleague at the behest of the Minister of Education.63 Sasaki's positivist training led him to concur with some conservative Japanese scholars in interpreting certain sections of the Constitution, notably the chapter on civil rights: he did not share their right-wing inclinations, but unlike Minobe he could discern within the text of the Meiji Constitution no basis for a more liberal reading. Sasaki and his students were critical of Minobe for interpreting the Constitution as subjectively as any of their conservative antagonists. As Sasaki pointed out, fascism could as easily be found in the Meiji charter as could the democracy Minobe yearned to unearth.64 Minobe was quickly ruled out. His case had engendered such bitterness that Konoe, ever fearful of the passionate and vengeful Japanese Right, was afraid that offering an Imperial commission to the controversial scholar might endanger both the old man and the project.65 Besides, Konoe, who as a student had taken the almost unheard-of step of transferring from Tokyo to Kyoto Imperial University, did not know Minobe personally. The Prince had studied under Sasaki and felt closer to his old professor than to any other scholar of his stature.66 But Sasaki was reluctant. There were repeated phone calls and even a visit from the Governor of Kyoto, acting at the request of the Lord Privy Seal, before Sasaki finally agreed at least to visit Konoe in Tokyo to discuss the project. The professor spent the night of 12 October with his former pupil at Konoe's Ogikubo residence, and the next day the two called upon Marquis Kido. The Emperor himself, Kido said, had twice inquired about Sasaki's arrival. What loyal subject could resist such a display of Imperial concern? Later that day, Sasaki's appointment as special court attache was announced.67 The English-language Nippon Times, a prime source of news for Occupation personnel, applauded the

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Volume Two • Tokyo appointment of "an outstanding liberal authority on constitutional law." The choices of Sasaki and Konoe's intermediary with GHQ, Dr. Takagi Yasaka, "the nation's foremost authority on American constitutional law" and a man active "in the interests of Japanese-American cooperation before the war," offered "a revealing indication of the direction" Konoe's project was taking, the paper gushed.68 Two former Sasaki pupils were taken on to assist with drafting a proposal for reform. Konoe, with his usual largesse, rented the entire third floor of a small inn in Miyanoshita, near the resort area of Hakone, so that Sasaki and his group might compose in peace. Not far away in his summer villa in Odawara, Konoe was in almost daily contact with his old teacher. Sasaki worked obsessively, rising early in the chill fall mornings, even before the maid lit the charcoal hibachi that warmed his room, and working late into the night.69 Unlike Minobe, whose wishful thinking about the Meiji Constitution had led him to place his faith in its malleability, Sasaki was an early convert to redrafting; he had been writing on the subject of constitutional revision since 1915. His position then, and later, was that all law is man-made and as such reflects the social conditions under which it was created. Those conditions are not immutable, and neither is the law: as one changes, so should the other. Sasaki's logical positivism made him scorn the highly subjective element Minobe brought to his reading of the Meiji Constitution. In an early article (whose cautious prose and figurative genuflections to the Throne suggested a sense of the risk being run), Sasaki railed against attempting to freeze even a law so fundamental as a constitution. To do so either doomed a people to stagnation, he maintained, or resulted in circumvention of the law.70 By 1945, Sasaki perceived Japanese society as having changed so significantly that no reinterpretation of the law, or even piecemeal reform of it, could accommodate this transformation. Yet his goal was not only to adjust the Constitution to social growth and realities, but to exorcise the highly subjective interpretations bedeviling Japanese constitutional scholarship in the past. His own revision plan occasionally went to ludicrous lengths to delineate his intent in a given article and to circumscribe constructions that might be put upon it in the future. The demonlike speed and drive with which Sasaki worked betrayed that the professor had spent much of his life thinking privately about constitutional reform. Unfortunately, the Konoe-Sasaki partnership was not the happiest. Whatever his original agreement with Konoe, Sasaki was under the impression that he, not the Prince, was in charge of the revision project—and Sasaki knew what he wanted. The professor proved too proud and determined in his ideas to accept dictation even from a former Prime Minister, and Konoe and his associates were afraid that Sasaki's lack of flexibility—particularly his reluctance to incorporate American ideas or proposals into his draft—would alienate SCAP. Even when the political rationale for the entire project was explained to him, Sasaki threatened to quit if forced to compromise his scholarly integrity by acceding to American demands.71 While Konoe made regular visits to the inn in Miyanoshita to oversee Sasaki's progress, Takagi, Ushiba, and Matsumoto Shigeharu pursued their contacts with the POLAD staff in Tokyo. Meanwhile, since the 8 October meeting with the Prince, the Political Adviser had gained a new officer, Robert A. Fearey, who outlined for Atche-

The Konoe Affair son the draft paper on governmental reform then pending in Washington. It was on the basis of an admittedly sketchy understanding of American policy that Atcheson had met with Konoe; now he learned from Fearey that the Pentagon and most of Washington was prepared to argue "that we should compel the transfer of sovereignty in Japan from the Emperor to the people and the convocation of a constitutional convention to draft an entirely new constitution."72 Reforms handed down from above, in other words, would not stand a prayer back home. Atcheson began to back away from his enthusiasm for the Imperial initiative, advising the Supreme Commander that the new constitution would not be based upon the freely expressed will of the people unless they were allowed the right to discuss and amend it: "A constitution which will be solely the gift of a benevolent Emperor cannot be expected to promote the democratic aims which we hold for Japan." "What do you propose?" MacArthur fired back. Revision of the Constitution should not be rushed, Atcheson counseled; moreover, "constitutional amendments drafted by the cabinet, after submission to the Supreme Commander, should be published and full opportunity afforded for public examination and criticism" before their transmission to the Diet for consideration.73 Without knowing it, Atcheson had just handed MacArthur the formula for reforming Japan's charter. And MacArthur would adopt it as his own. Days after Fearey had outlined American policy for him, the Political Adviser finally received an official confirmation from the Secretary of State. The document had taken almost two weeks to wend its way to Tokyo, and the policy paper on which it was based was still threading through the top-level State-War-Navy Coordinating Committee. It was not the final word, but it was the closest thing to it the Tokyo outpost had. Fearey was under the impression that service members of SWNCC favored the presidential model; they also "believed that Hirohito was more than nominally responsible for the initiation of the war and subsequent atrocities and that he should suffer for his crimes."74 Whatever the personal fate of die Emperor, the paper from Washington implied that British-style parliamentary democracy had not yet been foreclosed for Japan. Whether to retain the Imperial system was a question for the Japanese to decide, in the opinion of the Political Adviser's office, and no one there favored trying Hirohito as a war criminal. As John Emmerson, the office's chief political analyst and its main contact with Konoe's group, later observed, the Emperor was not personally culpable in bringing on the war, and "to throw him out, to displace him, to try him as a criminal would have affected the stability of Japan at that time."75 Two other staff members, Max Bishop and Fearey, had, like Emmerson, served in the Tokyo Embassy during Joseph Grew's tenure as Ambassador; they supported Grew's belief in the Emperor's institutional usefulness and personal lack of power.76 Even Atcheson, who "felt that the Emperor could not completely escape some blame" for the war, never believed he should be tried as a war criminal.77 Atcheson appreciated too well the Emperor's present usefulness in stabilizing Japan and in promoting constitutional reform. Between 8 October and 8 November, Takagi met informally with Emmerson and others on the POLAD staff a total of six times. These were chatty sessions, widi no records kept and no documents provided as a basis for discussion.78 After U.S. policy

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Volume Two • Tokyo was delineated, Takagi sounded out the Americans on the Konoe group's ideas. On 23 October, POLAD approached MacArthur about importing an "eminent American constitutional lawyer" to advise Konoe's group in drafting the revised constitution. This was Konoe's proposal, not Atcheson's, but the Political Adviser heartily endorsed it.79 At a meeting in late October, Emmerson and Fearey, now guided by the precursor to SWNCC 228 Fearey had brought with him and a more recent cable from the Secretary of State giving the Department's latest views, amplified upon POLAD's initial guidelines for Konoe's associates.80 Ensuing discussions through October and early November went into some detail on the chapter of the Meiji Constitution dealing with the monarchy and its prerogatives, clarifying a point of supreme concern to the Japanese: the Americans told Takagi that there was a good prospect of maintaining the status of the Throne, though not of preserving the present system of government.81 While sharing a car to Hakone with him, Takagi informed Prince Konoe that he was morally certain the Americans were not about to repudiate the Emperor. Konoe's relief, profound but quietly expressed, matched his own.82 But even as Takagi and Konoe were rejoicing in the surprisingly understanding attitude of GHQ, the Prince's project was threatened by dissension from within and ravaged by hostility from without. Sasaki would not tolerate the injection of alien ideas into his project for reform. It was inconceivable to the elderly scholar that he should be expected to make concessions to American views for political reasons.83 So captivated was Sasaki by his own work that instead of preparing a preliminary survey for the Throne to use in support of a decision to revise the Meiji Constitution, he drafted a whole new charter of government, complete with supporting brief. Unwittingly, he played right into the hands of those critics of the project who condemned the Office of the Privy Seal for trying to arrogate the responsibility for constitutional reform. Konoe himself was becoming more sensitive to grumblings from the Cabinet about unconstitutional aggrandizement. After the Cabinet's opposition became more vocal, Konoe was advised by Marquis Kido to limit his project to a preliminary inquiry, which might then be used by the Emperor as the basis for an order to the Cabinet to examine the matter more thoroughly. But Sasaki was bent on rewriting the entire Meiji Constitution, a project that would not only irritate the Cabinet but risk American charges of procrastination. As it became apparent there were many political war criminals whose arrests had not been ruled out, Konoe and Kido began to realize there might be little time left for them personally. Kido's forebodings began early. By mid-October he was already making plans for the dissolution of his office and his retirement from any position of responsibility close to the Throne. For Konoe, awareness of impending danger came weeks later.

A Fickle Press The Occupation had been under way only a few weeks when MacArthur's Office of Counter-intelligence reported that the Japanese press was unanimously advocating political reform. Letters to the Prime Minister, reported the Nippon Times, showed that the people were way ahead of their government in favoring such reforms as abolition

The Konoe Affair of the peerage and the election of prefectural governors rather than their appointment by Tokyo. Notwithstanding this apparent fervor, however, the press was still taking a cautionary line by advocating "a slow evolution, a Japanese version of Western democracy, and a return to indigenous Japanese democracy." Such a high coincidence of ideas, Counter-intelligence concluded, showed that Japanese press opinion was still being centrally conceived and dictated.84 Tokyo was trying to send MacArthur and the Allied powers a go-slow warning. Japanese press treatment of Prince Konoe's project seemed to be of a piece with its qualified endorsement of reform. Coverage started auspiciously enough, with the news of his appointment to the Office of the Privy Seal generally eclipsing the attention paid the new Prime Minister's visit to SCAP the same day.85 On 15 October, the English-language Nippon Times headlined the new Cabinet's decision to undertake its own study of constitutional reform under Minister Matsumotojqji; a Cabinet spokesman was quoted as saying that close liaison would be maintained with Konoe's project.86 A few days later, the Nippon Times editorially approved the Prince's selection of Drs. Sasaki and Takagi as advisers, remarking that this voluntary move toward change offered "hope of promising developments."87 Nowhere was there any reproof of Konoe's undertaking. But within a few days the vernacular press was running comments by Cabinet members and others decrying the involvement of the Office of Lord Keeper of the Privy Seal in a matter of state such as constitutional reform. The legal scholar Miyazawa Toshiyoshi observed in the 16 October Mainichi Shinbun that constitutional reform should be the Cabinet's responsibility and that it was highly improper for an agency free of Diet control, such as the Office of the Privy Seal, to captain such a project. The work done by Konoe's group, Miyazawa continued, ought to be integrated into the Cabinet's new study.88 Miyazawa further implied that Konoe's project took too literally both the historical tradition that the Constitution was a gift from the Meiji Emperor and the constitutional dictum that the Emperor alone initiated constitutional amendments. Constitutional reform, he contended, should not be handled sub rosa without the counsel or responsibility of the Cabinet, for to do so would be to ignore the principle of constitutionalism established by the charter itself.89 More dangerous than Miyazawa's cries of impropriety, however, was Konoe's own penchant for keeping a high profile. On 17 October, retreating from a sweeping statement he had made earlier to an American reporter, one suggesting that nearly all power would be taken from the Throne, Konoe told the Tokyo daily Asahi Shinbun that he had been misquoted, that he had really meant "the power of the Diet might possibly be expanded considerably while ... the execution of the Emperor's prerogatives might be more restricted than at present."90 To New York Times correspondent Lindesay Parrott, the Prince stated it was "improbable" that any alterations would be made to the provisions dealing with the Emperor's sovereignty and his sacred and inviolable nature. Moreover, there was no thought of calling a constitutional convention or of soliciting outside opinions on proposed revisions.91 The Nippon Times ran a second editorial on constitutional reform, this one pointing out the tumult in liberal camps over such an undertaking's being put in the hands of either the Cabinet or the Office of the Privy Seal, neither of which was believed capable of producing reforms even

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Volume Two • Tokyo approaching adequacy. Kido and Konoe earned special opprobrium, because despite their personal liberalism both were aristocrats identified with the old regime and both had acquiesced in the militarists' usurpation of power.92 The tide within Japan truly began to turn against Konoe a few days later, when an interview between the Prince and the Associated Press reporter Russell Brines hit the papers. Demolishing the carefully crafted fiction that constitutional reform had been initiated by the Emperor without any instructions from SCAP, Konoe told Brines that the project had actually begun at his meeting with MacArthur on 4 October, at which time the General "stated the necessity for a liberal constitution in a very stern tone and suggested that I take the leadership in this movement. . . ,"93 Konoe further remarked that a draft reform plan "based upon the suggestions of General MacArthur" would be completed by the end of November and would be submitted to Occupation authorities for approval before being presented to the Emperor. If the Prince had risked alienating the Americans in earlier interviews by making the revision project sound out of touch with the people, he now seemed bent on antagonizing his countrymen by documenting how SCAP had inaugurated constitutional reform. What created the greatest stir within Japan, however, was Konoe's remark that the Imperial House Law might be amended to permit abdication, for which Japanese law at the time made no provision. In raising the topic of an Imperial abdication, Konoe exposed himself to reprimands from even close friends.94 On reading the Brines story in the Japanese press, Prime Minister Shidehara's first reaction was that it had been mistranslated; then it dawned on him that it had not.95 Shidehara informed the Lord Privy Seal that Konoe was creating serious political problems for his government and asked for a retraction; Minister Matsumoto called upon the Prince separately to demand a public explanation of his remarks.96 The Brines piece and Konoe's subsequent tortured efforts to undo its "distortions" created the impression of a confrontation between the Cabinet and the Office of the Privy Seal over constitutional reform. In reality, the government was more upset by Konoe's references to abdication than by anything he had said regarding the Constitution.97 But having recently been forced to release political prisoners, the government could not now invoke the laws against lese-majeste or attack Konoe publicly for discussing abdication and perhaps putting the idea in Allied minds. Konoe held a press conference at which he blamed "misquotations" attributable to difficulties in translating back and forth between English and Japanese. He had been quoted as saying that approval of the Allies would be sought prior to submitting a draft reform to the Throne; what he had meant, Konoe now claimed, was that he would "officially consider the wishes of the American side" in preparing his draft. The Prince also acknowledged that he had received no instructions to rewrite the Imperial House Law. In fact, he had not been ordered by the Throne to undertake constitutional reform, either; he had merely been asked to look into its advisability.98 Although there had indeed been some errors in the original report of the interview, even an apology later from Brines himself could not undo what one Konoe associate called this "almost mortal blow."99 The Lord Privy Seal, Marquis Kido, informed Konoe that as constitutional reform had unfortunately become a political issue, his office proposed to wrap the matter up quickly by announcing that reform was needed, produc-

The Konoe Affair ing a rough outline of desirable changes, and turning the whole explosive bundle over the Cabinet.100 If Konoe had not possessed such a gift for making controversial pronouncements, he might have weathered the government's attacks on his work and his relationship to the Lord Privy Seal. But the Prince stayed highly visible and drew additional fire by trying to ingratiate himself with the foreign press. Besides giving exclusive interviews to American reporters such as Russell Brines, Lindesay Parrott, and Guthrie Janssen, Konoe held an elaborate and expensive luncheon for Allied press representatives at which he tried to persuade them of the stabilizing effect of the zaibatsu, as he had tried to convince MacArthur on 4 October. Although Konoe did not attempt specifically to absolve himself of responsibility for the Pacific war, many of the correspondents saw this as his underlying motif.101 Instead of charming, Konoe's attempts at explanation were seen as manipulative and self-serving. "Konoe was a wheeler-dealer to the end," recalled the chief of MacArthur's counter-intelligence unit.102 Konoe's unguarded comments in the Brines interview got him in trouble not only with the Japanese Cabinet but also with SCAP, for the Prince single-handedly effaced the pretense that constitutional reform had been initiated spontaneously by the Emperor. Painstakingly constructed by Takagi, the fiction had been tacitly endorsed by MacArthur, who thought using the Emperor as an instrument of reform would both ease the process and probably save Hirohito from being scapegoated by the Allied powers. Instead, Konoe told Brines that MacArthur had handpicked him for the job.103 Was the Prince now indispensable to both SCAP and the Emperor? The Brines interview appeared in the 25 October edition of the English-language Nippon Times, and Konoe's semiretraction made the front page of the same paper the next day. On 27 October, the Nippon Times carried another front-page Konoe story to the effect that the Prince was relinquishing his noble title and court rank because "he feels himself responsible for the war and also because he has decided that the returning of his tide will be a step toward the realization of democratic reforms in Japan."104 And on 28 October, there was yet another Konoe story on the front page of the Nippon Times, this one telling of a secret 1941 memorandum from the Prince that placed the onus for precipitating the Pacific war on General Tojo Hideki. The memo conveniently had been released by Domei, the Japanese news agency whose editor, Matsumoto Shigeharu, was close to Takagi and Prince Konoe.105 However sincere Konoe's motives, the reform project, his renunciation of privileges, the leak of an exculpatory memorandum—all these were beginning to seem a little too self-serving, a little too clever. In disgust, MacArthur's Political Adviser wrote Washington: "I am not happy about Konoe. In my opinion the error (if it can be called that) was not to arrest him long ago. Now he is quite neatly out-maneuvering us in his efforts to make a show of atoning for his sins."106 On i November, SCAP's public relations office issued a statement denying that Prince Konoe had been selected by the Allied authorities to undertake reforming the constitution.107 Shocked by the rebuke, Konoe affirmed at a news conference that he had received instructions on reform, though no order, from SCAP and was acting solely upon Imperial authorization.108 When Ushiba and Takagi next tried to meet with their contact at POLAD, they found the atmosphere suddenly chill, and the talks broke off within minutes.109

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Volume Two • Tokyo GHQ had good reason to put distance between itself and Konoe. As news of the Prince's involvement in constitutional reform reached the States, it drew angry opposition. Shortly after denying any affiliation with Konoe, SCAP received a copy of a scathing editorial that had appeared in the New York Herald Tribune on the subject of the Prince's undertaking. "Of all the absurd blunders made by America in the Far East," the Tribune said, "one of the worst is the selection of Prince Fumimaro Konoe to draft Japan's new constitution. It is the equivalent of choosing a gunman to devise rules for a reform school. . . ." Using Konoe strengthened the "evil oligarchy" that ruled Japan and "nullified" the "many excellent moves of General MacArthur to encourage the development of democracy in Japan."110 This was hardly the first obloquy against Konoe that had appeared in the American press. But it was the first forwarded to Tokyo via cable by State with a tart inquiry as to the availability of American editorial opinion to the Occupation.111 The Japanese press earlier had denounced the institutional involvement of the Office of the Privy Seal in constitutional reform. Now it attacked Prince Konoe's record as Prime Minister, specifically his responsibility for bringing war to the Pacific.112 Japanese papers were not simply echoing their American counterparts; Japan's own consciousness of the war crimes issue had been heightened considerably by the ongoing trial of General Yamashita in the Philippines. It was becoming apparent that there were many potential political "criminals" whose arrests had not yet been ruled out. Prince Konoe's name appeared on a list that had been prepared by the U.S. War Crimes Office and sent to AFPAC in September.113 But, as we saw earlier, such "mail order" lists mattered little: MacArthur's counter-intelligence people thought this one "wasn't worth a damn."114 Even so, by mid-October Konoe's name had made it onto AFPAC's huge master list as one of thousands of "perpetrators";115 in late October, State sent Tokyo an intelligence report on the Prince.116 Konoe's personal doom was not sealed until 5 November, however, when E. Herbert Norman, a prominent Canadian scholar then temporarily assigned to the Civil Intelligence Section, submitted a devastating critique of Konoe's career to SCAP. Not only could a strong prima facie case be made that Konoe was a war criminal, Norman wrote, but it was "intolerable that [Konoe] should still thrust himself forward into public affairs, intriguing through his well disciplined team of political experts, jockeying for more power, insinuating himself into key positions, seeking refuge by hinting to the Supreme Commander that he is indispensable." Norman noted that Konoe's youthful flirtation with the radical ideas of the quasi-Marxist Kawakami Hajime, as well as his sponsorship by the enlightened genro Prince Saionji, had early given him a reputation as a liberal that he manipulated to his advantage. It was a Konoe trademark, Norman noted, to surround himself with associates that he employed as "masks" to give himself a liberal or nationalist persona, depending upon the need of the moment. The Prince liked men with "at least some imagination," but in all matters of import he had followed the dictates of "fascist-minded politicians" and military strongmen. During his prewar premierships, the Prince had done nothing to check the Japanese military. Instead, he had proven invaluable to it, because "his prestige with the Army and his unassailable position at Court uniquely equipped him to reconcile personal differences among the var-

The Konoe Affair ious leaders, to remove the frictions between the Army cliques," and generally to help the advance of Japanese aggression.117 Norman's Konoe was a narcissistic, spineless man "avid of public acclaim though fearful and even contemptuous of the people." Ultimately, the Prince served only the cause of his own ambitions, and although perhaps he technically bore no liability for launching the attack on Pearl Harbor, Konoe could not avoid responsibility for Japan's aggression against China at the Marco Polo Bridge, "the second great step toward World War II." As the coup de grace, Norman concluded: "One thing is sure, as long as he is allowed to occupy any position of importance, he will retard and frustrate any potential liberal and democratic movement. As long as he dominates the Constitutional Drafting Committee [sic], he will stultify any serious attempt to write a democratic constitution. Whatever his hand touches turns to dust and ashes."118 The day after Norman's damning report was filed, MacArthur ordered the Political Adviser and his staff to sever relations with Konoe.119 The Supreme Commander, Atcheson reported home, "feels that Konoe would make political capital out of further association. . . ."12° When Professor Takagi next called, John Emmerson had the unpleasant task of telling him that there could be no further contact between GHQ and Konoe's group.121 No sooner had MacArthur ordered the Political Adviser's office to cut ties with Konoe than his Acting Chief of Staff requested its help on the matter of war crimes. During his recent visit to Tokyo, Assistant Secretary of War John J. McCloy had made it clear to SCAP that the U.S. government wanted to see more war criminals arrested. But apart from those who had committed wartime atrocities, it was difficult to pin down potential perpetrators, especially in the nebulous "crimes against peace" category, because directives from Washington were couched "in such broad and general terms that [SCAP] is unable to determine those individuals that the American Government or the Allied Governments wish to prosecute." Worried that pressures for action might lead to wholesale arrests of suspects who would later have to be released for lack of evidence, GHQ wanted POLAD to draw up a war criminals list for MacArthur's use.122 Within a few days, the Political Adviser's Office compiled and submitted its own lists of Japanese war crimes suspects. Konoe's name was on the second list. Final designations were made by E. Herbert Norman, who had already damned Konoe in his Civil Intelligence Section report, and Robert Fearey, a junior officer in the POLAD office. On the typescript of the second list, their initials appear beside the names of various suspects. Next to Konoe's is the ambiguous "On CIC list for consideration."123 Fearey, if not Norman, felt that Konoe was being listed not as a prime suspect but as a material witness whose presence GHQ wished to ensure.124 Of the dozens of suspects named by POLAD, the office recommended that SCAP immediately arrest all, Prince Konoe included.125

A Failed Partnership Ignorant of what was happening at GHQ Konoe continued with his reform project. He had been cast off by SCAP and POLAD, but not by the Throne. Whatever the

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Volume Two • Tokyo Emperor's personal views, however, the Lord Privy Seal was growing restive, and Konoe knew he would soon lose his institutional sponsor. He had to produce something for the Throne to turn over to the Shidehara government: it had to be a credit to His Majesty, a document both creative and thoughtful, and it had to be completed in record time. Although his efforts to use the press to burnish his postwar image had backfired, the Prince did manage to keep news of dissension within the project from making its way into the papers. There were three major areas of disagreement between the Prince and his old teacher. Sasaki's draft recognized all of the old Imperial prerogatives, whereas the Prince envisioned a much more restricted role for the Emperor. Sasaki favored retention of the Privy Council; Konoe wanted it abolished. Both men held that military matters were not independent of other state business, but Konoe wished to delete the articles of the Constitution that had given rise to this customary interpretation, whereas Sasaki wished to retain the Imperial prerogative of supreme command over the military.126 Over the finer points of their discord loomed the larger question of whether the Allies would find acceptable Sasaki's rigid, kokutaircentered approach with its continued identification of the Emperor with the state and the Throne's retention of sovereignty. With time running out and Sasaki still mired in rewriting the entire Constitution, Konoe gathered Takagi and an old friend, Lieutenant General Sakai Koji, at his villa near Odawara to concoct a revision plan of his own. Perhaps sensitized by criticism of the involvement of the Lord Privy Seal in a project that should rightly belong to the Cabinet, lacking any legal expertise of his own, Konoe decided to keep his suggestions short and general.127 Sasaki's draft largely had been outlined when Konoe, Tomita Kenji, Ushiba, and Takagi visited the professor at Miyanoshita on 20 November to tell him unceremoniously that the Office of the Privy Seal would be abolished in four days. Constitutional reform was over, at least their role in it. Having little idea of the pressures under which Konoe and the Lord Privy Seal were operating, Sasaki reacted with fury. The elderly scholar had planned on completing his drafting by mid-December; to be asked to wrap it up in just a handful of days was like being offered the cup of hemlock. After recovering from his initial angry impulse to return immediately to Kyoto, Dr. Sasaki decided to present what he had to the Throne.128 Konoe had his audience with the Emperor on 2 2 November; he presented a simple summary of reforms he thought necessary. It comprised fewer than a dozen items.129 The following day, after working through the night to complete his hundred-article rewrite of the Meiji Constitution, Sasaki submitted his draft, and on 24 November he lectured the Emperor on constitutional reform.130 Neither proposal was submitted to MacArthur's headquarters.131 Both Konoe and Sasaki, despite their profound disagreements, did produce remarkable drafts, though neither had much influence on the Japanese, nor later on Government Section. Following Kido's advice, Konoe kept his short and suggestive, offering a set of preliminary conclusions that might be useful to the Emperor in deciding what type of mandate to give the Cabinet. As a former Premier, Konoe alone realized that the central problem with the Meiji Constitution was its failure to provide any effective mechanism for unifying competing elites within the executive branch. Not

The Konoe Affair even the drafters of the Meiji Constitution had believed the Emperor would really rule, but to fabricate a constitution that presumed direct Imperial rule as the desideratum, without making it apparent that it was actually a fiction, forced the Emperor into an impossible dual role. The Throne could not serve as symbolic unifier of the nation and actual unifier of the government at the same time. Konoe attempted to restore the Emperor to reigning by providing the Prime Minister with power to manage the diverse components of the Cabinet. Sasaki's draft, quite different in approach and scope, reveals the attitudes of an eminent Japanese scholar who was committed to reforming the Meiji Constitution into one that would conduce to the development of a somewhat old-fashioned parliamentary democracy. The elderly scholar recognized the primacy of civil rights, requiring that whatever legal restrictions were placed on them be necessary for the public good and extending those rights to resident foreigners as well as Japanese citizens; he allowed citizens to sue the state for redress when damaged by the unlawful act of a government official; he removed responsibility for interpreting the Constitution from the Privy Council and placed it in a new Constitutional Court; he abolished the House of Peers and provided for a representative council of the Diet that could act on its behalf when the legislature was not in session. Upon petition from the Diet, the Emperor would be obliged to convene the legislature or extend its session. The right to initiate amendments to the Constitution was granted to the Diet; for total revision of the Constitution, which might be necessary in the future as Japanese society changed, there was provision for a popular referendum. His draft recognized academic and artistic freedom; it even made a bow to local self-government.132 Far more progressive than the draft eventually produced by the Japanese government, Sasaki's draft shows the direction native reform impulses might have taken had Konoe been a different man than the one he unfortunately was. Postscript to a Life The Prince's arrest, along with that of Lord Kido and others, was ordered by MacArthur on 6 December. Konoe's designation created almost as much of a stir within SCAP headquarters as outside it. Max W. Bishop, POLAD's Tory manque, "took off like a rocket, went through the roof."133 Bishop had attended the 8 October meeting at which Atcheson had outlined American policy on constitutional reform for the Prince; he had also sat in on interrogations of Konoe by the U.S. Strategic Bombing Survey (USSBS) and considered the Prince an invaluable source of information.134 Within GHQ's small community of intelligence experts, the arrest order for Konoe exacerbated friction between the rabidly anti-Communist General Charles A. Willoughby, G-2, and Brigadier General Elliott Thorpe, whose division was in charge of naming war crimes suspects.135 After the arrest order, the press mercifully maintained silence on the Prince. Early one Sunday morning, the day he was to surrender himself to the Occupation authorities, Konoe retired to his room with a vial of cyanide salts. Some of his close associates were taken by surprise, but most were not. "Looking back," his private secretary told reporters, "it is obvious now Prince Konoe did not intend to give himself up to the

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Volume Two • Tokyo American authorities."136 Even some Americans anticipated suicide, as suggested by a delay in ordering his arrest and certain precautions taken to ensure his appearance for interrogation by the USSBS.137 In the Prince's study, American intelligence teams found an open copy of Oscar Wilde's De Profundis. Konoe's student translation of a Wilde story had embellished his reputation as a radical (and secured suspension of the magazine that published it). Now, he ended his career with a passage marked in red: '"I must say to myself that I ruined myself, that nobody, great or small, can be ruined except by his own hand.'"138 The Japanese papers, which responded to his suicide as if it were a complete surprise that the Prince could not bear the humiliation of victors' justice, were largely kinder to Konoe in death than they had lately been in life.139

CHAPTER 12

"Opaque, Bureaucratic Secretiveness": The Shidehara Government Looks at Constitutional Reform

FOUR DAYS AFTER THE RESIGNATION of Prince Higashikuni's Cabinet in October 1945, a new Prime Minister, Baron Shidehara Kijuro, was invested. A "bespectacled little man with a pained smile and a gentle manner,"1 Shidehara had enjoyed a distinguished prewar career as a judge at the Hague Court of International Arbitration (1918), a popular ambassador to the United States (1919—21),2 and Foreign Minister in three different Cabinets through the igaos.3 He had retired from public service in 1931. His personal reputation for integrity was flawless, his record of opposition to the military well known. Nonetheless, the Baron's ascension raised no hopeful expectations at GHQ. Ignorant of Shidehara's background, capabilities, and distinction, MacArthur seemed less concerned about the man's political acumen than about his advanced age and whether he understood English.4 The Supreme Commander's Political Adviser believed no radical changes would result from the shuffling: "The present Cabinet, although on the surface of a somewhat more 'liberal' appearance than any of his predecessors for a number of years, in fact far more represents conservative than liberal elements in Japan." Many Cabinet members had strong zaibatsu ties, notably Shidehara, Foreign Minister Yoshida Shigeru, and Minister without Portfolio Matsumoto Joji. More important, the criteria for their selection was negative: the Prime Minister and his cohorts had been tapped for their lack of prominent political exposure within recent memory. They brought not fresh perspectives but freedom from war crimes and from tainted reputations. POLAD pronounced the Shidehara Cabinet "mediocre" and predicted a short life span. It would do little beyond cooperating with the Supreme Commander "in mak-

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Volume Two • Tokyo ing such changes as are believed necessary to meet Allied demands" so as to terminate the Occupation as soon as possible.5 POLAD's initial assessment, borne out by events, was echoed by some GHQ staffers who respected Shidehara for his personal dignity and past record but found him ineffectual as a leader, lacking in political savvy, and too old to be in touch with how Japan was changing. Nor did he excite the Japanese. "The effect is of mold growing," was the pithy assessment of one.6 There were harbingers of trouble from the start. In his first broadcast to his countrymen, the new Prime Minister declared, " [F] rom olden days the Emperor made his will one with the will of the people" in a spirit that pervaded not only the Meiji Constitution but also "the democratic form of government." In other words, in a democracy the Emperor does what the people want. It was reminiscent of Higashikuni's statement as Premier that the Emperor had instructed him to "'respect the Constitution.'" State Department intelligence analysts noted that this latter injunction was "reiterated by political leaders, by the press, and on the air with the implication that political reform could be achieved largely through the establishment of freedom of the press, speech, and assembly, without alteration of Japan's fundamental law."7 Shordy before the investiture ceremonies, the Lord Keeper of the Privy Seal, Kido Koichi, broached the subject of constitutional reform to Shidehara. The Prime Minister-designate's response was negative: Shidehara believed the Meiji Constitution could serve democratic ends without being rewritten. Yet both he and Kido realized that simply reinterpreting the existing Constitution "would never satisfy the Americans, who seemed intent upon liberalizing the Japanese Constitution in their own American way and 'by their own hands.'"8 Kido's conversation, coming the day after Prince Konoe met with MacArthur's Political Adviser to discuss constitutional reform, was a delicate approach to secure the Prime Minister's acquiescence to a study initiated under Imperial auspices. On 10 October the newly installed Cabinet met for the first time in the parlor of its Foreign Minister. Again the topic of constitutional reform was broached, and again the Prime Minister shied away from it. Minister without Portfolio Matsumoto Joji, a reluctant draftee into the new Cabinet, remarked on the public attention being given the subject.9 His suggestion that the Cabinet look into die problem of revision was virtually ignored by Shidehara. The Prime Minister was "not awfully interested" in reforming the Meiji Constitution.10 The following day, the Cabinet did a quick about-face. During their morning meeting, Shidehara left to accept a phone call. Returning, he told the Cabinet that Imperial Household Minister Ishiwata had just informed him that Prince Konoe would be attached to the Office of the Privy Seal for the express purpose of studying the need for revising the Meiji Constitution. Konoe's appointment, cleared by Kido with the Prime Minister, had not been cleared with his Cabinet, which reacted with shock. Some saw it as an insult to the government; some blamed Shidehara for not keeping them informed.11 Matsumoto protested the arrangement: it was incredible that such a project should be entrusted to any agency but the Cabinet, for constitutional reform was surely one of the most important of governmental responsibilities. The rest agreed.

The Shidehara Government and Constitutional Reform Shidehara reported back to the Imperial Household Ministry that constitutional reform was a matter of state and as such should be a Cabinet undertaking.12 AFPAC's Military Intelligence Service was immediately (and correctly) suspicious of the Prime Minister's decision to inaugurate a parallel investigation. This "should be carefully watched to ascertain if it represents an attempt to check 'extreme' constitutional reform," it warned. "Prime Minister Shidehara's own attitude toward the Imperial constitution and prerogatives is believed to be markedly conservative."13 The Cabinet's decision did not stop the announcement of Konoe's appointment as court attache on 11 October.14 Ishiwata's call to the Prime Minister had been merely a courtesy; Cabinet approval was not needed for either Konoe's appointment or his mission, both of which were keyed to considerations extraneous to the Cabinet's sensibilities. Shidehara's first meeting with SCAP was scheduled for the evening of 11 October, and those close to Konoe correctly anticipated that MacArthur would raise the subject of constitutional reform, perhaps even issue a directive on it. Konoe's appointment was hastily arranged to create the impression that the government had placed constitutional reform under study voluntarily and prior to any action from SCAP. MacArthur met with the new Prime Minister at 5 P.M.; one hour later his office issued a press release on the meeting. The Japanese people, MacArthur reportedly told Shidehara, "must be freed from all forms of governmental secret inquisition into their daily lives . . . and from all forms of control which seek to suppress freedom of thought, freedom of speech or freedom of religion." There were five specific reforms MacArthur wanted instituted "as rapidly as they can be assimilated": female emancipation through suffrage; encouragement of labor unions and measures "to correct the evils which now exist in child labor practices"; liberalization of education; development of "a system of justice designed to afford the people protection against despotic, arbitrary and unjust methods"; and democratization of Japanese economic institutions.15 None of the reforms enumerated was constitutional revision, although MacArthur did add, almost as an aside, that "liberalization of the Constitution" would "unquestionably" be involved in their implementation.16 MacArthur's avoidance of the dreaded words "revision" or "amendment," his circumlocutory language, removal of that whole question from the category of enumerated demands—all suggest that SCAP had been conferring with his military secretary, General Fellers. Just a few days before, during a visit from Dr. Takagi Yasaka, emissary from Prince Konoe, Fellers had intimated that the installation of a new Cabinet would offer his boss an ideal opportunity for issuing a list of tough, explicit requirements— with constitutional reform at the top of the list. Since constitutional reform depended upon Imperial initiative, Takagi replied, it would be undesirable for the Supreme Commander to cast this as a directive. Fellers agreed. Other reforms would be mandated; but reform of the Constitution should be treated as a logical and desirable outgrowth of the rest.17 Paraphrasing the U.S. Initial Post-Surrender Policy and adding his own idea about female suffrage, the Supreme Commander delivered his set of demands to quiet criticism from abroad about the Occupation's lethargic implementation of the provisions of the Potsdam Declaration. Lacking detailed policy guidance for the demands he was making, however, he cast them in circumspect and vague language. Manner influ-

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Volume Two • Tokyo enced reception: Shidehara was tacitly encouraged to view constitutional reform as a last resort that was likely only if reinterpretation of the Meiji Constitution and other measures proved unsatisfactory. Those who read GHQ's press release in the vernacular press received an impression still more softened by the indirectness of the Japanese language.18 Nor were many words lavished on the session with SCAP: in Japan, press coverage of the MacArthur-Shidehara meeting was eclipsed by the news of Konoe's appointment. The attention given the latter suggested that the Emperor was voluntarily assuming the lead in reforming the Constitution.19 When Shidehara reported on his meeting with SCAP to the Cabinet the next day, he believed that liberalizing the Constitution was "of secondary importance" to the Americans. MacArthur, he noted with evident relief, was "very understanding" and not about to compel a vanquished country to do the impossible. The important items were the five points SCAP had listed: only if their realization proved impossible would constitutional reform be required. Missing the imperative beneath MacArthur's gentle manner, Shidehara relayed to the Cabinet that the Supreme Commander "looked rather surprised" at a suggestion that no revision of the Constitution was necessary to effect such reforms as enfranchising women. Evidently, SCAP had an erroneous impression of the Japanese Constitution. Or so it seemed to the Prime Minister, who persisted in contending that the requirements of the Potsdam Declaration could be met without changing a word of the Meiji charter.20

The Kenpo Mondai Chosa linkai Yet the Cabinet could not afford to rest secure on Shidehara's interpretation, for Prince Konoe's appointment made the government look remiss. After two days of discussion, the Cabinet announced that it was establishing the Kenpo Mondai Chosa linkai (KMCI), the Committee for the Investigation of Constitutional Problems, under the chairmanship of Minister Matsumoto. The KMCI deliberately eschewed "reform" in its tide, for its mission was to examine the question of whether reform was really necessary. Matsumoto had no desire to prejudge the issue. Establishing the KMCI, Matsumoto later told the Diet, was a purely spontaneous act on the part of the Cabinet with no coercion from SCAP.21 The Matsumoto Committee, as it was known at GHQ, would supposedly maintain liaison of an indeterminate nature with Konoe's project under the Lord Privy Seal.22 Having entered the Shidehara Cabinet unwillingly and without any idea of becoming involved in rewriting the Meiji Constitution, Matsumoto raised the first and most vehement objections to Konoe's appointment as a usurpation of the Cabinet's responsibilities. It was Matsumoto who, with Shidehara, subsequently undertook to argue Konoe out of his assignment.23 Thirteen years earlier he had helped reform his country's Commercial Code and was considered a leading spokesman for the financial world, but Matsumoto was chosen to chair the KMCI "by a process of elimination rather than on his merits." Minister of Justice Iwata Chuzo, perhaps a more logical choice to head the project, had to contend not only with the administrative demands of his department but also with endless SCAP requests for copies of extant laws, ordinances, and regulations and with peremptory SCAP directives on abrogating various

The Shidehara Government and Constitutional Reform laws and freeing political prisoners.24 Having refused to accept a specific post on grounds of fatigue and high blood pressure, Matsumoto was the only member of the Shidehara government not overwhelmed with immediate managerial responsibilities. Perhaps most important, Matsumoto sided with the Prime Minister in believing that the Meiji Constitution needed little, if any, reforming. MacArthur's Political Adviser pegged Matsumoto just right when he wrote SCAP and his Chief of Staff: "As a conservative lawyer he will not promote radical reforms, but his ability and long experience will carry important influence in deciding governmental policies."25 GHQ assumed that although Shidehara and his Cabinet might not be eager to see democracy introduced in Japan, they at least understood its elements. That assumption was wrong. It was not simply that they had no experiential knowledge of democracy or were zealous conservatives or that four long years of a cruel war had taught them to despise all things American. Another very potent factor in their hostility was a strain of thinking expressed in the Konoe Memorial, which stated an "apocalyptic thesis" that had Japan on the verge of revolution. Writing to the Throne in early 1945, Konoe portrayed a nation threatened externally by Communism and internally both by radical reformers in the military and the civilian bureaucracy and by despair and cynicism at home over the war. There was a very real fear among Japan's ruling oligarchy that revolution from above and revolution from below would combine to transform the country wholly. As the historian John W. Dower notes, Japan's conservative elites may have been "mildly paranoid" in their apprehensions of a Communist revolt, but they were "not at all out of line . . . in perceiving that the misbegotten losing war had created an almost open-ended receptivity to drastic change" among their countrymen.26 Rewriting the Constitution to make it more democratic might open the floodgates to total reformation of Japanese society. Primarily to ensure his own firm control over the scope and direction of the Committee's studies, Matsumoto made a point of organizing the KMCI outside the Cabinet Bureau of Legislation, which had already done some preliminary investigation of the impact of the Potsdam Declaration upon Japan's Constitution. No doubt this was designed to create an aura of political independence and immunity from bias; it may also have been an attempt to free the Committee from the political fortunes of the Shidehara Cabinet, as well as from pressures to which it might be subjected by SCAP. But Matsumoto seems to have feared that pestiferous liberal influences might penetrate the KMCI if it were not kept segregated, and as a result he and Shidehara might find themselves facing an epidemic of reform.27 What began as a technical, scholarly examination of the Meiji Constitution was gradually overwhelmed by the strength of the Minister's personality and convictions. It was not merely that Matsumoto was a fervent conservative trying to make his colleagues keep the faith: he was driven to dominating others in the smallest matters. Rarely admitting to errors in tactics or drafting, Matsumoto Joji viewed himself as preternaturally right. His choice to head the KMCI—and the almost perfect autonomy granted him by the Cabinet—proved a disaster for the Shidehara government. Although he had served in the Saito Cabinet in the 19305, Matsumoto strongly disliked political life with its gossipy gregariousness, its unremitting shoptalk, its intellectual shallowness. Reclusive and a bit taciturn, he was a man of little social life, few close

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Volume Two • Tokyo friends, and no patience with small talk. As a conversationalist, he brightened only when confronted with an abstruse problem of commercial law. Someone who hated to lose, Matsumoto disliked competitive games, yet loved litigation; if he failed to win a case, it was always owing to an obtuse judge. Those who knew him well, such as his sonin-law, the eminent jurist Tanaka Kotaro, and the scholar Sato Isao, admired him greatly; but even they conceded later that Matsumoto Jqji was not the right man for this job.28 Known for his skills as a business attorney, Matsumoto had served on the boards of various companies, done legal work for the zaibatsu, and briefly been a vice president of the Southern Manchurian Railway after World War I. He had a long record, too, of public service, having been Chief of the Cabinet Bureau of Legislation, a prewar Minister of Commerce and Industry, and a member of the House of Peers. A specialist in commercial law, Matsumoto had few professional qualifications for undertaking a study of the Constitution; but he did his homework, and he brought to the KMCI meetings a surprising depth of knowledge on a subject outside his field. With a mind sharp and retentive, buttressed by exceptionally strong confidence in his own intelligence and the correctness of his views, Matsumoto managed to interject his own opinions on virtually every point, often riding roughshod over the KMCI's senior consultants and constitutional law scholars.29 As the choice of Matsumoto to head the KMCI was influenced partly by Shidehara's aversion to constitutional revision, so Matsumoto's renitency conditioned his choice of committee members. Had GHQ known more about the career of Minobe Tatsukichi than that he had been figuratively martyred by Japanese militarists before the war, they might have predicted with some accuracy the course the KMCI would take. Minobe, an eminent scholar of Meiji constitutionalism, former professor of constitutional law at Tokyo Imperial University, and former member of the House of Peers—until retirement was forced upon him by rightists intent on expunging his teachings—was a close friend of Matsumoto. His prewar tarring by the right wing, along with his prewar reputation as a liberal, gave him impeccable credentials for the KMCI. Minobe was also the only Japanese scholar of constitutional law who was well known outside his own country, although he was better known for his sufferings than for his theories, which were frequently garbled in oversimplification.30 Because of his views, Minobe had not merely been publicly humiliated and reviled; he had lived in real fear for his life for years, lost jobs and income, watched his family threatened, and seen friendships evaporate from fear. But Minobe's views were museum relics. Minobe had once construed the provisions of the Meiji Constitution along liberal lines, stretching the articles considerably in a vain attempt to accommodate parliamentary democracy; he had never advocated rewriting the Constitution. He saw constitutional reform, if it came at all, as attendant upon gradual institutional change. Autocratic organs such as the Privy Council would atrophy with time, and their demise would need no constitutional quietus. Like Shidehara, he placed his hopes for the perfection of democracy in the Constitution's infinite malleability. Nothing happened in the few weeks after the war's end to suggest that Minobe's years of privation and disgrace had in any way radicalized the aging scholar.31

The Shidehara Government and Constitutional Reform In addition to Minobe, Matsumoto named two other elderly senior consultants, Nomura Junji and Shimizu Tom. Nomura, professor emeritus of law at Tokyo University, had also suffered during the purge of legal scholars and teachers.32 Shimizu, heir to a conservative school of interpretation that happily endorsed autocracy, was the only one who had come through the madness of the prewar years with his reputation enhanced rather than shattered. Concurrently Vice President of the Privy Council, he was the Matsumoto Committee's token conservative. Nomura was its radical. Minobe was its nominal centrist—and the one whose personal philosophy on the absence of any need for real revision came closest to Matsumoto's. With these three, Matsumoto felt he had assembled Japan's greatest authorities on the Constitution.33 Matsumoto also appointed three former Minobe students to the KMCI, namely, Miyazawa Toshiyoshi, Minobe's successor at Tokyo University and the eventual workhorse of the Committee; Kiyomiya Shiro, a professor at Tohoku University; and Kawamura Matasuke, professor at Kyushu University.34 Of these, at least two had suffered temporary suspensions from teaching during the Ministry of Education's purge of academia in 1935. They had been forced to redesign their lectures and even dieir publications to meet government criteria of political correctness. Whatever the effect on American opinion (which mistook past persecution as a badge of contemporary liberal convictions), appointment of the "Tokyo University faction" of Minobe and colleagues signaled to Japanese versed in constitutional theory that the Shidehara government was committed to zero reform if at all possible.35 The rest of the KMCI were ex officio bureaucrats. They included Ishiguro Takeshige, then Chief Secretary of the Privy Council but later made Chief of the Cabinet Bureau of Legislation for the Shidehara Cabinet; Narahashi Wataru, widely considered the brains of the Cabinet, who moved from the Bureau of Legislation to the post of Chief Cabinet Secretary; Irie Toshio, then Chief of the First Division of the Bureau of Legislation; and Sato Tatsuo, Chief of the Bureau's Second Division. Over time other members were added, including Morohashi Yuzuru, Kobayashi Jiro, and Oike Makoto, Chief Secretaries of the Privy Council, the House of Peers, and the House of Representatives, respectively. Still later the Committee added Nakamura Tateki, Director of the Ministry of Finance's Bureau of the Budget; Noda Uichi, his replacement in February 1946; and Okuno Kenichi, Director of the Civil Affairs Bureau of the Ministry of Justice.36 Matsumoto's cautious and scholarly approach was reflected in his staffing. Desiring "great authorities" on the Meiji Constitution, he provided for nominal representation of the major schools of Japanese constitutional interpretation, but backed them with a solid phalanx of scholars and bureaucrats who were committed to preservation. As Minobe's biographer Frank Miller noted, critics of the Matsumoto Committee could see in its "stubborn conservatism" the dominance of legalists disposed by instinct and indoctrination to protect the monarchy from democratic encroachments, who suffered from "serious myopia regarding the actual forces at work behind the struggles over constitutional theory."37 Matsumoto heightened their emotional and intellectual isolation by consciously cutting the group off from contacts with the outside. After an unsuccessful attempt at persuading Sasaki Soichi to serve on the KMCI, if only to provide liaison with Prince Konoe, Matsumoto made no further

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Volume Two • Tokyo approaches.38 When Matsumoto made known Sasaki's refusal, Minobe violently objected to his solicitation. Sasaki's participation in the KMCI, he contended, would have been construed as sanctioning the Lord Privy Seal's improper foray into a matter of state reserved to the government.39 By forgoing all further contact with Konoe's project, Matsumoto probably increased the friction and animosity between his group and the Prince's. He also deprived the KMCI of Konoe's invaluable knowledge of American criticism of the Meiji Constitution. Matsumoto isolated the Committee from contact with GHQ as well, a decision SCAP tacitly endorsed because it preserved the fiction that the Japanese government was acting voluntarily. As Matsumoto later made clear to the Committee, SCAP would be given an opportunity to review its work, but only after it was finished. Matsumoto's decree was accepted without discussion. No one wished to taint a task as serious as constitutional reform with suspicions of enemy pressure. Revising a constitution, the Chairman subsequently told the Diet, was not as simple as "buying ready-to-wear clothes in an American department store."40 GHQ willingly abetted Matsumoto's selfimposed isolation by adopting a scrupulous hands-off policy, refusing Government Section permission to meet with the Minister two weeks after the KMCI was established, and ignoring a recommendation from SCAP's Political Adviser that Washington's latest policy statement on constitutional reform be shown the Committee for its guidance.41 In sequestering itself on an academic Olympus, the Matsumoto Committee also neglected to solicit guidance from outside the Cabinet bureaucracy or the Tokyo University faculty of law. No practicing attorneys, procurators, or judges were consulted regarding the Constitution's chapter on the judiciary; no public administration specialists on governmental organization; no members of the legislature on the Diet. Partly this was due to the Committee's limited mandate. It had not intended to draft its own reform proposal, although it rapidly became evident that would be necessary. Partly it was due to Matsumoto's refusal to concede the inevitability of revision and to his inability to see much beyond the Meiji Constitution. With his lack of political acumen, the Chairman did not grasp how important a role public opinion would play in the revision process. Even less did he comprehend the need for some quiet diplomacy at GHQ.

The Kenpo Mondai Chosa linkai Begins Its Work The KMCI's first meeting was 27 October, two days after formal announcement of its organization. Konoe's small team had already been at work for a week or more. Because so much government office space had been destroyed by bombing, the KMCI met in the Prime Minister's official residence not far from the Diet Building. Strict secrecy about their meetings was the rule, with the sole group spokesman Narahashi, as Chief of the Bureau of Legislation, or Matsumoto. There was no stenographic record of Committee sessions, and those who kept rough notes were instructed not to identify speakers in their jottings as a precaution in case of leaks.42 The Committee's first order of business was to determine the purpose and scope of their inquiry. Matsumoto reminded the members that their mission was not to

The Shidehara Government and Constitutional Reform embark on a scheme for revision of the Constitution but to gather reference materials and conduct such studies as would enable them to respond quickly should a need for revision develop. Rather than restricting itself to items set forth in the Potsdam Declaration, the Committee was to review all areas of doubt and contention within the Japanese constitutional tradition, paying special attention to those points on which pro-reform momentum appeared to be gathering.43 Minobe seconded this leisurely but scholarly approach, yet he wanted to review every article in the Meiji Constitution, preferably by dividing the charter into discrete sets of problems, such as the relationship between the Constitution and the Imperial House Law, the role of the Diet, and so on. Nomura Junji, one of feistier KMCI members, argued that the Committee's main effort should go into meeting the immediate problems posed by the Potsdam Declaration, such as the effect of Japan's disarmament upon constitutional provisions relating to the armed forces.44 Nomura was not against broad reform—the draft plan he later produced was one of the most sweeping—but he opposed giving it priority over the immediate challenge of implementing the provisions of the Potsdam Declaration, apparently apprehensive that the Committee would forget its reason for being in a self-indulgent search for some academic ideal. When Nomura asserted that the Allies would surely require amendment of Articles i and 4, the pivotal sovereignty clauses of the Meiji Constitution, Matsumoto revealed the firm hand with which he intended to guide the KMCI. Reading the Potsdam Declaration as if it were a promissory note, Matsumoto declared not only that Articles i and 4 needed no revision but also that they were untouchable. The U.S. government had bound itself to letting the free will of the Japanese people decide this "issue," and Matsumoto was "'convinced that Japanese popular will absolutely supports the Emperor system.'"45 Matsumoto misinterpreted the Potsdam Declaration by regarding it as contractual and by confusing "form of government" (decision on which the Allies had guaranteed to the Japanese people) with sovereignty (which the Potsdam Declaration implied must reside with the people). Worse, he was pronouncing the issue closed on the basis of his own opinion about his countrymen. Finally, the Minister reiterated that he had no intention of allowing the KMCI to be governed by political considerations: it had been established to conduct its work independently, and it would.46 Complying with Allied terms of surrender was, apparently, deemed a political consideration. Three days later, the KMCI began its review of the Meiji Constitution along the functional lines Minobe had recommended. The Committee also confronted the issue of deadlines, which Minobe and Matsumoto had earlier brushed aside. Younger members agreed that the KMCI would have to cover the entire Constitution, even if superficially, before the year's end. They also agreed that work should proceed on the assumption that revision was necessary. The idea of readying a draft for submission to the upcoming extraordinary session of the Diet, scheduled for late November, was rejected out of hand. Not only did the Committee need more time, but both houses of the Diet were holdovers from the war years and tainted in Allied eyes. Elections would bring in a new House of Representatives, which might be meeting by early 1946, at which time a revision plan could be submitted.47

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Volume Two • Tokyo In one three-hour session, the Committee managed to cover all seventy-six articles of the Meiji Constitution. The first four it virtually exempted even from discussion. Many were reserved for further study; others were dismissed casually as posing no problem—that is, no problem of interpretation within Japan.48 The Committee's inability to appreciate Allied aims and attitudes was evident. MacArthur's instruction to Shidehara on female suffrage, for example, was taken literally and narrowly. The KMCI members did not sense that giving women the vote was merely the tip of a large equal rights iceberg. Lacking contact with SCAP or the Konoe group, the KMCI was ignorant of the basic principles of American policy that MacArthur's Political Adviser was trying to pass on to the Prince and his advisers. During November, the KMCI held a total of eight meetings, all in an icy, tatamimatted conference room deep within the Prime Minister's residence, heated only by a rarely stoked coal stove. Meetings ran three hours or more, well into the gloom of evening, and Matsumoto was invariably present. Using a summary of points at issue that had been prepared by Miyazawa, the members reviewed Meiji articles in greater detail and tried to reach a consensus on each in the organic but often formless process of Japanese decision making. On several items the Committee decided to accumulate research materials for use if public opinion seemed likely to demand revision.49 Most of these were points that had generated debate within Japan in the past but had no bearing on any Occupation goals thus far announced. Or they were issues of symbolic import, such as whether to refer within the Constitution to the Japanese people as "citizens" (kokumiri) rather than as "subjects" (shinmiri). By the 10 November session of the KMCI, Matsumoto had shifted his position slightly. Although he still supported Minobe's position that any overhaul of the Constitution should be undertaken to meet Japanese needs rather than Allied demands, Matsumoto told the Committee, " [It] appears that, politically, we will not be able to get away with doing nothing." Constitutional revision would "solidify as an issue in the very near future"—in fact, the Committee might need to have a revision plan ready for submission to a special Diet as early as February 1946. The KMCI would have to start paying attention to areas the Allies were likely to think needed reform, including the scope of Imperial prerogatives, the composition and powers of the Diet, and the relationship between Cabinet and Diet.50 On 24 November, scheduled for its last meeting for the month, the KMCI spent nearly the entire day in session. Toward the end of the meeting, the Committee reviewed an untitied eight-point document that bore a striking resemblance to the draft plan submitted by Prince Konoe to the Emperor two days earlier.51 Whether the members thought the document was Konoe's is unclear; the reception it received, however, showed how eager the KMCI was to criticize the efforts of others, how reluctant to reconsider its own views. For example, the "Konoe Draft" under KMCI review raised the question of whether in Article 66 the Diet should be empowered to make changes in the "budget" for the Imperial Household, a fixed allotment appropriated annually by the Diet without any say by the legislature as to reductions or additions. Instead of reopening the issue of whether the Diet should have real control over Imperial Household expenditures, the KMCI curtly dismissed the subject as closed.52 The

The Shidehara Government and Constitutional Reform Committee's earlier consideration of Article 66 had focused on the narrow issue of whether to delete or retain the article; rewriting it was ignored. On 26 November, the extraordinary Eighty-ninth Diet was convoked. For the duration of the approximately month-long session, the KMCI suspended its own meetings. Having reached general conclusions, the members of the Matsumoto Committee would now prepare individual proposals for reform, reported the Mainichi Shinbun. Consideration of these would start in late December, and a draft plan for revision, it was estimated, would be ready by midjanuary. By now, the KMCI was openly conceding that it would be drafting a reform plan, which it hoped to have ready to submit to the new postelection Diet, then scheduled to convene in February.53

A Taste of the Future: The Eighty-Ninth Diet and Constitutional Reform In his maiden speech to the Diet, Prime Minister Shidehara showed remarkable political obtuseness by ignoring the subject of constitutional reform. That set the tone for the rest of the session. In response to almost all interpellations on the subject, the government dismissed the problem by claiming it was under study and comment would be premature.54 Failure to define the areas on which the KMCI had already reached a consensus only fueled fear on the right and anger on the left. This is not to imply that constitutional revision occupied a high place in the Diet's hierarchy of pressing issues. More important by far were immediate problems of lack of food and fuel, unemployment, and approaching economic disaster. Still, though dominated by conservatives and nationalists held over from the war years, the Diet, noted the U.S. War Department's Military Intelligence Division, "was cool to Shidehara's opening speech, which repeated platitudes concerning democracy and rehabilitation but failed to present any definite program."55 Diet members found it hard to get straightforward answers to simple questions. When queried as to Japan's legal status under the Potsdam Declaration, the government replied blandly, "'We are lacking the appearance of an independent nation'" or "'A complete restoration of sovereignty has not been made.'"56 Asked by a member of the House of Representatives whether the Emperor's governmental powers (tochikeri) were impaired because they had been made subject to SCAP's authority, Matsumoto smoothly analogized Japan's situation to that of a solar eclipse: like the sun, the Emperor's sovereign authority had not disappeared; it was just temporarily obscured. The government had little to say about how it construed the Potsdam Declaration's injunction to remove "all obstacles to the revival and strengthening of democratic tendencies," but what it did say was facile and cliched. When one Representative asked, hypothetically, how the government would respond in the event the Allies had representations of their own to make about what constituted a democratic constitution, Matsumoto breezily responded that he did not imagine such a situation would ever arise. He was as emphatic before the Diet as he had been before the KMCI that the Allies could not and would not attempt to alter Japan's kokutai, or the sovereignty of the Emperor.57 The speeches and replies of Shidehara, Matsumoto, and Foreign Minister Yoshida Shigeru to the Eighty-ninth Diet were hauntingly reminiscent of the views

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Volume Two • Tokyo of their American contemporaries Stimson and Grew: "democratic tendencies" budding in Japan since the Meiji era had been temporarily arrested by reactionary forces but were now free once more to flourish. Basic change, especially to the Emperor system, was not only unnecessary but potentially dangerous. Early in December there was a sharp exchange between Matsumoto and Tanaka Isaji of the House of Representatives Budget Committee. Wondering what had happened to the Shidehara government's plans to effect liaison with Prince Konoe, Tanaka wanted to know what the Prince had produced. Both Matsumoto and Shidehara refused to make public, even to the Diet, the contents of Konoe's draft. Although the Prime Minister said only, "'[I]t would not be proper for us to publish this now,'" Matsumoto insinuated that the draft was merely one man's opinion and not of much use to the government's study.58 A member of the House of Peers flatly stated that GHQ would never permit Japan to keep its constitutional provisions on the military and simply suspend their execution. The government was derelict, he intimated, because it passively awaited SCAP's orders rather than anticipating them.59 A Representative opined that the Allies no doubt intended a "pretty thorough-going" reform rather than the superficial tuning contemplated by the Japanese government. Instead of this "piddling" approach, he urged that the government strike out boldly for real change, not because the Allies required it but because it was essential for Japan's future.60 Facing ill-concealed contempt for the secrecy in which the government sought to shroud its work, concerned that interest in the unpublished Konoe Draft might grow in the absence of signs of life from the KMCI, Matsumoto threw the parliamentary dogs a few scraps of policy. After being soundly criticized by one Representative for "opaque, bureaucratic secretiveness," Matsumoto realized that this policy of minimal disclosure was doing the government more harm than good, and he offered to give his personal summation of the KMCI's preliminary work. Matsumoto's Four Points, as they were later dubbed, were the cornerstone of the Shidehara Cabinet's policy: 1. There was to be no change to the principle that the Emperor controlled all rights of sovereignty. There was no need to alter this, for there was no contradiction between the principle of Imperial supremacy and democratization of the Constitution. 2. Matters requiring Diet approval would be expanded; imperial prerogatives would be somewhat reduced. 3. The responsibilities of the Cabinet would embrace the entire range of state affairs. Ministers would be responsible to the Diet, and no one other than Cabinet Ministers might act in affairs of state. 4. Protection for the rights and freedoms of the people would be strengthened by providing against their impairment by any means other than Diet-enacted law and by perfecting methods for relief from their infringement.61 Although Matsumoto's statement to the Diet was widely reported in the Japanese press, it generated little editorial comment. Nor did it create evident ripples at GHQ, although one Government Section officer had recently completed a paper on constitutional reform in anticipation of the completion of the Government's revision proj-

The Shidehara Government and Constitutional Reform ect and its presentation to SCAP. On the other side of the globe in Washington, however, Army Intelligence concluded that public opinion was far ahead of Matsumoto. His suggested changes "would not basically alter the authoritarian spirit of the Constitution. Rather, they reflect the Japanese conservatives' desire to make the least possible change in the established order which they have so long dominated."62 Drawing criticism from both right and left within the Diet, Matsumoto kept his remarks innocuous so as to placate both. He spoke gingerly about curbing imperial prerogatives on the one hand; and on the other he implied stronger constitutional protection for civil liberties.63 It was not enough. On 11 December, Mizutani Chosaburo, a lawyer active in socialist politics since the early 19205, launched an impassioned attack. Matsumoto was wrong to claim that the first four articles of the Meiji charter needed no revision, Mizutani asserted, for redefining the locus of sovereignty was central to fulfilling Japan's obligations under the Potsdam Declaration and democratizing the Constitution. Continuing to vest sovereignty in the Emperor created a nucleus for the regeneration of militarist and feudalistic forces. It might also not be the best way to protect the Throne, given the tenor of public opinion within and without Japan.64 Anyone who held that the Emperor system and "democratic tendencies" were incompatible was "absolutely wrong," Matsumoto retorted. Ideal instruments like the Weimar Constitution did not guarantee democracy, nor, he implied, did imperfect ones necessarily lead to fascism. When Mizutani raised the Emperor's private endorsement of the British model of constitutional monarchy, Matsumoto replied that if the principle of Imperial superintendency of sovereignty were retained, but altered in application, Japan would have a constitution analogous to Britain's in operation. Japan's great misfortune, Mizutani tartly rejoined, was not to have chosen the English model from the start. Constitutional reform was not a task to be undertaken by courtiers or by a handful of scholars sequestered by the government, he maintained. It should be debated nationwide; instead it was impossible to extract any information as to what plans were under way for popular discussion or referendum on reform.65 Mizutani's deadliest volley, however, was aimed at the government's comprehension of "democracy." He thought Shidehara was confusing "respect for the popular will" with democracy: the former was the attitude of an enlightened despot; the latter was government by the people.66 Both Shidehara and Matsumoto were redefining democracy to fit their own vision of Japan, transmogrifying it in the process into a vague ideal of mystical and harmonious unity of ruler and ruled. To them, democracy meant that no one objected to autocracy.

The KMCI Members Submit Their Plans Throughout December, while the Diet was meeting, the KMCI members were working on their individual proposals for revision. All were submitted well before the Committee resumed meeting on 22 December, with the notable exception of Nomura's draft, which was by far the most radical as well as the most detailed, comprising over one hundred typed pages with elaborate explanations for each proposed revision. It was foolish, he wrote, to interpret the Potsdam Declaration as permittingjapan to per-

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Volume Two • Tokyo petuate unchanged its present system of government. The Allies had stipulated that the Japanese people might freely decide their own form of government, but they had conditioned that decision upon absolute conformance to the principles laid down at Potsdam. Basic changes to Japan's government were mandatory, not optional, and would best be effected without waiting for SGAP to force-feed them to the Japanese. Nomura thought the American presidential system better preserved separation of powers than did the British parliamentary model, and he disapproved of reconstituting the upper house by any means other than general election. He proposed numerous changes to the judicial system, including introduction of trial by jury; he recommended nationalizing land and certain industries as the only way for Japan to achieve economic rebirth; and he suggested incorporating social and economic rights into the constitution.67 With remarkable prescience, Nomura argued for drastic reform. No one paid any attention. On the opposite side—but having much more influence within the Matsumoto Committee—was Minobe Tatsukichi. Because of his stature and the congruence of his views with Matsumoto's, Minobe's draft formed the basis for subsequent discussion within the KMCI. Yet after having urged a total review of the Meiji Constitution, Minobe now found little requiring reconsideration. Ten other members submitted drafts, most of which covered only a few articles or concentrated on a single chapter of the existing Constitution. Kobayashi Jiro, who had voiced the Peers' view throughout, started with the premise that revision was unnecessary and that GHQ must be made to understand that proper interpretation of the Meiji Constitution would prevent the revival of militarism in Japan.68 Although none of the Committee members proposed a basic change in the Emperor's position, several tinkered with the Constitution's first four articles, ignoring Matsumoto's admonition that these were sacrosanct. There was a general disposition to favor revising the Imperial prerogative of issuing emergency ordinances (or instituting emergency financial measures), usually by requiring consultation with or approval from a newly created standing committee of the Diet. Most, including Minobe's former students, recommended deleting constitutional provisions relating to the military, a change that theoretically would erase the Emperor's prerogative of supreme command. Most also supported making items that had been regulated by executive ordinances subject instead to statutory law, thereby enhancing the legislature's power. Most proposals made Diet approval mandatory for the conclusion of treaties; some, owing to the deletion of all clauses mentioning the military, omitted any reference to declarations of war. All plans retained a bicameral legislature, but there was considerable divergence over the composition of the upper house, with some favoring a wholly elective system, others a purely appointive one, and still others a combination of elective and appointive. There was overwhelming support for empowering the Diet to petition for convocation of extraordinary sessions; this was seen as one way of curbing past reliance on emergency ordinances in lieu of statutory law. Many plans accorded the lower house a limited supremacy over the upper, in regard either to general legislation or to budgetary bills. The point of greatest agreement was that Cabinet Ministers should serve at the pleasure of the Diet, or at least of the lower house.69

The Shidehara Government and Constitutional Reform Most KMCI members also favored transferring administrative litigation to the regular courts; one member even proposed establishing a Constitutional Court. Two drafts offered a guarantee of equality before the law; others included a freedom of occupation clause; and several, apparently written before SCAP's 15 December directive disestablishing State Shinto, provided that Shinto should receive treatment no different from that accorded any other religion. A number of proposals offered a catch-all clause prohibiting the impairment, other than by law, of civil rights not enumerated in the Constitution. There was almost unanimous recognition of the Diet's right to initiate constitutional amendments, though that right was sometimes hedged with awkward procedural requirements. But the old system of enforcing the previous year's budget if the Diet failed to pass a new one was too useful an expedient for most KMCI members to discard.70 The Matsumoto Committee toyed with the mechanics of the Meiji Constitution but did not scrap the machinery, even where it had proven unreliable in the past. It was not that Committee members had any personal stake in the status quo—although some, like Kobayashi, had become advocates for groups with a stake, such as the Peers. But most had invested their lives in study and interpretation of the Meiji Constitution and could not escape its thrall. Nor had they been asked to make the attempt. Various governmental reform projects already under way and known to the Committee were reflected to greater or lesser degree in these drafts. The KMCI probably would not have even discussed the possibility of guaranteeing universal adult suffrage, secret ballots, and direct elections had it not been for the revision of the Election Law ordered by SCAR71 Yet another initiative, the Cabinet's Council for Reform of the Judicial System (Shiho Seido Kaisei Shingikai), had little influence upon the KMCI, notwithstanding that the Council's work had some overlap and that several members of one group served concurrently on the other.72 The same day as the KMCI was inaugurated, the Shidehara government also established the Deliberative Council on Labor Legislation (Romu Hosei Shingi linkai) within the Ministry of Welfare. Although the mandate of this group was to draft a new labor union law by mid-November, its drafting committee also prepared a resolution requesting that the Constitution include a right-to-work provision. Citing provisions concerning labor in the Soviet, Finnish, Yugoslav, Estonian, Polish, and other constitutions, the Council's brief included six draft articles respecting the right and duty to work, equal pay for equal work, and work conditions for incorporation into the Meiji Constitution's chapter on the rights and duties of subjects.73 Unlike those of the Matsumoto Committee, the ideas of the Deliberative Council on Labor Legislation were fairly well known to the public, and during the Eighty-ninth Diet Matsumoto was questioned about the Council's endorsement of incorporating labor rights into the Constitution. Although the government had no objection to recognizing such rights in principle, Matsumoto replied, their inclusion in such a basic charter as the Constitution was problematical. Precedents were scarce, Matsumoto claimed, though in fact they were numerous, as the Council's research showed.74 Yet within the KMCI, apart from Nomura's emphasis on social and economic rights, only Kawamura Matasuke included anything about the rights of labor. His draft, besides providing for a duty to work, offered provisions to protect livelihood and to

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Volume Two • Tokyo give relief to the unemployed or disabled.75 None of the Council's recommendations regarding working conditions, remuneration, or collective bargaining were adopted by the KMCI.

The KMCI Resumes Its Work On 22 December, the Kenpo Mondai Chosa linkai held its first meeting in a month to review the drafts produced by its members and listen to Minister Matsumoto report on his performance before the Diet. After the criticism leveled at the Committee during the Eighty-ninth Diet, the KMCI at first seemed slightly more disposed to tamper with the first few articles of the Meiji Constitution. In addition to proposals to delete terms such as "Great Japan" and "Imperial" as inappropriate to a defeated country stripped of empire, there was a move to add a clause stating that the Emperor's sovereign powers were exercised with the "assistance" (hoyoku) of his subjects. Not only would this emphasize the traditional oneness of sovereign and people; it would be seen, the Committee members hoped, as "a gesture signifying democratization." But the members found themselves facing the problem of whether popular assistance could be equated with popular approval—or popular sovereignty. As one member remarked: "'This kind of provision, just like the phrase "Sovereignty derives from the people," only enunciates a political doctrine; it is hardly a proper subject for detailed legalistic debate. The real question is whether or not to introduce ideology into the Constitution.'"76 Given attitudes like this, it was not surprising that the Committee tentatively concluded there was no real need to alter the substance of Articles i and 4, although it might be necessary to tone down their absolutist flavor slightly. When the KMCI reached Article 13, which dealt with the Emperor's prerogatives in foreign affairs, it was confronted with an extremely conservative Foreign Office memorandum opposing hasty revision because the Japanese people (that is, their representatives in the Diet) were too immature politically to be involved in the nation's foreign affairs. The Foreign Office advocated phasing in a system whereby at first reports would be made to the Diet on treaties already negotiated (text would be submitted for the Diet's information only), and at a later stage portions of treaties that needed implementing legislation or funding would be submitted for Diet approval. These would be submitted, however, to the House of Peers alone, for the Foreign Office favored modeling the role and powers of the upper house on those of the U.S. Senate. All this the Foreign Office proposed to do without altering the text of Article 13—and without deleting the provisions relating to declaring war and making peace. These should be kept, the Foreign Office contended, because the Potsdam Declaration did not prohibit Japan from maintaining a small national defense force, which she would need when her sovereignty was restored.77 At a working session two days later, frustration over the KMCI's conservative course became palpable. In discussing Kawamura's provisions for labor rights, one member pointed out that with Japan's soaring unemployment, incorporating social welfare or right-to-work clauses into the Constitution would create a document seemingly divorced from reality and loaded with "empty words." Even so, another commented, both Japan and the KMCI were in such a difficult position that the

The Shidehara Government and Constitutional Reform Committee simply had to take a more forceful reformist stand. The working members, younger and generally more pro-reform, felt the Committee was not attaching enough importance to civil rights in general and that it ought to view the establishment of social rights as part of its responsibilities.78 By late December the Committee—or at least Matsumoto—was tacitly distinguishing between two types of revision: major, under which more detailed provision for rights and liberties would be made, and minor, under which the KMCI would adhere more closely to the language and limitations of the Meiji Constitution. Minobe's former students had become reform minded, especially about incorporating social rights into the Constitution and making the upper house a wholly elective body. But there was a countervailing tendency within the group to pay little attention to the mechanics of government, leaving such practical problems as securing the resignation of individual ministers to the forces of public indignation rather than providing a means, such as impeachment, that would circumvent the need for a nonconfidence resolution that could topple an entire Cabinet. The KMCI held its last meeting of the year on 26 December; it would not meet again with its full complement of members until 2 February 1946, the day after publication of a bowdlerized version of its work in the Mainichi Shinbun. In the interim, Miyazawa, Irie, Sato Tatsuo, and Furui Yoshimi were to prepare two outlines, one for major reform, the other for minor reform, to be used for future Committee discussions.79 The KMCI had decided after all to prepare a draft revision, a decision no one had foreseen back in October when the group convened. Whether this represented a change in attitude is debatable, for despite Matsumoto's early and persistent disavowals of the need for revision, many committee members were privately committed to at least some reform. Two days after the KMCI temporarily adjourned, Prime Minister Shidehara was hospitalized with pneumonia caught after working late one night in a drafty, unheated room at his Nagata mansion. He had been polishing the Japanese text of a Rescript to be issued by the Emperor on New Year's day. The Rescript, a poignant attempt to humanize the Emperor by denying his godhead and by declaring his empathy with his suffering subjects, was based on an English text authored by a SCAP employee after an intricate ritual of approaches from the Japanese.80 MacArthur had not seen the proposed text, but he endorsed the idea enthusiastically.81 It was just the sort of nice symbolic gesture that would perhaps help and probably not hurt either the Occupation or His Imperial Majesty. Perhaps inspired by Shidehara's devotion to duty, Matsumoto decided to do a little writing of his own. Evidently without informing the KMCI, Matsumoto began to prepare a reform draft supposedly reflecting the consensus emerging within the Committee: there was no other course, Matsumoto maintained later, but for him to take this upon himself.82 That this task had already been delegated to four other members of the Committee suggests that the Chairman either feared their work might not be ready in time (Matsumoto having become a new convert to the need for haste) or apprehended that its contents might not reflect the kind of consensus he wanted to see. On a night very late in December, Matsumoto left Tokyo for his villa in the resort town of Kamakura. While the rest of Japan closed down for the long New Year's holi-

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Volume Two • Tokyo days, Matsumoto wrote, finishing his masterwork on the evening of 3 January. Matsumoto thought his plan "actually a rather substantial reform," even though he tried to make its text conform as closely as possible to the Meiji Constitution and adopted only the bare minimum of changes discussed by the KMCI.83 Whatever his intentions, the effect was to impose the straitjacket of his views upon the rest of the KMCI. This effect was heightened by Matsumoto's withholding his draft from the Committee until after he presented it to the Emperor as the Committee's own product. Throughout January, three younger KMCI members, Miyazawa Toshiyoshi, Sato Tatsuo, and Irie Toshio, met almost constantly in exhausting sessions to hammer the very rough consensus of the KMCI into a usable draft.84 Instead of the Nagata mansion's conference room used by the full Committee, they met in a small second-floor room that had been soundproofed for broadcast recordings. It was Shidehara's favorite napping spot; it was also the room to which Sato Tatsuo would later retire when ordered to render the Government Section's draft constitution into Japanese. Miyazawa took the lead in producing two drafts, the "A" Draft, which envisioned a somewhat broader scope of revision, and the "B" Draft, which reflected minimal adjustments to the language and substance of the Meiji Constitution.85 Eventually, a purloined version of the first—ironically the more revisionist one—appeared with fanfare in a Tokyo daily, precipitating a crisis within the Cabinet and an even greater one within SCAP headquarters. Even while the subcommittee was hard at work, Matsumoto was undercutting it. Summoned to the Palace on 7 January for an Imperial audience lasting two hours, Matsumoto conveyed the major elements of constitutional revision to the Emperor, despite their having been approved neither by the KMCI nor by the Cabinet. Only one item was to be rewritten at the Emperor's suggestion; the rest "largely met with his approval."86 At the subcommittee's meeting on 9 January, Matsumoto burst in, mid-session, to announce his own draft and its presentation to the Throne. The Emperor, he noted, had raised several questions regarding draft provisions for determining the organization and powers of the Privy Council and abolishing the Court of Administrative Litigation. Matsumoto had explained the government's views on the Konoe Draft, and the Emperor in turn had presented him with Professor Sasaki's monumental revision plan, which Matsumoto offered to have printed for the KMCI for reference.87 After reading his own draft aloud to the subcommittee, Matsumoto remarked that it had been shown to no one save the Emperor and Shidehara. He asked members for their "unreserved opinions" on it, but also instructed them to keep it confidential.88 Up to the time of Matsumoto's interruption, the subcommittee had managed to cover almost three chapters of the Constitution, proposing, arguing, and disposing of each article at the painful rate of one per half hour. They now faced a draft from on high that undid their labors. After lunch, the group found itself pulled into a discussion of Matsumoto's draft, and the deeper they went, the more problems they uncovered, particularly with Matsumoto's diction. The Chairman sometimes had used nonstandard or ambiguous expressions. In one article, he had written of the "duty of service" (ekimu), which left Committee members wondering if he meant a duty to work for one's livelihood instead of the duty of public service (koshoku), which the KMCI

The Shidehara Government and Constitutional Reform had earlier agreed to adopt. (The wording could also be taken as implying a duty to serve in Japan's armed forces, the interpretation put upon this clause when it was later translated into English for SCAP's Government Section.) Sometimes Matsumoto's phrasing was inconsistent. At one point he had written of reporting a matter to the Diet and seeking its concurrence, at another of submitting a matter to the Diet for concurrence, thus raising the question of whether a difference in practical effect was intended. His article on ministerial responsibility was susceptible to the interpretation that military affairs were not "an affair of State," and thus remained beyond Cabinet control.89 Leaving the subcommittee to its review, Matsumoto met with the Cabinet press corps. Forgetting his injunction to secrecy a few hours earlier, Matsumoto told reporters that he had prepared a reform plan of his own in anticipation that the government would need something to submit to the Diet. Matsumoto added that his draft would have to be reviewed before submission, but he managed to suggest that its adoption by the KMCI and the Cabinet was a foregone conclusion. In a jab at the Japanese left, Matsumoto opined that it would be a mistake to make the Constitution a vehicle for a particular ideology. How to interpret the Constitution was a question for each individual to resolve in his own fashion, yet the government must create a constitution susceptible neither to erroneous constructs nor to politically motivated applications.90 In other words, Matsumoto seemed to be saying, there were many ways to interpret the constitution, but only one was right. Despite his personal belief that there would be no change to that "great principle" that the Emperor combined in himself the rights of sovereignty, Matsumoto maintained that the KMCI reform plan would be thoroughly democratic and in "fundamental principles" would resemble a draft revision recendy penned by Takano Iwasaburo, an eminent teacher and writer on statistics and finance. Takano's oudine, one of the more liberal to appear, had the distinction of being the only published plan that jettisoned the Emperor system in favor of a republican Japan.91 Comparing his draft to Takano's was false advertising on Minister Matsumoto's part; but instead of being taken as disingenuous hyperbole, it raised unrealistic expectations, making all the more shocking the disparity between the ideas of Takano and other reformers and the revisions Matsumoto actually had in mind. The next meeting of the KMCI subcommittee was on 12 January, at which time a recently finished draft by the liberal group Kenpo Kenkyukai was distributed. Once again, Matsumoto interrupted the review to force discussion of his own plan, which was finally adopted by the subcommittee as its "B" Draft, or the one geared to minimal change.92 The Chairman was visibly disturbed by some of the private draft plans surfacing in the press, particularly by the tendency of the more scholarly drafters to seek inspiration in the Weimar Constitution. Weimar, he announced angrily, had ended up as nothing more than a '"bouquet of flowery language'" trampled into dust by the Nazis: its lofty declarations had never served the cause of German democracy.93 This was a tocsin Matsumoto had sounded before whenever the subject of social and economic rights arose, and he would sound it again, later, for Government Section. When Matsumoto left, the subcommittee members vented some anger of their own. Like their countrymen, they were suffering from a shortage of food and an

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Volume Two • Tokyo excess of anxiety. They were putting in long hours on a demanding and delicate project, working not only for an overbearing boss but also for a government that seemed incapable of making up its mind. The KMCI members still had no firm idea what plans, if any, the Shidehara Cabinet had to submit their constitutional reform plan to the Diet. One member urged that the government proclaim the forthcoming Diet a special constitutional convention so voters in the upcoming elections might take extra care to elect qualified candidates. All agreed that at the very least the government ought to take the planned reshuffling of the Cabinet in the wake of SCAP's recent purge directive as an opportunity to announce its revision policy. This would be a prelude to securing SCAP agreement as to the specific procedures for handling constitutional reform.94 Matsumoto might still be nonchalant about the need for negotiating with the Supreme Commander, but his Committee was growing less so. The subcommittee members had no chance to convey their views to the Chairman until their next meeting four days later. By then, the Shidehara Cabinet had lost five members to the purge, gained three replacements, and promoted Narahashi Wataru, head of the Bureau of Legislation, to Chief Cabinet Secretary, with Ishiguro Takeshige, former Privy Council Chief Secretary, taking over Narahashi's old position at the Bureau. Matsumoto, his future status clouded by the purge directive, was permitted to remain in the Cabinet for a while longer. Nervous about confronting Matsumoto, Irie and Miyazawa hemmed and hawed a bit before speaking out about the Cabinet's apparent lack of a plan for handling constitutional reform. Matsumoto appeared to have been thinking along the same lines. His original intent, he told the subcommittee, had been to wait until both houses of the Diet were reorganized before attempting any constitutional reform project. But since late December he had been moving toward the conclusion that reform could not await reconstruction of the upper house; it would have to be submitted to the special Diet then scheduled for convocation in April. If they attempted to reform the House of Peers first, there would be no constitutional revision until the fall of 1946 at the earliest, a delay probably unacceptable to the Allies.95 Worse, a vacuum of inaction would produce a climate in which antagonism toward the Throne could thrive and debate over the future of the Emperor system grow more vitriolic. Another six months of the editorial line being taken in Japanese newspapers would exert "'an unpleasant influence'" upon the malleable temperament of a people increasingly critical of their government. To forestall further speculation over the future of the Throne, Matsumoto now wished to finish revising the Constitution as soon as possible. He proposed establishing a Council on Constitutional Reform (Kenpo Kaisei Shingikai) within the government, primarily to counter criticism about the narrow base and cliquish composition of the KMCI. Membership in the Council would be limited, but it would include token representation from the political parties and several of the private groups that had been active in drafting their own proposals for constitutional reform. This new agency would have no real power; it would merely approve the KMCI's draft proposal, "'making absolutely as few changes to it as possible,'" preparatory to the government's submitting the plan to the Diet that spring. Matsumoto no longer worried about the inability of the unreconstructed Peers to reflect the freely expressed will of the Japanese people. Given

The Shidehara Government and Constitutional Reform the tenor of the times, he believed, there was "'scarcely one chance in 10,000 that the House of Peers would not swallow any reform plan'" referred to them with the approval of the lower house.96 Miyazawa seconded Matsumoto's scheme for a Council, but Furui Yoshimi argued that constitutional reform should take place only after the Peers had been reshaped into a more democratic body. Instead of using the present Cabinet to pilot constitutional reform through the Diet, it would be more appropriate to employ a postelection Cabinet drawn from the majority party in the lower house. Matsumoto refused to consider delay, but did let it slip that the Shidehara Cabinet probably would be replaced after Japan's March elections.97 After discussing his Council idea with the Prime Minister, Matsumoto began laying the groundwork for an outline to be submitted to the Council as well as an English translation for submission to SCAR Sato Tatsuo was to organize the Council on Constitutional Reform, and Miyazawa was to prepare the Japanese text for their consideration. By 23 January, Miyazawa had ready an outline based on Matsumoto's draft; he had also prepared a synthesis of the subcommittee's more reformative views, the "A" Draft.98 Again, however, Matsumoto undercut the younger scholar by preparing a competing outline of his own. The Chairman's explanation was that he wished the outline to be in simple, comprehensible language in the event it ended up in the press. Even before the Council on Constitutional Revision was formed, Matsumoto was anticipating leaks. As Matsumoto told the KMCI on 23 January, his strategy for handling the Council was simple. He would submit an outline for minimal reform—that it would be his own outline he seemed to take for granted—and counter the inevitable criticisms from the left by gradually releasing selected elements from the more liberal draft held back.99 Anticipating that demands for concessions would also fall from the right, Matsumoto believed that leading with the most conservative plan might placate reactionaries and convince them that the government had not fallen wholly under the spell of SCAP. Matsumoto's own outline, which eventually became known to Government Section as the "Gist of the Revision of the Constitution," was distributed to the Kenpo Mondai Chosa linkai on 26 January, at the Committee's final working session.100 Stressing his own belief that the more quickly revision was handled the less drastic it was likely to become, Matsumoto instructed the Committee to give precedence in further discussion to his draft rather than to the more reform-minded subcommittee drafts produced by Miyazawa. When committee members disagreed with some of his conclusions and choices of wording, Matsumoto tried to foreclose further debate. Articles i through 4 should remain untouched, with the possible exception of a single word, he said firmly, for any tampering with them might encourage the Diet to supply its own amendments.101 As Matsumoto ran through explications of various points in his outline, it became clear that the Chairman could scarcely conceive of departing from Japan's prewar status quo. So fearful was Matsumoto of increasing public clamor over the position of the Throne that he had become even more antireform in a doomed effort to narrow the proposals placed before the Diet. Having no present constitutional right to initiate constitutional amendments, the Diet would have to take what-

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Volume Two • Tokyo ever the government chose to give it, and Matsumoto hoped that by giving the Diet very little, he would prevent it from altering the Meiji Constitution much. Gone was the leisurely, scholarly approach taken by the KMCI through 1945. Now Matsumoto pushed hard, unwilling to give more than the most perfunctory ear to others' reservations, blind to the problems of interpretation that lay in many of his clauses, oblivious to the insult borne by prominent constitutional scholars who were unused to taking dictation from a mere lawyer. By personalizing the reform project, Matsumoto had destroyed the objectivity of the Committee and made free discussion of ideas impossible. The Chairman had created, as one KMCI member delicately put it, "'an atmosphere that left much to be desired.'"102 Assuming the KMCI's chairmanship did not make Matsumoto a capable administrator. His was an insular personality, totally absorbed by the unity of his small world and the exquisite coherence of his arguments. Matsumoto saw himself not as overbearing but as a compelling advocate who might, given the chance, even convert a radical like Takano Iwasaburo to support of the Emperor system. Matsumoto left the KMCI meeting with his draft outline more or less accepted. That same day he had a visit from Professor Takagi Yasaka, who had served as Prince Konoe's primary liaison with the Americans on the issue of constitutional reform. Worried about the lackadaisical attitude of/the Shidehara Cabinet toward GHQ, Takagi pointed out that it was highly unlikely the minimalist reforms contemplated by Matsumoto would meet Allied expectations, given the views expressed by the Americans on the subject a few months previously. It would be wise, Takagi suggested, to solicit GHQ's opinions before preparing a final government plan. But rather than asking his guest to elaborate on Allied policy, Matsumoto replied curtly that the Cabinet's project had been undertaken voluntarily and would remain independent. There was no need, in his mind, to consult with GHQ or to try to ascertain American wishes in advance.103 GHQ disagreed. Although the Americans had remained at a discreet distance since the Konoe fiasco, in midjanuary SCAP's office and Government Section began to prod the Cabinet into submitting its draft revision plan to GHQ.104 Not only were the Americans stimulated by expanding Japanese interest in constitutional reform— an interest fed since late 1945 by draft revisions put out by private groups and political parties—but Government Section's internal plans called for undertaking a months-long study of the Constitution beginning in early 1946.105 Prophetically, members of the KMCI had begun to doubt the wisdom of their scholarly isolation and independence. Perhaps they were misleading themselves, one suggested. How confident were they of their draft's responsiveness to conditions inside and outside Japan, not to mention its chances of passage? Perhaps they should pay greater attention to the political factors involved.106 By 2 February, when the KMCI next met, the Committee's hard work had been rendered as meaningless as its members were beginning to fear. The preceding day the Mainichi Shinbun had published a KMCI working draft to very chilly reception. Instead of discussing this, however, the full Committee trudged through yet another reading of Matsumoto's outline, debating its points without reaching any conclusion. It did not matter. Matsumoto had already taken his own draft to the Cabinet for delib-

The Shidehara Government and Constitutional Reform eration, thus discarding all pretense that the KMCI was anything but a forum for his conclusions. The Cabinet was then meeting in special session to discuss constitutional reform, preempting the KMCI by considering a draft that had never received the Committee's approval. This was necessary, Matsumoto maintained, because the Diet would be convoked earlier than expected. The KMCI could do nothing but accept his explanation and acquiesce.107 In fact, elections were delayed by screening potential candidates to make sure they were not subject to disqualification under the purge. Diet convocation would come later than originally planned. It was pressure from SCAP that counted now—and that mounted after the Mainichfs scoop.

The Cabinet's Review On 29 January, before the KMCI could meet in plenary session to give Matsumoto's draft its full consideration, the Chairman presented his draft to the Cabinet. Four Cabinet meetings went into reviewing and discussing it; a fifth was devoted to considering factors involved in timing its submission to the Diet. It was by now clear that screening lower house candidates for possible disqualification under the purge directive would take at least two months, meaning that elections could not be held until early April, and the Diet could not be convened until later that month. Matsumoto estimated that he would have a revision plan ready for submission by then. His current schedule called for submitting a draft to SCAP around 10 February. Securing GHQ's approval would take two weeks, he predicted, allowing for the negotiation of any changes the Americans might demand. Review by the Privy Council would take another three weeks. But Foreign Minister Yoshida Shigeru worried that negotiations with SCAP might be protracted by the Supreme Commander's responsibility to consult with the "Allied Control Commission" meeting in Washington, an arrangement that posed potential difficulties not being taken into consideration by the Japanese.108 Cabinet discussions centered on what Matsumoto introduced as the "A" Draft, that is, the draft he had prepared in early January, slightly revised. Not far into the first chapter it became evident that the Cabinet would be bolder in criticizing Matsumoto's handiwork than the cowed KMCI had been. Shidehara complained that the distinction between a supreme Emperor and an inviolable one was far from clear in Matsumoto's version of Article 3. If the Minister meant the "'King can do no wrong,'" he should say so. Shidehara also objected to Matsumoto's version of Article 9, which dealt with the Emperor's ordinance power. Matsumoto had given the Emperor the right to issue ordinances "necessary for the accomplishment of administrative aims." This was broader and looser than the language used in the Meiji Constitution, which restricted ordinances to those "necessary for carrying out the laws, or for the maintenance of public peace and order, and for the promotion of the welfare of subjects." When Matsumoto explained that his version was designed to restrict to the "administrative sphere" the commonplace use of ordinances in place of statutory law, Shidehara remarked that his phrasing was unclear and needed to be more restrictive.109 Matsumoto's provisions regarding the military became the focus of heated dispute. Matsumoto explained that the KMCI had discussed deleting all provisions pertaining

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Volume Two • Tokyo to armed forces, but he considered it improper to accommodate a temporary condition—namely, Japan's present lack of armaments and armed forces—by rewriting the Constitution. It was important to make it clear now, before Japan reinstated selfdefense forces, that military activities would be subject to regulation by law and that the supreme command of the military would be a Cabinet responsibility.110 Cabinet members more attuned to Allied sensibilities realized that including articles regarding the military would cause trouble. Such clauses would enrage world opinion, Narahashi predicted; they would plunge the government into a month or more of negotiations with SCAP, Shidehara averred. Most of the Cabinet favored deletion because it was expedient and offered no legal impediment to resurrecting the military at a later date. Iwata acknowledged the logic of Matsumoto's arguments, but like his associates he favored deferring to political reality. Yoshida offered to take the matter up with the Government Section's Chief, General Whitney, to get a better idea of the America attitude. Matsumoto, who days earlier had told Takagi he had no intention of consulting GHQ, agreed.111 The next day, recapitulating arguments for and against provisions regarding the military, Matsumoto still seemed to assume that both the Cabinet and MacArthur would permit their inclusion. Now the Cabinet argued over Matsumoto's draft provisions on declaring war and making peace. Perhaps because Matsumoto's draft separated the function of declaring war and making peace and the function of concluding treaties, the Cabinet was confused. Shidehara made it clear that specific provision for declaring war was necessary to prevent acts of hostility undertaken without prior declaration. Provision for making peace was even more essential, for Japan would be signing a treaty of peace with the Allied powers one of these days. Some in the KMCI who had wished to delete all provisions regarding the military still supported providing for a purely "defensive" declaration of war, on the model of some South American constitutions, Matsumoto noted. The Minister of Justice observed that there was no necessary connection between articles regarding the military and those relating to matters of state such as declaring war and making peace: the latter should stay in the Constitution even if the former were excised. Perusing Matsumoto's chapter on civil rights, Baron Shidehara bristled at the draft's assumption that the peerage would be abolished. To mollify the Prime Minister, Matsumoto explained that the peerage could be provided for by law; it did not require constitutional sanction. Mitsuchi Chuzo, the Home Minister, thought Matsumoto's version would help stifle "feudalistic thinking."112 On i February, the Cabinet resumed its deliberations. The Mainichi story had just broken, yet the Cabinet made only passing reference to it, seriously underestimating its impact, just as the KMCI had. Instead, the Cabinet focused on the chapter dealing with the Diet. Shidehara thought the draft's provision for a mixed elective and appointive "House of Councillors" would result in a chamber too much like the lower house. The Prime Minister wanted the Councillors to represent vocational groups and be drawn from business and the intelligentsia. Matsumoto argued that his draft's provision for representation by locality would not duplicate constituencies in the lower house but rather would be more along the lines of representation by community elders. Objecting to Matsumoto's draft Article 39, which provided that a bill passed on the third try by the lower house would become law regardless of upper house action,

The Shidehara Government and Constitutional Reform Shidehara suggested establishing a "principle" that on a bill's third go-round the upper house should likewise pass it. Matsumoto contended that the House of Representatives should be able to assert its supremacy even if the upper house failed to act on a measure. Minister of Justice Iwata found the article both restrictive and vague. On its three attempts, did the bill have to remain absolutely the same, as Shidehara believed British practice required, or were amendments tolerated, and if so to what extent?113 Some of the practical ramifications of Matsumoto's draft articles needed closer study. Matsumoto lost one skirmish in the Cabinet over his draft Article 43, which allowed the Diet to request convocation of an extraordinary session. This was a clause the KMCI had supported, and Matsumoto asserted that it was necessary to ensure adequate representation of minority views. But the Cabinet favored leaving this to politics and deleted the right to petition for convocation. It did not appear in the English version of the draft subsequently given to Government Section.114 Breaking for the weekend, the Cabinet resumed its discussion of Matsumoto's plan on Monday, 4 February. (By this time, a galvanized Government Section was embarking on a drafting project that would make the Cabinet's discussions as bootless as the KMCFs.) The Cabinet barely discussed proposed alterations to the chapters on the Cabinet, the judiciary, or finances, and only touched upon the article regarding constitutional amendment, an item on which Matsumoto was having second thoughts. Matsumoto now favored raising the requirement for initiating amendments from onethird of each House, as stipulated in his draft, to one-half, calculations having shown that under quorum rules less than one-half of the Diet would be able to effect an amendment to the Constitution. Ashida Hitoshi, the Minister of Welfare, agreed, noting that otherwise minority parties might initiate amendments out of sheer cussedness. The Cabinet concurred, and the provision was changed before the draft went to GHQ.115 Cabinet discussion of Matsumoto's revision plan was hurried and superficial. Although members had been given a copy of the more reformist "B" Draft prepared by Miyazawa and the KMCI subcommittee, their discussion centered exclusively on Matsumoto's draft until the last day. Belatedly Matsumoto informed the Cabinet that the KMCI believed the first four articles of the Meiji Constitution should be subjected to Diet scrutiny and possible revision and that it had prepared several alternative versions of these articles so as to trammel Diet discussion.116 The Cabinet listened—and did nothing. Their initial deliberations on constitutional reform ended on 4 February with no decision for or against the Matsumoto Draft or any of the KMCI alternatives. Like Minister Matsumoto, they appeared to believe the time to adopt a plan had not arrived: that would come once negotiations with SCAP were safely past. But Matsumoto thought he had extracted a commission to handle talks with GHQ, and in the face of increasing pressure from SCAP to submit a draft, even an unfinished one, he began to translate his draft into English.117 Before turning anything over to SCAP, Matsumoto received another audience with the Emperor on 7 February. Hirohito concentrated on the Meiji Constitution's elucidation of his sovereignty. Articles i and 4 said much the same thing, he pointed out; perhaps it would be advisable to combine them, especially given the forthright

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Volume Two • Tokyo language of the first. Ignoring the Imperial hint, Matsumoto reiterated his old argument about not asking for trouble by giving the radicals in the Diet the authority to debate—and perhaps amend—these sacrosanct provisions. Another item of concern to His Majesty was Article 57 of the Meiji Constitution, which provided that judicial power be exercised "in the name of the Emperor." Members of the KMCI had debated but never resolved this issue—one had even expressed anxiety that disgruntled recipients of Japanese justice might seek to take their dissatisfaction out upon the Throne. Nor was it touched in Matsumoto's draft. Hirohito's concern was that the article might be taken as meaning that the Throne itself would pass judgment. This was more direct participation in governing than Hirohito had a stomach for, and Matsumoto agreed that his point had merit.118 On 8 February, after having laboriously translated his draft into English ("Gist of the Revision of the Constitution") along with a short accompanying piece ("General Explanation of the Constitutional Revision Drafted by the Government"), Matsumoto presented both to SCAP's Government Section. No Japanese text was submitted. Flying the false colors of purported Cabinet policy, the "Gist" had never been approved by the Japanese government; it was only a trial balloon used to gauge SCAP's reaction.119 By 8 February, however, Matsumoto's submissions were little more than curiosities to the Americans of Government Section, expressions of ideas already rejected by them. By 8 February, their own draft constitution was virtually complete.

CHAPTER 13

Atomic Sunshine Boys: The Rise of the Government Section

ALL WAS NOT WELL AT GHQ, SCAP. Like his new Commander in Chief, MacArthur early in the war had delegated substantial power to a trusted lieutenant, then grew to regret it. President Truman initially abdicated responsibility for foreign affairs to his hand-picked Secretary of State, James F. Byrnes; MacArthur's alter ego was his Chief of Staff, General Richard K. Sutherland. As both commanders gained in selfconfidence—the former through experience in the job and the latter through victories—they rued those delegations. Both ended up revoking their grants of power, "dropping the pilot" as it were—and both lost friends as well as partners. MacArthur's loss came first. There was barely suppressed anger when Sutherland, unable to reach MacArthur, who was aboard a ship maintaining radio silence, had to make a critical decision in the boss's absence. It was not that Sutherland made the wrong decision, but that he made the right decision, clearly on his own, without the subterfuge of running it by CINCAFPAC.1 There were explosions with Sutherland over an Australian woman the Chief of Staff had commissioned, contrary to law, in the Women's Army Corps, and then managed to smuggle, contrary to MacArthur's orders, into various advance echelons of AFPAC GHQ.2 When Sutherland announced that he had a terrible toothache and was flying to Leyte and quite possibly on to Brisbane to have it fixed, MacArthur "almost reeled." Brisbane was home to Sutherland's Australian paramour; the General's concern for his chief's pain evaporated. "'Dick must be sick,'" he confided to aides while obsessively analyzing Sutherland's behavior. '"Is he off his rocker?—The Luzon campaign right in front of him. A pinnacle for his career—and he goes off to Brisbane.'"3 Seeking solace in the arms of a woman could not compare with witnessing MacArthur's triumphal reentry into Manila. 487

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Volume Two • Tokyo Paramount among the virtues MacArthur valued was loyalty: it was far more important to him than intelligence, which he considered overrated, or physical and moral courage.4 To MacArthur, loyalty meant total identification with the goals and feelings of one's superior; it never was and never could be reciprocated, however much the General liked to claim it ran both ways. Thus, Sutherland's defection for a woman was the rankest disloyalty. It mattered not at all that Sutherland was seriously ill with soaringly high blood pressure he kept secret, even from Dr. Roger Egeberg, who was supposed to be monitoring GHQ staff for signs of illness and exhaustion; that he was worn out, with bad teeth ground down from internalized stress; and that he had no social life, no recreation beyond flying, and no truly close friends.5 MacArthur, his self-confidence buoyed by the decision to invade the Philippines, thought he no longer needed Sutherland's support and turned critical, rebuking the Chief of Staff for minor decisions of the sort he had routinely made in the past, averting his eyes when officers bypassed Sutherland and undermined his authority.6 MacArthur briefly relieved his Chief of Staff in the Philippines, then reinstated him, then released him on thirty days' medical leave to the States. But Sutherland was indispensable as an organizer, and when Japan offered surrender only a few days into his leave, MacArthur immediately bellowed, "'Get Dick Sutherland back here!'"7 It was Sutherland who arranged the simple but dignified surrender ceremony aboard Halsey's flagship Missouri, an affair that managed simultaneously to gratify the egos of assorted Allied delegations, blunt Army-Navy rivalry in the Pacific, and overawe the representatives of defeated Japan. That done, however, Sutherland found little to keep himself busy. He reorganized the Military Government Section to boost his own power (and reward the MacArthur faithful), but then discovered that MacArthur was not planning on working exclusively through a chief of staff, as he had in the past, but intended to rely upon an array of aides and section chiefs.8 Bored and frustrated, his teeth and high blood pressure still troubling him, Sutherland borrowed MacArthur's personal plane and pilot for a trip to the United States to resume his aborted medical checkup. But instead of going straight home to his family (and a wife friendly with MacArthur's spouse), Sutherland took an unauthorized detour to Australia to visit his girlfriend.9 The parting of the Supreme Commander and his onetime confidant and chief assistant was acrimonious. Feeling betrayed and furious that he was no longer the center of Sutherland's universe, MacArthur let the General go with scant words of appreciation for the years they had spent and the work they had done together. Sutherland, who "ended up a bitter and disillusioned soldier," never got the acknowledgment he deserved for his invaluable wartime service.10 Nor did the two men ever see each other again, not even during lavish postwar reunions of old MacArthur cronies at the Waldorf-Astoria. Sutherland earned a reputation as MacArthur's hatchet man, a role he did not necessarily enjoy, but one he saw as necessary:'" [S]omebody around here has got to be the S.O.B.,'" he told his deputy.11 Where MacArthur was "the visionary, the architect, the historian, the global philosopher," Sutherland was "the exact reciprocal: the administrator, the driver, the precise and coldly calculating brain who can and does get things done, even ruthlessly if necessary."12 Others saw him as MacArthur's dark angel. As General Eichelberger recalled, Sutherland "knew how to work on General MacArthur

The Rise of the Government Section like Paderewski playing the piano. He could bring out in MacArthur any latent jealousy and envy in his nature."13 However much others at GHQ respected Sutherland's quick mind and dedication, "ultimately almost everyone was antagonized by his nasty temper, brusqueness, and autocratic manners," wrote MacArthur's biographer.14 When he left, Sutherland was replaced by his Deputy and sometime Acting Chief of Staff, General Richard J. Marshall. A very different man from the former Chief, Marshall was as slow and indecisive as Sutherland had been quick and relentlessly determined. Marshall was "pleasant as can be," commented one senior officer, but his twin rules for life were "avoid decisions and never put off till tomorrow anything you can put off a week!"15 Loss of the ruthlessly efficient and effective Sutherland created a power vacuum others at GHQ were eager to fill. Perhaps in anticipation of Sutherland's departure, MacArthur had been relying more and more on Brigadier General Courtney Whitney, a successful lawyer and businessman in prewar Manila who had undertaken to organize guerrilla resistance and, later, civil affairs in the Philippines. Whitney spent much of his time writing speeches for a commander as eager to turn government back to the Filipinos as he was to liberate their land from the Japanese. Although Whitney had planned on returning to the Philippines as a civilian shortly after Japan's surrender, once he had accompanied MacArthur on the flight to Atsugi Airbase he never made it back to Manila. Instead, Whitney worked briefly on MacArthur's personal staff before returning to the United States for a month's leave in the autumn of 1945 and coming down with pneumonia. After recuperating, he was called back to Japan by the Supreme Commander to head SCAP's Government Section.16 There Whitney became MacArthur's new alter ego, a transformation viewed by other MacArthur staff with alarm and distaste, for the "odious" Whitney, as he was routinely called in William Manchester's American Caesar, was not considered up to MacArthur's standards. Considering that MacArthur was thought to have surrounded himself with lightweights—even by some of the putative lightweights themselves—and considering that even wartime Army head General George C. Marshall thought MacArthur had not a staff but a court, this is an accusation that is hard to take seriously. No amount of brilliance on Whitney's part could have conquered the envy of those who did not enjoy his favored position with the Supreme Commander: of all MacArthur's wartime staff, Whitney was the only one not to lose a star and revert in rank and privileges once the Army returned to peacetime status.17 Red-faced, rotund, and fond of rhetorical flourishes that emulated the General's purple prose, Whitney seemed an unlikely candidate for a powerhouse at GHQ. He looked more like "a sharp businessman who had become president of his local Kiwanis Club."18 Yet once installed in Government Section, he proved a competent administrator who quickly earned the respect and admiration of most of his staff, mainly because he was willing to let them function as a think tank, to embrace their ideas, and to forcefully back them. He was the staunch advocate the former chief of GS, General Crist, had never been; and because he took staff into his confidence, they had a clear picture of his intentions and plans. That first day he walked into the Government Section office, recalled one of his officers, he looked at his assembled crew and said, "'Well, gentlemen, we will be together.' And," the officer continued, "from then on we were together. General Whitney was a man of action."19

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Volume Two • Tokyo The men and women of Government Section, finally taken seriously after being stymied in their efforts at inaugurating reform, felt their first rush of power: they could do what they had been trained to do in civil affairs schools across the United States; they could do what Washington and the other Allies were screaming needed to be done.20 Whitney "asked anyone that had an idea to be sure and submit it to him," one officer recollected. "It was like a breath of fresh air. Everyone felt that even if somewhere along the line an idea of theirs got turned down, they would always have access to see him."21 Whitney infused the section with a humanity Crist lacked. When one of his officers married another GS staffer in 1946, Whitney celebrated by drinking champagne from the bride's slipper, a gesture of sheer joie de vivre unimaginable in Crist.22 Where Crist was diffident, Whitney was outspoken; where Crist was reclusive, Whitney was convivial. The new section Chief mixed a mean martini—and before long many of his staff knew it. Whitney's strength was that he could motivate and lead, but the source of his power was that, whereas Sutherland had been cold, analytical, strategically calculating, and capable of pulling the disparate ends of a military operation together, Whitney had an instinctive feeling for MacArthur's idealism and his vision of the future Japan. He knew that his boss aspired to greatness and that he had his own father's reputation as military governor of the Philippines to transcend. Whitney was able to translate that yearning into specific programs in a way MacArthur's people had not been able to do earlier. The synergy between the two men seems to have caused both to soar beyond their natural limitations.

Pot Shots and Attempted Coups Courtney Whitney was not ordained a winner from the start; he had to fight—and fight he did, in ways Crist never had—to protect the power and mission of his section. Given the Government Section's subsequent phenomenal rise, it is difficult to appreciate how far out of the loop GS was through 1945. Early on, Section members were cognizant of Japanese dissatisfaction with Konoe's role in constitutional reform and with the "too prominent a part" played by reactionaries in remaking their country.23 Yet GS could do nothing except mouth platitudes about "'Keeping the ring clear' for the Japanese to work out their own political salvation."24 Aware that Minister Matsumoto's committee was also working on constitutional reform, Government Section sought to set up a meeting so it might keep current on "their trends of revision" while they were still in the early planning stages. G-2 Liaison turned them down, suggesting instead that "this matter be deferred until [the] proposed Constitution [is] completed."25 Plans to confer with other Japanese groups working on reform plans were also scrapped. At the same time, MacArthur's Political Adviser was warning of "widespread and effective effort on the part of the ruling oligarchy to preserve the substance of the old order behind new 'democratic' window-dressing."26 MacArthur's court pooh-poohed this notion. POLAD's estimate "does not reflect that of the Supreme Commander, his main commanders, or his staff sections," commented an aide. "Their view is very much more optimistic."27

The Rise of the Government Section Major Milo E. Rowell, the Government Section's point man on constitutional reform, was informally in touch with State Department representatives who had briefed Konoe before the Prince's resurrection to respectability was cut short. Unaware that Atcheson himself believed Matsumoto was inadequately informed about constitutional reform, Rowell and the POLAD staff groused about the Japanese government's lack of action and its dilatory pace. Rowell then tried unsuccessfully to obtain a copy of Konoe's report to the Throne, since "it was our responsibility to know what was going on."28 On 10 December, Rowell met with members of the Japanese Central Liaison Office and G-2 Liaison, who explained that they could not give him Konoe's plan because it was not available to the Japanese government, having never officially been conveyed to the Cabinet.29 Rowell was in no position to contest the veracity of this claim or to buck a regular staff section's obstructionism—not as long as General Crist was supporting a hands-off policy.30 One of the Occupation's most persistent problems was the tenuous contact between GHQ in Tokyo and military government units that were supposed to oversee compliance with SCAP directives throughout Japan. Crist was familiar with complaints from the field; how many he bucked upstairs is unclear. Whitney, however, tackled the issue with his usual mixture of choler and gusto, perhaps realizing that with Sutherland out as gatekeeper for the Occupation, the unwieldy relationship between general and special staff sections would degenerate into a grab for power. Whitney grabbed first. There were "glaring organizational and operational deficiencies" that were causing "a serious breakdown . . . in the occupation mission beyond a short radius of General Headquarters," he wrote MacArthur's new chief of staff in January 1946. Not only was GHQ failing to issue adequate instructions to the field; military government units were not even receiving SCAP directives and often suffered the embarrassment of soliciting copies from the Japanese whose compliance they were supposed to ensure. In a dramatic call that was sure to arouse MacArthur's interest and anxiety, Whitney added: "Positive action must be taken now if we are to implant the Supreme Commander's will upon all echelons of the Japanese Government and upon the people—and if we are to avoid the Supreme Commander's being ridiculed by a hostile press as a 'Tokyo' administration by directives alone. . . ."31 Whitney's proposed remedy was to make the Government Section responsible for expediting and coordinating all military government matters—in other words, he was trying to regain some of the power that Crist had relinquished when Military Government Section had been broken down into special staff sections. The new Chief of GS was also trying to remove the layer of general staff sections that had managed to interpose themselves between special staff in Tokyo and military government in the field. A vestige of fighting days, this organizational scheme only multiplied the yards of red tape in peacetime. As might be expected, Whitney's bright idea did not sit well with the general staff, for it cut right into their very reason for existence. Promptly G-3, the operations division run by Major General Stephen J. Chamberlin, came back with a counterproposal to give the general staff sections "the functions and responsibilities of a G~5 Section," that is, a Military Government Section.32 "This is truly an amazing document," com-

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Volume Two • Tokyo mented one of the GS officers. "G-g arrogates to itself 6-5 functions" for which it is "not qualified by training or background." It was a "dying gasp" to "save the Gs from falling into peacetime status" and to find employment for large numbers of general staff officers skilled in tactical missions but totally unsuited to the Occupation's work.33 Furious at this attempted countercoup, Whitney informed the Chief of Staff that G-^'s proposed allocation of responsibilities was "demonstrably inept" and likely to exacerbate friction between GHQ and the field. G-g, he warned, would add "a bottleneck of bottle-necks" to a situation in which "vital decisions" were already "harassed and weakened by military caution and inertia." As things were, any general staff section could veto a proposed course of action merely by sitting on it, without MacArthur's ever being the wiser. Now G-$ intended "to exercise actual control over all action taken by the special staff sections." Instead of this "wedging of general staff sections in between the special staff and the Supreme Commander," Whitney proposed establishing a Deputy Chief of Staff for Civil Affairs and organizing military government units along territorial instead of tactical lines, a solution that would undercut the power of the general staff.34 Solomonically, MacArthur gave both sides a bit. Chamberlin shortly became his Acting Chief of Staff, replacing General Richard J. Marshall; Major General Lester Whitlock was named Deputy Chief of Staff for Civil Affairs.35 But Whitney had made his point—and he continued to enjoy his privileged access to the Supreme Commander as one of only two men in Tokyo who could simply stroll into MacArthur's office without an appointment. That direct access—his ability to "short-circuit" the system by reporting his plans (and his objections to other sections' plans) without having them filtered through the Chief of Staff—excited jealousy among other staff.36 It also imposed a tremendous burden on Whitney. He had to justify the trust MacArthur reposed in him and not let his boss lose stature in any eyes. Having fought for the integrity of Government Section and the other special staff sections, Whitney could not allow himself or MacArthur to lose face by making a fiasco of any critical issue. And constitutional reform was one of the biggest and most critical issues facing him.

Laissez-Faire and Its Discontents Confusing veneration with power, the Supreme Commander set himself up to be abused by the Japanese government. In the war's early stages, MacArthur had often observed landings and met with commanders in the field; once he became Commander in Chief of AFPAC, however, this changed. Field commanders now came to him. The pattern was the same at SCAP GHQ: the Supreme Commander never went outside Tokyo to see how his directives were being implemented, and the information he received was screened by a praetorian guard of sycophantic staffers. His one contact with the Japanese people was through their letters to him, for he never met with ordinary citizens and only rarely saw even top officials. Like the Emperor, SCAP remained remote and aloof. "MacArthur's whole life in Japan is calculated to impress indelibly the highly impressionable Japanese," wrote one reporter. "His every deed is grandiloquent. . . . He is kindly to the Japs, and yet stern. His whole program seems to be calculated to enlist their awe and admiration without offending their sensibilities. He

The Rise of the Government Section never gets off an Olympian level. If the Japs look up they can see him; otherwise he is out of their world."37 MacArthur was not simply emulating the Imperial style; it suited him to his marrow. Despite the sanguinity of many at GHQ, the Government Section was already encountering evidence that the Japanese did not understand what was expected of them—or were trying to sabotage what they did understand. Since replacing the wartime Regional Governments General under orders from SCAP, the Japanese government had presented no new proposals for reforming local administration. Frustrated, Government Section had taken no action: first, because it was "the policy of the Supreme Commander that the Japanese government be permitted to undertake its own reforms unaided, to the greatest extent practicable," and second, because the Section had anticipated that the Japanese would first develop "a carefully prepared overall plan coordinated with Allied policies and directives." But that was not happening. "It has recently become quite evident that the Japanese government is either unwilling or unable to conduct its reorganization," concluded one of the Section's top officers.38 Lieutenant Milton Esman, who met with Japanese officials to examine the government's plans to reduce its personnel by 50 percent to cut costs, warned in November that the Cabinet's plan provided for minimal supervision of the downsizing, with choices to be left up to individual ministers and prefectural governments. Cabinet representatives adopted "a strictly legalistic view of this procedure," he wrote. "They seemed entirely unaware of any reforming purpose in personnel reductions beyond financial savings. Their complacency was evident throughout." Esman cautioned that staff cuts made "without political direction from a reforming agency at the top" were likely not to reform the character of Japanese bureaucracy, but rather to entrench those reactionary forces that had dominated it in the past.39 Government Section learned belatedly through the press of changes in the Japanese bureaucracy, for Japanese officials made no attempt to consult with or even notify SCAP in advance. Changes thus far made without Allied approval or advice, Hussey observed, "have accomplished nothing more than a reshuffle of agencies or a removal of war time controls. The essentially totalitarian character of the Japanese civil government has not been changed."40 Early in January, Whitney recommended that the Japanese government be informed that no governmental reorganization would be permitted without the Supreme Commander's approval.41 A few days later, Whitney angrily informed MacArthur that several new appointments by the Cabinet had opened "the entire question of the validity and good faith" of the government's response to SCAP's recent directive on purging war-tainted bureaucrats. Contrary to SCAP's orders, the government was doing nothing to appoint new blood that would help revive and strengthen Japan's latent democratic tendencies. Its appointments only confirmed "the officialdom that has long kept the Japanese people in a state of complete suppression. . . ,"42 In early December, General Crist, in one of his final acts as head of GS, wrote of the need to correct "an attitude of growing intransigence on the part of the Japanese" and prevent continued noncompliance with SCAP directives. Despite SCAP prohibitions, the Japanese government continued to allow the manufacture of narcotics, the printing of textbooks, and the recruiting of members of the demobilized military

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Volume Two • Tokyo police into the regular fire and police forces. Despite SCAP instructions, it failed to provide GS with requested information on political parties or with copies of bills to be presented to the Diet. Despite SCAP's directive on press freedom and orders to admit the media to Diet sessions, the House of Peers was trying to close its doors to reporters. Of Prime Minister Shidehara's recent reactionary comments before the Diet, Crist observed: "These are not the loose words of irresponsible private citizens, but rather the considered opinions of high officials. They are utterly inconsistent with Allied aims and principles and they display a significant similarity to official statements of the war years and before. . . ." The American message was evidently not getting across, and Crist recommended that MacArthur send for Shidehara and "inform him of his displeasure."43 MacArthur chose to ignore Grist's advice. There were other instances in which the Japanese seemed bent on evading compliance with SCAP directives. Discrimination, a sore issue with the Allies, was supposedly banned by the 4 October 1945 "Civil Liberties Directive." Yet three months after the directive's issuance, the Japanese government was still attempting "to justify general discrimination against foreigners on the ground that it is a reasonable basis for classification."44 It also balked at complying with an early SCAP directive on procurement, arguing that "Japanese law on requisitions or forced purchases is either contrary or lacking." In the strongest assertion yet of MacArthur's powers, Crist argued that paramount authority to rule Japan had been vested in the Supreme Commander: "[H]is power is superior to any conflicting Japanese law and, in the absence of Japanese law, any order issued by him supplies in and of itself, the legal authority for its execution."45 The struggle over Japan's ceasing all foreign relations and handing over its diplomatic property and archives—an issue that had early discomfited MacArthur and caused him to question the limits of his authority—dragged on. Three weeks after issuance of a SCAP directive ordering the surrender of Japanese diplomatic property in the custody of protective powers, the Japanese government had not responded.46 Two months into the Occupation, Foreign Minister Yoshida was still trying to persuade SCAP that Japan should be permitted to maintain its representatives in neutral nations, as their presence would not harm the Allies,47 and he sought to have Allied liaison offices deal with the Foreign Office directly rather than through SCAP.48 Although Tokyo had been ordered in late October to recall its diplomatic and consular officials stationed in neutral countries, by December Crist reported with exasperation that the government was continuing to communicate with its representatives and, in effect, to carry on a circumscribed type of foreign relations.49 In mid-December, MacArthur had to command the Foreign Office to cease communicating with its representatives still abroad, except as needed to comply with SCAP directives.50 Although Government Section saw "ample evidence" that "many of the men formerly in control do not intend to step out of the picture," some at GHQ (and even some within GS) worried about the consequences of pressing the Japanese harder. Major Pieter Roest, a senior GS officer, foresaw danger if SCAP pushed the Japanese people "beyond their natural capacity for mental growth": "As the tempo of our Memoranda to the Japanese Government increases, so does the need for statesmanlike restraint in what we demand and in the time we allow for compliance with our

The Rise of the Government Section demands." Thus far, he noted, "our efforts have been largely removal of obstacles to democracy and pointing out ideals." Things would grow more difficult when "more positive measures reach the stage where they encounter the deep-seated prejudices of large numbers of people."51 The question the Section was not yet able to answer was whether the "deep-seated prejudices" being encountered within the Japanese bureaucracy were shared by the Japanese people. Until the answer became more obvious than it was in 1945, the Supreme Commander's response was to adopt a policy of watchful waiting and restraint, where possible. An example of GHQ's laissez-faire style of operation came when the Japanese government rewrote its Election Law and pushed this through the Diet. Government Section monitored the bill's passage through the Diet, complaining of the inadequacy of governmental progress reports, but did nothing to influence its substance, apart from requiring that women be granted suffrage.52 The revised law drew an unfavorable review from the Army's Military Intelligence Service in Washington, leading Major Roest, who was GS's resident expert on Japanese party politics, to pen a point-by-point rebuttal.53 When Government Section staff split on the wisdom of the revisions, Whitney called for a formal debate, pro and con, and invited members of other staff sections and the Political Adviser's office to attend.54 Major Milo Rowell, who argued against the revised law, pointed out that its novel system of restricted plural voting disenfranchised voters by permitting them to vote for far fewer candidates than there were seats under contest in each district: each voter would be represented by anywhere from two to eleven members of the lower house he had no say in electing. By requiring voters to write the names of their choices, the law failed to guarantee secrecy of the ballot; by giving excessive discretionary authority to agents of the government to disqualify ballots, the law made it easier to manipulate election results.55 Major Roest, who argued for the revised Election Law, pointed out that it was almost entirely Americans, not Japanese, who were complaining, and that their criticisms had to do with restrictions and practices that had been part of Japanese elections for decades. It would be better to correct any "minor imperfections" in the next Diet rather than "to insist upon perfection now by issuing a Directive to change the Law," he concluded. "In the former case we assist the democratic development of the Japanese," he argued, "while in the latter we weaken it by undermining their respect for the legislative process of which this Law is a product."56 To the chagrin of the majority of senior officers in GS who voted for changing the new Law by directive, Whitney sided with Roest, the ultraconservative POLAD representative, and a handful of junior staff: the Election Law would stand as revised by the Japanese.57 MacArthur concurred. The "real argument," recalled one GS officer, was "whether we should have the Law written to what we thought were democratic principles, or let the Japanese have their own democratic standards."58 In retrospect, the Supreme Commander's decision was inevitable, for MacArthur's wish was to give the Japanese ample discretionary freedom (much as he was demanding discretionary freedom from the Joint Chiefs). Not until it became apparent that this policy was not working, and diat failure to enforce certain basic reforms would lay SCAP open to criticism and humiliation, did MacArthur and Whitney change tack.

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The Beginning of the End: Purging the Japanese Government SCAP's purge of the Japanese government saw the confluence of two trends—infighting within GHQ and Japanese intransigence—that would wreck the Occupation if suffered to continue. Back in early October, Political Adviser Atcheson had informed the Supreme Commander that most officials in subordinate but important positions in the Japanese bureaucracy had served for fifteen to twenty-five years, of which the last fourteen had been "devoted to the furtherance of Japanese aggression and imperialism." Atcheson believed that "Cabinet ministers and vice ministers who honestly wish to institute reform feel themselves blocked by the reactionary attitudes or passive resistance of such subordinates." Complying with the "Civil Liberties Directive" would require the government to abolish about 50 percent of the positions controlled by the Home Ministry. If this requirement were extended to other ministries, as Atcheson advocated, the Japanese government should be forced not only to downsize by 50 percent, but to replace half the personnel remaining with new blood, thereby achieving the replacement of 75 percent of its fustier bureaucrats.59 By the beginning of November, the Government Section had readied two draft directives for SCAP, one ordering the Japanese government to dissolve militaristic, ultranationalistic, and secret organizations "inimical to the achievement of the objectives of the occupation," and the other seeking "to destroy the influence of militarism and ultra-nationalism in Japan by removing and excluding certain individuals from public office."60 Purging the bureaucracy had not been advisable earlier, because it was "undesirable to affect the stability of the Japanese government when the major initial job of demilitarization and disarmament was being accomplished." But it was urgent that it be done now, for, in the opinion of Government Section, "failure of this Headquarters to begin such action will embolden militaristic and reactionary elements in Japan and will discourage liberal elements. . .." With national elections scheduled for January, the Supreme Commander had to make clear who were acceptable as candidates. Unless MacArthur took steps toward "political disarmament," he would be "subject to loss of prestige among the liberal elements in Japan and to criticism in the United States and other Allied countries." Worse, Crist warned when he sent the directives to MacArthur's office, unless the equivalent of denazification were undertaken, the Japanese Left might "resort to violence to effect it."61 It was probably the strongest argument General Crist had ever pushed upstairs, and he had support from other quarters. "The Japanese political world is waiting for an indication of the attitude of the Commander in Chief relative to members of the Diet who were active in furthering the war against the Allies," wrote the Chief of Counter-intelligence, General Thorpe, adding his voice to the call for clarifying the status of various Japanese politicians and potential Cabinet members.62 But the proposed "political disarmament" directive had its opponents. G~3 objected that excluding all regular and commissioned Japanese Army or Navy officers who held the rank of major or above was going too far; instead, only general and flag officers should be purged from the government.63 More vociferous was G-2, which found the proposals "so far reaching" that they would "throw all agencies of thejapa-

The Rise of the Government Section nese Government, to say nothing of a large portions [sic] of the most important private enterprise, into complete confusion." Japan would be "left absolutely leaderless, economically, financially, and politically except for a mere handful of liberals without political experience and a dissident group of radicals who will promptly cause complete and utter confusion and chaos."64 General Willoughby, the reactionary German-born head of MacArthur's military intelligence unit, railed against "relentless application of the punitive feature [s] of the Potsdam Declaration," claiming that these had already failed in Germany, where, he contended, "Allied policy is practically bankrupt." The impulse to chastise Japan must be tempered, he contended, by a "corollary" to the Potsdam Declaration, namely, that Japan was to be made not only democratic but "ultimately an adherent of the United States." Willoughby proposed purging only the top two ranks of the Imperial bureaucracy, reducing the reach of the purge into the ranks of the military, and exempting Japanese finance, banking, and business from it entirely. G-2 also wanted to see "study and analysis on the 'effect on the Japanese people as a whole' by bona-fide experts," specifically, senior Japanese linguists on the GHQ staff, most of whom worked for G-2.65 Even POLAD chimed in, claiming that the proposed directive would ban from public office a far larger number of Japanese than seemed wise. Most of those who would be excluded were "capable of becoming as loyal and as useful supporters of a program of democratic reform, now that is the Emperor's wish, as they were of the military program." Removing "the most capable elements of Japanese society" from public office, especially given that "the nation's present leaders . . . are mostly senile and must soon disappear," would embitter the purgees toward democracy and make them work to defeat SCAP's other programs.66 Thorpe and Crist joined forces to counter the opposition. Counter-intelligence could not agree with G-3's recommendation to restrict the purge to general or flag officers, as so doing would eliminate a handful of older men from public office while permitting the mainstay of the armed forces, its field-grade officers, to rise to power. Thorpe believed the directive "would be welcomed by the majority of the Japanese although not by the present ruling class," and he urged its immediate publication for maximum impact upon the coming elections and any future government.67 Crist turned his ire against Willoughby. Accepting G-2's changes would "emasculate the proposed directive and vitiate the policies of the Allied Powers," he wrote. Adopting Willoughby's "unwritten and hitherto unknown 'corollary' of the Potsdam Declaration" would mean rejecting the JCS policy directive for the Occupation. The military government in Germany was being criticized for "an insufficiently thorough program of denazification and an insufficiently thorough destruction of German big business," not for having gone overboard, as G-2 erroneously implied. And Crist really saw red at Willoughby's endeavor "to water down the provisions of such a directive through consultation of Japanese or other officers, whose chief reason for employment is linguistic proficiency. . . ,"68 The draft purge directive was sent to the Chief of Staff on 9 December. But neither the purge nor the directive abolishing secret and ultranationalistic organizations was approved until after Whitney's arrival and with his considerable support.69 By

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Volume Two • Tokyo order of the Supreme Commander, issuance of both directives was held back until 4 January so as not "to spoil the Christmas-New Year's holidays for the Japanese."70 At least two months had been consumed by squabbles within GHQ, Although the final directive closely tracked the draft produced by the Government Section, Willoughby succeeded in cutting it back somewhat: only the top two ranks of civilian officials were subjected to automatic removal and exclusion from the public office (instead of the top three, as drafted), and business and banking were deleted as categories subject to purge, a change that placed many zaibatsu beyond the long arm of "political disarmament." On the other hand, at the behest of MacArthur's Chief of Staff, all commissioned officers, not just those of general or flag rank, became subject to exclusion from public office.71 Still, for the directive to emerge from SCAP relatively unscathed required Grist's resolve, Marshall's support, and Whitney's strong push. When the purge directive was published, the Cabinet promptly issued a statement that none of its present members was likely to be affected; the Japanese press retorted that only Shidehara and his Foreign Minister were in the clear.72 Politicians urged the Prime Minister to resign; Foreign Minister Yoshida sought to meet secretly with MacArthur at the U.S. Embassy, which had become the General's home, rather than the Dai-Ichi Building so as to keep hushed the government's frantic efforts to negotiate a way around the purge. Surely SCAP did not intend to remove everyone in certain categories, "no matter how innocent they may be" of "sinister activities," the government complained: "Their positions in those organizations were simply nominal and sinecure, and all reports of their movements behind the scenes in opposition to the then raging surge of irresponsible militarism were ruthlessly suppressed from the news and public record." It would be fairer, the government contended, to set up a commission of inquiry to review the case of each person individually, with removal from office coming only "if they are satisfied of his guilt."73 Although this process would have been more in line with Anglo-Saxon principles of justice, it contravened the appeals process set up in the directive and would have turned the purge into an interminable process with little immediate effect on the bureaucracy or politics. MacArthur could not accept it. Drawing fire from the press as do-nothing, the Shidehara government poised uncertainly over the alternatives of mass resignation, a selected purge of its affected members, or a dash for the clemency of an emergency exemption. When the Cabinet made a feeble effort to resign en masse, MacArthur let it be known that if Shidehara quit, he "might thereafter be acceptable to the Emperor, but he would not be acceptable to SCAP" as the head of a new Cabinet.74 Reportedly threatening to place Japan under direct military government, the Supreme Commander allowed the Prime Minister, who was himself untouched by the purge directive, to replace those ministers branded unacceptable.75 The question of why MacArthur considered Shidehara indispensable received open speculation in the American press, which generally concluded that SCAP feared political chaos and delays in holding elections, executing directives, and reforming the Constitution.76 For MacArthur to have been so concerned with avoiding delay as to impose a Cabinet reshuffle upon the ailing Shidehara suggests a preoccupation with expedience. But a more pressing problem was quelling governmental rebellion:

The Rise of the Government Section Shidehara's was the second Cabinet to resign (or try to resign) rather than comply with a directive deemed unpalatable. Other tough issues were coming up, such as curbing Japan's galloping inflation. Government Section was adamant that the Shidehara Cabinet must undertake that task and "assume the political risks involved," because a new postelection government "might hesitate to take such a drastic step at the beginning of its incumbency. . . ."77 The Supreme Commander needed to make it clear that executing its directives was obligatory, not optional, for the government in power, and that Cabinets could not shun responsibility for carrying out orders, no matter how painful. Yet Shidehara's choice of replacements for purged ministers caused Whitney to question his good faith. "It is appreciated that, at this crucial time, it is important that this Headquarters undertake as little direct interference as is practicable," the Chief of GS wrote MacArthur. "At the same time," Whitney maintained, "the Japanese people ought not to be permitted to gain the impression that the occupation forces are interested primarily in supporting in office the old reactionary government forces." Shidehara had wasted his golden opportunity to select "men of youth and vigor, of unquestioned forward-looking and democratic views and tendencies."78 At this point, the purge was considered more urgent and important than any other issue, including constitutional reform; but not only was Tokyo failing to employ it as SCAP wished; it was making no move to set up machinery for implementation.79 On 28 January, Whitney met with the Prime Minister to make points he had previously cleared with MacArthur, specifically, that the justice of the directive was not open to discussion, for it was not punitive, but was rather "a necessary precaution against the resurgence of expansionist tendencies"; that the letter as well as the spirit of the directive must be fulfilled; and that inequitable treatment of a few individuals could be remedied after compliance was achieved. Shidehara should appeal to all government officials who fell under the directive "to resign at once in order to save the Emperor from further embarrassment," Whitney advised with some asperity and considerable regard for the usefulness of invoking the Throne.80 The Prime Minister, Whitney informed SCAP later that day, had misconstrued parts of the directive.81 The implication was that Shidehara would embrace the program now that he understood it. But it was not that simple. In the ensuing two months, GS found that the Japanese government had failed to clear thirty new appointees to the House of Peers; it had also neglected to ban purgees from local as well as national office, so many banned from the national scene were preparing to resume their political careers by running for municipal assemblies.82

Groundwork: The Rowell Report Despite being thwarted in its efforts to meet with Minister Matsumoto, Government Section was not entirely ignorant of Japanese thinking on constitutional reform—at least on the popular, if not on the governmental, level. Nor was it unprepared to grapple with the issue. In early December, Major Milo E. Rowell, after consulting with Colonel Charles Kades, the Section's second in command, and Lieutenant Colonel H. E. Robison, Grist's executive officer, quietly carried out his own study of the Meiji Con-

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Volume Two • Tokyo stitution. Drawn up in anticipation that a draft reform would soon be emerging from the Matsumoto Committee, Rowell's report was kept secret from Crist (presumably out of apprehension that he might declare the subject off limits) and not forwarded to the Supreme Commander until Whitney had taken over.83 After analyzing the theoretical and practical failings of the Meiji Constitution, Rowell concluded that reforming the charter would be integral to overhauling the Japanese government and making it safe for democracy. Rowell noted that under the existing Constitution individual civil rights were not inviolable, either in theory or in practice; that many governmental functions fell outside the Constitution; and that the government bore no responsibility to the electorate. There were extraconstitutional bodies that enjoyed direct access to the Throne unencumbered by any duty of obedience to the popular will. An independent judiciary was nonexistent; under the control of the Procurator's Office, the courts were part of the executive branch. Military affairs were directly under the Emperor's nominal authority; local government was not locally controlled. The Japanese people lacked even the right to amend their country's Constitution.84 The only way democratic tendencies could ever be fostered in Japan, Rowell determined, was by eliminating institutionalized abuse of democratic principles. Although extraconstitutional organs such as the Privy Council could be abolished by fiat, Rowell believed that "such action will result only in the temporary elimination of these advisory groups and will not grant such access [to the Emperor] to governmental agencies responsive to the will of the people." The only way to do that with any assurance of lasting effect would be to revise the Meiji Constitution.85 Focusing on civil rights, responsive government, and local autonomy, Rowell's three appendixes of recommendations were designed to provide a checklist for SCAP in evaluating any reform proposals from the Japanese government. As yet, SCAP had not received SWNCC 228, Washington's official statement on constitutional reform: apart from what he could glean from the Potsdam Declaration, the U.S. Initial PostSurrender Policy, or casual conversation with members of the Political Adviser's office, Rowell knew nothing of American policy on the subject. As other members of Government Section would later do in drafting a model constitution, he drew upon his background, which was law. Forty-two years old, Rowell had studied law at Harvard Law School and received his juris doctor from Stanford. For seventeen years before enlisting in the Army, he had practiced law in his hometown, Fresno, mainly representing businesses before governmental agencies. Rowell had also served as an assistant U.S. Attorney in Los Angeles and as president of the Fresno County Taxpayers Association. SWNCC 228, as we saw in Chapter 9, did not go very far in the area of civil liberties. Washington contented itself with the rights already specified in the Meiji Constitution, plus those spelled out at Potsdam, so long as these were made absolutely inviolable. Rowell went further, providing for the sanctity of communications, invalidating ex post facto laws, and prohibiting involuntary servitude. He included such Anglo-Saxon legal niceties as the presumption of a suspect's innocence and habeas corpus. To curb particular Japanese abuses, Rowell included guarantees against searches without warrants, wiretapping, the use of force or duress in obtaining con-

The Rise of the Government Section fessions, and admitting into evidence testimony from agents provocateurs. Arguing that militaristic groups would have a more difficult time curbing a "Bill of Rights" cast explicitly as a manifestation of the Imperial will, Rowell proposed to use the Emperor as a sanctifying force. Utilizing the Throne this way also made it preferable to rewrite the Constitution rather than to rely on executive ordinances; the latter would be less likely to survive than reforms incorporated into the Constitution itself, for, as Rowell saw it, "being promulgated by the Emperor, [the Constitution] will be greatly respected by the people."86 Never questioning the mystique of the monarchy, Rowell premised his ideas upon continuation of the Emperor system.87 He even overlooked the condition set at Potsdam that the Japanese people were to decide their ultimate form of government: for all its liberal provisions, Rowell's report did not call for any explicit statement of popular sovereignty.88 Rowell did recommend abolishing extraconstitutional bodies and limiting the right of access to the Emperor to officials responsible to the people. Such recommendations were designed not to eliminate the influence of the Throne, but rather to prevent abuse of a power considered real and worth preserving. In a provision similar to one later suggested by Minister Matsumoto (and rejected by SCAP), Rowell recommended that the Emperor be empowered to suspend or dissolve the Diet only once a year. Some of Rowell's suggestions were strongly American in flavor: he advocated increased local autonomy, a tripartite system of government with an independent judiciary on the American model, and a statement that the Japanese Constitution was the supreme law of the land, requiring the consent of the people's representatives for its amendment. While leaving open the question of a unicameral or bicameral legislature, Rowell effectively eliminated the House of Peers by specifying that all Diet members must be publicly elected. Rowell vested in the Diet greater powers than those given in SWNCC 228. The Diet was to have the right to designate all cabinet members, investigatory powers over all administrative departments (including the power to issue subpoenas and administer oaths), plus exclusive control over ratifying treaties, approving constitutional amendments, and deciding the budget. This last item included control over military expenditures and the size of the armed forces.89 Like the authors of SWNCC 228, Rowell assumed the presence of a modest military establishment in postoccupation Japan. Rowell was less successful in defining the executive and the judiciary. Ministers of state and "responsible heads" of various executive departments would constitute a Cabinet, all of whose members must have seats in the Diet. Rowell appears to have envisioned a true corporate executive in which members would be more or less equal, none vesting in himself any supreme powers. The executive's role was circumscribed: it was to have "jurisdiction to administer all the laws of the land" and "make regulations for administration within limits set by [the] Diet," but it should have "no authority to impose penalties either physical or monetary." Rowell's suggestions on the judiciary revealed his tacit assumption that the Emperor would continue to possess some governmental authority and that the courts, as they had since Meiji's time, would remain representatives of the Throne. The procuracy, however, would not: this would become part of the executive branch.90 But although Rowell seemed to have the

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Volume Two • Tokyo American model in mind, judging from his equation of the procurator with the Attorney General, he never perfected the divorce of justice from enforcement. Detailed and thoughtful as they were, Rowell's suggestions for reform were not altogether liberal. Rowell was a dedicated young lawyer who was eager to implement the Anglo-Saxon ideal of the law as a coherent structure with a supracultural existence; he did not envisage tampering with the social fabric of Japan. Rowell's ideas on improving Japanese society did not extend to social amelioration; his recommendations lacked any statements on the rights of labor, equality of the sexes, or social welfare. Their absence derived from a conception of the constitution as a document that sought to ensure the smooth functioning of political and legal processes, not social ones. Rowell believed that social amelioration would flow naturally from the democratic political environment that would be created by improving Japan's judicial and political institutions. As Japanese commentators have noted, whereas SWNCC 228 seems to have been crafted by political scientists, the Rowell report shows a lawyer's touch.91 One advantage of the latter approach was the care given to defining and ensuring civil rights; one disadvantage was that Rowell never resolved such basic political questions as the role of the executive vis-a-vis the Emperor. Understanding the disparate concerns of the legal and political approaches is vital to understanding the shape of the constitution that emerged from Government Section in February 1946. Rowell's training in law was shared by General Whitney and two other important aides, Commander Alfred R. Hussey and Colonel Charles L. Kades. The combined influence of those four men and their legal careers bore more distinctly on the tone and substance of the eventual Japanese Constitution than did the U.S. government's own policy paper, SWNCC 228.

Liberal Currents: The Kenpo Kenkyukai and Other Draft Reform Plans Kept a closely guarded secret, Rowell's study had no immediate impact on Government Section. It was filed away until needed, that is, until the Japanese government produced a revision plan of its own, which seemed to recede further into the future as elections were postponed to accommodate the purge. There had been nothing blatantly contrary to Rowell's recommendations in the spare public statements of Matsumoto and Prime Minister Shidehara before the Diet, nothing to signal Government Section that the Cabinet was dangerously off course.92 By early January, however, several private draft revisions had been published in the Japanese press, of which the most detailed, liberal, and important was that produced by the Kenpo Kenkyukai, a select group of prominent Japanese jurists and writers, including Takano Iwasaburo (who personally favored abolishing the Throne), Baba Tsunego, Sugimori Kojiro, Morito Tatsuo, Murobushi Koshin, and Suzuki Yasuzo. The Kenpo Kenkyukai draft was submitted to the Cabinet and to GHQ on 27 December.93 Whitney passed on to MacArthur a translation of the Kenpo Kenkyukai plan along with the December report on constitutional reform written by Rowell, now elevated to Lieutenant Colonel. His covering memorandum, drafted by Rowell, lauded the Kenpo Kenkyukai draft for acknowledging the sovereignty of the people; prohibiting dis-

The Rise of the Government Section crimination by birth, status, sex, race, or nationality; abolishing the peerage; providing workers with certain rights and guarantees (including holidays with pay, free hospitalization, and retirement pensions); placing control over all state finances (including expenditures of the Imperial family) in the Diet; and instituting popular referendum.94 None of these had appeared in Rowell's earlier recommendations. But there were "fundamental principles" that were missing and that should be "required in any constitution before approval," the memorandum cautioned. These included a "clear statement that the Constitution is the Supreme Law of the Land" and basic protections against abuse of the accused in criminal trials, including the right to counsel and to a speedy and public trial, habeas corpus, protection against selfincrimination and double jeopardy, guarantees against unreasonable searches and seizures, and the right to face one's accusers. The Kenpo Kenkyukai draft granted the Diet legislative power, but Rowell thought this should be strengthened "so that the exclusive power to legislate is clearly vested in the Diet." It provided for a second house comprising "minority pressure groups," a provision odd but unobjectionable, "inasmuch as the second house has practically no power." The Kenpo Kenkyukai draft did not require that Cabinet members or the Prime Minister be chosen from among the elected representatives of the people. "It would be more desirable if they were so chosen," Rowell advised in the memorandum, "but it is not believed that this omission is fatal." Rowell did propose, however, that the Cabinet be required to resign after a Diet vote of nonconfidence, that the power to declare legislation unconstitutional be vested in the courts, that the Constitution provide for the popular election of major prefectural and municipal officials, that amendments to the Constitution require the approval of a majority of the people, and that no government agency be created that was not responsible either to the Diet or to the Cabinet.95 In the covering memorandum, Rowell drew heavily upon his earlier study of problems with the Meiji Constitution and continued to display his lawyerly interest in civil rights. He criticized the Japanese draft mainly for its failure to incorporate distinctly Western legal safeguards. To a lesser extent, he also deplored its lack of specificity when it came to regulating governmental activities, remarking upon the absence of any statement that the Constitution was superior to other types of legislation or that a Cabinet was obligated to resign after a successful vote of nonconfidence.96 It is not clear how conversant the rest of Government Section was with the Kenpo Kenkyukai draft and other reform plans produced by various Japanese political parties, namely, the Communist Party, Liberal Party, Progressive Party, and Socialist Party; by bar associations and private groups, such as the Kenpo Konwakai; and by individuals, including Inada Masatsugi, Takano Iwasaburo, and Satomi Kishio. Drafts reached some of the senior GS officers through the press, Allied Translator and Interpreter Section translations, and other sources. "Most proposals were far short of Potsdam requirements," commented one staffer. "Some were rather naive in displaying how little they thought they had to change the status quo."97 The primary concern of these plans, which were generally bare outlines, was to redefine sovereignty and the exercise of sovereignty, though not always in ways consonant with the Potsdam Declaration. All preserved the bicameral legislature, some giving precedence to the lower house; most reconstituted the upper house with a

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Volume Two • Tokyo membership drawn from various vocational groups. Some abolished the peerage. Most showed an active concern for eliminating extraconstitutional organs such as the Privy Council and the Genro-in, an oligarchy of "elder statesmen," prominent in the Meiji Restoration of 1868, who remained in power unofficially as personal advisers to the Throne. Most plans expanded the rights of the people to some extent, particularly their social rights, while also making these conditional. Several, however, forbade any abridgement of the freedoms of thought, religion, or "authorship." Some incorporated the principle of collective Cabinet responsibility to the Diet; most vested power of convocation and dissolution in the Diet and gave the Diet power to initiate constitutional amendments. Most revamped the system of administrative litigation and provided for indemnification of those unjustly accused of a crime. A few drafts provided for the independence of the courts from the executive or for the separation of judicial and executive powers. Most drafts skirted the issue of Japan's future armed forces by making no mention of them at all in their texts.98 The Kenpo Kenkyukai draft was clearly the best of the bunch in progressiveness and thoroughness. Yet notwithstanding that the Kenpo Kenkyukai had on its drafting committee at least one expert in constitutional law, Suzuki Yasuzo, its draft was more diligent in its attention to social and economic rights than it was careful in its treatment of the mechanics of government. The Kenpo Kenkyukai draft managed to invest both speakers of a bicameral legislature with enormous appointive powers without providing for their method of selection or offering any assurance of their responsibility to the Diet. Adopting the device of requiring a plebiscite for dissolving the Diet or forcing the resignation of a Cabinet fallen from grace, the draft neglected to specify with whom lay the power to call such a referendum. Its vagueness and practical unworkability were weaknesses shared by all Japanese drafts, both private and official. Some of the flaws Rowell found in this draft, such as the Kenpo Kenkyukai's failure to recognize the danger of resurgent extraconstitutional bodies, are interesting in view of his comment one month earlier that proposals for reform should not succeed or fail solely on the basis of their conformance to his checklist. As his thinking about the problem of constitutional reform grew increasingly sophisticated—a natural consequence of time and opportunity to examine the issue, plus exposure to other viewpoints, American as well as Japanese—Rowell's recommendations were expanding. They were also hardening into requirements. It would be nice to conclude that the Kenpo Kenkyukai reform proposal directly and substantially influenced the draft that emerged in mid-February from Government Section. But similarities between the Japanese draft and the American one resulted primarily from their authors' consulting the same source materials (especially the Weimar and Soviet constitutions); there were few, if any, direct borrowings from the Kenpo Kenkyukai draft, which remained unknown to most of the GS staff. To the handful of senior GS officers who knew about it in any detail, the Kenpo Kenkyukai draft did suggest that a constitution might be the province of social as well as legal principles. No doubt it emboldened Rowell and the other officers who oversaw GS's own drafting efforts to admit provisions dealing with social welfare that otherwise would have ended up on the cutting-room floor.

The Rise of the Government Section But the most important contribution of the Kenpo Kenkyukai draft was as a manifestation of progressive Japanese thinking: it persuaded the upper levels of Government Section that there was a native constituency for more reforms far more radical—particularly in the area of the administration of justice—than those timid alterations the Japanese government had in mind."

Guidelines from Washington: SWNCC 228 Shortly after the Kenpo Kenkyukai draft appeared, SCAP headquarters received its first specific guidelines from Washington on governmental and constitutional reform. Approved by the State-War-Navy Coordinating Committee and transmitted to MacArthur in early January, SWNCC 228 would become the formal basis for the draft revision submitted to the Japanese as a "model." Because the Joint Chiefs approved the paper after the Allies reached agreement to set up a Far Eastern Commission to advise SCAP, SWNCC 228 was sent to MacArthur for his information rather than as a directive. The Supreme Commander was pointedly ordered to keep SWNCC 228 secret. The paper suggested that only "as a last resort" should MacArthur order these reforms, "as the knowledge they have been imposed by the Allies would materially reduce the possibility of their acceptance and support by the Japanese people for the future."100 Although it was explicit about American dissatisfaction with certain Japanese institutions, SWNCC 228 was less clear-cut about remedies. The Japanese government was to be responsible to "an electorate based upon wide representative suffrage," with the executive to derive authority from and be responsible to the electorate or to a fully representative legislative body. The legislative organ was to have full control over budgetary matters, and its express approval would be required to validate the budget. Fundamental civil rights were to be guaranteed all Japanese and all persons under Japanese jurisdiction. Where possible, prefectural and municipal officials were to be popularly elected, or at least appointed by their local governments. The legislature was to have the power to meet at will, and no other governmental organ was to possess more than temporary veto powers over legislative measures, including constitutional revision. Were the Emperor institution to be retained, the legislature would also gain the power to advise and consent in the selection of ministers of state. The Cabinet was to be exclusively civilian in composition, bear collective responsibility to the legislature, and advise and assist the Emperor. SWNCC 228 never required that the House of Peers or the Privy Council be dismantled. It did, however, object to the undue influence over legislation given propertied classes through the former and to tension and competition between the Cabinet and the latter. After suggesting possibly amending the election laws to eliminate unfair or corrupt practices, SWNCC 228 left both the practices and the means of rectifying them unspecified. While noting that the Japanese military's authority and influence would presumably disappear with "the abolition of the Japanese armed forces"— which, in fact, had not been abolished at this point, but merely demobilized and dismantled—the paper did not forecast that this eclipse would be permanent. To prevent

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Volume Two • Tokyo "the resurgence of military control in Japan," SWNCC 228 recommended only that all Cabinet ministers be civilians and that the Emperor be deprived of all authority over military matters. Where Rowell found legal deficiencies in the Meiji Constitution, SWNCC 228 found political ones almost exclusively. Rowell's net proved finer. SWNCC 228 decried the influence of the reactionary Privy Council, yet was short on suggestions for preventing the resurgence of extraconstitutional bodies. It ignored certain patterns of institutionalized abuse, such as the tendency to bypass the Constitution by vesting governmental responsibilities in groups beyond constitutional jurisdiction and the tendency to aggrandize the Imperial powers. It skipped over the problem of inadequate mechanics, such as the lack of means for interpreting the Constitution or for reconciling conflicts between it and legislation. At points, the paper seemed a bundle of cliches, referring grandly, for example, to basic human rights without ever stating what these were. Did it mean rights acceptable in 1789, 1889, or 1946? The SWNCC drafters appeared content with the rights specified in the Meiji Constitution—if guaranteed unconditionally—but even this was not made explicit. SWNCC 228 referred to the executive in generic terms, never defining its character. Although relatively tough on the Emperor system, it arguably permitted the Emperor to assume the role of chief executive, a drafting slip that likely would have enraged American and Allied public opinion had the paper been published. Finally, SWNCC 228 was ambivalent about the Japanese role in reform, and this ultimately caused problems for SCAP. Washington saw reform as mandatory yet did not want to impose changes on the Japanese.101 Too much specificity might rouse charges of dictation, so the SWNCC drafters had focused on desirable ends while barely hinting at means. Although they hoped for voluntary compliance, they doubted that it would be forthcoming. By ordering secrecy and specifying that MacArthur issue formal instructions to the Japanese government only as a last resort, SWNCC endowed SCAP with discretionary authority as to the means of effecting constitutional revision. But the Supreme Commander was empowered not only to consider how best to present these reforms to the Japanese; thanks to the Joint Chiefs' worry about possible civil unrest in Japan, MacArthur was also given authority to set the order and timing of their presentation. What caused difficulties for GHQ was that SWNCC accepted the possibility that Japan would not cooperate fully in reforming itself, yet predicated its guidelines on the likelihood of wholehearted cooperation. The result was a policy paper too spare to serve as a full blueprint for either MacArthur or the Japanese once Tokyo's recalcitrance became real. Policy development as well as implementation devolved by default upon MacArthur and his staff. There were also fairly subtle ways in which SWNCC 228 began to change the shape of Japan's charter even before Whitney turned his staff into an impromptu constitutional convention. When the Economic and Scientific Section moved to treat the Imperial Household as a large holding company and liquidate much of its real estate and when the Natural Resources Section (NRS), for different reasons, wanted to nationalize those same properties, Rowell found justification for both in SWNCC 228. Making the Emperor dependent upon Diet appropriations for his income was a reform recommended by SWNCC 228, and the proposals from ESS and NRS would have that

The Rise of the Government Section practical effect.102 In other words, actions taken independently by different sections under SCAP were already altering the shape of Japan's constitutional structure by transforming the relationship between the monarch and his subjects. But none of these changes would last long unless the Constitution were amended to incorporate them.

Unwanted Intruder: The Far Eastern Commission Just before the year turned, while SWNCC 228 was still under consideration in Washington, the United States, the Soviet Union, and Great Britain (with China concurring) agreed to establish an eleven-member Far Eastern Commission to permit Allied participation in developing policy for Japan, as well as a four-power Allied Council for Japan to oversee implementation of that policy. This pair was to replace the Far Eastern Advisory Commission, a largely powerless organization popular neither with American liberals nor with the Allies for its unsubtle emphasis upon American supremacy in framing policy for Japan. The Far Eastern Commission (FEC) was a concession to the British, who favored a strong policy-making body and whose suggested terms of reference for it distinguished between political policy and military policy, with the Allies to have the predominant role in conceiving the former and the United States in developing the latter.103 Britain wanted to give the Commission power to pass upon all nonmilitary directives issued by the U.S. government to MacArthur; the United States wished to relegate the organization to a purely advisory role.104 The Soviets, who showed little interest in a commission that would sit in Washington, pressed for establishment of a Control Council headquartered in Tokyo and modeled upon military councils in the Balkans, which had provided the Western Allies with the gloss of participation but which were largely ignored by the Soviets in practice.105 Thinking Stalin sought only the semblance of power to save face, Secretary of State Byrnes developed a plan for an Allied Military Council composed of representatives of all powers contributing forces to the Occupation. The Council would serve as an adviser to MacArthur.106 The War Department thought Byrnes was offering rather substantial concessions to secure Russian goodwill, but the Soviets surprised everyone by objecting to the proposed terms, claiming that these would make it possible for the United States to alter the regime of control over Japan without consulting other Allies.107 Stalin also feared that the United States would look favorably upon, if not actually foster, anti-Soviet attitudes among the Japanese, a reasonable suspicion given SCAP's tolerance of the Japanese oligarchy in those early months of the Occupation. As a result, the Soviet leader pushed for greater Allied control over the composition of the Japanese government.108 Under Byrnes' proposed terms for an Allied Military Council (AMC), MacArthur had the right of final decision in the event of disagreement among the Allies. Moscow proposed, however, that where there was disagreement over "questions of principle," such as a change in the regime of occupational control or a change in the composition of the Japanese government, including its dissolution and replacement, SCAP should refrain from acting until agreement had been reached either within the FEC or on a governmental level.109 Such a restriction would put SCAP in an untenable posi-

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Volume Two • Tokyo tion and paralyze the Japanese government. Byrnes countered with a proposal that the regime of control or the Japanese Constitution might be modified only upon decision by the FEC and that, pending such decision, the United States would relinquish its right to issue interim directives to SCAR110 It was unlikely that any changes to the regime of control would ever be attempted, much less made, because the Japanese could justifiably object that they had surrendered upon terms that specified arrangements for their occupation and control and that altering these violated the surrender agreement. Offering the FEC sole right to modify the Japanese Constitution was a parry: the Soviets were far more interested in controlling the selection of a Prime Minister and his Cabinet, a right no one in Washington was willing to concede.111 The United States was not constrained to give Russia the right to veto American policy "unless and until this country has more to say about what is going on in eastern Europe," Byrnes told a closed session of the Senate Foreign Relations subcommittee.112 At the Moscow Conference of Foreign Ministers in late December 1945, Byrnes took the offensive with a new proposal: the United States would concede its right to issue interim directives, pending a decision of the FEC, not only on questions dealing with control of Japan or with "fundamental changes in the Japanese constitutional structure," but also with "changes in the Japanese Government as a whole."113 Byrnes was deliberately vague. Neither "fundamental" nor "constitutional structure" was ever defined, though one can presume that the narrowest reading deprived the FEC of any jurisdiction unless that Japanese system of government were totally restructured from a monarchy to, say, a republic. The third clause, as Byrnes himself acknowledged, meant little. Even if the entire Japanese Cabinet resigned, the United States would still be free to instruct SCAP to appoint individual ministers without technically violating the terms of reference. Publicly, Byrnes had no reservations about throwing the issue of constitutional reform to the FEC. "We have no idea, never have had, of embarking upon a complete revision of the Constitution of Japan," he told the press on 31 December after the terms were accepted and announced in the Moscow Communique issued at the conclusion of the Foreign Ministers' meeting. "If we did undertake to do that," the Secretary added, "we really would want the advice of our Allied Governments and would not want to assume the responsibility of drafting a constitution for the future of Japan unilaterally."114 MacArthur, still rankled by Washington's insistence on consulting with the Allies, issued a statement that his views had not been sought further after he had raised objections to Byrnes's plan back in October.115 Consulting with Charles Bohlen, a Soviet specialist who had assisted Byrnes in Moscow, the Operations Division understood the new terms of reference as leaving SCAP's power basically unchanged. Pending agreement within the FEC on policies, Washington was free to issue interim directives to the Supreme Commander, except on three items; and the Supreme Commander remained free to act, although Bohlen felt that SCAP was required to consult in advance with the new Allied Council for Japan regarding the three excepted items, specifically, "changes in the control of Japan as set forth in the surrender terms" or "fundamental changes in the Japanese

The Rise of the Government Section constitutional structure" or "changes in the Japanese Government as a whole." And the latter could easily be sidestepped by replacing individual ministers rather than the entire Cabinet.116 MacArthur's position appeared secure, although there was a real question of how much authority he would lose, at least in those three areas, once the Allied Council was up and running in Tokyo. The terms adopted at the Moscow Conference made little immediate impact on the State-War-Navy Coordinating Committee. An adviser to War's member noted that the paper on governmental reform, SWNCC 228, would now have to be revised—but only to provide that it be forwarded to the American delegate to the new Commission and that it be sent to SCAP for information rather than as a directive.117 OPD also pointed out that the United States would no longer be able to issue directives to MacArthur on changing the Japanese "constitutional structure" except after consultation and agreement within the FEC.118 On 4 January, SWNCC approved its paper on governmental reform, adding a paragraph regarding the Joint Chiefs' reservation that "sequence and timing" should be carefully considered to minimize possible unrest in Japan and another paragraph prohibiting release of the paper for publication.119 The paper still stated that SCAP was to suggest certain reforms to the Japanese, ordering them only as a last resort. It took no cognizance of the privileged position newly accorded the FEC in the area of constitutional reform. No special precautions were taken to ensure that the Supreme Commander understood the paper to be only a statement of his country's position and a basis for future negotiations within the Far Eastern Commission. By not alerting MacArthur to the possibility that the paper might be substantially revised by the Far Eastern Commission, SWNCC 228 may have insinuated that it should be taken as dispositive and acted upon—before the Allies could alter it.120 It became increasingly apparent to Washington that the Japanese might volunteer "sweeping reforms" to their Constitution at a fairly early date.121 In late February, SWNCC's Subcommittee for the Far East (SFE) suggested sending MacArthur instructions on handling any attempts at reform initiated by the Japanese. Their proposed message asked SCAP not to issue any directives regarding changes in the Japanese Constitution. If the Japanese tried to effect constitutional reform before the FEC had a chance to develop its policy, the Supreme Commander was to intervene only if the proposed reforms were inconsistent with directives he had already issued; if the Japanese government formally requested his approval prior to undertaking amendment of the Constitution, MacArthur was to refer its request to the Joint Chiefs for presentation to the FEC.122 The FEC's privileged position was thus recognized and protected; but it was too little, too late. Even as the Subcommittee was polishing its proposed instructions, MacArthur's staff presented the Japanese government with a new draft constitution, one authored at GHQ. When the message to SCAP came before the SFE on 5 March, the draft constitution had already been accepted under pressure and with acrimony by the Cabinet. The next day it would be published in the Japanese press. On 11 March, since it had obviously and embarrassingly been overtaken by events, the instruction to MacArthur was withdrawn from the Subcommittee's agenda.123

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New Year, Old Problems As 1946 began, many of SCAP's problems seemed only to worsen. Personnel issues continued to plague and demoralize the Occupation as GIs in China as well as Japan protested against the snail's pace of demobilization.124 With food shortages posing the threat of starvation and riots, officers scheduled for separation prayed for the winter in Japan to be quiet so that nothing might keep their ship or plane from leaving.125 "We never knew each day who was going to receive his orders" to go home, said one officer: "[W]e were losing personnel all the time, and they weren't being replaced."126 Under the Army's system of demobilization, enlisted men with the high points that reflected long years in uniform and those over age forty, whom GHQ had been able to keep an extra six months on grounds of military necessity, would soon have to be released and returned home. Men trained for civil affairs duty were often highpointers. The special staff sections would start losing many of their enlisted "experts" starting in mid-February, and replacements were barely trickling in. One section head who had requested three hundred civilian experts had received two. Another was in such desperate need of clerical help that he could not move papers through his section in less than ten days.127 Lacking researchers of its own, GHQ had to rely on Japanese data and reports, which were slow in coming; the State Department complained that the flow of information from Tokyo was "quite inadequate to provide the foundation for policy decisions ... and maintenance of American leadership" in Allied policy formulation.128 Allied intrusion into the Occupation was coming closer: a unit of Commonwealth troops was scheduled to depart for Japan in late January, and the Soviet military mission was supposed to arrive in early February. British papers lambasted the settlement reached at Moscow, even as the State Department fretted over whether the Soviets would agree to occupation policies already promulgated by SCAP.129 Already the Japanese seemed bent on circumventing GHQ by exploiting Allied disunity. The American press carried reports of attempts by Japanese officials to put a Red scare into conservative British newsmen by decrying food shortages and the sternness of U.S. directives as invitations to rebellion.130 The Soviet press very early took the line that Japanese industrialists were frightening the Americans with the specter of social disturbances to garner financial aid for reconstructing the nation's ruined economy.131 "We definitely had the feeling that they [the Japanese] were stalling," recalled Whitney's executive officer, for the Japanese believed "that the longer they stalled, the better deal they could get," because once the FEC was operating "it would take a lot more negotiations for all the governments concerned . . . and time kind of smoothes out war passions."132 On the other hand, the Japanese were also apprehensive about those twin unknown quantities, the Far Eastern Commission and the Allied Council. Would the Soviet Union, with its still obscure intentions, supplant a Supreme Commander who thus far had been fairly sympathetic to Japan? Would the Soviets now be entitled to occupy Hokkaido in addition to the Kuriles and Sakhalin?133 Most ominous to those hoping to minimize friction with the Russians over Japan, the Soviet news agency, Tass, publicly disputed Secretary of State Byrnes's interpretation of the Yalta accords. Byrnes claimed they meant simply that the United States

The Rise of the Government Section would support Soviet claims to Southern Sakhalin and the Kuriles at a future peace conference; Tass maintained that Roosevelt had promised these territories to the Soviet Union. To Byrnes's mortification, the Soviets were right: he had not been let in on the secret at Yalta.134 Simultaneously, Tass and GHQ were engaging in mutual recriminations over Korea. Indulging MacArthur's passion for personalizing, GHQ publicly branded Soviet criticism of American behavior in South Korea as an attempt to discredit the Supreme Commander and force changes in the Occupation, a charge GHQ later retracted.135 In late January and early February, Averell Harriman visited Tokyo en route to the United States from his recendy ended ambassadorship in Moscow. Anxious to make sure that MacArthur understood Soviet behavior in Eastern Europe and "was not taken in," Harriman reported Stalin's anti-Emperor sentiments as well as his circumspect praise for the Supreme Commander, which was liberally interspersed with grumbling over Russia's lack of information on Japanese demobilization.136 Because of the Soviet policy of severely circumscribing the powers of its representatives, Harriman believed that MacArthur "would be well advised not to delay any action longer than was justified while waiting for the Soviet member of the [Allied] Council to get instructions" from Moscow. That suited the Supreme Commander perfectly, for as he saw it, "what Stalin really wanted was an extension of the wartime military alliance, a continuation of the same type of relationship that had existed during the war." That would permit each member of the Big Three "to carry out its own operations and to attain its individual aims by whatever means were possible and through whatever forces it had at its disposal."137 The trick, then, was to keep Stalin from expanding his spheres of influence. Eastern Europe and North Korea already were his, and South Korea looked as if it might be fated for a Soviet orbit. Since early November, General Hodge had been crying out that the Communists might well gain control of South Korea unless some positive steps were taken. He was "sure most radical elements are Russian instigated but cannot get positive proof."138 Washington temporized, continuing to hold out for a trusteeship (noting that the Soviet Union had agreed to the idea on two separate occasions) and refusing to let Hodge endorse any of the groups of exiled Koreans he wanted to use as "stabilizing influences."139 When MacArthur's Political Adviser suggested having the Emperor issue a statement that would formalize the separation of Korea from Japan by renouncing Japanese sovereignty over her former colony, State refused.140 The Department saw this move as a potential bargaining chip: such an announcement should not be considered apart from other issues, predominant of which was the question of Soviet participation in the proposed Allied commission for Japan. Everything was tied to the question of how the Soviets would react. The issues of unifying Korea, of setting up even a provisional government in the South (the Soviets had already set up one in the North), of formalizing the loss of Japanese sovereignty over its former colony, of setting up a trusteeship—all depended upon answers from Moscow, and Moscow was keeping silent. William R. Langdon, General Hodge's increasingly frustrated Political Adviser, angrily told his Department that he felt America's planning for Korea went no further than the premise of Soviet cooperation, a

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Volume Two • Tokyo premise experience was proving false. SWNCC was out of touch with the reality of Korea, he complained; its papers did not reflect the mood of a people "impatient of spoon-feeding, conscious of independence and eager to exercise it."141 To the voices of Hodge and State's representatives in Korea, MacArthur added his own, urging abandonment of the idea of a trusteeship for Korea, complete separation of Korea from Japan, statement of a clear policy on the status of former Japanese property in Korea, and an agreement with the Soviets that would allow both powers simultaneously to withdraw their troops from Korea. Splitting Korea into two zones of occupation had imposed "an impossible condition upon occupation missions of establishing [a] sound economy and preparing Korea for future independence," he wrote the Joint Chiefs. The Korean situation "demands positive action as nothing could be worse than to allow it to drift to an ultimate crisis." Already it was believed that the Soviets were constructing defenses against invasion from the South.142 With Koreans in the South rioting over news from the Moscow Conference that a trusteeship might be imposed, Tass refuted charges in the South Korean press that the Soviet Union had insisted on trusteeship, whereas the United States supported immediate Korean independence. When the truth of Tass's statement sunk in, Hodge predicted, the Korean people would feel that "the United States has again 'sold them down the river,' this time to the Russians instead of the Japanese."143 At a U.S.-Soviet Joint Conference held in Seoul, the Americans "talked in terms of opening up the country for the benefit of the nation as a whole, while the Russians talked in terms of negotiations between the two commands." It was clear that the Soviets intended "a lengthy occupation of at least the northern half of Korea" and were not about to be dislodged.144 Korea remained divided, drifting toward crisis. Would the Soviets prove similarly obstructionist in Japan once the Allied Council was operating in Tokyo? Last but not least was the problem of the Emperor, which the Supreme Commander could not put to rest. True to SCAP's advance intelligence, when Nozaka Sanzo returned from exile in Yenan to assume leadership of the Japanese Communists, the Party softened its stand on the Throne. Although it continued to favor abolition of the Emperor system, it no longer insisted on it. The Emperor could remain if reduced to a figurehead—"an object of popular sentiment and for decorative purposes"—but the right of deciding the system's ultimate fate should rest with the Japanese people.145 That was a positive change from SCAP's point of view, for it suggested that even the most radical elements of Japanese society would not oppose retention of the Throne. The monarchy seemed saved, but what about the monarch? Many, including MacArthur, believed that the ecce homo quality of Hirohito's New Year's Rescript, in which the Emperor had sacrificed his divinity to keep his throne, expiated whatever onus he bore for not keeping Japan out of war.146 Others, however, thought that the Rescript had been an affront. In late January, MacArthur was again fending off renewed Australian efforts to indict Hirohito as a war criminal.147

Damage Control Back in November, the War Department and SCAP gingerly had begun negotiating a trip to Japan for the Far Eastern Advisory Commission (FEAC), predecessor to the

The Rise of the Government Section FEC.148 MacArthur wanted it understood that no agency, including the FEAC, should be permitted to deal direcdy with die Japanese lest SCAP's authority "immediately disappear and his position become untenable." Nor was die Supreme Commander to receive orders direcdy from die FEAC; he was to receive diem only through die Joint Chiefs. In short, the FEAC delegation would be restricted to information gathering, and its visit would be "as limited as possible."149 Arriving in Yokohama in early January, die FEAC delegation had come, as some at GHQ sneered, for '"a little souvenir buying, a litde sightseeing, and a litde education.'"150 Despite die bravado, GHQ was apprehensive: MacArthur's patience was unusually diin, and no one knew what die mood of die FEAC delegates would be.151 On 17 January, delegates met widi members of the Government Section for a briefing. "Government in Japan has become increasingly a matter of directive from the Supreme Commander radier dian acts initiated by the Japanese Cabinet or Diet," they were informed. The "reactionary politicians who controlled the Diet" had "no program for reconstruction," but instead were putting their efforts into trying to split the Allies, altiiough they recently had been "blown from their seats in die Diet" by SCAP's purge directive. In die question-and-answer session tiiat followed, Tomas Confesor, delegate from die Philippines, asked whether SCAP was considering amending die Japanese Constitution.152 Having already decided, widi Rowell, "to tread very lightiy" around this issue, because "[w]e didn't want to stir up a hornet's nest," Colonel Kades stonewalled.153 "No," the Deputy Chief of GS answered. "The Government Section has understood that is a long-range problem concerning fundamental changes in the Japanese constitutional structure which is widiin the province of your commission." Kades denied that the Section had studied die problem and omitted mentioning that the Section anticipated a reform plan soon from die Japanese government.154 When another GS member said, sub voce, "Why don't you tell diem what Lieutenant Colonel Rowell's been doing?" he received a kick in his shins under the table.155 Confused by die GS response, Confesor said simply: "I do not understand why constitutional revision is not part of your work."156 When news of the session was relayed to Whitney, die Chief was perturbed: Confesor's remarks seemed to suggest diat Government Section was not doing its job. The session with the FEAC was catalytic, Rowell later recalled, because "it encouraged us to do something," since the FEAC delegates apparently diought "it was witiiin the scope of our authority."157 More important, it made Whitney realize that die Government Section might be open to criticism for not doing enough. The Chief of GS asked Kades to read various documents, including SWNCC 228, which was kept under lock as "a sort of super top secret," to ascertain whetiier SCAP did indeed have the power to effect reform of die Japanese Constitution.158 On 30 January, die day before the delegation left, MacArthur told the FEAC that the matter of constitutional reform "had been taken out of his hands by die Moscow Agreement." He had "ceased to take any action whatever," and what he had done in the past had not been much, being limited "merely to suggestions."159 Although Kades and MacArthur bodi created an impression diat nothing was happening in the area of constitutional reform, a very different message was being conveyed to the War Department by an OPD staffer who had accompanied the FEAC delegation. "The draft of a

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Volume Two • Tokyo new constitution is under way," reported Colonel James McCormack. "A good guess is that it will describe in considerable detail a system much like that of Great Britain. It may be expected to contain guarantees of life, liberty, and the pursuit of happiness." For the Japanese doing the drafting, the "greatest single difficulty" would be rewriting the section on the Emperor's powers; but since Hirohito "is said to admire the position of the King of England," added McCormack, "he may come forward himself with the appropriate paragraphs."160 On i February, two days after MacArthur told the FEAC mission that his powers over constitutional reform had been diminished, Whitney submitted what was in essence a legal brief broadly interpreting SCAP's existing authority, while implying that his future ability to act would be limited. The issue of constitutional reform was "rapidly approaching a climax," Whitney observed; it might "well be a cardinal issue in the coming election campaign" for seats in the Diet. He assured MacArthur, " [I] n the absence of any policy decision by the Far Eastern Commission on the subject (which would, of course, be controlling), you have the same authority with reference to constitutional reform as you have with reference to any other matter of substance in the occupation and control of Japan."161 The real question was whether MacArthur had any obligation, legal or political, to consult with the FEC in advance of taking action on constitutional reform. But on that Whitney said nothing. Because SWNCC 228 neglected to take the privileged position of the newly established Far Eastern Commission into account, Whitney concluded that SCAP's authority remained basically intact: as long as the FEC had promulgated no policy decisions of its own, MacArthur was free to take action "pursuant to existing [American] directives to approve or direct constitutional reform."162 As long as the Supreme Commander did not attempt to remove the Emperor—"in which case," Whitney informed MacArthur, "you are required to consult with the Joint Chiefs of Staff"—SCAP was free to approve "constitutional reform measures submitted to you by the Japanese government, although your action in approving the same would be subject to review by the F.E.C. . . ." In case MacArthur doubted the soundness of his legal advice, Whitney noted that the memorandum represented the "composite view" of various officers in his Section.163 With advice like Whitney's, it is hardly surprising MacArthur persisted in a mistaken impression of his dejure powers vis-a-vis the Far Eastern Commission. But Whitney's memorandum did not itself spark the decision to draft a "model" constitution for the Japanese government. It merely reaffirmed what was obvious, that the question of constitutional reform was coming to a head and that MacArthur's powers over the issue were greater now than they would be once the FEC got organized in Washington. The Supreme Commander could either approve or disapprove reform proposals made by the Japanese government, or he could issue a directive on the subject.164 Although the latter was rendered nearly taboo by SWNCC 228 (because knowing the changes "had been imposed by the Allies would materially reduce the possibility of their acceptance and support" by the Japanese)—and Whitney had not yet conceived the idea of creating a model constitution—the Chief of GS did not rule out the possibility of SCAP's assuming a more active role than giving thumbs-up or thumbs-down to a proposal from the Shidehara Cabinet.165

The Rise of the Government Section But "the match that lit the fuse," according to Rowell, was the unauthorized publication of a draft revision alleged to be that of the Japanese government.166 Late in January, a young reporter in the Mainichi Shinbun's Political Bureau, Nishiyama Ryuzo, wandered into the office of the Kenpo Mondai Chosa linkai in search of a story. No one was there, but the KMCI was known to be readying a proposal for presentation to the Cabinet, and in plain view was a paper resembling a draft constitution. After frantically copying the purloined draft back in the Mainichi offices and replacing it before its absence was noticed, Nishiyama published his scoop on the front page of the i February edition.167 Seeing its labors in print startled the KMCI, which had taken great pains with security (even requiring members to surrender copies of drafts after each meeting).168 The explosion at GHQwas not long in coming. MacArthur had arranged with a junior officer in the Government Section to provide him with a daily morning summary of major articles in the Japanese press, gleaned from English translations of leading articles provided GHQ by the Kyodo and Jiji news services, which had replaced Domei. By now, the level of the Supreme Commander's interest in constitutional reform ran sufficiently high that anything dealing with the subject was carefully tagged and brought to his attention. Often he would pursue items mentioned in the press summaries, asking for translations of published private drafts and reviewing these "in rather considerable detail."169 None of the published Japanese drafts impressed MacArthur; Whitney, too, expressed "great dissatisfaction with what was being produced." Both men showed "great sensitivity about the Emperor and what his role and relationship to the country should be," and both believed that the role accorded him in various Japanese drafts "was totally wrong, that there had to be fairly radical change in that regard." Even the Socialist Party's outline deferred too much to the traditional position of the Throne. Having expected more from the Japanese Left, only gradually did Government Section realize that "they were all still tied to the old traditions, views, and attitudes."170 Whitney's own "fuse was growing shorter," recalled one GS officer, because, despite his prodding the government throughout January to submit a draft, nothing had happened.171 But a general perception that the Japanese were making little progress on constitutional reform did not transmute into an urgent need to act until the alleged KMCI draft blossomed on the front pages of one of Japan's largest dailies. It was worse, by far, than what GS had expected, and, as one officer recalled, "[W]e knew that more than we had hoped would have to be done was going to have to be done."172 The Mainichi scoop illumined with terrible clarity how badly SCAP had misjudged the Japanese government, overestimating its comprehension of Allied expectations and underestimating its aversion to fulfilling them. But General MacArthur's press summary for i February did not refer to the Mainichi story, because neither Kyodo nor Jiji had supplied it in English translation to GS. One of the GS staff interpreters noticed the story in the vernacular press, but finding its significance or its language beyond his comprehension, he failed to report it to the Section. Mortified that the Supreme Commander had learned of the story from another source, Whitney was doubly vexed when his own Section was alerted by a POLAD staffer.173 Over dinner that night, a newly arrived civilian specialist, Dr. Cyrus

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Volume Two • Tokyo Peake, was casually informed by an old friend from POLAD of "that Matsumoto leak in the paper today."174 Trying to suppress his excitement, Peake quickly read through a rough POLAD translation of the Mainichi article in his friend's hotel room. Familiar with some of the private Japanese drafts and with Washington policy planning, Peake was aghast at discovering how wholly inadequate the Mainichi draft was. The next morning, he acquainted General Whitney with how utterly it diverged from SWNCC 228.175 The Japanese press reacted instantaneously to the purloined draft published in the Mainichi. MacArthur may not have noticed Japanese reports of KMCI chair Matsumoto's press conference on 2 February, a disaster in which the Minister stonewalled, opining that it would be a mistake to clarify the locus of sovereignty in the Constitution or, indeed, to revise any articles beyond the minimum required by the Potsdam Declaration.176 The Supreme Commander probably learned that the Mainichi had editorially upbraided the Cabinet for ignoring the fact that "one of the provisions of the Potsdam Declaration is that the actual power to inaugurate a constitution has passed from the Emperor to the people."177 And SCAP assuredly saw an article in the Nippon Times the following day predicting a public battle if the government were to adopt Matsumoto's views, for the private and political party drafts thus far published were largely at odds with the Minister's fealty to the .status quo.178 Ironically, the Mainichi had scooped the wrong draft: it published a version that sought to accommodate the more liberal views of some KMCI members. The night of i February, Chief Cabinet Secretary Narahashi publicly denied that the Mainichi draft represented the work of the Matsumoto Committee, although he acknowledged that it might be the handiwork of a single committee member. Whitney himself believed the prematurely published draft was Matsumoto's own, because the Minister's remarks to the press, particularly on the position of the Emperor, so perfectly matched the reactionary flavor of the Mainichi draft.179 As concerned about the implications of the draft as he was about Government Section's lapse in intelligence (which proved inferior to what a competent reporter could ferret out) ,180 Whitney ordered Peake to have a full translation of the Mainichi text prepared, with a staff commentary on it. GS interpreter Joseph Gordon was charged with translating the draft while Kades, Rowell, Hussey, and Peake compared it to what they knew of U.S. policy. By late afternoon of 2 February, both translation and commentary were completed. Whitney placed them on MacArthur's desk that evening. To GS, the draft scooped by the Mainichi was inconceivable as a basis for even preliminary negotiations between GHQ and the Japanese government. Whitney pronounced it extremely conservative, pointing out to MacArthur that it left "substantially unchanged the status of the Emperor with all rights of sovereignty vested in him."181 His staffs critique of the Mainichi draft noted that it provided no safeguards for an independent judiciary, did not vest full authority over the budget in the Diet, retained executive prerogatives in the hands of the Emperor, and kept the Diet subordinate to the Cabinet and the Emperor. It also lacked juridical rights considered essential by GS, made no provision for local self-government, and said nothing about the principle of constitutional supremacy.182 None of these points had been mentioned when POLAD had sketched American policy for Prince Konoe four months earlier; but all had received extensive treatment

The Rise of the Government Section in Rowell's December report. By early February, having absorbed the ideas of Rowell and examples of progressive Japanese thinking, having experienced Japanese obstructionism and seen the effects of GHQ-inspired reforms already under way, the Government Section wanted more—more certainly than Matsumoto could offer, and perhaps even more than the Occupation might have settled for a few months previously. Whitney and Foreign Minister Yoshida were scheduled to meet for a private talk on 5 February regarding the official government draft of the constitution. The morning of 2 February, in the aftermath of angry press and public reaction to the Mainichi draft, a call came from the Foreign Office requesting postponement of the meeting for two days. Whitney agreed to do even more: he put off the meeting for a week, to 12 February, explaining to MacArthur: "I thought it advisable to agree to this meeting (which Yoshida stated would be 'off the record' and on a no commitment basis) as I could foresee that the reactionary group carrying the ball on constitutional reform were [sic] way off the beam that you could agree to. I thought it better to orient them before the formal submission of a draft than to wait and force them to again start from scratch. . . ,"183 The Chief of Government Section did not believe that allowing the Japanese government to reform itself unaided and uninstructed had been an absolute mistake, though some guidance was clearly in order. Besides, he wrote MacArthur, " [N] ow that Yoshida's trial balloon has been punctured, it is possible that the Cabinet Commission [i.e., the Matsumoto Committee] may want to undertake a more genuine constitutional revision which would comply in good faith with the Potsdam Declaration."184 Whitney thought the Japanese were simply employing the standard negotiating ploy of leading with their least acceptable offer. Presupposing a much fiercer dichotomy of liberal-conservative views in the Matsumoto Committee than actually existed and convinced of his own persuasiveness, Whitney was a devout optimist. The next day, Whitney lost his faith in the willingness of reactionaries to undertake voluntarily the revolution Americans expected. There was too much at stake— public humiliation for the Supreme Commander, intervention by the Far Eastern Commission, loss of Government Section's newfound status and power—to trust that the political instincts of the Shidehara Cabinet would lead it in the right direction.

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A "Top Secret" Constitutional Convention

WHEN THE MAINICHI SCOOP brought him face to face with the breathtaking disparity between Japanese intentions and American expectations, Brigadier General Courtney Whitney concluded, naively, that the Shidehara government had deliberately leaked the story to gauge how staunchly the United States was committed to the principles set forth at Potsdam. That they fully understood those principles, however, the head of Government Section had litde doubt. Perhaps disputing Whitney's reading of the Shidehara government and how well it comprehended Allied expectations, perhaps realizing GHQ's scrupulous reticence had been a mistake, the Supreme Commander changed course: there would be no more trusting to simple Japanese good faith. MacArthur had decided to turn tutor. On Sunday, 3 February, "CW [Whitney] called to tell me that MacA had decided to go the whole way & had entrusted to GS the job of drafting," scribbled an excited Commander Alfred R. Hussey, who was duty officer that day. "The draft will be presented to Y. [Foreign Minister Yoshida] et al. on Tuesday 12 Feb. with the statement that it will be the last chance of these reactionaries to stay in the government and the last chance to keep the Emperor." Lieutenant Colonel Milo E. Rowell, GS's expert on constitutional reform, who had been scheduled to return home, was to stay on for a few extra days; Whitney would convene GS's entire Public Administration Division, which was most of the Section, and "make them part of the team." Back at their billet in the Dai-Ichi Hotel, thrilled to have a "clear go ahead," Rowell, Hussey, and Colonel Charles Kades, second in command of GS, started to make plans.1 Whitney's three senior officers, all lawyers, had already decided that the Japanese courts, so as not to overshadow the Diet, would have only a limited right of review, except on questions 518

A "Top Secret" Constitutional Convention pertaining to the Bill of Rights, where their interpretation would be supreme. In less than half an hour, Rowell allocated drafting assignments among various members of the Government Section.2 Monday morning Whitney convoked his impromptu—and top secret—constitutional convention in the L-shaped conference room just outside his office. It was obvious that the Chief was "quite excited and stimulated" when he strode in clutching what appeared to be an envelope with some notes on the back.3 "General MacArthur has entrusted the Government Section with the historically significant task of drafting a new Constitution for the Japanese people," Whitney proudly announced to the assembled staff of fewer than two dozen. The Supreme Commander had outlined several principles that he thought must be incorporated: (i) the Emperor would be "at the head of the State," but "his powers will be exercised in accordance with the Constitution and responsive to the will of the people"; (2) "[w]ar as a sovereign right of the nation is abolished"; it could not be used to settle disputes or even to preserve Japanese security, nor could armed forces ever be authorized, but rather "Japan must rely upon the higher ideals now abroad in the world for its defense"; (3) there would be no peerage in Japan, except for the Imperial family; and (4) the budget was to be patterned after the "British system," a cryptic instruction no one quite understood.4 Later, when staff realized that abolishing the peerage eliminated the basis for the second house of the Diet, MacArthur would suggest that the legislature be made unicameral. But for now, before the logical ramifications of some of these ideas became apparent, Whitney wanted simply a "flexible statement of basic principles." All reasonable proposals would be considered, for the work was to be a "joint effort" of the staff.5 Junior staff received the news with shocked surprise, for they understood that "these constitutional matters" had been reserved to the Allied Powers. Some felt that "over time it would be necessary to become involved" in amending the Constitution, because the issue was so basic to undertaking other reforms. But no one had expected this involvement to come up so soon. Exhilarated (though somewhat apprehensive about how the Far Eastern Commission would react), according to one staffer, "we generally applauded the decision to proceed" and "were disposed to rationalize this as a sensible approach."6 Only later would this largely young group of diverse experience and slender credentials appreciate their temerity. Now, among themselves, they joked "about the importance of the job we were taking on ... and [how] we were all now great constitutional experts, and there was nothing that we couldn't do if we really put our minds to it."7 During the staff briefing, Whitney did not mention SWNCC 228, Rowell's report, the Kenpo Kenkyukai draft constitution, or indeed any controlling documents except for MacArthur's points and the United Nations Charter. Not until two days later at a Steering Committee meeting was it explained that all working committee chairmen were responsible for checking their drafts against SWNCC 228. When a GS staffer subsequently questioned the "psychological credibility" of promulgating a GS-inspired constitution as a Japanese document, Colonel Kades allowed that although there was blatant disparity between a constitution based on American practices and one based on the beliefs of the current Japanese government, there was "no comparable gap . . .

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Volume Two • Tokyo between American political ideology and the best or most liberal Japanese constitutional thought."8 The new constitution was to be a response not to the political philosophy of Japan's present rulers, but to popular sentiment as manifested in the daily press and GS interviews with Japanese politicians and academics. The record of that 4 February convocation shows Whitney taking a tough stance toward the Japanese, particularly "the Foreign Minister and his group." Little love was lost in those days between GHQ and Yoshida Shigeru, whom Whitney lumped with Minister Matsumotojoji as a sly and obdurate opponent of reform. The Chief also told his staff he intended to convince the Shidehara government that "the only possibility of retaining the Emperor and the remnants of their own power is by their acceptance and approval of a Constitution that will force a decisive swing to the left."9 The GS draft had to be ready—and have received MacArthur's approval—in time for Whitney's meeting on 12 February with Foreign Minister Yoshida, a meeting at which he intended to apply the full force of "persuasive argument." If the General's plan worked, the Japanese government would "change their own constitutional provisions to fit our demand for a liberal Constitution," and MacArthur would then "accept this Constitution as the work of the Japanese Government and so promulgate it to the world."10 It delighted Whitney that the date set for his meeting with the Japanese was, serendipitously, Lincoln's birthday. Whitney then turned the meeting over to Colonel Kades, who, with Commander Guy Swope, lectured staff on the U.S. Constitution before laying out the rules.11 Government Section was instructed to follow the structure and headings of the Meiji Constitution while changing its emphasis: "The powers and rights of the Emperor were precisely defined and guarded in the present Japanese Constitution. . . . [O]ur emphasis should be upon placing sovereignty squarely in the hands of the people; the Emperor's role will be that of a social monarch, merely." The project was to be carried out under absolute secrecy, with all notes and drafts classified "Top Secret." Staff had five days to prepare a rough draft, shepherd it through the three-man Steering Committee, and polish it.12 On Tuesday and Wednesday, the Steering Committee, made up of Kades, Rowell, and Hussey, held preliminary conferences with the working groups to instruct them on secrecy (no Japanese were to be admitted to GS while the "model" was under construction) and basic principles to be incorporated. Again, drafters were told to follow the Meiji Constitution "as closely as possible"; but where the meaning was unclear in translations of the original, they were to "use our own language."13 The remainder of the week, until the Steering Committee's final review and mimeographing of the document, was spent by working committees brainstorming, arguing, and writing furiously. They drew up their drafts in the Dai-Ichi Building's former ballroom, then thrashed them out with Whitney's triumvirate over the ensuing days. On Wednesday, 6 February, Whitney notified MacArthur that the Cabinet's draft was to be submitted to him the next day. Whitney had been tipped off that "it follows pretty much the tenor" of the Mainichi version and would include provision for an army and navy. Meanwhile, the Government Section's work was being held "under cover of absolute secrecy" to keep both the Japanese authorities and State's Political

A "Top Secret" Constitutional Convention Adviser from learning what was going on. "The initial draft of our revised constitution will be ready for your consideration prior to the week-end .. . ," Whitney promised. "I am sure that, from present progress, it will prove a satisfactory document."14 It was reasonable for Whitney and MacArthur to fear that adding interested parties would multiply complications. The Japanese could play one part of GHQ against another for concessions and in the midst of the fracas gain a reprieve from change. Only a few days earlier, Whitney had sanguinely opined that the Japanese government might "want to undertake a more genuine constitutional revision" once it was acquainted with SCAP's expectations.15 Now, disillusioned by his belated appreciation of the Japanese government's diehard dedication to the status quo, Whitney no longer was willing to leave reform entirely up to the Japanese: there was more to lose than he had judged. Preserving the fiction of continuity (and of the revision as a natural outgrowth of post-Potsdam impulses) became more important, as did the value of shock in securing acceptance with minimal fuss. Significantly, Whitney no longer spoke of giving the Shidehara government a model to guide its own efforts. His Section was preparing a full draft constitution that the Cabinet would be obliged to adopt as its own.

Battles of the Ballroom In the excitement of an intense exercise in improvisation with few official guidelines to follow and even fewer unofficial sources to draw upon, it is amazing how smoothly the week went. GS staff drew largely upon their own experience and philosophies to flesh out the spare guidance offered by SWNCC 228; a few of the more resourceful could call upon texts of prewar European constitutions salvaged from Tokyo libraries. Some chapters were better written than others, some more controversial; only one was scrapped and totally rewritten. The drafters, over twenty in number including the secretary to the Steering Committee, often found themselves mired in factional disputes, splitting along liberal-conservative fault lines or diverging according to different schools of legal thinking. Government Section was charged with strengthening the legislature at the expense of the executive, yet there was an equally strong contrary impulse to set up checks and balances on the American model, and especially to increase the independence of the judiciary. Staff vacillated between creating a single strong executive figure, the Prime Minister, or a collectively responsible, collectively powerful Cabinet. Presiding over this collection of disparate views was the Steering Committee, a trio of senior officers who had been lawyers in civilian life and who had their own differing philosophies and prejudices. Lieutenant Colonel Milo E. Rowell was a conservative Republican whose family had long been involved in California politics and civic activities. Having been in the Pacific since September 1944, training in New Guinea and serving with a military government unit in Mindanao, Rowell was set for separation and a return to the prosperity of his practice in Fresno.16 A chance to be present at the revolution seemed adequate reason to delay his departure, however. Rowell's previous research gave him more insight into the Meiji Constitution than either of his colleagues and gave his views substantial weight.

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Volume Two • Tokyo Next was Commander Alfred Rodman Hussey, a Massachusetts lawyer with a small practice, who wore his idealism openly, along with "considerable ego," recalled one coworker: "He tended to regard himself as being knowledgeable about everything, even small things, not only big, major policy issues. He was a man who didn't have too many doubts."17 At least not on the surface. Eventually self-doubt eroded the man and his career; but at this moment "he found himself in something that he was aware was big and important, and he felt that he had suddenly grown up to it." It helped that Hussey was bright and perceptive, "a quick learner."18 As Hussey earlier had been the member of Government Section most concerned about evidence of Japanese recalcitrance, so would he become the most vigilant defender of the draft constitution produced by his colleagues. During the long summer months when the draft passed through the gauntlet of the Diet, Hussey watched, wary of changes he equated with sabotage. At the apex of the Steering Committee was Whitney's deputy, Colonel Charles Kades, whose genial manner camouflaged "the quickest intellect in GHQ."19 A graduate of Cornell University and Harvard Law School, Kades, then forty, was a member of the Wall Street law firm of Hawkins, Delafield, and Longfellow, to which he would return after his service with SCAP ended. Kades had signed on to Roosevelt's New Deal early on. What started as a temporary assignment doing municipal bond work for the Department of the Interior turned into tours as assistant general counsel to the Federal Public Works Administrator from 1933 to 1937 and as assistant general counsel to the Treasury from 1937 to 1942. Commissioned a second lieutenant in the Army Reserve in 1928, Kades went on active duty in 1942, receiving training at the Infantry School and the Command and General Staff School. He was assigned to the War Department's Civil Affairs Division, but saw duty in 1944 as assistant G-5 (military government officer) of the Seventh Army and First Airborne Task Force in the invasion of southern France and in the Alpine and Rhineland campaigns.20 Before Germany surrendered, Kades was back at CAD serving as General Hilldring's acting executive officer. Sharing Hilldring's concern over the adequacy of policy planning for Japan, Kades compiled a "bible" of draft directives from the Joint Chiefs of Staff on the Far East that he took with him when he was assigned to General Grist's staff in Manila.21 But Kades left for the Pacific so early that he missed the elaboration and finalization of policy on Japan within the State-War-Navy Coordinating Committee. His top secret policy papers were only embryonic guidelines, incomplete maps to the future. Kades earned high praise from his colleagues at GS. He was friendly, gregarious, and accessible, all things his first boss, General Crist, was not. "He somehow could imbue people with a sense that they were exceptionally good and that they could meet any challenge, do anything that needed to be done," one colleague remarked.22 He was instrumental in laying the groundwork for future SCAP reforms by giving his frustrated staff free rein to pursue their interests. Kades supervised the drafting of the purge directive by Lieutenant Commander Spencer Byard, who had come to the Occupation fresh from working on denazification in Germany; over strong GHQ prejudice against imports from the European theater (who were presumed to be full of "leftover CCS [Combined Chiefs of Staff] ideas"), Kades helped sell the purge to SCAP.23

A "Top Secret" Constitutional Convention Possessor of "a highly developed political sense" and "an all-out committed New Dealer," Hilldring's man in Tokyo had "very strong views about all sorts of matters governmental, how the government should operate, function, interrelationships," and so on. It was largely Kades who "articulated the argument that the way that you can create a real stabilizing force in the country is to give people a stake in the country, in the economy... ,"24 With Whitney's ascension, Kades finally had the backing he needed to get GS moving on the reforms Washington expected. Whitney, in turn, valued Kades' familiarity with official Washington, his brilliance, his absolute devotion to duty, and "the fact that Kades was an Ivy Leaguer without an old-school-tie complex, and drove everyone, himself in particular, to the limit of his endurance."25 During the drafting, Kades showed a decided preference for streamlining. He recommended the barest possible statement on the budget and asked that no provisions be included regarding the process by which the Prime Minister and his Cabinet were to be selected, since these details "will automatically solve themselves and need not be specified in the Constitution." Noting MacArthur's preference for a unicameral system, Kades suggested that this might offer an "effective bargaining lever."26 Anticipating give-and-take negotiations with the Japanese, he believed a few expendables should be included to strengthen SCAP's position on other items. The items that ultimately caused most trouble with the Japanese were those provisions curbing the Emperor's power. Kades and the rest of the Steering Committee pressed for strictly delimiting the prerogatives of the Emperor and clarifying his merely decorative role. The Steering Committee struck provisions which, because of imprecise language, appeared to invest the Emperor with initiatory or discretionary authority. Where references to the Japanese Empire studded the Meiji Constitution, they were to be replaced by references to the Japanese State,27 a corporate entity whose nominal head was to have an imperial title but not much else. But the Steering Committee was not entirely insensitive to Japanese pride. On Kades' recommendation, MacArthur's clause on the renunciation of war was not given precedence; the chapter on the Emperor would follow the Preamble, as it did in the Meiji Constitution.28 Questions of tactics shaped the final GS draft. When Lieutenant Colonel Rowell saw the original civil rights draft of thirty-three articles, he remarked uneasily that insisting upon these provisions might cause so much resentment that the Japanese government would reject the entire draft. In anticipation of a hard bargaining session with the Japanese, the Steering Committee reduced the chapter to a more manageable size, making dominant the legal rights Rowell considered indispensable rather than the social and economic rights favored by the drafters. Lapses in judgment also had an effect—or threatened one. At one point, Whitney ordered deletion of a guarantee of the right to strike, feeling it might be misconstrued as constitutional encouragement. He almost succeeded in removing the common law principle of allowing the accused to confront and cross-examine his accusers on the fatuous ground that because this rule was not being employed in the war crimes trials in the Philippines, the contrast between what America stood for at home and what it was doing abroad might be embarrassing to the United States (that is, to the Supreme Commander). The controlling documents, SWNCC 228 and MacArthur's points, restricted the drafters and provided contrary lines of development. Not surprisingly, the ideas of the

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Volume Two • Tokyo Supreme Commander had the greater authority. SWNCC 228's emphatic concern for explicitly subordinating the military to civilian control was, without debate, superseded by MacArthur's visionary clause renouncing war. The resulting technical difficulties—such as redefining treason for a country supposedly abandoning the right of self-defense—were resolved by omission. In the absence of firm guidance from SWNCC 228 on this point, MacArthur's suggestion of a unicameral legislature was adopted, notwithstanding that Japan already had a bicameral system and GS had no strong argument to make in favor of switching to a different system. Tension between the controlling documents and the drafters' personal philosophies or experience created complications. The British principle of parliamentary supremacy seemed preferable because it was closer to Japan's extant system, but the GS drafters could not help drifting back to more familiar American models. Competing desires for a strong executive and a collectively powerful Cabinet surfaced when Lieutenant Milton Esman advocated vesting the executive power in the Prime Minister alone rather than in a corporate Cabinet. The Diet, Esman speculated, would probably be full of splinter parties, none with a clear majority. Selection of a Prime Minister would require weeks of haggling and compromising, selection of a Cabinet even more. To avoid an executive vacuum, he suggested that the Prime Minister be chosen by someone above politics, namely the Emperor, and combine in himself all powers of the executive branch. Others disagreed, noting that SWNCC 228 consistently referred to the Cabinet, not the Prime Minister, as the executive. Clashing views were nowhere more evident than in meetings between the Steering Committee and the working committee on civil rights. Kades took exception to the "assumption of infallibility" inherent in one committee proposal that no future constitution, law, or ordinance would be able to abrogate rights guaranteed by the constitution. No generation, he argued, should be able to impose its standards in perpetuity, for that made change impossible without revolution. But the provision passed after an impassioned plea by Pieter Roest, the drafting committee chair, that "no future generation should be permitted to abrogate the rights now accepted as inherent in the state of man." Another drafting committee member firmly believed GS was duty bound to effect a social revolution in Japan; Whitney, although agreeing in part, preferred to cut out the details and rely upon a broad, though not totally comprehensive, social security guarantee. Occasionally, the controlling documents were misinterpreted, even by the senior officers constituting the Steering Committee. Using SWNCC 228 as his authority, Kades maintained that only temporary veto power could be granted the Supreme Court. Indeed, SWNCC 228 had stated that other governmental organs should have only temporary veto power over legislative matters. But Kades erroneously expanded this to include constitutional interpretation when the majority of the Steering Committee favored vesting the Court with absolute power of review over constitutional questions. Kades' concern was more fundamental than a desire to adhere strictly to what he thought SWNCC 228 intended: he feared development of a judicial oligarchy in which judges with lifetime tenure would be free of outside scrutiny and discipline. What emerged by way of compromise was a system for the popular review of Supreme Court justices every ten years, a mandatory retirement age for judges, and an article

A "Top Secret" Constitutional Convention making review by the Court final only for civil rights questions, while reserving to the Diet the right to review and set aside decisions of the Court on other constitutional issues. This last item struck the Japanese government as absurd. It was deleted during negotiations with GS in early March, and the Supreme Court was given unqualified power of review in all questions of constitutionality. The Final Product When a tentative full draft was ready on Sunday, 10 February, Whitney transmitted it to MacArthur with a blandiloquent cover: "The Document embodies those high principles stated by you the other day, and many others which you have from time indicated to me. It represents advance thinking in constitutional development—yet contains no provision without basic precedent or sound considered advocacy. It constitutes a sharp swing from the extreme right in political thinking—yet yields nothing to the radical concept of the extreme left. . . . By it economic and social as well as political democracy is established."29 In another memorandum to SCAP, Whitney noted approvingly that the Japanese government had decided to bar all members of the past Diet elected under wartime Prime Minister T6J6, which suggested that "the Japanese Government is now getting into the spirit of the [purge] directive as well as the letter" and that "our recent conversations" with Shidehara and others were "bearing fruit."30 The lesson Whitney drew from this was that tutelage worked. Although it "required considerable patience to bring them to a complete understanding as to just what was desired," he observed, once SCAP's wishes were "fully understood the Government went all out in its compliance." The Shidehara government, Whitney concluded, was not necessarily unwilling or indifferent, merely slow of comprehension, a point to bear in mind "in securing desired results in other matters."31 While General MacArthur reviewed the GS draft in typescript, the Steering Committee anxiously awaited his judgment. The verdict came down the next morning: only one article would have to go. To Whitney's relief, MacArthur had axed a clause in the civil rights chapter that would have prohibited the Japanese from amending their constitution or enacting legislation that subordinated "public welfare, democracy, freedom or justice to any other consideration whatsoever." The clause's self-righteousness and presumption of infallibility had bothered Kades and Rowell as well.32 By 6:30 Monday evening, one full week after inauguration of the makeshift constitutional convention, the drafting had been completed, the assembled chapters reviewed by Rowell for style and consistency, and the final pages given to Whitney's secretary, "the hardy Miss [Sheilah] Hayes," for retyping and duplication. "The whole job has been a tremendous one," an elated Hussey wrote. "There has been remarkable unanimity—few points on which real differences have existed."33 In that one week GS had produced a minor miracle. Staff may have jested about their dubious credentials as lawmakers, but they were exhilarated by their achievement. What started out as "largely an academic exercise" in the minds of many had resulted in a creation perceived as "really more than just a model": "this was really a very good document," they believed, and perhaps just what Japan needed.34

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Volume Two • Tokyo Commenting approvingly that MacArthur's single deletion had delighted the Steering Committee, Whitney sent two copies of the mimeographed "MacArthur Draft" to the Supreme Commander the next day, 12 February.35 Cornered that morning by a United Press correspondent who was concerned about the effect of the purge on upcoming elections, Whitney told him that "the controls which have heretofore held the Japanese people in bondage could only be effectively severed through a liberal Constitution placing all power in the hands of the people themselves."36 He neglected to add that he had just that in his pocket. The Chief of Government Section was ready for his showdown with the Japanese Cabinet.

For a detailed study of the drafting and completion of each chapter of the Government Section's "model" constitution, see Appendixes A through I. The final "MacArthur Draft" appears in Appendix J. In some chapters there were a few changes between the draft adopted by the Steering Committee and the ultimate version approved by the Supreme Commander; but as most were relatively minor, I have not documented them.

CHAPTER

15

"For Your Convenience and Protection": Negotiating with the Japanese Government

ALREADY RUNNING A DAY LATE and not about to postpone the confrontation any longer, fever or not, the Chief of Government Section pulled himself out of a sickbed to meet with the Japanese. General Courtney Whitney's "idea was that all the Japanese needed was some leadership," said his deputy years later, "and he was going to give them the leadership or have MacArthur give it."1 Shortly before 10 A.M. on Wednesday, 13 February, after picking up the ailing Chief at his general's quarters in the Imperial Hotel, Colonel Charles Kades, Lieutenant Colonel Milo E. Rowell, and Commander Alfred R. Hussey left for the drive to Foreign Minister Yoshida Shigeru's residence. The only representatives of the Japanese government present were Yoshida; his secretary, Shirasujiro; Minister Matsumoto Joji; and the interpreter Hasegawa Motokichi, a former secretary at the Japanese Embassy in London. It was the first encounter any Americans from GHQ had with the formidable author of the Japanese reform plan. As they gathered with their Japanese hosts in a glass-enclosed veranda overlooking the garden, Whitney made his presentation, his back to the sun that he might better scan the faces opposite. After carefully studying the draft produced by Minister Matsumoto, the Supreme Commander had determined diat it was '"wholly unacceptable as a democratic instrument,'" Whitney announced, and MacArthur had ordered a document "'embodying the principles which in his opinion the situation in Japan demands.'" Matsumoto smiled reflexively, but Yoshida stiffened.2 A taut bulldog of a man, Yoshida has been described as a "pocket Churchill," a phrase historian John Dower believes apdy captures his "size, cigars, arrogance, and imperialist ardor." The Foreign Minister would

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Volume Two • Tokyo later thumb his nose at SCAP's efforts to inculcate in the bureaucracy the ideal of public service rather than service to the Throne, as he would scorn what he called the Occupation's penchant for "revolution for the sake of revolution."3 If GHQ had left it to Yoshida, Kades later remarked, the constitution would not exist in its present form.4 Yoshida was no more fired by reformist zeal than was his colleague Matsumoto. Leaving behind copies of the "MacArthur Draft," the Americans withdrew to the garden to give the Foreign Minister and Matsumoto an opportunity to read and consider it. After a half hour in the garden, where Whitney joked crudely with Yoshida's secretary about "'enjoying the warmth of atomic energy'" and Shirasu retorted that, thanks to a firebomb, his quarters lay open to the chilly north winds, the four officers were ushered back in.5 The Japanese were stunned. They had been expecting to receive GHQ's opinion of their proposal, which had been submitted on 8 February; instead they were confronted with Whitney's outright rejection of Matsumoto's draft and his proposal to substitute the American one as a model for future efforts. Yoshida looked "dark and grim"; Matsumoto concentrated intently on Whitney's words while averting his gaze from the General's face; Shirasu scribbled notes; and the interpreter Hasegawa kept the blankest of poker faces.6 Even more shocking to the Japanese was what Whitney said. The General, after noting MacArthur's deep and long-standing desire to ensure the retention of Emperor Hirohito, added that this objective could be attained only if the Japanese government would sponsor a plan for constitutional reform along the liberal lines of the American draft. Otherwise, he declared, "[I]t will be impossible to protect the person of the Emperor."7 As a means to their salvation, not as an order, Whitney told the Japanese, MacArthur was offering "'this Constitution to your government and party for your adoption and your presentation to the people with his full backing.'" It was "'the last opportunity for the conservative group, considered by many to be reactionary, to remain in power.'" This could "'only be done by a sharp swing to the left,'" and if the government backed this Constitution, he assured them, "'you can be sure that the Supreme Commander will support your position.'" Just before leaving, Whitney noted that secrecy had been preserved throughout, '"as it will continue to be, for your convenience and protection, not for that of the Supreme Commander.'"8 Recognizing that the Japanese were "obviously not pleased, to say the least, with our document," Whitney also remarked that if the Japanese government rejected SCAP's offer, MacArthur was determined to bring the draft constitution before the people himself.9 Afterward Whitney confessed that he had been given no authorization to say this; the idea of putting the constitution "to the people on the ballot" was a solo sally. "'I'm way out on the limb,'" he told Kades on the return trip to the DaiIchi Building. "'As soon as I get back to GHQ, I'm going to tell the C-in-C and I don't know whether he'll cut off the limb or not.'"10 From the start of their reading of the GS draft, the Japanese were mystified. No one, except Minister Matsumoto, who had some grounding in the British law of trusts, could understand the Preamble. As he read further in the draft constitution provided by what he slightingly called "our tutors," Matsumoto's disdain for their language—if not always his comprehension of the intent underneath—grew. He marveled that the chapter on the Emperor included the word "symbol," a term more appropriate to lit-

Negotiating with the Japanese Government erary criticism than to a constitution; his wonderment expanded as he read further that the Emperor was no longer to appoint ministers of state but to "attest" their appointments as if he were a glorified public notary. When he reached Article 28, which provided that the "ultimate fee to the land and to all natural resources reposes in the State," Matsumoto began to see Reds, or at least draftsmen "who shared the thinking of the Soviet Union."11 Matsumoto thought the Americans bumpkins—and he made the mistake of showing it. Amazed that Government Section could have digested and rejected the Japanese proposal, let alone produced a fully articulated alternative within less than a week, Matsumoto and his colleagues understandably believed litde, if any, consideration had been given to their reform plan. To gain a hearing, Matsumoto proposed—with Yoshida and Shidehara concurring—to submit to GHQ a second explanation of the Japanese proposals and the reasoning behind them.12 Days of confusion and misread signals ensued. Whitney and his staff had never critically evaluated their draft's chances of being embraced by the conservative Shidehara government, or even discussed in advance their tactics of presentation. According to Kades, "We all felt that the people ought to have an opportunity to choose their own form of government, but we never discussed how we would achieve that objective until after General Whitney made that statement" to the Japanese about putting the constitution to the people. Nor was there any discussion "of what would happen if we presented this set of principles to the Government and they turned it down until after that meeting" on the 13 February.13 Having seen Whitney "really jubilant" after the presentation at Yoshida's, most of the GS staff were surprised by Whitney's scheme to publish their draft independently—and by the suggestion implicit in it that government sponsorship might be withheld.14 For the next two weeks, Whitney and a few of his senior staff became dieir own intelligence officers, eagerly sifting through unreliable and often conflicting information for clues as to the probable course of the Japanese government. Preoccupied with the purge and the upcoming elections, Kades was not at all apprehensive. "I thought it would look very bad if we had to postpone the elections," he recalled; but if the Japanese government had wanted to spend "a few months" reviewing and deliberating on the GS draft, "it wouldn't have bothered me."15 Whitney, on the other hand, was anxious.16 He felt, as did MacArthur, that "everything that we were going to do must be accomplished within two years"; beyond that, it would be impossible to accomplish "major things," because the Japanese would emerge from their state of shock no longer "willing and receptive."17 If the Shidehara Cabinet proved less tractable than Whitney thought, how many of MacArthur's goals, if any, would he be able to accomplish? Government Section's first clue, a misleading one, came shortly after the meeting with the Japanese, when Shirasujiro flattered and placated Whitney with the news that Matsumoto was in "full agreement with the objectives" of the GS draft.18 Shirasu, British educated and tall for a Japanese, was a familiar presence at GS. "He used to come around almost every day like the milkman, as he put it himself," recalled Kades, "to leave a bottle of milk, which would be whatever his message was, or to pick up something in case we wanted to convey a message. . . . He'd come in the back door, knock on the door, and say, 'The milkman's here!'"19

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Volume Two • Tokyo The following day, Shirasu obligingly gave Whitney a few more tidbits about reaction within the Japanese government. Realizing that it might be worthwhile to explore SCAP's views further before submitting their explanatory material, Yoshida and Matsumoto used Shirasu as a probe.20 On 15 February, Shirasu sent Whitney a letter in which he claimed that Matsumoto, though surprised by the GS draft, realized that its objective and that of his own draft were "one and the same in spirit." Yet though the destinations were identical, the American approach was "straight and direct," whereas the Japanese way was "round about, twisted and narrow," like a jeep going over bumpy roads.21 The intended purpose of this "jeep-way letter" was to persuade the Government Section that there was within the Matsumoto Draft sufficient room for democratic interpretation to make it approach the MacArthur Draft in practical effect. Shirasu's clever metaphors amused the chief of GS, but his attempt at persuasion backfired. Shirasu's hedging tone, his quibbling about the "'drastic' form" of the MacArthur Draft, which might be "jeered out of the House, thereby accomplishing nothing," did not sit well with an officer as dedicated to the Supreme Commander's glory as Whitney was.22 It was incredible to him that the GS draft would meet such a reception in the legislature of a vanquished nation. It was less incredible that popular ardor for reform might dissolve within a few months into bitter reaction against defeat, occupation, and poverty. SCAP had fostered an impression that the occupation would be fairly short; the Japanese government was looking to the more distant future. As Matsumoto would also do, Shirasu contended that Japanese militarism was an acute reaction to the zealous antimilitarism and budget cutting of the prewar political parties.23 From current leftist trends, he implied, tomorrow's fascists would likely grow. Ignoring Shirasu's arguments, in his reply the General tried to maintain the fiction of a homogeneity of aims between SGAP and the Japanese government. Matsumoto's reported agreement with the objectives of the GS draft suggested "far-sighted statesmanship," but it remained to be seen whether he and his colleagues possessed the courage to sponsor these reforms or "whether they must yield to others who do possess these necessary qualities of leadership."24 Whenever the Japanese appeared to be stalling, Whitney's standard tactic was to increase the requirements and intensify the pressure to comply. The General was, as historian John Dower has commented, "a firm believer in the 'psychological shaft.'"25 On 13 February, he had disavowed any intention of requiring that the GS draft be accepted in its entirety. By 16 February, his message had subtly changed: SCAP was not opposed to minor changes in the document's language or provisions, but the Supreme Commander, he intimated, "will not compromise it—either in principle or basic form."26 Although GS's position was disconcertingly clear, Matsumoto and his colleagues continued trying to explain theirs, namely, that reform should not entail rewriting the entire Constitution or substituting a new one. Matsumoto still hoped to persuade GHQ that his own reform proposal was not as superficial or inadequate or shaped by admiration for the status quo as the Americans supposed. Writing directly in English, Matsumoto prepared a "Supplementary Explanation" that was ready for delivery to Whitney five days after the conference of 13 February. "The laws of a nation are largely the product of its own history," Matsumoto wrote; transplanted legal and political institutions rarely survived in alien soil—including attempts to export American-style

Negotiating with the Japanese Government democracy to Latin America—and perfectly democratic instruments, such as the Weimar Constitution, could be perverted. Accordingly, he concluded, "[T]he constitution of a country can achieve the desired ends only when it is adapted to its national circumstances,... otherwise it will only invite abuses leading to fearful tyranny and misrule."27 The corollary to this last point was that imperfect instruments might have their defects remedied through proper interpretation and implementation. Matsumoto believed that a desire for democracy was created by the gradual process of education, not by legal fiat. He returned to a point made earlier by Yoshida's aide, namely, that there was the possibility of a conservative reaction against too much reform too soon.28 Whitney's reaction was apoplectic. Angered by Matsumoto's condescension— when he referred to "the new constitution" it was not the GHQ draft he meant but his own—Whitney and his officers thought the Minister's arguments "guff and refused to give them further consideration.29 Shirasu, who had come bearing the Minister's supplementary explanation without apparently having read it, was sent back with an ultimatum: if the Japanese government did not reply by 20 February—that is, if it did not reach a decision to accept and sponsor the GS draft as its own—Government Section would proclaim the draft to the world.30 The Shidehara government had two days to make up its mind, but the Shidehara Cabinet was not even aware of the MacArthur Draft's existence. The Prime Minister knew, but kept it secret and allowed the inner circle of Matsumoto, Yoshida, and Shirasu to stall GS with stratagems hastily conceived and poorly coordinated. When Whitney pointedly asked Shirasu if the Government Section draft had been presented to the Cabinet, Yoshida's secretary replied that it had.31 It was a lie, and a bad one, for Whitney was starting to doubt Shirasu's veracity. When Whitney further asked if the Cabinet agreed with Matsumoto's "Supplementary Explanation," Shirasu replied that it more likely represented Minister Matsumoto's personal views. Although this response was true enough, it was a poor choice of tactics. Shirasu was supposedly there as a representative of the Cabinet, not as Matsumoto's factotum; worse, his words reinforced GS's conviction that "Matsumoto was trying to sabotage our proposals on the constitution and doing his very best to do it."32 The unsuccessful Japanese ploy also aggravated Whitney's impatience: like his boss, the Chief of Government Section wanted quick answers and instant action. Recalled one officer: "[H]e felt it was important to get on with this, and in a sense he felt it very strongly because . . . he was on the line in this. He had been responsible for producing it. And he was a good soldier; he was doing what he thought MacArthur wanted. . . ,"33

Confessing to the Cabinet Shirasu promptly reported GHQ's ultimatum to Matsumoto and the Prime Minister, who called a Cabinet meeting for the next day. On 19 February the entire Cabinet finally learned of the existence of the MacArthur Draft and of the momentous meeting with Whitney six days earlier. Pale and agitated, Matsumoto gave a faithful rendition of Whitney's comments on 13 February and summarized the Americans' draft constitution. No copies of the draft were distributed. Having assembled under the impression that the Supreme Commander had rendered his comments on Ma-

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Volume Two • Tokyo tsumoto's draft, the Cabinet members were horrified by Matsumoto's tale.34 In this strained atmosphere, Home Minister Mitsuchi Chuzo and Minister of Justice Iwata Chuzo promptly proclaimed their unwillingness to adopt the American draft; yet as each Cabinet member spoke in turn, the balance appeared to swing away from outright rejection. Ashida Hitoshi, then Minister of Welfare and some years later Prime Minister, pointed out that if SCAP made good on Whitney's threat to publish the GS draft, the Japanese press would surely fall into line with laudatory editorials. He dreaded the upcoming elections, for if the Shidehara Cabinet refused to sponsor the draft, it was obvious to Ashida that less fastidious politicians would be more than willing to take the Cabinet's place, and, given Whitney's remarks about the need for a swing to the left, Ashida could easily imagine their political complexion. Another Cabinet member wondered if the disparity between the American and Japanese drafts was as great as contended, despite Matsumoto's having told the Cabinet how repulsive he found the prospect of an Americanized constitution. A third pointed out diat the government could hardly counter the MacArthur Draft unless it had a draft of its own to offer— and Matsumoto's draft had never been adopted by the Cabinet. There was a barb here that Shidehara sharpened: Matsumoto's draft, he averred, was his own proposal and not the government's. This raised the possibility that the Cabinet might disavow Matsumoto's handiwork. There was also discussion about giving due consideration to the views of the entire Cabinet, an apparent slap at Matsumoto for having rammed his draft through the Kenpo Mondai Chosa linkai and the Cabinet without adequate attention to consensus. Shidehara proposed conferring with the Supreme Commander and seeking an extension of Whitney's deadline.35 That afternoon Shirasu went to the Government Section to request an extension of forty-eight hours, ostensibly to allow for translating the GS draft into Japanese, a task that allegedly would not be completed until the afternoon of 20 February, when GS's deadline expired. An additional two days were needed for the Cabinet's review. Whitney acquiesced, though personally appalled at the reason for delay. He was unaware that the Cabinet had not yet actually seen the MacArthur Draft; nor did he know that the Foreign Office had already prepared a full translation of it.36 The Cabinet would not see that full translation until 26 February, four days beyond the extension granted by Whitney: it would base its tentative decision to accept die American proposal upon Matsumoto's oral summation alone.37 In reporting his concession to MacArthur, Whitney pleaded the Cabinet's need for a thorough understanding of the draft: "I told [Shirasu] that if the members of the Cabinet thoroughly understood the principles embodied in that document I would lay everything I had on their immediate and wholehearted acceptance of them." Ultimately, he believed, political acumen, if not devotion to democracy, would make the Cabinet see it GHQ's way. Shirasu's lack of candor having been exposed, Whitney speculated sourly on the cause of the delay in getting the draft before the Cabinet. It might be, he wrote the Supreme Commander, that the Cabinet's reactionary MatsumotoYoshida clique "has been trying to play a lone hand without taking the more liberal element into its confidence." But Whitney remained confident that the Cabinet as a whole would "get into the swing of this thing as they finally did into compliance with

Negotiating with the Japanese Government the 'purge' directive," especially since his tough stand had forced the conservatives to let the rest of the government in on the secret.38 The Prime Minister was scheduled to meet with MacArthur on 21 February, the day before the new deadline would expire. Whitney saw something portentous in Shidehara's communicating directly with the Supreme Commander "rather than maintaining the lower level on which the discussions have heretofore been conducted." It might be that the Premier wished to communicate the Cabinet's decision formally to MacArthur; but Whitney, grown cynical from his encounters with Shirasu, thought it more realistic that the government was trying to "play a last and final card" before taking action.39 Already Whitney discerned a "routine pattern" of behavior on the part of the Japanese government when faced with "directives of a distasteful nature."40 Whitney anticipated that Shidehara would maneuver to secure from SCAP a more moderate reform plan or would threaten his Cabinet's resignation. He discounted the practical effect of the latter and advised MacArthur not to tip his hand on what steps GHQ would take if the Cabinet refused to adopt the Government Section draft. He also recommended that MacArthur direct the Prime Minister to submit the GS draft to the Throne: the Emperor could decide "whether he is prepared to himself sponsor it or even proclaim it with your [SCAP's] backing to the people."41 This was a more potent threat than Whitney perhaps imagined, given what Shidehara knew about Konoe's work and the Emperor's willingness to embrace reform. At 5:15 P.M. on 21 February, Prime Minister Shidehara called upon MacArthur for a meeting that lasted well into the evening.42 MacArthur started, as he customarily did, with a monologue, stressing how, ever since his audience with the Emperor the previous September he had wanted to render secure the position of the Throne. But MacArthur had received distressing reports from Washington recently: Australia and the Soviet Union, fearful of Japan's initiating a war of revenge, were pouring all their efforts into making this utterly impossible. Uncertain how long he would be allowed to remain as Supreme Commander, MacArthur was apprehensive about what might succeed his comparatively lenient regime. After frightening the Prime Minister, MacArthur began to discuss the American draft constitution. Both the GHQ draft and the Cabinet's proposal sought to uphold the Throne, he said, but the American draft would actually enhance Imperial prestige (and thus protect the institution) by making it clear that the Emperor's position derived from the sovereign will of the Japanese people.43 As Shidehara listened, he gained the impression that only two clauses—one making the Emperor a symbol of his nation, another depriving Japan of the right to maintain arms—were untouchable. Although provisions relating to the Army and the Navy could simply have been deleted from the Constitution, MacArthur observed, doing so would create suspicions abroad that the Japanese were planning to revive their armed forces in the future: "'I think, rather, that for the good of your country, Japan should assume moral leadership over the rest of the world by proclaiming its renunciation of war as a means of achieving national objectives. . . .'" That kind of leadership, Shidehara interjected, might find itself without followers. Even so, the Supreme Commander continued, Japan would have lost nothing; the loss would be on the side of those who failed to embrace this ideal. Japan's future security would be much more precar-

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Volume Two • Tokyo ious were she to adopt a draft like Matsumoto's that would stimulate foreign suspicions of bad faith. Shidehara closed the meeting by professing his gratitude to SCAP. There was no essential disagreement between the American draft and the Japanese one, he acknowledged. The latter had not even been adopted by the Cabinet; it was merely Minister Matsumoto's personal proposal.44

"Like Swallowing Boiling Water" Before the Cabinet met the following morning, 22 February, Shidehara told Matsumoto the details of his meeting with the Supreme Commander. There were two sacrosanct articles in the GS draft, but the Prime Minister thought GHQ willing to make concessions on other items. Having witnessed Whitney in action, Matsumoto was less sanguine.45 In his report to the Cabinet, the Prime Minister dwelled on MacArthur's highly sympathetic attitude; Matsumoto followed with a litany of objections to complying with GHQ's demands. First, there was not time enough to rewrite the Japanese draft for submission to the new Diet, which presumably would be convened in April. Second, even if Matsumoto and his committee could accomplish the superhuman task of bringing the Japanese draft into conformance with GS's in such a short time, their handiwork might pass the House of Representatives, but its prospects of making it through the Peers were dim. Third, history showed that constitutions imposed from the outside did not endure, but fell prey to fascism.46 Based primarily on Shidehara's account, most of the Cabinet did not see the discongruities between the American and Japanese drafts as irreconcilable, except those regarding the Emperor; most believed there was room for compromise on both sides. Minister of Welfare Ashida began demolishing Matsumoto's contentions. It was fallacious to claim that constitutions incorporating alien ideas were doomed: constitutions granted by Imperial favor were no safer from subversion than any other type, Ashida pointedly remarked. Regarding Matsumoto's complaint of a lack of time, Ashida noted that Dr. Hugo Preuss had come up with the basic draft for the Weimar Constitution in three weeks. Surely, given Minister Matsumoto's erudition and his recent labors with the Kenpo Mondai Chosa linkai, a similar feat would not be beyond him.47 Of the two items Shidehara believed were nonnegotiable, the Cabinet was less shocked by the clause on renunciation of war than by the American draft's treatment of the Emperor. As one Cabinet member observed, renouncing war was not a novel idea: it had already been done in the Covenant of the League of Nations and the Kellogg-Briand Pact. Besides, the government earlier had discussed deleting constitutional provisions regarding the military, which was being demobilized and disarmed. More important, perhaps, prospects for world peace seemed fairly bright at the time.48 After a serious discussion of what the government stood to lose if it refused to comply with SCAP's order, the Cabinet realized it had no alternative, especially regarding the two items GHQ considered imperative.49 With a feeling "like swallowing boiling water," the Cabinet agreed to follow the American lead.50 Still ignorant of the draft's actual text but concurring with Shidehara's interpretation that there was room for compromise on both sides, it further decided that Yoshida and Matsumoto should visit GHQ that afternoon to explore how much leeway existed. Precisely what decision

Negotiating with the Japanese Government the Cabinet reached that morning is hazy, but Matsumoto understood his mission to be one of clarification, especially on the question of "basic form." He had probably been authorized to accept the "fundamental principles" of the Government Section draft, if only to meet Whitney's deadline.51 What is not clear is whether Matsumoto, or anyone else in the Shidehara government, understood that accepting SCAP's fundamental principles entailed anything more than embracing two articles MacArthur had labeled sacrosanct. At 2 P.M. on 22 February, Matsumoto, Yoshida, and Shirasu appeared at the Government Section offices. Whitney and the three officers who had accompanied him on 13 February were present, as well as an American stenographer and a GS interpreter.52 For over an hour and a half, there was a brisk question-and-answer session on the inviolability of the Government Section's "model" constitution. When Matsumoto asked whether it might not be possible to adapt SCAP's "basic principles" to the Meiji Constitution, Whitney rejoined that "an entirely new Constitution" was needed, a "constitution that will revoke all laws and ordinances in conflict" with it. When Matsumoto advised that the preamble must be "reworded into the form that would be used by the Emperor in presenting a new Constitution," Whitney responded that a constitution "comes up from the people, not down to the people." The Emperor might submit the proposed constitution to the Diet, as required by Japanese law, but this would not affect the wording of the preamble. When Matsumoto suggested moving the clause on the renunciation of war into the preamble, Whitney and his officers flatly refused: in the preamble the clause would be "stated merely as a principle" rather than having the "real force" of law. The only item the Americans seemed willing to relinquish was the unicameral legislature, to which the Japanese were every bit as averse as GS had anticipated they would be.53 Bitter at Whitney's lack of give, Matsumoto realized he had no choice but to inform the General that the Shidehara government would immediately begin to adapt the American document and put it into "proper language." Privately, however, he intended to draft a counter-proposal incorporating most of what GS had laid down but with turns of phrase that would make the finished product "as favorable as possible" to Japan.54 Whitney, on the other hand, saw the work ahead as a simple, straightforward matter of putting the MacArthur Draft "into good form," a task that might take "a day or two." Whitney's idea of "good form," as the Japanese would later learn, was a virtually verbatim translation. It was now Friday, and Foreign Minister Yoshida contended that no decision on the time required for "translation and form" would be possible until Tuesday, 26 February, when the Cabinet's next regular meeting was scheduled. Whitney put the Japanese on notice that SCAP would expect the adaptation to be completed by the end of the next week at the latest.55 While Matsumoto and his colleagues were on the sixth floor of the Dai-Ichi Building, Prime Minister Shidehara was across the moat at the Imperial Palace having an afternoon audience with the Emperor. Government Section later came to believe that the Emperor almost single-handedly quelled a rebellion within the reactionary ranks of the Shidehara government by coming out solidly for the MacArthur Draft. Yet this seems to have been wishful thinking on their part, or perhaps a calculated move to burnish the Emperor's reputation as sage savior of his country. In reality, the meeting

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Volume Two • Tokyo between Baron Shidehara and the Emperor on 22 February was for the purpose of delivering a pro forma report on the Cabinet's decision that morning: the Prime Minster related that the Cabinet had decided to accept the American draft but would try to incorporate as many of their own principles into it as possible. The Emperor acquiesced; he did not command.56 While the Japanese frenetically tried to adapt the American draft to their own world-view, the Americans in the Government Section subsided into watchful waiting. Their main source of information, now that Shirasu's honesty was in doubt, was Narahashi Wataru, who was in the process of being elevated to ministerial status within the Cabinet, allegedly to strengthen the liberal ranks.57 At a picnic on Sunday, 24 February, Narahashi volunteered to some members of the Section that a fierce struggle was taking place within the Cabinet between the forces of light and darkness over a constitutional reform plan promoted by an anonymous "Democratic group." Narahashi let slip no hint as to the true origins of the reform plan. With a straight face he stressed that SCAP support of this daring band of democrats was essential. To his GS audience, Narahashi's words implied that "it was vitally necessary to maintain the fiction that this was a purely Japanese plan promulgated with the approval of (but not originated by) SCAP."58

Adapting the MacArthur Draft At an emergency meeting on Monday, 25 February, the Shidehara Cabinet decided to postpone the coming elections for ten days until 10 April, ostensibly to permit further screening of all candidates for possible disqualification under SCAP's purge directive. Matsumoto spent the better part of an hour reporting on his Friday meeting with Whitney. For the first time, he also distributed to the Cabinet a small part of the MacArthur Draft (Chapters i and 2) in Japanese translation.59 Hurriedly prepared by the Foreign Office immediately after receipt of the Government Section draft, the translation had been kept secret, as had the very existence of the American draft. That only five copies of the translation were initially prepared testifies to the hopes of Matsumoto and Yoshida that the American initiative might be quietly buried before the entire Cabinet even learned of it. The next afternoon, the Cabinet received mimeographed copies of the whole MacArthur Draft as translated by the Foreign Office. Security was intense. All twentyfive copies were numbered; all were collected from Cabinet members at the end of their meeting; none were allowed outside the room.60 After scrutinizing the translation, the Cabinet directed Matsumoto to prepare a reform plan modeled upon the GHQ draft, although its own understanding of that draft was still sketchy. All the members had to go by was Minister Matsumoto's summations and a rough-and-ready Foreign Office translation. Apart from Matsumoto and Yoshida, no one had read the MacArthur Draft in its original English.61 That same day, 26 February, Sato Tatsuo, now chief of the First Division of the Cabinet Bureau of Legislation, received a mystifying phone call from Matsumoto instructing him to report to the Prime Minister's residence. An ex officio member of the Kenpo Mondai Chosa linkai, Sato earlier had spent grueling hours at the Nagata

Negotiating with the Japanese Government mansion working with Miyazawa in fruitless efforts to produce a draft reform plan that would incorporate the views of the whole KMCI. They had failed because their chairman, Matsumoto, chose to bypass the group in favor of his own ideas. Now, back at Nagata, Sato was shown a copy of the Government Section constitution for the first time and told that the Cabinet must prepare a draft based upon it for submission to GHQ. Ordering him to reveal the American draft to no one, Matsumoto asked Sato's assistance in preparing a Japanese version of several chapters. They had two days. Terrified that any compromise of security might leak the truth of GS's authorship to the world, Matsumoto had Sato incarcerated in the old broadcast studio at the Prime Minister's mansion. He was not permitted to discuss his work with colleagues at the Bureau, except for Irie Toshio, whose assistance the Cabinet had authorized; nor was he even allowed to borrow reference materials. With one eye on the MacArthur Draft and another on blank sheets of manuscript paper, Sato worked day and night, finishing his first draft in thirty-six hours. Sato found the American instrument exotic in its content and language, jumbled in its organization. Like Matsumoto, he was bodiered by English terms that could not be rendered into proper, legally significant, Japanese. This was not something the Japanese government would ever have adopted on its own, he thought.62 For his own drafting, Matsumoto appropriated the chapters he thought most formidable and potentially revolutionary, namely, those on the Emperor, the renunciation of war, the Diet, and the Cabinet; the rest he relegated to Sato. In charge of the controversial chapter on civil rights, Sato was instructed by his boss to delete the MacArthur Draft's article regarding state ownership of the land and to abridge or strike as much as possible of the "exceedingly numerous, alien provisions regarding criminal actions" and other civil rights problems.63 Both men consulted constantly with Irie Toshio, Deputy Chief of the Bureau of Legislation, bypassing the Bureau's Chief, Ishiguro Takeshige, whom Matsumoto considered untrustworthy.64 As they drafted, Matsumoto also prepared a Japanese-language explication of their work.

A Marathon on the Sixth floor On 28 February, Matsumoto wrote Whitney that the "Japanese translation" of the American draft was finished: he and an assistant were putting the government's version into appropriate legal language. He estimated that the Japanese draft would be complete by Monday, 4 March, and would take another week of painstaking work to translate into English.65 The Cabinet planned to present the draft to the Americans on 11 March. That was not quick enough for Government Section. The next day Matsumoto was ordered to submit the Japanese draft at once, without waiting for translation. Thirty copies of the draft Matsumoto and Sato had produced and polished with Irie's help were hastily mimeographed on 2 March. By now thoroughly convinced of SCAP's unreasonableness, Matsumoto reluctantly surrendered the Japanese draft on the morning of 4 March. Known to GS as the "First Government Draft," Matsumoto's handiwork had not yet been shown to the Cabinet.66 February was replaying itself. Matsumoto had not simply translated the American draft; he had exercised a heavy editorial hand—all without authorization from the Cabinet.

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Volume Two • Tokyo Having been instructed to bring an expert translator to assist the GS staff, Matsumoto appeared that Monday morning in early March accompanied by Sato, the ubiquitous Shirasu, and two members of the Foreign Office staff, including Hasegawa Motokichi. Hasegawa, who had attended the meeting of 13 February at which Whitney dropped his constitutional bombshell, would secure the respect of Kades and other GS officers by his performance at this grueling session. The Japanese delegation arrived at Room 602 of the Dai-Ichi Building at 10 A.M.; most would not leave until thirty hours later. After the Japanese briefly explained that their draft was tentative and had not been examined, much less approved, by the Cabinet, General Whitney suggested that the draft be translated into English by his own staff. Without further ado, the Japanese handed over seventy-odd pages of flimsy manuscript paper, not even a fair copy, to the GS interpreters, who immediately began their arduous task, aided by the two Japanese interpreters from the Foreign Office.67 Sato requested that he be shown the translation when finished; he also discreetly advised the Japanese interpreters to use English words that came as close as possible to the vocabulary of the MacArthur Draft.68 The Japanese draft was hastily rendered into English, and then each article was compared with its counterpart, if any existed, in the MacArthur Draft. After suggestions and rebuttals, concessions and rejections, an English version gradually arose from the debris. What happened on the sixth floor of the Dai-Ichi Building bordered on the comic. Apart from Minister Matsumoto, Sato Tatsuo was the only member of the Japanese delegation who was truly familiar with the Meiji Constitution, the only participant in the Kenpo Mondai Chosa linkai, and the only one involved in preparing the Cabinet's counter-proposal. But Sato's presence was an afterthought, and he came without any supporting material from the KMCI files for elucidating the Japanese position. He also came anticipating rain. In his worn dress and high rubber boots, still covered in mud, he seemed to epitomize the entire defeated nation, as ill prepared for the realities of occupation as it had been for those of war.69 When Whitney ordered the Japanese draft rendered into English, it was the two Foreign Office interpreters who were ushered in to work with the GS staff, not Sato, who had helped write it. Instead, Sato's considerable expertise was wasted on translating Matsumoto's explanatory piece, a document that received scant attention from the Government Section.70 Isolated in a small room with two Nisei interpreters wholly unfamiliar with the classical style employed by the Minister, Sato pushed slowly through Matsumoto's dense prose. The work of translating the Japanese draft revision progressed rapidly, if unevenly. To the Government Section interpreters it was a protracted tug-of-war, with the Japanese verbigerating when persuasion failed. "We spent literally hours arguing over one compound," an American interpreter recalled.71 The real fights, though, came later in attempting to reconcile the Japanese and English texts, when precision of language and agreement of meaning became critical. Then there were arguments over the failure of the Japanese and English texts to "match up," and complaints from the Japanese that a word or phrase had not been properly rendered. According to Irwin Hersey who, with Joseph Gordon and later with Beate Sirota, did the translating for the American side, "we got into these hour-long battles over exactly what the terms

Negotiating with the Japanese Government they had used in their draft version" meant in Japanese. "And we would suggest, 'Well, if you really meant that, you should have used this, or this in English is this, and this in English is that, and you used the wrong one' . . . and this went back and forth and back and forth."72 Over it all loomed fear that the Japanese might be exploiting the ambiguities of their language to dupe the Americans. As translated pages dropped from the hands of the GS and Foreign Office translators, the dismay on the American side grew. This was not the draft the Government Section had created; it was the Japanese government's "version of what they would have liked to have seen." It was only an "interpretation"—and a very loose one—of the MacArthur Draft.73 Government Section apparently forgot that it had never ordered the Japanese government to make a literal translation of the MacArthur Draft. The worst shocks came in the first few pages, because the greatest changes had been wrought to the chapters on the Emperor and civil rights. In an ill-considered move, the Japanese had also scrapped GS's Preamble. This was not destined to win them friends among those in Government Section with strong pride of authorship. It also suggested that the Japanese and American drafts were further apart than they really were. While the translators worked, in a separate office Colonel Kades began comparing the two drafts, his anger mounting with each article. In the very first article, the MacArthur Draft specified that the position of the Emperor "derived from the sovereign will of the People, and from no other source"; the Japanese omitted the latter point. In the second article, there was no reference to the Diet's enacting a new Imperial Household Law. Expostulating that the Japanese draft was "deceptive," Kades called in Matsumoto and Shirasu for explanations. Given the enormous disparity between the two drafts, Kades said bitterly, the translating might as well stop, because deliberating any further would be "completely useless."74 With cool disdain, Matsumoto explained that as it was already postulated that the Emperor's position depended upon the will of the people, it was axiomatic that it had no other source. He and his staff, he continued, had not considered it appropriate to incorporate all the redundancies of the MacArthur Draft into the future constitution. As for Article 2, provision for the Imperial House Law had been made elsewhere in the text.75 Restive under Kades' criticism—and the Section's presumption that his text would faithfully follow the MacArthur Draft—Matsumoto suggested that Kades first read the Japanese explanation and the entire Japanese draft before essaying judgment. If the Americans were going to denounce the Cabinet's proposal on the basis of this first tiny bit of text, "you can stop the translating or do whatever you damned want!" he fulminated.76 Blood pressure rising on both sides, Matsumoto and Kades continued to wrangle over wording. After a lengthy polemic with Kades and the American translators over whether the Cabinet gave its "advice and consent" (hohitsu to kyosari) or merely "counsel" (hohitsu) to the Emperor, Matsumoto burst forth in his own "broken English" to ask the Americans if they had come to Japan to remake his country's language as well as its constitution. Tempers taut from the strain and Kades' hands shaking with rage, both sides decided it would be wise to break for a late lunch.77 Apart from the absence of the Preamble and reversion to a bicameral system, the Japanese draft's departures from the MacArthur Draft were often subtle, though substantial. Imperial prerogatives had been partially restored; various civil liberties were

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Volume Two • Tokyo qualified in a manner reminiscent of the Meiji Constitution; and the Cabinet had been given authority to issue executive ordinances when the Diet was not in session. Government Section concluded that "a conscious attempt was made to dilute the thoroughgoing democratic flavor of the original [MacArthur] draft."78 When the chapter on civil rights came under discussion, Hussey exploded: the Japanese had "consistently vitiated our draft, chopped up articles, spoiled our logic," he fumed. Rather than trying to salvage anything from the Japanese draft, it would be easier to order the Shidehara government to stick to the American "original."79 Yet not all Japanese alterations met such a furious reception. MacArthur's decree that feudalism cease, omitted from the Japanese draft, was never restored. Several GS officers objected; but the Supreme Commander, realizing this item offended Japanese sensibilities, authorized Whitney to let the Japanese deletion stand.80 Government Section was in the uncomfortable position of being both teacher and pupil in an atmosphere of mistrust and rancor. As Ruth Ellerman, who kept notes on the negotiations, later observed, "[T]here was a wariness, or an uneasiness, an inability to be sure at times" whether the Japanese were giving truthful explanations or were artfully trying to mislead.81 Errors were inevitable in translations produced under extraordinary pressure by people unskilled in legal terminology. Although these mistakes were eventually ironed out in joint sessions with Sato and his colleagues, they had damaged GS's credence in Japanese good faith. Whenever the exact language of the MacArthur Draft was not adopted in the Japanese version, Kades or Hussey would testily ask what was wrong with the American phrasing. Sometimes the reply would come that the American wording was flowery or inappropriate. Sometimes the Japanese did not comprehend what underlay the lushness.

Matsumoto Calls It Quits Perhaps it was being treated to a tin of bland GI pork and beans, "as tasteless as chewing on paraffin," that finished Minister Matsumoto. Fabricating the excuse of a prior appointment, he left the Dai-Ichi Building at 2:30 P.M. to confer with Prime Minister Shidehara before returning home. Both he and Kades had become too agitated to carry on a rational discussion, and rather than angrily argue article by article, Matsumoto thought it best to wait until the next day, by which time GS would have had a chance to translate—and digest—the full Japanese text.82 To Sato he confided that his arguments with Kades were becoming so acerbic that he feared impairing the government's chances of getting any compromise or cooperation from GHQ.83 Never anticipating that anything more than translating or interpreting might be demanded of them, Sato, Shirasu, and the two Foreign Office translators remained.84 Sato finished the laborious task of translating Matsumoto's explanatory piece into English late that afternoon. To his dismay, he learned that the Japanese draft had already been rendered into English and was in the hands of the GS typists: his request to review the English translation had been ignored. Shirasu informed him that GS had ordered the Preamble restored, just as it was in the MacArthur Draft, and from what the Americans had seen thus far of the Japanese draft, it looked as if they would brand it unsatisfactory. Sato hastily pulled forth the Foreign Office's complete translation of

Negotiating with the Japanese Government the American proposal. After making a few quick revisions to the text, he offered it to Shirasu as an acceptable Japanese rendition of the Preamble.85 Weary GS interpreters thought it "a most unfair ploy" to have withheld a full, serviceable translation of the MacArthur Draft. The delegation from the Cabinet, grumbled Joseph Gordon, "had the desired version in Japanese in somebody's pocket, and for 32 hours we argued about what they did present to us, which was completely unacceptable."86 While Sato and Shirasu conferred privately in Room 602, the Americans withdrew. Shortly after 6 P.M. they returned to announce that everyone would work through the night until they produced an approved text in both languages. Not daring to display the English translation produced by GS, "because it was so different from what we thought was going to come out," Kades told Whitney that there were "multitudinous translation difficulties" with the draft, but "didn't show him how horrible they were." Whitney, reluctant to admit that the Japanese were trying to avoid complying with his demands, accepted his subordinate's claim that only a bit of retranslation was needed. The Chief of Government Section made himself available for consultation with his officers, but neither he nor MacArthur participated in the actual negotiations with the Japanese. Both men were shielded by the Government Section staff from what was really happening in Room 602.87 Meanwhile, Sato was appalled to find himself the leading member of the Japanese delegation and expected to negotiate for his government the binding text of a document the Cabinet had never seen, much less approved. When the war-ravaged Tokyo telephone service proved temperamental, Sato and Shirasu frantically dispatched a junior official to fetch Matsumoto in a decrepit, charcoal-fired car. Shortly after 8 P.M. two officials from the Cabinet Secretariat, Iwakura Norio and Kiuchi Shiro, called upon Sato in the Dai-Ichi Building. Matsumoto, they reported, could not attend "'for reasons of health.'" Kiuchi left behind a few words of encouragement; Iwakura, who had served on the Kenpo Mondai Chosa linkai, stayed to help.88 Sato even called on Bureau of Legislation chief Ishiguro Takeshige, whom Matsumoto had bypassed earlier as untrustworthy; Ishiguro pled a previous engagement.89 No senior government officials would accept responsibility for negotiating with GHQ. Kades and Hussey arrived, ordered the doors locked, and commenced an all-night debate with their Japanese counterparts. There was to be no communication with the outside world, for reasons of speed as well as secrecy. "We wanted to get it finished," Kades recalled; there would be no liberty until it was. Inescapably, the atmosphere became "a little bit like a schoolroom," as Kades announced that "anyone who wanted to use the plumbing facilities should not hesitate to raise their hand. Then we'd unlock the door and have somebody accompany them." Coffee, brought in five-gallon cans, flowed freely.90 The American attitude was severe from the start: virtually every deviation from the MacArthur Draft was seen as duplicitous. But as they got deeper into the Japanese version, fatigue deepened and dissatisfaction ebbed. Certain articles had been altered or excised because they were distasteful to Matsumoto; others, however, had been relocated to improve the organization of the draft or reworded for clarity and ease of interpretation. Where the MacArthur Draft used diverse expressions to denote the same concept, such as "people" or "public welfare," the Japanese had substituted a unified

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Volume Two • Tokyo vocabulary, occasionally undercutting the original intent but usually improving clarity. Sometimes they simply had misunderstood articles in the GS draft, usually those that sacrificed intelligibility to style. Astute questions from the Japanese side now and then raised issues of interpretation that had not occurred to the American side when it adopted language so familiar and comfortable that its real meaning was never probed. (For a comparison of the MacArthur Draft and the "First Government Draft" of 2 March, with detailed annotations regarding negotiations thereon, see Appendix J.) Gradually, Hussey and Kades realized that the high-pressure haste forced upon the Section's interpreters had resulted in a very imperfect translation of the Japanese text. As various misunderstandings were smoothed away, the Americans became less peremptory and more in the mood for compromise.91 In the give-and-take atmosphere that resulted, the representatives of Government Section gave as much as they took. None of the concessions came easily, however. Sato saw himself as Matsumoto's proxy, honor bound to defend the Minister's choices and explain the Cabinet's position. Had he acquiesced in everything GS wanted, he later recalled, their session would have lasted two or three hours instead of running nineteen.92 Sato took the lead in articulating the rationale behind the Japanese version, but although he read English he did not speak it, and translating his arguments gobbled time. Slowly each side gained comprehension of what the other was trying to accomplish. With Sato defending every Japanese article, Beate Sirota interpreting for him, Shirasu occasionally chiming in, and the Foreign Office interpreters, Obata and Hasegawa, suggesting wording and recording the changes made to each clause, the sequestered group passed laboriously through the entire constitution, switching back and forth between the MacArthur Draft and the Japanese text.93 Of Hasegawa, Kades later said: "I think he felt pretty much as I did at that time, that we were trying to do a reasonably good legal job. He submerged whatever political feelings he had and tried to make sense in Japanese out of this Yankee document."94 At points, other GS members joined in, notably Frank Rizzo, who, though unable to speak much Japanese, consulted character dictionaries and contributed to the wording of certain articles. When they reached the chapter on the Diet, the group adjourned to the Dai-Ichi ballroom, where much of the Government Section staff gathered to review the draft. At Whitney's request, Peake and Hays had already drawn up a GS counterproposal incorporating the bicameral system on which the Japanese seemed set. By the time articles on the Diet had been resolved to the satisfaction of the Americans, dawn lightened the sky. The group broke for breakfast around 7 A.M., then resumed with the chapter on the judiciary.95 Deliberating on the remainder and polishing the text did not end until four o'clock that afternoon. After the final commas went in late on the afternoon of 5 March, Whitney came beaming before the group, scattering apologies and gratitude for the troubles endured on both sides. His Japanese audience did not share the General's glee. They rejoiced only in being released from a sleepless ordeal. Some, like Sato, found the only good of the experience in the free food and American coffee, both of which had compelling charms in impoverished postwar Japan.96 Liberated from the Dai-Ichi Building, Sato went to the Prime Minister's residence to make his report, then stayed to help Irie and others from the Bureau of Legislation

Negotiating with the Japanese Government translate into Japanese the text negotiated with GHQ. Exhausted by a second sleepless night and no longer fueled by SCAP caffeine, he did not leave for home until the morning of 6 March, after falling asleep several times during this latest marathon of drafting.97 Meanwhile, the Cabinet, having received a brief report from Matsumoto on 5 March, began reviewing copies of the agreed text, seriatim, as they arrived from GHQ. By that evening, the Shidehara government realized that it had no option but to comply. The Prime Minister, weeping openly, warned his Cabinet that a delay of even one more day might prove calamitous. His Cabinet, thinking there might be "'reasons we knew nothing about,'" concurred.98 The Cabinet would sponsor the latest incarnation of the MacArthur Draft as its own creation.

A Shotgun Promulgation Government Section was eager to publish the draft constitution at once, but the Japanese government requested a delay until 6 March so it could perfect the Japanese text. Work on producing a publishable Japanese version began in Narahashi's office but was carried out mainly by Me and others from the Bureau of Legislation. The Cabinet met the morning of 6 March to review the finished Japanese text (which was but an outline of the reform plan) and add a few softening touches to such particularly alien sections as the preamble.99 The text was then released to the press together with a rescript from the Emperor, a felicitous device for imparting Imperial endorsement to the project and one that was enthusiastically approved by the Supreme Commander. Announcing the draft, Cabinet Secretary Narahashi dramatically told reporters that to avoid the bloodshed of revolution, the Japanese government had taken revolutionary steps.100 Prime Minister Shidehara's statement dryly noted that his government was releasing this text '"in close consultation with the Supreme Commander for the Allied Powers.'"101 Yet there were loose ends still. The Government Section interpreters were not entirely pleased with the Japanese text that emerged from the Dai-Ichi marathon. One counted ninety-odd problems of wording or discrepancies between the English and Japanese texts.102 Kades decided to require that the Cabinet certify that the English "translation" of the reform plan was absolutely faithful to the Japanese text—in reality, that the Japanese translation was faithful to the English original. Hussey brought thirteen copies of the draft in English for certification as to their correctness. As Chief Cabinet Secretary, Narahashi signed each, retaining one. When Sato examined the newly certified document, he found numerous departures from the version accepted by Government Section and the Japanese government the preceding day.103 Some had resulted from changes subsequently made, mostly by GS; others were slips in translation, probably from fatigue. All were innocent; few were of any substance. But they would return later to plague GHQ and the Japanese government. Published on 6 March, the Japanese government's draft met with both approbation and dismay at home and abroad. So sharply did it contrast with the "Matsumoto Draft" published in February by the Mainichi Shinbun, so alien were some of the concepts and phrasing, that the Japanese immediately divined the masterful hand of SCAP. They kept their suspicions out of print, however. Hinting at GHQ authorship would have been a dangerous indiscretion for the censored Japanese media.104 Under

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Volume Two • Tokyo no such constraints, the Allied press could advert to "the transparent fiction that the new constitution . . . is the work of the Japanese themselves."105 "But despite the realization that it was a present," wrote journalist Robert Cochrane, ". . . the people are generally delighted with the new constitution and regard it as another of the supreme commander's benevolences...." When the draft's many and varied foreign influences were pointed out by reporters, Whitney grinned broadly and said: '"The Japs certainly made a thorough study of constitutions, didn't they?'"106

EPILOGUE

IT TOOK THREE YEARS for the inexorable logic of Roosevelt's rhetoric at Casablanca to manifest as a new constitution for Japan. As the doctrine of unconditional surrender shaped how we fought and ended the war, so too did it define what we would do with our victory. New laws, a new system of government, and a new concept of sovereignty for the defeated became virtual certainties. It is a truism of war that the cultural credo of the victor is levied upon the vanquished. Underlying much of what the Allies (or at least the Americans) were fighting for in World War II was the belief that law was superior to the individual, with "law" understood not simply as a secular enactment but as a kind of natural law innately understood, at least by all who shared a Judeo-Christian heritage. The major embodiment of this belief was in the war crimes trials, particularly those of persons accused of "crimes against humanity," a brand-new category applied to political war criminals, which presupposed a moral ideal that transcended the individual as well as his boss, state, and ideology. It surfaced, too, in the Government Section's debate over the superiority of "political morality" to sovereignty, and it was every bit as powerful an assumption as its twin, namely, the belief that democracy, unlike fascism, was incapable of aggressive war. Thus, in Japan the victors sought to compel a transfer of loyalty from a person, the Japanese Emperor, to an abstraction, the rule of law. Therein lay the secret, in American eyes, of remaking the enemy into a peace loving and law-abiding people who would not hold themselves above international conventions. The role of planners was to develop policies that would propagate these and other American beliefs. Except that the State Department planners had pitifully little idea of how the Occupation of Japan would play out in real life. There was an inevitable disjunction between what the field needed and what State's people wanted to give. The Supreme Commander wanted language of sufficient clarity and detail to afford him a secure idea of what was wanted—and ensure justification for any actions he might take to achieve it. He needed detail in the definition of policy, for that provided his understanding and his cover. Yet that was what the State Department found hardest to offer: 545

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Epilogue defining long-term goals in concrete language was antithetical to those who viewed definition as a commitment that might restrict future flexibility or diminish bargaining power. State's initial error—and a perfectly understandable one given how occupations were traditionally established—was to premise its plans upon the idea that military government would be a short-lived phase in the rehabilitation of Japan, the first of several stages that would see gradually loosened controls. Relaxation of controls would be partly dependent upon reforms within Japan, but these were in the main to be accomplished much later under Allied supervision, if not direct control, and initiated by the Japanese. State did not anticipate the extent to which soldiers in uniform would be creating policy or that the longer the occupationnaires remained in Japan, the more ideas for reform they would generate. Familiarity with the Japanese system bred not contempt but a more profound appreciation of the depth of change needed to remake a former enemy into a more familiar and model future ally. Nor did State appreciate that MacArthur's philosophy of time was diametrically opposed to its own: the Supreme Commander saw a narrow window of opportunity, for he believed that it was essential to handle major institutional reforms early, not late, in the Occupation while the shock of the defeat made the Japanese leadership pliant and the Japanese people receptive. MacArthur's belief that time was not on his side contributed to his later difficulties with the Far Eastern Commission, the Allied body that was supposed to make policy for the Occupation and that SCAP pointedly ignored. MacArthur not only hypothesized that Japanese receptivity to reform would wane as time passed; he also realized that Allied demands for change would grow more strident the less reform seemed to be taking place in Japan. The authority that he possessed under his basic directive on the Occupation from the Joint Chiefs extended to the field of reforming Japan's Constitution; but after December, when terms for the Far Eastern Commission were proclaimed, MacArthur no longer had the authority to act openly and directly in the absence of an FEC policy decision. Only if the Japanese Government backed a draft unacceptable to the Allied powers could SCAP intervene, at least on the interpretation given him by Government Section. And that's just what MacArthur did. The Supreme Commander had drawn the wrong lesson from his embroilment with Prince Konoe. Seeing SCAP staff drawn unwittingly into factional disputes within the Japanese government, he had pulled back in late 1945, ostensibly to see what the Shidehara government would produce on its own. Yet he grossly overestimated Japanese comprehension of Allied demands and underestimated Japanese resistance to change. Even as MacArthur interceded a few months later to correct his mistake, however, public opinion polls showed that over 50 percent of Japanese polled favored electing a special committee or convention to revise the Constitution.1 By acting so belatedly and under such pressure to produce tangible evidence of Japanese reformation, MacArthur virtually guaranteed that popular wishes for a constitutional convention would be ignored. A constitutional convention could not be controlled by SCAP: it would be unpredictable, capable of considering many different reform proposals, both conservative and liberal; and, if it rendered decisions that the Far Eastern Commission found distasteful,

Epilogue Allied coercion might supplant the right of the Japanese people to choose their own form of government. The Government Section's staff of young officers and civilians from widely disparate backgrounds pulled together in a minor miracle of teamwork to produce a "model" constitution. But what may have begun naively as a heuristic device was overwhelmed by pressures of time and pride of authorship. In a Rashomonlike sequence of subjective judgments and interpretations too culturally disparate to be easily reconciled, SCAP forced the Shidehara government to adopt the GS changeling in lieu of Minister Matsumoto Jqji's creation and proclaim it to the world as a native offspring. Even then negotiations with the Japanese government were by no means ended. The draft that emerged from the all-night session at the Dai-Ichi Building experienced further changes in April, undergoing largely what the scholar Koseki Shoichi has called a continuing process of "Japanization,"2 before being submitted to the Privy Council under procedural requirements established by the Meiji Constitution. Japan's first general elections of the postwar era was held on 10 April 1946 to elect legislators who would pass judgment upon the draft constitution, but the abstract issue of constitutional revision was easily eclipsed by such concrete problems as lack of food and jobs. By now the Far Eastern Commission was a junior partner in the complex relationship between SCAP, Washington, and the Japanese government. Its presence complicated negotiations, but had litde effect on the substance of the Constitution finally adopted by the Japanese Diet. Government Section would no longer take the initiative, although Whitney's people continued to work on reconciling the Japanese and English texts because the Diet pressed for consistency. They also worked to keep the proposed constitution from being gutted by conservative amendments proposed during the legislature's consideration. There lingered a residue of distrust from their embranglement with the Shidehara Cabinet: some members of the Section, like Hussey, remained vigilant against changes that threatened to dilute the principles for which they had fought; others, like Kades, seemed to feel that, having done their job, the constitution was now in the hands of a legislature that more or less represented the Japanese people, and it was the Diet's turn to mold it into a charter suitable to a reemerging nation. That Government Section was ready to accept amendments from the Diet it would never have tolerated from the executive was lost on the Japanese, now wary of taking liberties. The Constitution emerged relatively unchanged from its sojourn with the Representatives and the Peers. But all this is a story of later days. On 6 March, the draft constitution became Japan's future, just as MacArthur wished it to be. He had won the war; with this he hoped to win the peace. The Occupation of Japan was, in his own eyes and others', the General's greatest achievement, and the Constitution was its keystone. In retrospect, it is easy to see that MacArthur and the Japanese government were on a collision course between wishful thinking and willful ignorance. It was hardly the first time in his career that complacency on MacArthur's part left him unprepared, whether for a Japanese attack from the air, as in the Philippines at the war's start, or for Japanese insubordination. The urgent need to achieve an acceptable constitution before the Far Eastern Commission stepped in to impose its own presumptively radical demands

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Epilogue provided MacArthur, Whitney, and the men and women of Government Section with a rationale for their actions—and an argument for leveraging Japanese acceptance. But perhaps more important as a driving force was the imperative of preserving MacArthur's reputation as a capable administrator who was truly in control. Thanks to the talents and devotion of his staff, the Supreme Commander was left not with a debacle but with a political coup that transformed him publicly from a soldier into a statesman. With a draft constitution that survives over fifty years later, MacArthur stamped history with his own inimitable imprint, finally becoming the great man of his aspirations.3 For Matsumoto, decidedly the wrong man in the wrong place at the wrong time, the story ended less happily. Once the MacArthur Draft was published, Matsumoto's position within the Cabinet abrupdy deteriorated. To avoid humiliating him, the Cabinet never formally abolished his Kenpo Mondai Chosa linkai; they just let the Matsumoto Committee wither away. Fearful that the Minister might make trouble once the draft came before the new Diet, Shidehara allowed the Cabinet to cast the obstinate and dogmatic old man as the villain of constitutional reform. For a few months after the draft's publication, Matsumoto retained limited influence, initially resisting, then supporting, the idea of writing the draft constitution in colloquial Japanese instead of the classical bungo-tai used in legal documents and inaccessible to most Japanese.4 He never represented his government again before SCAR Stripped of his mantle of indispensability, Matsumoto became vulnerable to the purge. Years later, he confessed that he could not even bear to read the Constitution, so much had he grown to hate it.5 For some in the Government Section there were personal costs as well, but these appeared later in life. To be suddenly convened to draft a new charter for a conquered enemy, an enemy you hoped to rebuild in your own image: for most of the people in GS, this was the experience of a lifetime, producing a sudden rush of power combined with an intellectual high as they were forced to draw upon elements of their experience and personal philosophies to create a document destined to become the foundation of a state. Nothing that came after quite measured up to this time when hope and idealism briefly fused with a power that gave substance to both. To say they were simply implementing American policy is to miss what really happened: fired by a vision of a better postwar world, they were implementing their dreams of what America should represent. Of all the ironies connected with the postwar Constitution of Japan, the greatest was that SCAP and Government Section in their efforts to democratize—and the Shidehara Cabinet in its efforts to resist democratization—behaved just as had the Meiji oligarchy, withdrawing behind closed doors to draw in secrecy a new charter for the nation. The Preamble of the SCAP draft began "We, the Japanese People . . . ," thus giving active voice to the principle of popular sovereignty enunciated in Article i. But such language showed its roots too obtrusively, especially since the Japanese people had no direct role in conceiving or executing the draft. Under the circumstances, Government Section did perhaps as fine a job as could be expected. But might circumstances have been different had MacArthur and Matsumoto not sequestered themselves in separate but equally unrealistic worlds? If the

Epilogue Supreme Commander had permitted his staff to ascertain whether the Japanese government actually understood the Allied demands, and if the chairman of the KMCI had appreciated the reality of his country's defeat, the men and women of the Government Section might not have felt forced to disregard the words of our own Thomas Paine: "A Constitution is not an act of a government, but of a people constituting a government. . . ,"6

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Appendixes

APPENDIX A

The Preamble

The preamble was first drafted in longhand by Commander Alfred R. Hussey. Hussey, then forty-four, was a Phi Beta Kappa graduate of Harvard who had attended Harvard Law School for one year before transferring to the University of Virginia, where he received his LL.B. Descended from the early settlers of Nantucket and son of a Unitarian minister, Hussey had served as a special master in chancery for the Massachusetts Superior Court and had held various local elective offices. He went on active duty in 1942 after practicing law in Massachusetts for twelve years.1 Trained at the Naval School of Military Government and Harvard's Civil Affairs Training School, Hussey was originally assigned labor matters in the early days of Government Section, but when the civilian expert Theodore Cohen joined the Economic and Scientific Section, Kades switched the assignment to Cohen. Justin Williams puts Hussey down as "a bit humorless and inclined to be puritanical, evangelical, conceited, and arbitrary."2 A more sympathetic colleague describes him as a tortured soul, "almost a Lincoln," a mild man who played peacemaker to the Section and utterly believed in its work in Japan.3 Hussey discussed his draft with Ruth Ellerman, who contributed one or two revisions.4 Ellerman, a competent, strongminded woman, served as secretary to the Steering Committee; she later became Hus-

sey's second wife. Prior to review by the Steering Committee, the draft preamble was submitted to General MacArthur, who made a few stylistic changes. The preamble probably would have stayed pretty much as originally drafted had it not been for a meeting between the Steering Committee and the Committee on the Emperor at which Lieutenant George Nelson made an impassioned plea for a statement about the essentially moral basis of sovereignty. Hussey, strongly affected, revised the preamble to incorporate Nelson's idea, but the result was rather different from what Nelson had intended. The Lieutenant's formulation, essentially a plea for peace in the midst of growing dissension among the Allies, read: "We recognize and acknowledge the authority of that universal law which requires that all peoples have the right to live in peace and domestic tranquility."5 Hussey's version was more grandiose. The Steering Committee moved to revamp the Preamble again. Never comfortable with Nelson's thesis, Kades objected that his conception of sovereignty presupposed an authority higher than the people, whereas the whole point of the Occupation was to establish that the people were supreme. Political morality and sovereignty, in Kades' eyes, had nothing to do with each other. But a higher standard of political morality was the whole basis for the war

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Appendix A crimes trials, Hussey argued, and thus it could not be easily dismissed. Whitney intervened in support of the basic idea, if not its wording. He offered language that would underscore Japan's abandonment of armed force to rely instead upon moral force to sustain the nation.6 The final wording, however, attempted to redefine the nature of sovereignty: obtained and held by force of arms in the

past, from now on sovereignty should be seen as subject to the ruling force of law and morality.7 ^

, J

The following drafts are based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

APPENDIX A-l First draft of the Preamble by Commander Alfred K Hussey, Jr., with changes suggested by General MacArthur [Michigan: Hussey Papers, 24.-A]

We, the Japanese People, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land and resolved that never again shall this nation or any other nation we be visited with the horrors of war through the arrogance action of irresponsible officials or the greed for power of entrenched wealth and position government, do proclaim the sovereignty of the people's will and do Ordain and Establish this Constitution, founded upon the universal principle that Government is a sacred trust the authority for which is derived from the people, the powers of which are exercised by the representatives of the people and the benefits of which are enjoyed by the people, and do Reject and Revoke all Constitutions, Ordinances, Laws and Rescripts heretofore enacted in conflict herewith.1 APPENDIX A-2 Revised draft of the Preamble by Commander Hussey, incorporating Lieutenant George Nelson's statement of political morality

We, the Japanese People, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land and resolved that never again shall we be visited with the horrors of war i. Incorporating mention of popular sovereignty into the preamble later caused problems for SCAP when both the Far Eastern Commission and the Shakaito (Socialist Party) demanded a clear statement of popular sovereignty within the body of the Constitution. By the time the Constitution revision bill reached the Diet, the preamble's statement of popular sovereignty was accepted by no Japanese outside the government's stable of spokesmen. In English, the phrasing seems familiar and acceptable; in Japanese, it was incomprehensible. Moreover, the Japanese never gave the preamble the same legal weight as the rest of the Constitution. When Matsumoto later suggested that the clause renouncing war be integrated into the preamble rather than accorded a chapter of its own, Whitney refused. He apparently concurred in the Japanese evaluation of the preamble as an untidy bundle of ideals with little legal validity.

The Preamble through the action of government, do proclaim the sovereignty of the people's will and do Ordain and Establish this Constitution, founded upon the universal principle that Government is a sacred trust the authority for which is derived from the people, the powers of which are exercised by the representatives of the people and the benefits of which are enjoyed by the people, and We Reject and Revoke all Constitutions, Ordinances, Laws and Rescripts in conflict herewith. The people of Japan. Desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, we have determined to rely for theif our security and survival upon the justice and good faith of the peace-loving peoples of the world. Japaa We desires to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance, for all time from the earth.2 We acknowledge that no people is responsible to itself alone, but that laws of political morality are universal and that it is by virtue of these laws that we obtain our sovereignty.3

2. This paragraph and the last were taken from Hussey's section of the article on the renunciation of war. Double underlining indicates additions made to the text upon its incorporation into the preamble. 3. This clause derived from a suggestion by First Lieutenant George A. Nelson, Jr. On the origins of Nelson's idea, see Appendix B-2, note 30. The following is an extract from minutes of the meeting of the Steering Committee regarding the draft preamble. "Commander Hussey suggested the following statement for inclusion in the Preamble: "'We acknowledge that no people is responsible to itself alone, but that laws of political morality are universal and it is by these laws that we obtain sovereignty.' "Colonel Kades immediately protested its inclusion. The promulgation of a universal law of morality, based upon ideology rather than pragmatics, is unhappily reminiscent of the divine right of kings. Every people, every state, has an inviolable right to go its own way as long as it behaves and does not impinge upon the equal rights of other people and other states. Even a world state, supposing that one could exist, can have no right to tell another nation what it can and can't do with its own people. Each state is the ultimate arbiter of its own destiny; if it choose it may decide upon international cooperation, but it derives its sovereignty from necessity and from nothing else. Practically speaking political morality and sovereignty have nothing to do with each other. "Commander Hussey pointed out that the establishment of the United Nations Organization makes reasoning of this kind both archaic and foolish. The recognition of a basic political morality, binding upon all nations, will be accepted as a self-evident truth within fifty years. No nation has the right to exercise sovereignty if its exercise violates universal practical morality. The general acceptance of that premise is the practical basis for the Nuremberg Trials now going on. We are trying German officials for what they did to their own people. "General Whitney entered the discussion. Colonel Kades recapitulated the opposing arguments. He stated that the clause asserted a false proposition and that if it were included in the Constitution it would so weaken the practical 'principles' embodied in the document that our Constitution would be considered little more than a gloss of words. Colonel Kades confessed, however, that he too believed that the clause might come to be accepted as a platitude in a hundred years. "General Whitney stated that the phrase 'by these laws we obtain sovereignty' takes issue with Japanese beliefs inculcated by two thousand years of training. The principle established by the clause is a good one, but the wording should be less violent. General Whitney suggested the following as a substitute for the original draft: "'We acknowledge that no people is responsible to itself alone, but that laws of political morality are universal and that obedience to such laws is incumbent upon all peoples who would maintain their own sovereignty and justify their sovereign relations with others.' "The final form of this clause as incorporated in the Preamble is as follows: "'We hold that no people is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all peoples who would sustain

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Appendix A To these high principles and purpose Japaa We. the Japanese people, pledges its our national honor, determined will and full resources.4 APPENDIX A-3 Draft of the Preamble as revised by the Steering Committee and accepted by General MacArthur PREAMBLE THE CONSTITUTION OF JAPAN

We, the Japanese People, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim the sovereignty of die people's will and do Qordain and Eestablish this Constitution, founded upon the universal principle that Government is a sacred trust the authority for which is derived from the people, the powers of which are exercised by the representatives of the people and the benefits of which are enjoyed by the peopleT; and Wwe 4e Rreject and Rrevoke all {^constitutions, Oordinances, IJaws and Rrescripts in conflict herewith. Desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, we have determined to rely for our security and survival upon the justice and good faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance, for all time from the earth. We recognize and acknowledge that all peoples have the right to live in peace, free from fear and want. We acknowledge hold that no people is responsible to itself alone, but that laws of political morality are universal; and that it is by virtue of these laws diat we obtain our sovereignty obedience to such laws is incumbent upon all people who would sustain their own sovereignty and justify their sovereign relationship widi other peoples. To these high principles and purpose Wwe, the Japanese pPeople, pledge our national honor, determined will and full resources.

their own sovereignty and justify their sovereign relationship with other peoples'" [ 12 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. According to Ellerman's notebooks, the Steering Committee actually reviewed the Preamble on 8 or 9 February; Ellerman condensed two or more discussions into a single entry for her formal minutes. General Whitney probably contributed his suggestions to Colonel Kades in consultation after the Steering Committee session [Ellerman Notebook D (Michigan: Hussey Papers) ]. Colonel Kades' objection to the clause was that it presupposed an authority higher than the people in some nebulous standard of "political morality" [Charles L. Kades, interview by author, 29 Sept. 1973,145; Ellerman Notebook D]. Whitney, on the other hand, was attracted to the idea that this might form the basis for a new definition of sovereignty. Whereas in the past sovereignty had been seized by force, it must now be earned by adherence to supranational laws. By incorporating this concept into the preamble to the constitution, Whitney hoped to bolster the article on the renunciation of war that followed [Ellerman Notebook D]. 4. See note 2 to this appendix.

APPENDIX B

The Emperor and Miscellaneous Affairs

Steps to modify the position of the Emperor were taken first by the Economic and Scientific Section. In mid-September, the Japanese Central Liaison Office supplied GHQ with a brief list of residential properties belonging to the Imperial family; one month later, ESS had compiled extensive statistics on all Imperial holdings in real estate, cash, and negotiable securities. The total was worth an estimated ¥1,590,615,500, which was equivalent to over $106 million in 1945 U.S. dollars (at the official exchange rate of 15 yen to the dollar). Nearly one-quarter of this was in land, while an additional 40 percent was in "standing timber."1 Income to the Imperial Household from forest lands alone totaled nearly ¥100 million for 1944.2 Whatever war had done to Japan's national economy, it had not pauperized the Imperial family. In early November, ESS's Finance Division concluded that the Imperial Household possessed "many characteristics of the several 'honsha' [zaibatsu parent corporations] ," which were then undergoing liquidation. Accordingly, ESS recommended transferring to the Japanese government "all of the forest lands, including associated genya [field] lands, standing and stored timber, and other forest products owned by the Imperial Household, irrespective of whether such lands are Imperial Hereditary Estates or Imperial Ordinary Estates."3

The Imperial Household Ministry was to abolish its Forest and Estates Bureau, transferring records and responsibilities to the government's Ministry of Agriculture and Forestry; it was also to transfer the Bureau's funds to the government.4 Economic and Scientific Section had a vital reason for moving against the Imperial forest lands rather than other holdings. In 1944, the Imperial Household had shown a surplus of ¥25 million. Yet had income from the richest source, the Emperor's farmlands and forest holdings, been excluded, the Household would have run a deficit of ¥10 million. Land was the primary source of the Imperial family's financial might. Whatever other reasons ESS might later adduce (such as the unfairness of impressing village labor to manage the forests), reducing the Throne's power was at the heart of American policy. The timing, too, seemed right for a move against the Imperial properties: "Coming as it does after the action taken against the large private holding companies, it will emphasize the fact that in the financial, economic and property field no distinction will be made between private combinations and the Imperial Household."5 ESS drew up a directive to the Japanese government regarding transfer of the Imperial forest lands; it further sought to prevent the Imperial Household Ministry from disposing of or acquiring any capital

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Appendix B assets without prior approval from GHQ, to freeze voting rights on securities owned by the Imperial Household, and to forestall the bestowal of any Imperial gifts or money grants, use of supplemental Reserve Funds, and so on.6 The Government Section, among others, concurred.7 Yet when the directive was issued on 18 November, it governed only freezing Imperial assets and controlling Imperial transactions; all instructions relating to the transfer of forest lands had disappeared, presumably deleted by one of General Douglas MacArthur's inner circle. It is unlikely that the Pauley Reparations Commission requested their deletion so as to use the real property of the Imperial Household in settling reparations claims. As of January 1946, the Commission had given no indication that it intended to use forest lands or timber, and by the end of the month it disavowed any intention, at least for the time being, of using any natural resources for reparations.8 The Natural Resources Section brought out its own proposal for disposition of the Imperial forests in early 1946. Wishing to consolidate management of Japanese forests in the government to increase the efficiency of production and ease the execution of future directives, NRS also recommended that ownership of the Imperial forests be transferred to the state. This time, however, the Government Section balked. NRS's own statistics showed that the Imperial Household was far more efficient than local communities or the state in producing timber, fuelwood, and charcoal. Lieutenant Colonel Milo E. Rowell pointed out that traditionally in military occupations the rights of ownership of real property were observed. "Excepting in cases where demonstrable and specific benefit will result," he noted, "any transfer of title on real estate from one governmental agency to another by the Supreme Commander for the Allied Powers would probably result in very adverse criticism."9 Brigadier General

Courtney Whitney, sharing Rowell's conservative views respecting title to real property, disapproved the NRS proposal.10 The issue quickly resurfaced in a separate proposal from the Economic and Scientific Section that would have transformed the Emperor into "a limited monarch, dependent upon the bounty of the Diet." ESS wanted not only to transfer to the state Imperial lands managed by the Forests and Estates Bureau of the Imperial Household, but also to deprive the Emperor of all income from negotiable instruments. Economic and Scientific Section further planned to curtail the power of the Imperial Household by transferring control of the Imperial Palace Guard and the Imperial Museum to other government agencies. A third proposal, which affected the Imperial family, if not the Emperor directly, entailed transferring tide to properties of the Imperial Princes from the Household, which held them in trust, to the Princes themselves, then declaring the properties private and subject to taxation. ESS also recommended that the Princes no longer be supported by tax revenues, since they were not members of the government.11 The scheme was revolutionary in its implications, for it would reduce the Imperial Princes to the status of virtual commoners, albeit wealthy ones. In reviewing the ESS proposals for Whitney (and without citing by name the document that represented U.S. policy regarding the Japanese Constitution, SWNCC 228), Rowell observed: "It is the policy of the United States Government to permit the Japanese people to choose between two alternatives respecting the Emperor: (i) that the institution be abolished, or (2) that the institution be retained but converted into a constitutional monarchy of limited powers. If the latter course is to be adopted, the principal assets of the Imperial Household Ministry should become property of the public treasury, and the expenses of the Imperial Household should

The Emperor and Miscellaneous Affairs be appropriated annually by the Diet."12 This was not an entirely accurate statement of American policy: SWNCC 228 required only that the income from those assets revert to the public treasury and that the expenditures of the Imperial Household be covered in the annual budget and be subject to Diet approval. But Rowell realized that ESS's recommendations would "alter the constitutional structure of the Japanese Government" and that unless the Constitution were amended to incorporate the principles behind them, the changes proposed by ESS would stay in effect only so long as the Occupation lasted.13 Rowell recommended that GS concur with these proposals, "based on the assumption that this Headquarters has indicated to the Japanese Government its desire for reform of the Imperial Institution and that no action has been taken on the subject."14 He did note, however, that ESS did not distinguish between ordinary Imperial property, which totaled somewhat over one million cho (or slighdy under 2.5 million acres), and the Imperial Hereditary Estates, which amounted to about one-fifth of that. Rowell thought this due to ignorance, for the two classes of property were different under Japanese law. Accordingly, he stipulated that "subject to the use for reparations of income from real property, all property excepting the hereditary estates be transferred out of control of the Imperial Household Ministry. . . . " Furthermore, should these proposals be considered unwise "because of the time element"—that is, because of their probable effect on an already shaky Shidehara Cabinet still dizzy from the purge directive—the Japanese government should be counseled that it must undertake such actions voluntarily or risk being taken by GHQin the near future.15 Rowell thought SWNCC 228 sanctioned the principles, if not necessarily the details, of the ESS proposals and that, based on JCS 1380/15, "authority to act probably

existed in this Headquarters." The question was whether the Supreme Commander for the Allied Powers ought to act at once or wait until a decision was reached by the Far Eastern Commission. Rumors reaching GHQ of government plans for some of the Imperial properties indicated to Rowell that the Japanese understood "the desire for this type of action by SCAP even though no request was formally made." But in his opinion, the government was not moving swiftly enough: "The Japanese Government knows that constitutional revision is required which necessarily includes revision of the position of the Emperor. Four months have passed without completed plans being presented by the Japanese Government. Permitting much further delay might well give the Japanese Government the unjustified impression that such reform is not considered critical by this Headquarters."16 Rowell recommended giving the government sixty days in which to accomplish certain requirements, including the transfer of Imperial lands to the Ministry of Agriculture and Forestry. In seconding ESS's recommendations that all Imperial lands be surrendered to the State (other than the Imperial Hereditary Estates, which Rowell believed should be retained by the Emperor), Rowell explained that the provisions of SWNCC 228 were inadequate: these merely gave the Diet authority over income from these assets, while leaving the assets themselves in the hands of the Imperial Household Ministry, a body "answerable only to the Emperor and . . . not controlled or limited by the Constitution, the Diet or any representative body." If title remained with the Imperial Household, it would be easy for that agency one day to regain control of the income.17 At a GHQ conference on 29 January, ESS and NRS representatives argued for an immediate transfer of the Imperial forests. Because of a rumor that the Emperor was considering giving the forests away, NRS

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Appendix B upped the urgency of its plea: "It is our job to see that General MacArthur gets the credit, rather than Hirohito." Rowell retorted that he doubted MacArthur wanted any share of the credit for depriving the Emperor of his property; the Supreme Commander would prefer that the Japanese government take it away. In fact, Rowell added, "[W]ithin the last two weeks it has come to our attention that the Chief of Staff now feels that [the] Japanese Government should begin to take these actions themselves without encouragement and we should keep very much in the background and issue directives only when essential... ,"18 Although Rowell agreed with ESS and NRS about the ultimate disposition of the Imperial forests, he felt that moving against the Throne's property would have serious repercussions, for it would impinge upon "something that is still a very important thing to the people, by many still worshipped as God and by many very sincerely respected." The timing of and manner in which the Imperial Household was divested of its properties would be of tremendous importance. Allowing the Emperor to retain the Hereditary Estates, as ESS now seemed to favor, would be a "nice gesture." It also made financial and political sense, as those properties would then be subject to taxation, as was the real property of other Japanese citizens. With the Natural Resources Section pressing for action on the Imperial Forests before 15 February, Rowell agreed to "push it a little" with Whitney.19 To his Chief, Rowell recommended that "a plan to divest the Imperial Household Ministry of its assets be approved as the policy of this Headquarters without awaiting decision by the FEC [Far Eastern Commission]."20 His memorandum, dated 2 February, came just days before the Government Section began drafting its "model" constitution. Although the constitution's chapter on the Emperor was of paramount importance in Japanese eyes, the Steering Committee

did not see it as presenting problems particularly delicate or difficult. The Committee on the Emperor and Miscellaneous Affairs was assigned leftover personnel, who were handed leftover topics, ranging from enablement to treason. Neither of its members, Ensign Richard A. Poole and First Lieutenant George A. Nelson, Jr., was a lawyer.21 Both were very young, and each had studied government as an undergraduate. Poole, who had entered the U.S. Foreign Service in 1941, had had some experience as Vice Consul in Montreal and Barcelona before being commissioned in the Navy in 1944. He had also spent part of his childhood in Japan, opening him to jibes from Colonel Charles Kades about being an old Japan hand, although he left the country at age six.22 The Political Adviser's office was already courting him for renewed duty with State. Nelson, then twenty-four years old, had attended Harvard University until 1940, when he left to work on a Rockefeller Foundation project analyzing German political warfare techniques. After military government and civil affairs training, Nelson served as an instructor at the Provost Marshal General's School. He helped organize military government trainees at the Civil Affairs Staging Area in Monterey for duty in Japan and joined Government Section in October 1945 to work under Guy Swope in the Legislative Unit of Public Affairs Branch. One of his first assignments had been to maintain a "policy book" delineating policy statements made by SCAP or the U.S. government; but these were so few that the book was never compiled. Late in 1945, Nelson was reassigned to serve as Kades' administrative assistant. Prior to working on the chapter of the constitution on the Emperor, his most memorable task was procuring penicillin, on MacArthur's orders, for Shidehara when the Prime Minister was stricken with pneumonia.23 On the face of it, neither Poole nor Nelson had qualifications for the job assigned,

The Emperor and Miscellaneous Affairs yet perhaps because of their college studies in government both performed creditably. Nelson in particular found the work congenial: his studies of the French Revolution and the "monarchical" qualities of his own family made him apprehensive about the unforeseen consequences of destroying thrones. He saw himself as a buttress against the antiroyalists and one of the few in Government Section who had any feeling for the nature and qualities of monarchies. His sympathies were sufficiently in evidence that when the Steering Committee first met to review the draft chapter of the constitution on the Throne, it "consistently pressed for a strict delimitation of all powers of the Emperor, and the absolute clarification of his merely decorative role."24 Poole agreed with Nelson that although the Emperor was to have an explicidy symbolic role in accordance with MacArthur's instructions, the Throne should not be reduced to mere "window-dressing." Instead, the two attempted to make the Throne a focal point for the nation's sense of self and its sentiments of national unity.25 For this, they drew upon the writings of a theorist of the French Revolution, the Abbe Sieyes, who had emphasized the supremacy of the nation and its will: the Japanese Emperor would derive his position from the "will of the nation" (volonte nationale), as Sieyes called it. The notion that the Japanese Emperor was a symbol rather than a true ruler was hardly a new idea, even among Americans. A Foreign Morale Analysis Division study of attitudes toward the Emperor reported that for the Japanese, the Emperor functioned "more as a symbol than as a reality or a consistent point of reference." He "could be all things to all men, and individuals could rationalize or vindicate their personal views in terms of the Emperor." But the evidence also suggested that the Emperor "had become an important symbol of national unity, or continued national existence and of national ideals."26 MacArthur's military sec-

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retary, General Bonner Fellers, informed the Supreme Commander that the Emperor was but "the living symbol" of the Japanese nation.27 The head of the Civil Information and Education Section's Education Division, Arundel del Re, who strongly influenced MacArthur's views against trying Hirohito as a war criminal, asserted that it would be possible "to strike at the Tenno [Emperor] system, to abolish or modify it without encountering a very strong opposition on the part of the Japanese People provided always the PERSON of THE EMPEROR were not touched." In del Re's opinion, the Emperor filled the role of symbolic family head, and so long as that "intensely personal" tie was preserved, much could be done to reform the institution.28 Although SWNCC 228 advocated reducing the power and influence of the Throne to prevent future utilization of the Emperor by militaristic groups, nowhere did it specify that the monarchy was to be stripped of all governmental power. Similarly, Rowell's December report anticipated that the Emperor would retain certain governmental functions, such as authority to suspend the Diet, and that the highest court of the land would replace the Privy Council as the Emperor's representative in interpreting the constitution and laws. MacArthur's own instructions specified simply that the Emperor was to be "at the head of the state," that succession to the Throne was to be dynastic, and that the monarch was to exercise his powers "in accordance with the Constitution and responsive to the basic will of the people."29 The Supreme Commander envisaged a monarch who would rule "with the advice and consent of the people under the constitution & subject to it."30 Yet when drafting assignments were handed out, both Nelson and Poole realized that although the Emperor was to remain, there was no unanimity of opinion within Government Section as to the extent and nature of his powers.31 Why the Section ended up going

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Appendix B beyond the policy guidelines offered by

Drafts of the Chapters on the

SWNCC 228 is not clear, although Whit-

Emperor and Miscellaneous Affairs

ney, who was "against the Emperor system. _. _ „ . , _ . . . , . ° ,. . , . . , , „ The following drafts are based upon the but not against Hirohito as an individual, . . , „, ° _, . r , ° „ . , __ „ , original Government Section documents, may have compelled the staff to stop the .f , , . ... ,, ., . „ ' _ ,V , , with deletions indicated by strikeouts and Emperor or all governmental power and ,,32 additions by underlining. make him purely ceremonial.'

APPENDIX B-l First draft of the Committee on the Emperor and Miscellaneous Affairs by Lieutenant George A. Nelson, Jr., and Ensign Richard A. Poole [Michigan: Hussey Papers, 24-8; I also am indebted to Richard A. Poole for his copy of the draft] THE EMPEROR AND THE PEOPLE Article [i]. Sovereignty over Japan shall be in the Japanese People, and shall be exercised by the State, which is their instrument.1 Article [2]. The Japanese Nation shall be reigned over by a line of Emperors, whose succession is dynastic. The Imperial Throne shall be the symbol of the State and of the Unity of the People, and the Emperor shall be the symbolic personification thereof, deriving his position from the sovereign will of the People, and from no other source.2

1. Nelson recalled that the wording for this statement of popular sovereignty came from Commander Alfred R. Hussey, although the Commander's later support of its deletion makes this unlikely [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. Neither SWNCC 228 nor the points MacArthur had specified must be addressed by the constitution required an explicit statement of popular sovereignty, although the former's repeated invocation of the "freely expressed will of the Japanese people" implied that sovereignty lay with them rather than with the Emperor. The Kenpo Kenkyukai draft firmly vested sovereignty in the people ("The supreme powers of die government of the Japanese nation are derived from the people"), but neither Nelson nor Poole recalled knowing of this or any other Japanese draft at the time. 2. The first clause of this article echoed the Meiji Constitution (Art. i), with the addition of MacArthur's requirement that succession be dynastic. The remainder was drafted by Lieutenant Nelson after consultation with Poole. Many people, including Charles Kades, Hussey, Poole, Nelson, and General Bonner Fellers, have laid claims of authorship to the phrase "The Imperial Throne shall be the symbol of the State and of the Unity of the People." In early October, worried about the "great effort in the States, especially, and also among our Allies . . . to do away with the Emperor," Fellers wrote a memo for the Supreme Commander attempting to set forth the attitude of the Japanese toward their monarch. He was assisted by Kawai Michi, a Japanese woman he had known in prewar years. Fellers saw himself as "among the few people who really understood the Emperor," and he argued that Hirohito was "the living symbol" of the Japanese, "the incarnation of the national spirit, incapable of wrong or misdeeds." "It is a fundamental American concept that the people of any nation have the inherent right to choose their own government," he added. "Were the Japanese given this opportunity, they would select the Emperor as the symbolic head of the State." MacArthur thanked his military secretary but offered no comments; Fellers "gathered that he believed it" [Bonner Fellers, interview by author, 19 Jan. 1973; 2 Oct. 1945, Fellers to CinC. I am grateful to Professor Theodore McNelly for my copy of this memorandum; it is also reproduced in Woodard, 360-61]. It is tempting to conclude that Fellers unwittingly furnished the language for this draft article. But it is unlikely that his memorandum ever made it to the Government Section. Poole recalls knowing "in a very general way" that MacArthur favored retaining the Emperor in a symbolic role, stripped of real governmental power. "We were not really concerned as much with the Emperor as a man, as an

The Emperor and Miscellaneous Affairs Article [3]. The Imperial Throne shall be succeeded to in accordance with such Imperial House Law as the Diet may enact.3 Article [4]. All official Acts and utterances of the Emperor shall be subject to the advice and consent of the Cabinet. The Emperor shall have such duties as are provided for by this Constitution, but shall have no governmental powers, nor shall he assume or be granted such powers. The Emperor may delegate his duties in such manner as may be provided by Law.4

individual, but we were concerned with the institution of the Emperor and the importance this institution had for the Japanese people." The drafting committee was "bending over backwards to deemphasize the Emperor as a person" [Richard A. Poole, interview by Paul A Kiefer, 28 Apr. 1972]. Nelson was specifically influenced in his choice of wording by the Abbe Sieyes, a pamphleteer of the French Revolution. For Sieyes, the "will of the nation" (volonte nationals) was "always the source of the law and the government. The nation is the supreme entity. It exists before all and is the origin of all. Its will is always legal, in fact it is the law itself' [Grandon G. Van Deusen, Sieyes: His Life and His Nationalism (New York: AMS Press, 1969), 27—28]. In Nelson's conception, the Emperor of Japan was to derive his position from the volonte nationale of the Japanese people, that is, their "sovereign will." Hussey may have borrowed this idea from Nelson for his reference in the Preamble to "the sovereignty of the people's will." Sieyes also shared the view of many reformers of his era that the king might stand as the one true representative of the whole nation. It is perhaps this element of his thought that moved Nelson to make the Emperor a symbol of the state and of the unity of his people. Nelson hoped that including this would provide a sense of continuity between Japan's past, epitomized by "a line of Emperors unbroken for ages eternal," and her uncertain future [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. Nelson's choice of models is ironic, for Sieyes vacillated between inveighing against all privileged classes and supporting certain kingly prerogatives. In lengthy debates with Thomas Paine over the relative safety of Liberty in a republic or a monarchy, Sieyes opined that France was really not a monarchy but a ruling aristocracy: the French nation "has always considered the King as so certainly misled and so defenseless in the midst of the active and all-powerful Court, that it has never thought of blaming him for all the wrongs done in his name" [Emmanuel Joseph Sieyes, What Is the Third Estate? (New York: Frederick A. Praeger, Inc., 1964), 65-66]. The innocence of the French king was not dissimilar to that being claimed for the Japanese Emperor. 3. This draft article closely followed the Meiji Constitution (Art. 2), except for providing that the Diet was to enact the Imperial House Law. This presupposed that the Law would be rewritten. SWNCC 228 did not demand revision of the Imperial House Law, nor did Rowell's December report recommend it. But as the result of proposals made by the Economic and Scientific Section, the monarchy would become dependent for most of its income upon the Diet, thus altering Japan's "constitutional structure" and affecting the Imperial House Law of 1884, "one of the fundamental laws of government" [24 Jan. 1946, Rowell to Chief, GS (WNRC, RG 331: SCAP, GS: Memos to Chief, GS, Book I, Box 2142)]. The ESS proposals were still under consideration by SCAP when Government Section began drafting. Though not aware of the activities of ESS and the Natural Resources Section to deprive the Imperial Household of its control over certain properties, Nelson and Poole were probably forewarned by Rowell that pending directives might necessitate revision of the Imperial House Law [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. Government Section also wished to emphasize that any and all laws were to be enacted by the Diet in the future. Specifically extending that to the Imperial House Law ensured that the affairs of the Imperial Household would not continue to be handled under the Meiji law even after ratification of the new Constitution. 4. SWNCC 228 provided that the Cabinet would advise and assist the Emperor and that the Emperor would act only upon the advice of the Cabinet in all important matters; it did not require the "advice and consent" of the Cabinet. The transition from "advise and assist" to "advise and consent" was a borrowing from the U.S. Constitution (Art. 2, Sec. 2) that seemed understandable, if not quite on point. As Poole, the probable author of this article, put it, advice and consent were "two words that seem to go together" [Richard A. Poole, interview by Paul A. Kiefer, 28 Apr. 1972]. As used in the U.S. Constitution, "advice and consent" applies to the role of the Senate vis-a-vis the executive branch. It was developed as a compromise between vesting the power to make treaties and appoint ambassadors and Supreme Court justices in the Senate or vesting it in the executive branch, the traditional vehicle for

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Appendix B When a regency is instituted in conformity with the provisions of such Imperial Home [sic] Law as the Diet may enact, the duties of the Emperor shall be performed by the Regent in the name of the Emperor; and the limitations on the functions of the Emperor contained herein shall apply with equal force to the Regent. Article [5]. The Emperor's duties shall be: To affix his official seal to and proclaim all Laws enacted by the Diet, all Cabinet Ordinances, all Amendments to this Constitution, and all Treaties and international Conventions; To convoke ordinary sessions of the Diet in accordance with the provisions of Article ; To convoke extraordinary sessions of the Diet, when called upon by the Cabinet, in accordance with the provisions of Article ; To dissolve the Diet and proclaim a general election, when called upon by the Cabinet, in accordance with the provisions of Article ; To solemnize the opening and closing ceremonies of the Diet; To appoint as Prime Minister the leader of the Majority party in the Diet or, failing a Majority party, such member of the Diet as is able to command a majority therein, and to accept his resignation, in accordance with the provisions of Articles ; To confirm the appointment or commission and resignation or dismissal of other Ministers of State, Ambassadors and those other State officials whose appointment or commission and resignation or dismissal may by law be confirmed in this manner; To confirm the judgments of Courts of Law, including the Diet when sitting as a court; To confirm pardons and reprieves granted by the Cabinet or Diet; To award such honors as the Cabinet or Diet may bestow; To receive Ambassadors and Ministers of Foreign States; and To perform such other ceremonial duties as may be established by law or otherwise authorized by the Cabinet or Diet.5 Article [6]. The Emperor shall be served by two Privy Ministers, appointed by him with the advice and consent of the Cabinet: A Lord Keeper of the Privy Seal, who shall assist such authority. But according to Kades, applying a requirement of Cabinet advice and consent to the Emperor was deliberate. SWNCC 228's proviso was considered too weak: as Kades later observed, "[W]e felt that if the Cabinet was to assist the Emperor, the Emperor would have governmental power." Requiring the Cabinet's consent kept the power in die Cabinet [Charles L. Kades, interview by author, 29 Sept. 1973]. 5. By enumerating die Emperor's duties, Poole and Nelson sought to accord the Throne "a sufficient ceremonial and ratifying role so as to make it meaningful without giving it any real power" [Richard A. Poole, interview by Paul A. Kiefer, 28 Apr. 1972]. Not wholly comfortable with the notion of a purely ceremonial Throne, however, Nelson tried to create a few loopholes. The clause allowing the Emperor to award "such honors as the Cabinet or Diet may bestow" was intended to permit restoration of the peerage at some future point, if desired by the government [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. The enumerated duties were mainly confirmations of actions decided and taken by others, but occasionally a clause with unintended consequences crept it, such as the one allowing the Emperor to "confirm the judgments of Courts of Law." In listing the Emperor's duties, Nelson and Poole were guided by their knowledge of British practices, yet here they erred. In Britain, the monarch may be the "fountain of justice," but does not superintend the courts; that function is performed by the House of Lords as the supreme appellate body. Whoever suggested this draft clause was thinking of a ceremonial sanctifying role for the Emperor and did not foresee die problems of interpretation the clause posed [see footnote 18 to this chapter].

The Emperor and Miscellaneous Affairs him in the discharge of his official duties, and a Lord Chamberlain, who shall assist him in the management of his household and the expenditures of The Throne.6 The Imperial Household shall be managed in accordance with such Imperial House Law as the Diet may enact. Appropriations for the expenditures of the Throne shall be included in the annual national budget.7 ENABLEMENT The Diet shall make all laws necessary and proper to carry into execution the provisions of this Constitution. TREATY MAKING POWERS The Cabinet shall be empowered to make Treaties and Agreements and enter into International Conventions, provided such Treaties, Agreements or Conventions are ratified by a majority of the Diet. The Cabinet may, without the ratification of the Diet, make such treaties or Agreements or enter into such International Conventions as the Diet may authorize, except that no Treaty, Agreement or Convention requiring enabling legislation shall be made or entered into without the ratification of the Diet. CHAPTER VIII IMPEACHMENT All officers of the State shall be removed from office upon impeachment for and conviction of treason, bribery, or any high crime or misdemeanor, in accordance with the provisions of Article .8 CHAPTER IX TREASON Treason shall consist in conspiring or attempting, or in abetting in any way any person who conspires or attempts to alter by the use offeree this Constitution or to overthrow

6. Nelson and Poole were evidently unaware that the post of Lord Keeper of the Privy Seal had already been abolished by the Japanese the preceding year, and apparently they did not realize that the Privy Council was headed for a similar fate. By enumerating privy officials within the constitution, they were attempting to limit their number [Richard A. Poole, interview by Paul A. Kiefer, 28 Apr. 1972]. The proliferation of extraconstitutional bodies to advise the Emperor was an abuse noted in Rowell's report. 7. This final clause derived from the requirement of SWNCC 228 that the expenses of the Imperial Household be appropriated annually by the legislature as part of the national budget. Imperial Household expenditures had been governed not by the Meiji Constitution but by the Imperial House Law, which provided that they be defrayed by the treasury at an unspecified fixed amount. SWNCC 228 also required that the entire income of the Household be turned in to the national treasury, a provision Nelson and Poole chose not to incorporate. Their sympathies with the Throne may have made them reluctant to follow SWNCC's injunction too closely, or they may have been alerted by Rowell that GHQ was planning to divest the Throne of its major holdings. They may also have known that Frank Rizzo was working on a similar clause for the draft chapter on finance, for they were familiar with the discussions of other drafting committees. 8. Believing that a need might arise to impeach the Prime Minister, given the preponderance of power that office had assumed in the plans of the Committee on the Executive, Nelson volunteered a draft article on impeachment [George A. Nelson, Jr., interview by author, 19 Aug. 1973].

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Appendix B the State which it establishes; in waging or in abetting in any way any person who wages war against Japan; or in conspiring or attempting in any way to cause Japan to wage war on another State. Treason shall be punished as the Diet may determine.9 CHAPTER X SUPREME LAW OF LAND Article I. This Constitution shall be the Supreme Law of the Land, and all laws, ordinances, treaties and other governmental acts shall be subject to the provisions and limitations thereof.10 Article II. All laws, ordinances, treaties and other governmental enactments, whatever description or source of authority, promulgated prior to the ratification of this Constitution, or those particular provisions thereof, which are contrary to the provisions of this Constitution, shall be automatically invalid from the instant of ratification. Article III. The Supreme Court shall determine the constitutionality of such laws, ordinances, treaties and other governmental enactments as are brought to its attention. Article IV. The Emperor shall, upon succeeding to the Throne, and if he is a minor, upon attaining his majority, be bound to support this Constitution. The Regent, Ministers of State, Members of the Diet, Members of the Judiciary and all other officers of the State shall, upon assuming office, be likewise bound by oath to support this Constitution. Article IV [sic]. All debts contracted and engagements entered into, by contract or treaty or otherwise, shall be valid under this Constitution as under the previous one, except such contracts, treaties, or other engagements as are contrary to the provisions of this Constitution or to universally recognized standards of domestic and international equity.11

9. At a staff meeting, Poole asked if the Section could really expect the Japanese to do without armed forces; he also suggested, as Minister Matsumoto would later, that the clause was a lofty declaration of intention that fit more comfortably into the preamble than into the body of the constitution. The treason article, drafted by Nelson, was a sly dig at MacArthur's clause renouncing war, which the junior officer thought unrealistic and vindictive. Modeled after the treason clause in the U.S. Constitution (Art. 3, Sec. 3), Nelson's draft article avoided all mention of the classic definition of treason, namely, giving aid and comfort to enemies of the State, for that would apply to any Japanese cooperating with the Occupation. During debate over this clause, Nelson suggested that a more fitting description of treason for Japan would be "disagreeing with the no-war clause" [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. 10. SWNCC 228 said nothing about the constitution's being the supreme law of the land. Rowell, however, noted in his December report that the Meiji Constitution was susceptible to abuse because it failed to define, and thus control, all functions of government, permitting the proliferation of extraconstitutional bodies, the use of ordinances in lieu of law, and the promulgation of laws that had a force equal or superior to that of the Constitution itself. In the United States, supreme authority to establish a standard superior to potentially competing ones raised by individual states was vested in the federal Constitution. It was a device for unification. In Japan, the primary purpose was to prevent the establishment of organs or laws that might undercut the constitution. A secondary purpose was to compel a transfer of loyalty on the part of Japanese officialdom from a living ruler to the rule of law. 11. The drafting committee's apparent source for this article was the U.S. Constitution (Art. 6, Sec. i).

The Emperor and Miscellaneous Affairs CHAPTER XI AMENDMENTS TO THE CONSTITUTION

Article . Amendments to this Constitution shall be proposed in the Diet whenever a majority of its members shall consider it necessary, and shall become valid effective as an integral part of this Constitution when ratified by three-fourths of the members of the Diet, provided that no amendment shall be enacted which would, in terms or in effect, curtail any of the fundamental human rights set forth in Chapter . (or violate the principles of the Preamble)12 Article . Every tenth year after the ratification of this Constitution the Diet shall be convened in extraordinary session to consider amendments to the Constitution, but this provision shall in no way limit the consideration of amendments in ordinary sessions of the Diet.13 Article . Amendments to this Constitution, when ratified by the Diet, shall immediately be proclaimed by the Emperor, in the name of the people. CHAPTER XII RATIFICATION

This Constitution shall be established when ratified by roll-call by two-thirds of the members of the Diet convened in the month of 1946 under the provisions of the Constitution of 1889. Upon ratification by the Diet, the Emperor shall immediately proclaim, in the name of the People, that this Constitution has been established as the Supreme Law of the Land. APPENDIX B - 2 Draft of the Committee on the Emperor and Miscellaneous Affairs, as amended by the Steering Committee, 6 February 1946 CHAPTER THE EMPEROR AND THE PEOPLE

Article [ i ]. Sovereignty over Japan shall be in the Japanese People, and shall be exercised by the State, which is their instrument.14

12. Poole authored this section; he made a single revision to this article before submitting it to the Steering Committee. The Meiji Constitution provided for amendment upon the vote of two-thirds of the Diet members present; raising the requirement to three-fourths of the entire Diet membership would make amendment more difficult. Both Poole and Nelson shared the apprehensions of the Civil Rights Committee that their reforms would be short-lived unless amendment were difficult, or even prohibited with regard to civil liberties. 13. This reflects the influence of the Abbe Sieves, who, like Thomas Jefferson, believed no constitution was eternal and that a nation should revise its organic law at regular intervals, whether the need for change was pressing or not. The Kenpo Kenkyukai draft also provided for a plebiscite within ten years to enact a new constitution. 14. According to Ruth Ellerman's minutes of the Steering Committee sessions, "The first article, defining sovereignty, was ordered struck out. In the Preamble, sovereignty is placed in the people and

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Appendix B Article [2]. The Japanese Nation shall be reigned over by a line of Emperors, whose succession is dynastic. The An Imperial Throne shall be the symbol of the State and of the Unity of the People, and the an Emperor shall be the symbolic personification thereof, deriving his position from the sovereign will of the People, and from no other source.15 Article [3]. Succession to T-the Imperial Throne shall be dynastic and succeeded to in accordance with such Imperial House Law as the Diet may enact. Article [4]. All official Acts and utterances of the Emperor shall be subject to the advice and consent of the Cabinet. The advice and consent of the Cabinet shall be required for all acts of the Emperor in matters of State, and the Cabinet shall be responsible therefor. The Emperor shall have perform such duties state functions as are provided for by m this Constitutionrkbrt._He shall have no governmental powers, nor shall he assume or be granted such powers. The Emperor may delegate his duties functions in such manner as may be provided by felaw. When a regency is instituted in conformity with the provisions of such Imperial Home House Law as the Diet may enact, the duties of the Emperor shall be performed by the Regent in the name of the Emperor; and the limitations on the functions of the Emperor contained herein shall apply with equal force to the Regent.

needs no further amplification" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. This article competed with the preamble's definition of sovereignty; Kades and Hussey also believed it imprudent to raise the issue of sovereignty in a chapter devoted to delimiting the Emperor's powers [Ellerman Notebook C (Michigan: Hussey Papers)]. For the same reason, the reference to the people was deleted from the chapter heading. Kades was apprehensive that draft Articles i and 2 might be interpreted as meaning that the Emperor was not merely the symbolic head of state but spokesman for the nation, with his wishes the true expression of the people's will [Charles L. Kades, interview by author, 29 Sept. 1973; 12 Dec. 1973 (Addenda [to interviews taped Sept. 1973])]. This was a reading all too familiar from Japanese history: it permitted warring cliques to take refuge in claims that they were properly carrying out the Imperial will. Government Section's senior staff, familiar from their civil affairs training with the mystique ofkokutai, the political doctrine that equated the Emperor with the state (and attributed Japan's uniqueness thereto), had no desire to provide constitutional fuel for the theoreticians of Japanese nationalism. Some consideration was given to providing an explicit statement of popular sovereignty elsewhere in the text, for a majority of the Steering Committee did not accord the preamble die same weight as the body of the constitution. That this was never done was probably an oversight due to the haste with which the MacArthur Draft was created. 15. As Ellerman wrote, "The Steering Committee took exception to the use of the term 'reign' in defining die role of the Emperor. Colonel Rowell pointed out that in Japanese usage 'reign' carries the connotation of 'govern' as well" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Striking this clause removed even the pretense that die Emperor would reign but not rule, in the British fashion. To a British parliamentary delegation, Kades later explained diat the Emperor was "not a monarch in any real sense except that he had a tide." The Emperor's symbolic value he analogized to that of the American flag: botii were focal points for patriotic sentiment. Asked if it would not be less expensive to have Mount Fuji as a symbol of the nation, Kades replied diat die Japanese could have it if diey wanted: "[A] 11 you have to do is amend die Constitution" [14 Oct. 1947, GS conf. with UK Parliamentary Delegation (WNRC, RG 331: SCAP, GS: Conferences, Book I, Box 2229-6); Charles L. Kades, interview by author, 29 Sept. 1973]. According to Ellerman's typed minutes, "The text was amended to read 'The Emperor shall be the symbol of the State and of the Unity of the People . . . " [6 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. In fact, the wording was only slighdy changed to "An Imperial Throne shall be the symbol of die State and of the Unity of the People"; it remained diat way until die draft was reviewed again on 12 February.

The Emperor and Miscellaneous Affairs Article [5]. The Emperor's duties shall be: Acting only on the advice and with the consent of the Cabinet, the Emperor, on behalf of the People, shall perform the following state functions:16 To aAffix his official seal to and proclaim all fclaws enacted by the Diet, all Cabinet Qordinances, all Aamendments to this Constitution, and all ^treaties and international (^conventions; 5e-€Convoke ordinary sessions of the Diet in accordance with the provisions of Article —: To convoke extraordinary sessions of the Diet, when called upon by the Cabinet, in accordance with the provisions of Article =j 3e-4D_issolve the Diet and proclaim a general elections, when called upon by the Cabinet, in accordance with the provisions of Article : To solemnize the opening and closing ceremonies of the Diet; Te-aAppoint as the Prime Minister the leader of the Majority party in the Diet or, failing a Majority party, such member of the Diet as is able to command a majority therein, and to accept his resignation, in accordance with the provisions of Articles . and accept his resignation: To confirm Attest the appointment or commission and resignation or dismissal of other Ministers of State, Ambassadors and those other State officials whose appointment or commission and resignation or dismissal may by law be confirmed in this manner;17 To confirm the judgments of Courts of Law, including the Diet when sitting as a

16. According to Ellerman, "Colonel Kades objected to the excess of initiative power granted to the Emperor in Article [5] (definition of the duties of the Emperor). The Steering Committee recommended that this Article include a covering or restrictive clause explicitly stating that the Emperor performs certain state functions only on the advice and with the consent of the Cabinet" [6 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Kades also objected that the article made no provision as to what would happen should the Emperor fail to perform his duties [Ellerman Notebook C (Michigan: Hussey Papers) ]. 17. Considerable thought went into selecting a word to replace "confirm." To give the Emperor power to confirm implied as well that he would have the power to withhold confirmation. The Steering Committee did not believe the Emperor "should do anything except witness the fact" of an appointment or dismissal, a pardon or reprieve [Charles L. Kades, interview by author, 29 Sept. 1973]. "Attest," more common in business than in constitutional law, was finally selected as the word that "best conveyed the idea that [the Emperor's duties] were purely ceremonial" [11 Aug. 1972, Cyrus Peake to author]. Kades later compared the Emperor's duty to attest to the role of the American Secretary of State in affixing the Seal of State to a bill. It was not, he stressed, analogous to the President's signing that bill into law, for it carried no legal effect [14 Oct. 1947, GS conference with UK Parliamentary Delegation (WNRC, RG 331: SCAP, GS: Conferences, Book I, Box 2229-6)]. 18. According to Ellerman's minutes, "The clause giving the Emperor the right to 'confirm the judgments of Courts of Law, including the Diet when sitting as a court' was ordered struck out. This clause permits invasion of the independence of the Court, and might be interpreted to mean that all judicial decisions must be confirmed by the Emperor. Commander Hussey emphasized the necessity of establishing a Constitutional Court independent of the legislative and executive branches" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The drafting committee had not considered whether confirmation was automatic in the absence of an objection or required positive action on the Emperor's part. Kades interpreted this responsibility as requiring affirmative action; thus he questioned the lack of any requirement that the Emperor must perform his assigned duties. As the Steering Committee also pointed out, the courts would be rendering their decisions in the name of the people, not the Throne [Ellerman Notebook C (Michigan: Hussey Papers) ]. Not only did the offending clause trespass upon judicial independence, but it might be misinterpreted as meaning that court decisions were invalid until confirmed by the Emperor.

L

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Appendix B To confirm pardons and reprieves granted by the Cabinet or Diet Attest grants of amnesty, pardons, commutation of punishment, reprieves, and rehabilitation: Te-aAward such honors as the Cabinet or Diet may bestow; Te-FReceive Ambassadors and Ministers of Foreign States; and Te-pPerform such other appropriate ceremonial duties as may be established by law or otherwise authorized by the Cabinet or Diet functions. Article [6]. The Emperor shall be served by two Privy Ministers, appointed by him with the advice and consent of the Cabinet: A Lord Keeper of the Privy Seal, who shall assist him in the discharge of his official duties, and a Lord Chamberlain, who shall assist him in the management of his household and the expenditures of The Throne;19 The Imperial Household shall be managed in accordance with such Imperial House Law as the Diet may enact. Appropriations for the expenditures of the Throne shall be included in the annual national budget. No grants of money or other property shall be made to the Throne and no expenditures shall be made by the Throne unless authorized by the State.20 ENABLEMENT (TO BE INCLUDED IN CHAPTER

. THE DIET)

Article The Diet shall make enact all laws necessary and proper to carry into execution the provisions of this Constitution.21

19. As Ellerman wrote, "The Steering Committee protested the authorization of four Imperial officers (two Privy Ministers, a Lord Keeper of the Privy Seal, and a Lord Chamberlain) in Article [6]. Colonel Kades objected that this legitimatized extraconstitutional officials who were responsible to the Emperor rather than to the Diet, or to the people and moreover, falsely exalted officials whose duties, under a liberal Constitution, would be little more than clerkly. Col. Rowell pointed out that this obligated the Diet to pass a budget to support them. Ensign Poole defended the clause as a strict limitation upon the personal officers of the Emperor and thus a constitutional check upon any further building up or expansion of the Imperial Household staff. The Steering Committee unanimously agreed that this clause overemphasized the importance of the Imperial Household and ordered it omitted from the final draft of the Chapter" [6 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The Steering Committee also feared that dignifying offices of the Imperial Household in the constitution might result in their being regarded as more important than Cabinet posts, with higher salaries and perquisites to match. More important, the Diet, which might not wish the Emperor to have any privy ministers, should have the right to pass upon such posts [Ellerman Notebook C (Michigan: Hussey Papers) ]. Another objection was that the draft article implied continuation of the Privy Council, which Kades, Rowell, and Hussey favored eliminating "because its function was either to govern or to advise the Emperor in the act of governing." Not until later did the Steering Committee agree with Nelson and Poole that including specific restrictions within the constitution might be wise, for if the Imperial House Lav/ were revised and passed concurrently with the constitution, it might be interpreted as being "on a parity with the constitution" [Charles L. Kades, interview by author, 29 Sept. 1973]. 20. According to Ellerman's minutes, "The Steering Committee objected to the article making it mandatory for the Budget to include appropriations for Throne expenditures. Provisions for Throne expenditures are included in the Chapter on Finance. Emphasis should be given, rather, in the Chapter on the Emperor to the complete powerlessness of the Throne either to receive grants of funds or to make expenditures without prior authorization of the Diet" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The article as a whole gave the Diet no say in the type or selection of privy officials, yet required that it support them. 21. This clause became the final article in the chapter on the Diet.

The Emperor and Miscellaneous Affairs TREATY MAKING POWERS (TO BE INCLUDED IN CHAPTER

. THE EXECUTIVE)

Article The Cabinet shall be empowered to make conclude Ttreaties and Aagreements and to enter into Imternational ^conventions, provided that such ^treaties, Aagreements or Gconventions are ratified by a majority of the Diet. The Cabinet may, without the ratification of the Diet, make such treaties or Agreements or enter into such International Conventions as the Diet may authorize, except that no Treaty, Agreement or Convention requiring enabling legislation shall be made or entered into without the ratification of the Diet shall be effective only if the consent of the Diet be granted by prior authorization or subsequent ratification.22 CHAPTER IMPEACHMENT All officers of the State shall be removed from office upon impeachment for and conviction of treason, bribery, or any high crime or misdemeanor, in accordance with the provisions of Article _^=i723

22. According to Ellerman, "The Steering Committee decided that the Article on Treaty Making powers be incorporated in the Chapter on the Executive. In redrafting the article the Steering Committee broke on the issue of whether international agreements of all kinds must be submitted to the Diet for ratification. Col. Kades thought not. The making of international agreements is within the province of the Executive, and sufficient check to the executive power is provided by requiring that all international agreements and conventions needing enabling power must go to the Diet for ratification. "Colonel Rowell disagreed. Today international agreements are so all-embracing in their effects on the well-being and lives of the people that final control over all treaty making powers must be placed in the Diet. When it likes, the Diet can give the Cabinet treaty making powers on specific issues, i.e., in concluding postal conventions or narcotic [s] agreements, by passing a bill to that effect. But it should be clearly established in the Constitution that the Cabinet shall conclude all treaties, international conventions and agreements with the consent of the Diet, either by prior authorization or subsequent ratification. "In conclusion, Commander Swope pointed out that the basic principle of the drafting of this Constitution has been the strengthening of the legislative power over the Executive branch of government" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Kades remarked that the Diet's power of appropriation would help check executive abuse of its treaty-making power. The American House of Representatives, he added, had no formal authority over treaties. Rowell argued that grants of authority to the Cabinet could be revoked by the Diet if the Cabinet disobeyed any of the terms set by the legislature. But Kades objected to such piecemeal authorizations, believing they hobbled the executive [Ellerman Notebook C (Michigan: Hussey Papers) ]. The compromise solution followed lines suggested by Rowell. 23. According to Ellerman's minutes, "The original draft of this article provided that all officers of the State shall be removed from office upon impeachment for and conviction of treason, bribery, or any high crime or misdemeanor. The Steering Committee recommended that the article on impeachment be omitted and the use of impeachment be restricted to members of the judiciary. Impeachment as a general technique for the dismissal of public officials is cumbersome and time-consuming, and would necessitate the Diet sitting as a Court of Impeachment every time a charge was made against a public official. The Prime Minister can be removed from office by a vote of non-confidence, he can remove his individual ministers at will, civil servants can be removed, the Diet can be permitted to make its own rules for the removal of its members, and all other elected officials can be recalled. A provision should be added to the Chapter on Local Government for the forfeiture of office when a local official is convicted of a crime" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Swope's suggestion about restricting impeachment to judicial officials was incorporated by Rowell and Hussey into later drafts of the chapter on the judiciary. The staunchest opponent of impeachment

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Appendix B CHAPTER IX TREASON

Article Treason shall consist in conspiring or attempting, or in abetting in any way any person who conspires or attempts to alter by the use offeree this Constitution or to overthrow the State which it establishes; in waging war, or in abetting in any way any person who wages war4 against Japan; or in conspiring or attempting in any way to cause Japan to wage war on another State. Treason shall be punished as the Diet may determine punishable by death. Only Japanese nationals shall be accused of treason.24 CHAPTER X SUPREME LAW OF LAND25

Article I. This Constitution shall be the Supreme Law of the Land, and att no laws, ordinances, treaties treaty and or other governmental acts shall be subject to the pro

was Kades, who thought it unworkable: "I didn't think it was particularly successful in the United States, and I thought it might be an alien concept as far as the Japanese were concerned" [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 29 Sept. 1973]. Lost in the shuffle, the provision on forfeiture of office, which the Steering Committee agreed to adopt, never made it into the chapter on local government. 24. As Ellerman wrote: "In the first discussion of this article it was decided to amend the draft in order to give protection to non-nationals. Col. Rowell pointed out that an individual cannot commit treason unless he has given allegiance to the State established by the Constitution. The Bill of Rights should give protection to everyone in Japan, whether or not he supports the Government established. Commander Hussey suggested that the statement be added 'no person not a Japanese national shall be convicted of the crime of treason'" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Kades suggested that treason be made punishable by death [Ellerman Notebook C (Michigan: Hussey Papers)]. This was ironic coming from an American, because the U.S. Constitution grants Congress lite power to set the punishment for treason (Art. 3, Sec. 3); but the clause as drafted could be construed as requiring a separate ruling by the Diet on each instance. Although the treason clause initially was reported to General Whitney, it was subsequently removed by the Steering Committee in the belief that the crime might be better handled by statutory law [Ellerman Notebook D (Michigan: Hussey Papers); Charles L. Kades, interview by author, 29 Sept. 1973]. 25. According to Ellerman, "Colonel Kades objected to the original draft of the first two articles as lacking positive force; it is not sufficient to state, merely, that all laws and governmental acts shall be subject to the Constitution. The article should read, rather, that no Imperial Rescript nor any other law can exist outside of the Constitution" [6 Feb. 1946, Ellerman Minutes (Michigan: Hussey Papers)]. The supremacy clause in the U.S. Constitution, Kades observed, ensured that federal statutes would be superior to state statutes when in conflict. But in Japan the problem was different, and the new charter must stress that no laws or rescripts "except those in pursuance of the Constitution" were valid [Ellerman Notebook C (Michigan: Hussey Papers) ]. During debate on this chapter, Nelson made a statement on his view of "supreme law," a view radically different from the substance of the article drafted by Poole. As Ellerman recorded in her minutes, Nelson "stated that someplace in the Constitution, probably in the Preamble or the Supreme Law, a statement must be made that this Constitution draws its sovereignty not only from the will of the people but from the principles of universal morality. A blunt statement must be made that rectitude as well as physical strength is the source of authority. "Colonel Kades protested that the establishment of a kind of universal church has no place in a national constitution. The validity of the Constitution stems from the Japanese people and not from any universal morality. Sovereignty is based upon strength, and every nation will rely upon force to defend its right to the exercise of sovereignty. "Commander Hussey agreed with Captain Nelson. We have come to recognize, if rather uneasily, a superior law that governs the people of all nations. We are trying our criminals on the basis of that law.

The Emperor and Miscellaneous Affairs visions and limitations thereof contrary to the provisions thereof shall have legal force or validity. Article H. All laws, ordinances, rescripts, treaties and other governmental enactments, of whatever description or source of authority, promulgated prior to the ratification of this Constitution, or those particular provisions thereof, which are contrary to the provisions of this Constitution, shall be automatically invalid from the instant of ratification. Article III. The Supreme Court shall determine the constitutionality of such laws, ordinances, treaties and other governmental enactments as are brought to its attention.26 Article IV. The Emperor shall, upon succeeding to the Throne, and if he is a minor, upon attaining his majority, be bound to support this Constitution, and T-the Regent, Ministers of State, Members of the Diet, Members of the Judiciary and all other officers of the State shall, upon assuming office, shall be likewise bound by oath to support this Constitution.27 Article IV. All debts contracted and engagements entered into, by contract or treaty or otherwise, shall be valid under this Constitution as under the previous one, except such contracts, treaties, or other engagements as are contrary to the provisions of this Constitution or to universally recognized standards of domestic and international

"Colonel Kades was not convinced. It was agreed, however, that Commander Hussey work out an acceptable formalization of this law of universal political morality" [6 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Discussion in the Steering Committee took "a Platonic turn" as members toyed with the idea of playing "midwife to a nascent morality." Nelson's motive in proposing the clause, he later recalled, was anger, not so much against Japan—although the clause could be misinterpreted as being vindictive—but against the fissile world American and Soviet enmity was creating [George A. Nelson, Jr., interview by author, 19 Aug. 1973]. The Committee finally agreed that Hussey and Nelson would collaborate on a draft, which was later incorporated into the preamble (see Appendix A-2 to this book). 26. This article was stricken after Rowell objected that the role of the Supreme Court was properly handled in the chapter on the judiciary [Ellerman Notebook C (Michigan: Hussey Papers)]. 27. According to Ellerman, "The Steering Committee discarded the oath clause. The provision binding the Emperor and other public officials to acceptance of the Constitution by oath, premises an authority higher than the Constitution. Further, an oath requirement in a Japanese Constitution is little more than an importation of an Anglo-Saxon procedure" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. It was Hussey who pointed out that an oath "didn't mean anything to the Japanese" but was "a foreign concept that was being intruded into the organic law of Japan" [Charles L. Kades, interviews by author, 29 Sept. and 12 Dec. 1973]. In the West, oaths of office presuppose a law higher than secular authority. In the absence of such a tradition in Japan, Kades feared that the concept of kokutai might become the sanctifying force [20 May 1974, Charles L. Kades to author]. If the symbolism of the oath was a problem, an even greater difficulty was the question of who would administer oaths of office to Cabinet ministers—the Emperor? Rowell, however, favored the idea of a statement binding the Emperor and the government to uphold the constitution, and Hussey revised the article accordingly. Another question raised by this article was whether the age of majority for legal purposes was the same as the minimum age for succession. If not, the article raised the incongruous prospect that a young Emperor might succeed to the Throne but not be bound to support the constitution until he reached his majority [Ellerman Notebook C (Michigan: Hussey Papers)]. 28. The constitution needed no "saving clause," Kades pointed out, for the state itself was "a continuous affair": it was only the mode and methods of government that were being changed. Treaties incompatible with the new constitution, he added, could be nullified by the peace treaty between Japan and the Allied powers [Ellerman Notebook C (Michigan: Hussey Papers)].

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Appendix B CHAPTER XI AMENDMENTS TO THE CONSTITUTION

Article . Amendments to this Constitution shall be proposed in made only by the Diet whenever a majority of its members shall consider it necessary through a concurring vote of three-fourths of all its members, and shall thereupon become effective^ as an integral part of this Constitution when ratified by three fourths of the members of the Diet,; provided that no amendment shall be enacted which would, in terms or in effect, curtail any of the fundamental human rights set forth in Chapter . (or-v4elate the principles of the Preamble) . in the case of Amendments to Chapter . such Amendments shall further be submitted to the Electorate for ratification, and shall become effective only when ratified by two-thirds of the people voting thereon.29 Article . Every tenth year after the ratification of this Constitution the Diet shall be convened in extraordinary session to consider amendments to the Constitution, but this provision shall in no way limit die consideration of amendments in ordinary sessions of the Diet.30

29. As Ellerman recorded, "There was a sharp cleavage of opinion over the amendment provision as originally written by Ensign Poole and Captain Nelson. The Steering Committee objected to the heavy restrictions placed upon the people's right of amendment—that all amendments are to be prohibited until 1955, that no amendments can be initiated unless proposed by a 2/3 vote of the Diet, or ratified by less than a 3/4 vote of the Diet. Captain Nelson and Ensign Poole justified these restraints on the premise that the Japanese people are not ready for a democracy, and that we are caught in the uncomfortable position of writing a liberal Constitution for a people who still think mystically. Therefore the ten years' ban on amendments will prevent the Japanese from losing their newly-acquired democracy while they are in process of learning the techniques of self-government. After 1955 an extraordinary session of the Diet can be convened, and every ten years thereafter, to considered constitutional amendment. The relatively high ^ and % Diet vote requirements for proposal and ratification make it impossible for the political whim of a mere majority to change the Constitution. "The Steering Committee made both theoretical and practical objections to these protective restrictions. The writing of a liberal constitution must be premised upon a responsible electorate and no one generation has the right to delimit another generation's freedom to amend its Constitution. A Constitution should be not only a reasonably permanent document but a flexible one as well, with a simple rather than complicated amendment procedure. Col. Kades recommended that the provision for mandatory review every ten years be omitted. Commander Hussey recommended that amendments be initiated by the Diet, through a concurring vote of two-thirds of all its members and be ratified by an affirmative vote of a majority of the electorate" [6 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The chapter on amendments was so controversial that it took up an entire morning's discussion. The original draft article did not prohibit all amendments until 1955; rather it permitted amendments by the Diet (excepting abridgement of civil liberties) and required a review every ten years of the desirability of new amendments. The idea of proscribing amendments for a "reasonable period" was suggested by Nelson during discussion with the Steering Committee [Ellerman Notebook C (Michigan: Hussey Papers)]. Rowell backed him by proposing a requirement to call a constitutional convention in ten years. This was based on a provision in the Kenpo Kenkyukai draft for a plebiscite within ten years after enactment of the constitution to vote upon a new one, an idea Rowell had thought outstanding. Rowell put forth his proposal "with the hope that this would defer amending the constitution until they'd had at least ten years' experience with freedom. I thought in ten years they would like it well enough that they wouldn't give it up" [Milo E. Rowell, interview by author, 5 May 1972]. 30. Although sympathetic to thejeffersonian idea of frequently reviewing the constitution to ensure that it remained a living instrument, the Steering Committee balked at mandatory review. As Kades observed, there was a contradiction in the draft between the prescription of review and the difficulty of proposing, let alone enacting, amendments. The constitution should be "a reasonably permanent instrument," but it should also be flexible enough to withstand the strains of time. Therefore, Kades proposed omitting the provision for mandatory review and opening the first article to make it possible

The Emperor and Miscellaneous Affairs Article . Amendments to this Constitution, when ratified by the Diet upon becoming effective in the manner prescribed above, shall immediately be proclaimed by the Emperor, in the name of the pPeople. as an integral part of this Constitution. CHAPTER XH RATIFICATION

Article This Constitution shall be established when ratified by the Diet by rollcall by of two-thirds of the members of the Diet present convened in the month of 1946 under the provisions of the Constitution of 1889. Upon ratification by the Diet, the Emperor shall immediately proclaim, in the name of the People, that this Constitution has been established as the Supreme Law of the Land.31

for anyone—not merely members of the Diet, but the people and even the Emperor—to propose amendments, which would become effective if ratified by three-fourths of the Diet. He also suggested eliminating ambiguities in the original to make it clear whether three-fourths of the Diet's total membership or three-fourths of a quorum was required [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, 29 Sept. 1973]. Hussey further suggested that overall review of the constitution might be initiated if requested by, say, 10 percent of the electorate. Poole was concerned that relaxing amendment procedures would render the constitution vulnerable to "the political whims of any one year," while Nelson remarked that in twenty years the Japanese might decide they wanted an absolute ruler again. The idea of amendment by popular initiative and referendum was dropped. To assuage the drafters' anxieties about the fate of the constitution's more liberal provisions, Kades modified his proposal: approval by three-quarters of all members of the Diet would be sufficient to validate most amendments, except those to the chapter on civil rights, for which an additional affirmative vote of two-thirds of the people would be necessary [Ellerman Notebook C (Michigan: Hussey Papers)]. Totally barring amendments to the chapter on civil rights, as the original draft did, was foolish, he thought, because "somehow or other you must be able to change the constitution by means other than revolution" [Charles L. Kades, interview by author, 29 Sept. 1973]. 31. As Ellerman wrote, "The article providing for ratification by a concurring vote of two-thirds of the members of the Diet, was amended to read 'This constitution shall be established when ratified by the Diet by a roll-call vote of two-thirds of the members present,' on the theory that very few members of the Diet would dare to vote against ratification if it involved giving a negative vote in a public session of the Diet" [6 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Nelson believed that the roll-call provision, which was in the original draft, would have an inhibiting effect on conservatives. At first Kades wanted to require ratification by three-fourths of the Diet, following the Meiji Constitution. He abruptly changed his mind and declared that it might be best to permit ratification by a simple majority of those present, for that would reduce the chances that the constitution might fail to pass [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 29 Sept. 1973]

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APPENDIX C

Renunciation of War

Rarely capable of giving public credit where victors' blood lust and perhaps deflect Alcredit was due, Supreme Commander for lied retributive impulses away from the the Allied Powers Douglas MacArthur be- Throne. Making it plainly impossible for stowed it once in the service of a public Japan to wage war again may have seemed fiction. Prime Minister Shidehara Kijuro, a fair quid pro quo for retaining the Emhe claimed, deserved kudos for having sug- peror. But there were other reasons as gested the second of SCAP's basic points well. First, MacArthur believed Japan would of constitutional reform, namely, the con- have a hard time rebuilding its shattered troversial clause on the renunciation of war, economy if it had to support a defense establishment. Second, a constitution well which read: known to MacArthur, that of the PhilipWar as a sovereign right of the nation pines, had renounced war as an instrument is abolished. Japan renounces it as an of national policy a decade earlier. instrumentality for settling its disputes In October 1945, Colonel Daniel Cox and even for preserving its own secuFahey, Jr., was sent to Tokyo by the War Derity. It relies upon the higher ideals partment's Civil Affairs Division to provide which are now stirring the world for SCAP with background information on the its defense and its protection. directives emanating from Washington— No Japanese Army, Navy or Air and to provide War with insight into how Force will ever be authorized and no the Occupation was going. During his stay, rights of belligerency will ever be con1 Fahey met with the Supreme Commander ferred upon any Japanese force. almost every day. "I got the impression This claim requires more credulity than from my discussions with him," Fahey remost Japanese or American historians have called, "that he felt he had a golden opporbeen able to muster. Litde in Shidehara's tunity to remake Japanese thinking along background or discussions with his Cabi- more democratic lines." MacArthur "wasn't net suggests that this idea originated with quite so strong on punishing the Japs for him.2 But why would a career soldier like their misdeeds as were some. . . . I reMacArthur, himself the son of a career sol- member his feeling that we made some dier, have come up with such a forthright mistakes in World War I when we did a few disavowal of his own chosen path to glory? things that probably brought Hitler into One can surmise that MacArthur was try- power."3 ing to be statesmanlike and that he thought The Supreme Commander asked Fahey renouncing war would help quench the if his basic directive from the Joint Chiefs

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Renunciation of War would countenance constitutional revision, a subject about which it said nothing. He also told Fahey that "it would create a marvelous example" if the Japanese "wiped out their military completely." MacArthur did not want "the then echelon of generals and admirals to get back in control," which was likely if the occupation was of the short duration then projected. More important, without the resources of empire, the Supreme Commander thought that Japan would be incapable of defending itself and that whatever money was available "might better go into economic development rather than into a huge armed force."4 MacArthur was not alone in grasping this point. Months later, asked by reporter Robert B. Cochrane what he thought of the clause on the renunciation of war, which his government was in the process of piloting through the Diet, the new Prime Minister, Yoshida Shigeru, opined that it was the greatest thing the United States could do for Japan, because now the nation could turn to rebuilding while depending upon America for her defense.5 There is a kind of poetic justice in the second influence on the General's thinking. MacArthur had been Army Chief of Staff when the Philippine government began to prepare for eventual independence by drafting and enacting a Commonwealth Constitution. Through late 1934, MacArthur received detailed reports on the progress of the Philippine Constitutional Convention;6 he also tried to stem pressures from his own War Department staff for accelerating Philippine independence by withdrawing American forces during the period of Commonwealth status.7 It was not clear how far the United States was willing to go in defending the Philippines; it was clear that the military and naval forces then assigned to the archipelago were inadequate to the tasks set by Washington's own contingent war plans.8 The Tydings-McDuffie Act, which governed the archipelago's progress toward inde-

pendence, contemplated neutralizing the Philippines. The commanding general of the American military establishment there had little faith in this solution, for he declared that treaties of neutrality were "of value only so long as no powerful nation decides that military necessity requires their violation."9 The proposed Commonwealth Constitution was completed by late 1934; MacArthur saw the final draft as well as a lengthy analysis of it prepared by Robert A. Smith, Manila correspondent for the New York Times and city editor of the Manila Daily Bulletin. Smith, who had kept a close eye on the constitutional convention, wore yet another hat: he was a Lieutenant in Military Intelligence (Reserve), and his report was prepared for the Philippine Department's G-2.10 The draft constitution renounced war as an instrument of national policy, yet as Smith dryly observed, this did not signify "any particular pacific point of view," but was included "for a technical reason." Renunciation of war formed the basis of the Kellogg-Briand Pact and the Nine-Power Pacific Treaty: declaring adherence to the principle of not resorting to war to settle disagreements was a natural "first step" toward sovereign Filipino participation in these instruments. The draft constitution did not, however, renounce maintenance of a defense establishment. As a whole, Smith concluded, the provisions dealing with armed forces spotlighted that "the problem of genuine national defense for the Philippines is one which the framers of the Constitution cannot and dare not face."11 Although debate over the clause within the convention showed delegates split over the renunciation of war—with many feeling it inappropriate in a constitution or likely to draw down the wrath of the U.S., while others felt that it was insufficient and should declare war itself illegal—the clause was approved in late January 1935-12 MacArthur had already been recruited by the

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Appendix C Philippine government to head a military advisory mission to the Commonwealth— indeed, he had drafted the bill that qualified the Philippines for such a mission— but long before the General reached Manila to assume his newjob, a delegation from the constitutional convention sailed to America to present their completed constitution to the U.S. government. The Secretary of War solicited the views of his Department and the Army's commanding general in the Philippines on the draft's provisions.13 Neither had any comments upon the article renouncing war. All appeared to accept this provision as a gesture, a statement of principle that in no way affected provision for a national defense establishment. Elsewhere the new constitution granted the President of the Commonwealth conscription power, declared citizens liable to military or civil service in defense of the state, and provided for a declaration of war upon the vote of two-thirds of the legislature. At best, the renunciation clause seemed likely to ease the Islands' entry into treaties of neutrality, as Smith had pointed out. MacArthur's proposed renunciation of war for the Constitution of Japan had more bite. It was not intended as a gesture, though it may well have been seen as a means of easing Japanese reentry into the comity of nations. And it was fitting that its inspiration came from the country that had provided both MacArthur's greatest humiliation and his phoenixlike resurrection. MacArthur's office was austere, but in General Courtney Whitney's, right behind his desk, there hung a rather garish painting of "a Filipino boy trying to defend his sister from being raped by a Japanese soldier."14 In its value as chastisement, the clause renouncing war was the equivalent of that propagandist art. MacArthur, through the victims of Japanese aggression, was giving lessons in the morality of the vulnerable. Colonel Charles Kades and Commander Alfred R. Hussey co-authored "Article I," as MacArthur's proposal was originally

called. The prominence initially accorded the article may have been due to General Whitney's remark that he would prefer to see the clause as Chapter I,15 supplanting the position of the chapter on the Emperor in the Meiji Constitution. When Ensign Richard A. Poole, who worked on the draft chapter on the Emperor, raised the issue of whether the clause on the renunciation of war properly belonged in the body of the Constitution, Kades cut discussion short by looking sharply at him and saying "The General wanted it that way. . . ,"16 Kades himself agreed with Whitney that the clause did not belong in the preamble, which was "a recitation of purpose but not binding or obligatory": "I thought that it would be a hope but not the law of the land if it weren't in the main body of the constitution," he recalled. Kades' original draft, no longer extant, was probably not sufficient in Hussey's eyes, so the Commander amplified it by adding the final two paragraphs in his more flamboyant style.17 Exactly when it was decided to subordinate the clause on the renunciation of war to the chapter on the Emperor is not clear. By the end of the week, the Steering Committee felt that "general strategy might indicate that the Emperor should precede the abolition of war," because it would be "easier to get them to accept."18 Yet a partial draft constitution, which the Steering Committee reviewed on 12 February, positioned the clause on the renunciation of war as Chapter I, Articles I and II.19 It is likely that when Lieutenant Colonel Milo E. Rowell reviewed the text for style, the renunciation clause was moved to Article 8, behind the chapter on the Emperor, for reasons of tact and diplomacy. Drafts of the Chapter on the Renunciation of War The following drafts are based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

Renunciation of War APPENDIX C-l Draft of the clause on the renunciation of war by Colonel Charles L. Kades and Commander Alfred R. Hussey, Jr. [Michigan: Hussey Papers, %4-A]

ARTICLE I War as a sovereign right of the nation is abolished. The threat or use of force is forever renounced as a means for settling disputes with any other nation. No Army, Navy, Air Force, or other war potential will ever be authorized and no rights of belligerency will ever be conferred upon the state.1 The people of Japan, desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, have determined to rely for their security and survival upon the justice and good faith of the peace-loving peoples of the world. Japan desires to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance, for all time from the earth. To these high principles and purposes Japan pledges its national honor, determined will and full resources.2 APPENDIX C-2 Draft of the clause on the renunciation of war as revised by the Steering Committee for submission to General MacArthur

ARTICLE I CHAPTER II RENUNCIATION OF WAR Article VIII. War as a sovereign right of the nation is abolished. The threat or use of force is forever renounced as a means for settling disputes with any other nation. No Aarmy, Nnavy, Aair Fforce, or other war potential will ever be authorized and no rights of belligerency will ever be conferred upon the sState. The people of Japan, desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, have determined to rely for their security and survival upon the justice and good faith of the peace loving peoples of the world. Japan desires to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance, for all time from the earth. To these high principles and purposes Japan pledges its national honor, determined will and full resources.3

1. This paragraph was probably written by Colonel Kades. 2. The second and third paragraphs were the work of Commander Hussey. 3. The second and third paragraphs, both slightly revised, were transferred by Commander Hussey to his draft preamble.

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APPENDIX D

Civil Rights

Roest had gone through both the CharNo one on the Committee on Civil Rights was a lawyer or possessed any legislative lottesville School of Military Government experience, yet this group of two men and and civil affairs training at Yale, but his wara woman had one of the most difficult— time service consisted mainly of serving as and divisive—chapters to draft. "We were a liaison officer with the Dutch and Austrying to use our resources to the best of tralian Navies. A gentle vegetarian who was our ability," recalled Lieutenant Colonel forty-seven and still spoke with a slight acMilo E. Rowell: assigning the Government cent from his native Holland, Roest ended Section's most liberal members to the Com- up at GS by accident rather than because mittee on Civil Rights seemed a way to en- he had a civilian specialty that seemed to sure that the group would think hard and fit the Section's needs.2 Shortly after the speak freely about its topic.1 It helped con- beginning of 1946, he took as his second siderably that one member had spent ten wife a much younger Stanford graduate years in prewar Japan witnessing the Japa- who was then a WAG working for Radio nese government's growing disregard of Tokyo on getting out the women's vote.3 "[S]omething of a visionary," as one memindividual rights. The Chairman of the drafting commit- ber of GS called him, Roest had a deep tee (and the immediate superior of the and abiding interest in religion and spiricommittee's other two members) was Lieu- tualism. Late in his life, he helped support tenant Colonel Pieter Roest, newly pro- himself by lecturing at the Theosophical moted from Major and head of the Gov- Society in California.4 ernment Section's Political Parties Branch. Beate Sirota, who later married one of Roest, Dutch born and a medical graduate Government Section's interpreters, Joseph of Leyden University, had obtained a doc- Gordon, was the Committee's youngest torate from the University of Chicago in member at twenty-one. She had lived in anthropology and sociology and studied Japan from 1929 to 1939 while her father international relations at, among other headed the Piano Department of the Tokyo places, the University of Southern Califor- Imperial Academy. During the war, her nia. Fieldwork took him to Java and Aus- Russian-born parents continued to live and tralia, where he studied Australian nation- work in Japan, the recipients of regular alism; he later headed the social sciences visits from the Kenpeitai, the formidable departments of the University of Toledo military police; their daughter, who had (Ohio) and Reed College. become stranded in the United States (but

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Civil Rights was not an American citizen until 1945), monitored Japanese radio for a Federal Communications Commission program in foreign broadcast intelligence. She also served as a "Tokyo Rose in reverse" for the Office of War Information, writing propaganda beamed to Japan, and briefly worked for Time magazine's international news section before joining SCAP GHQ. Hired by the Foreign Economic Administration, Sirota arrived in Japan in late December 1945 with a group of civilian experts who were replacing enlisted men returning home. The only one in Government Section who spoke Japanese fluently (apart from the interpreters), she ended up working with Japanese political parties.5 Because her non-naturalized parents had not been interned by the Japanese during the war, SCAP G-2 suspected them of enjoying "Soviet protection." Their daughter was tarnished by association. According to G-2, her dislike of the Japanese police and her zeal in enforcing the purge "created a positive impression among members of the Japanese Central Liaison Office that the work of the Government Section has become Communist-inspired and that Japanese Communists are in close liaison with the leftist personnel in that staff section."6 Sirota's politics were indeed liberal; but Government Section's success was the real target of this salvo. The last member of the Committee on Civil Rights was Dr. Harry Emerson Wildes, who wrote bitterly of this interlude in his life in Typhoon in Tokyo. Scholarly but "frustrated and grumpy," Wildes was " [t] emperamentally unsuited" to work under Roest, or apparently under his subsequent Occupation bosses as well.7 Wildes had spent a year teaching economics and political science at Keio University in Tokyo, an experience that left him with "a good deal of ideas" on changes needed in Japan, particularly to the political party system and popular rights.8 Compared with his colleagues in

the Government Section, Wildes was a grand old man, as he was fifty-five at the start of the Occupation. After graduating cum laude in economics from Harvard, Wildes had received his master's from the University of Pennsylvania in 1922 and his doctorate in 1927. His career was oddly varied: before pursuing any graduate degrees, Wildes worked as a traffic engineer for Bell Telephone and then as ajournalist. A high school teacher for nine years, he served as literary editor of the Philadelphia Public Ledger and associate editor of Philadelphia Forum Magazine prior to joining the Office of War Information. Unlike some of the other drafting committees, such as those on local government, the judiciary, and the Diet, the Civil Rights Committee had no backlog of staff studies on which to draw. SCAP's "Civil Liberties" directive of October 1945 had been produced primarily by another section, and the experts on civil law that SCAP requisitioned had not yet arrived in Tokyo. As head of the Government Section's Political Parties Branch, Roest held a few interviews with Japanese political leaders in late 1945 and early 1946; but the statements of these men were generally too vague to provide many concrete and usable ideas on civil rights. With the possible exception of Roest's interview with Wikawa Tadao of the Cooperative Party (Kyodo-to), there is nothing traceable to the Japanese in the Committee's draft chapter.9 Milo Rowell, the Government Section's leading analyst of U.S. policy on constitutional reform, knew what Washington wanted, but he was not on this drafting committee, and his report on the Meiji Constitution was not consulted. Government Section was battling the Japanese on at least two issues of discrimination, one involving economic discrimination against foreigners (which the Japanese thought admissible so long as all foreigners were discriminated against equally), and

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Appendix D another involving the Japanese government's attempts to devise special relief measures for war sufferers. On the latter, the Section contended that the Japanese had "to do away with all forms and measures of relief designed to aid particular groups and classes unless the basis for the classification is purely the physical necessity of separate treatment, such as pregnancy, infancy, etc."10 The extent to which members of the drafting committee knew of these matters is unclear, however, because none of them was directly involved. The premise that the constitution was the place for social prescription derived from European republican constitutions of the post-World War I era, and of these the drafting committee made extensive use. Sirota left the 4 February meeting of the Section on an excursion to area libraries in search of source material. Carefully reading one text here, checking out another there so as not to arouse suspicion, she returned to the Government Section with a small hoard: "I gathered up all the constitutions that I could find— Scandinavian constitutions, French, English, [Russian], and everything."11 With few comprehensive English-language compendia of foreign constitutions in existence then (and little importation of Western books into Japan during the war years), it is highly likely that the drafters relied upon compilations from the early 19305, such as B. Shiva Rao's, published in India in 1Q34-12 Products of the years immediately following the Great War, the constitutions presented in such books bore a distinct family resemblance. It mattered little to the drafters (if indeed they knew) that many of these had been scrapped in the 19308. This source material provided the Committee on Civil Rights inspiration as well as a checklist: after drafting his contributions, Wildes compared his work with the Soviet Constitution to see if he had overlooked any rights.13

Like other drafting committees, the Committee on Civil Rights made no immediate use of private Japanese drafts. What apparent conformity there was between points in their chapter and the Kenpo Kenkyukai draft came from relying on the same source materials, namely, European republican constitutions from the 19205, with their numerous provisions for social amelioration. No one on the drafting committee knew of Milo Rowell's December study on the Meiji Constitution; what knowledge they had of scholarly works on the Meiji Constitution, or of Japanese jurisprudence in general, came from Wildes's brief stint at Keio and from Sirota's considerably longer experience in Japan. The committee divided its labors roughly as follows: Wildes was responsible for the final section on juridical rights, Sirota for the clause on academic freedom as well as the section on social and economic rights (excluding property and labor rights), and Roest for the general section and the section on freedoms (with help from Wildes). Despite their dissimilar backgrounds, the members of this committee showed rare unanimity regarding their underlying objective, namely, to legislate Japanese social reform. They also showed remarkable tolerance for each other's ideas. Neither Roest nor Wildes raised any opposition to Sirota's detailed enumeration of social and economic rights, despite their potential for revolutionizing relations between government and the governed.14 All seemed to agree that because Japan was a country "which does move very much by the letter of the law," they had to be as concrete and specific as possible.15 Aware that "the people in power were not in favor of giving such rights to women, students," and others, and appreciating the likelihood of slippages in translation, Sirota sought to reduce the government's room to maneuver in implementing legislation by making the articles so specific as to be susceptible to

Civil Rights only one interpretation.16 The European constitutions she consulted showed her that such detail was acceptable in a charter of state. As in the case of the clause renouncing war, MacArthur's knowledge of the Philippine Constitution may have had some influence in this chapter. The Philippine Commonwealth Constitution included a number of provisions designed to protect the archipelago's natural resources against foreign exploitation, to guard against large concentrations of wealth by empowering the legislature to limit the size of private estates, and to promote nationalization of utilities and other industries. Such provisions were grounded, respectively, in Filipino fears of Japanese depredations, past experience with large landholdings by Spain and the Roman Catholic Church, and a historical tendency to push government into business—and expect it to do everything for its citizens.17 There was nothing there of obvious relevance to Japan, but seeing such provisions in the Philippine Constitution may have predisposed SCAP to accept them in the GS draft. MacArthur had stood against keeping the Philippines as an American colony, and he raised no objection when the Committee on Civil Rights reposed ultimate ownership of Japanese land and resources in the state, although its purpose was to establish the state's right of eminent domain rather than to protect against foreign imperialism, as had been the case in the Philippine Commonwealth Constitution. The drafting committee produced a massive chapter of forty-eight articles. In a trying session that consumed most of Friday, 8 February, the Steering Committee struggled through half of those. In their ardor for social justice, the drafters had produced clauses that to the law-trained Steering Committee were loosely written and subject to misinterpretation. Not lawyers themselves, they used shorthand

expressions such as "lease" (Art. 36) to convey the idea that individual ownership of land and natural resources was not an inalienable right. Clear enough to laymen, the term might have created problems for the courts. "A lot of the Civil Rights [articles] were struck for vagueness," recalled Rowell. That most of the provisions had come from European constitutions was not an asset: "We wanted a Bill of Rights that the Supreme Court could quote and have [as] a firm foundation for their decision in cases."18 To the attorneys on the Steering Committee, that inescapably meant an Anglo-Saxon model of whose history and judicial interpretation they could be sure. Defending their principles, the drafters contested every objection of the Steering Committee. Roest, Sirota, and Wildes came away from this first session convinced that the Steering Committee members were "much less liberal in their attitude . . . than we were" and miserably disappointed that their vision of social revolution was not shared.19 Beate Sirota, who had urged that the draft chapter be highly detailed to offset the vagueness of the Japanese language and its preference for ambiguity, was especially surprised by the Steering Committee's reaction. "I thought this was quite obvious," she later commented, "that in a country like Japan, you have to make specific provisions for all these . . . rights that had been abused for so many years" as well as for ones the Japanese oligarchy had not yet extended to the populace. Unless backed by very explicit constitutional language, statutory law would be inadequate, the drafters felt, for "we were sure that whatever laws ... would be made to amplify the constitutional guarantees would work in such a way that they would abridge some of these freedoms."20 Afterward, Sirota begged Roest and Wildes not to let the Steering Committee gut her section on social and economic

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Appendix D rights.21 Wildes promised that he and Roest would try to save her work by incorporating its substance into one mammoth article.22 Realizing that the Steering Committee's impatience with minutiae jeopardized their own work as well, Roest and Wildes hastily rewrote die entire chapter, making revisions already suggested by the Steering Committee to the first two sections and adding a few of their own. The glut of detail they resolved by shoehorning social policy into draft Article 27, which subsumed almost a dozen smaller articles from their original draft. When the Steering Committee reconvened Saturday, 9 February, its members confronted a draft already greatly revised by its authors. Discussion was again heated. When it came to the fourth and final section of the draft chapter, the section on juridical rights, the Steering Committee adjourned to Whitney's office to have the Chief settle a few points. But Whitney,

though a good journeyman lawyer, was not of the same intellectual caliber as his senior staff, nor had he been thinking about these issues with the same intensity. As mentioned in Chapter 14 of this book, he questioned guaranteeing the accused the basic right to cross-examine their accusers, fearing embarrassment to MacArthur for not practicing in the Philippines war crimes trials what his staff now sought to preach to the Japanese. He was gently overruled by the Steering Committee on that issue; but he prevailed on others, including deletion of a clause invalidating confessions made without counsel present.23

Drafts of the Chapter on Civil Rights The following drafts are based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

APPENDIX D-l First draft of the Committee on Civil Rights by Lieutenant Colonel Pieter Roest, Beate Sirota, and Dr. Harry Emerson Wildes [Hussey Papers, 2^-G; Rowell Papers] CIVIL RIGHTS I. GENERAL 1. The people of Japan are entitled to the enjoyment without interference of all fundamental human rights that do not conflict with the equal enjoyment of those rights by others.1 2. The enumeration in this Constitution of certain freedoms, rights and opportunities shall not be construed to deny or disparage others retained by the people.2

1. This article parallels the French Declaration of the Rights of Man (1789), Article 4: "Liberty consists in the power of doing anything that does not injure others; accordingly, the exercise of the natural rights of each man has no limits other than those that insure other members of the society the enjoyment of those same rights . . . " [E. A. Goerner, ed., The Constitutions of Europe (Chicago: Henry Regnery Co., 1967), 38]. At least two prewar constitutions, the Turkish (1924) and the Albanian (1928), included similar provisions. 2. This closely copies the Ninth Amendment to the U.S. Constitution: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment was added out of fear that rights not listed in the Constitution might be deemed not guaranteed.

Civil Rights 3. The freedoms, rights and opportunities provided by this Constitution derive from the self-disciplined cooperation of the people. They therefore involve a corresponding obligation on the part of the people to prevent their abuse and to employ them always for the common welfare. Hence every freedom entails a corresponding responsibility, every right a corresponding duty, and every opportunity a corresponding effort on the part of those who benefit by it.3 4. No subsequent amendment of this Constitution and no future Constitution, law or ordinance shall in any way limit or cancel the rights to absolute equality and justice herein guaranteed to the people; nor shall any subsequent legislation subordinate public welfare, democracy, freedom or justice to any other consideration whatsoever. Any existing legislation in conflict with the principles embodied in this Constitution shall be null and void.4 5. All Japanese by virtue of their humanity shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall be the supreme consideration of all law, and of all governmental action. 6. All persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational, and domestic relations on account of race, creed, sex, caste or national origin. No special privilege shall accompany any ownership or grant of tide, honor, decoration or other distinction; nor shall any such ownership or grant of distinction, whether now existing or hereafter to be conferred, be valid beyond the lifetime of the individual who now owns or may receive it.5

3. Exhortations to duty were not uncommon in European constitutions. The French constitutions of the Revolution augmented their declarations of rights with a catalogue of duties. By the Constitution of 1795, duties were at least as prominent as rights. More recent examples appear in the Polish Constitution (1921), which enumerates "duties and civic rights" in Chapter V, and the Constitution of the U.S.S.R. (1936), Articles 130 and 131. 4. Affirmations of constitutional supremacy appear in European constitutions, for example, the Law Preliminary to the Constitutional Charter of the Czechoslovak Republic (1920), Article 1-1: "Enactments which are in conflict with the Constitutional Charter or with laws which may supplement or amend it are invalid" [B. Shiva Rao, ed., Select Constitutions of the World (Madras: Madras Law Journal Press, 1934), 171]. Such statements, however, are different from draft Article 4, which, with its presumption of infallibility, echoes certain American state constitutions. The Constitution of Pennsylvania declares that its Bill of Rights "is excepted out of the general powers of government, and shall forever remain inviolate" [Constitution of 1790, Art. IX, Sec. 26]. A Pennsylvanian, Harry Emerson Wildes was familiar with the Commonwealth constitutional history and with the prohibition on amendment in William Penn's charters for the region. (In fact, he later published a book on Penn's thinking.) Wildes was "responsible for what this clause is supposed to represent," yet he considered such a prohibition "a very wrong idea" and recalled that his original version of Article 4 included no restriction on future amendments to the civil rights chapter. Its purpose was to prevent revocation of any freedoms delineated in the chapter by means other than constitutional amendment. Wildes believed that the draft article was rewritten by Roest without his knowledge, yet he subsequently defended the clause before the Steering Committee [Harry E. Wildes, interview by Ross Driver, 23 Apr. 1972]. The final clause of the draft article was a deliberate effort to force fundamental revision of Japan's Civil Code [Beate Sirota Gordon, interview by John McCobb and Roy Watanabe, 14 Apr. 1972]. 5. The Constitution of the Esthonian Republic (1920), Article 6, is closest to this draft article: "All citizens of the Republic are equal before the law. Public privileges or prejudices derived from birth, religion, sex, social position, or nationality may not exist. In Esthonia there are no legal class divisions or tides" [Shiva Rao, 152—53]. Virtually every prewar European constitution included some provision for equality before the law, but almost all reserved that protection to citizens or subjects. The Committee's draft entitled all persons

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Appendix D 7. The people are the ultimate arbiters of their government. They have the inalienable right to elect their public officials and to dismiss them by the process of impeachment or recall. All public officials are servants of the whole community and not of any special groups. In all elections, secrecy of the ballot shall be kept inviolate, nor shall any voter be answerable, publicly or privately, for the choice he has made.6 8. Every person has the right of peaceful petition for the redress of grievances, as well as for the enactment, repeal or amendment of laws, ordinances and regulations; nor shall any person or organization be in any way discriminated against for making such a petition.7 9. Every citizen has the right to compensation for damage inflicted or loss sustained by an official act not in accordance with the law.8

under Japanese jurisdiction to equal protection of the law. The Japanese government had already been instructed in November 1945 to ensure that no discrimination was permitted against private or government workers in wages, hours, or working conditions by reason of nationality, creed, or social status. Numerous continental constitutions banned titles of nobility. The Weimar Constitution (1919) abolished all "privileges of discriminations due to birth or rank and formerly recognized by law," while allowing present holders to incorporate tides into their family names [Goerner, 121]. The stipulation in the Committee's draft that titles be valid only for the lifetime of the recipient was one of the basic points laid down by MacArthur. 6. The Pennsylvania Constitution of 1776, with which Wildes was familiar, included a similar evocation of Rousseau: "All powers being originally inherent in, and consequently derived from, the people, therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them," and " . . . the community hath an indubitable, inalienable and indefeasible right to reform, alter or abolish government in such manner as shall be, by that community, judged most conducive to the public weal" (Art. I, Sees. 4 and 5). The notion that recall might be acceptable to the Japanese may have been suggested by Wikawa Tadao, who, in an interview with Roest, remarked that his party, the Kyodo-to, favored the recall of public officials by popular referendum [16 Jan. 1946, Roest to Chief, GS (MM, RG 5: SCAP Records, "Japanese File, Correspondence," Box i) ]. 7. Most European constitutions guaranteed the right of petition. Draft Article 8 combined the Weimar guarantee of petition (Art. 126) with an allied ban on retaliation (Art. 118): "Every German has a right within the limits of the general laws to express his opinion freely by word, in writing, in print, by picture, or in any other way. No relationship arising out of his unemployment may hinder him in the exercise of this right, and no one may discriminate against him if he makes use of this right" [Goerner, 122]. The Meiji Constitution also permitted the right of petition (Art. 30). But under the Petition Law (Soganho), exercise of that right was restricted to a narrow range of matters under the jurisdiction of the Court of Administrative Litigation. 8. Cf. Constitution of the Polish Republic (1921), Article 121: "Every citizen has the right to compensation for damage caused by officials of the State, whether civil or military, through official action not conforming to law and outside the scope of their duties. The State is responsible for the damage caused, conjointly with die offending officials . . . " [Shiva Rao, 102]. Under prewar Japanese law, employers were generally responsible for the acts of their agents, but there was no express liability on the part of the State for the acts of public officials. Japanese courts in at least one case had held that such liability existed, yet other decisions were inconsistent on this point. The situation in Japan was similar to that in Britain prior to 1947: in torts, the principle that die "King can do no wrong" permitted suits against a Crown servant acting ultra vires, but the Crown itself was not answerable. Wildes, who was probably responsible for this article, may have recalled that the Pennsylvania Constitution provided for suits against the Commonwealth "in such cases as the Legislature may by law direct" (Art. I, Sec. 11). Several private Japanese drafts established a right of indemnification, but generally, as in the Kenpo Kenkyukai and Social Democratic Party drafts, diis was restricted to those accused of crimes but acquitted by the courts. The Japan Federation of Bar Associations draft, published in the Asahi Shinbun

Civil Rights 10. Aliens shall be entitled to the protection of Japanese laws, provided they recognize the obligations of observing the laws. When charged with any offense they are entitled to use the assistance of their diplomatic representatives and of interpreters of their own choosing. Naturalization shall not be made compulsory.9 II. FREEDOMS

11. Freedom of person is the inalienable right of all law-abiding Japanese. No individual unless convicted of crime shall be held in enslavement, serfdom or bondage of any kind. Involuntary servitude including compulsory labor for a term where payment in advance has been made is prohibited.10 12. Freedom of thought and conscience shall be held inviolable. No legislation or decree of any kind shall ever be issued diat would in any way limit it or interfere with it. 13. Freedom of religion is guaranteed to all. No religious organization shall receive privileges from the State or its national or local authorities, nor may ecclesiastical functionaries abuse their spiritual authority for political purposes. No person shall be compelled or pressed to take part in any religious acts, celebrations, rites or practices. No religious body will be recognized as such if under the disguise of religion, it should stir up and practice antagonism to others or should weaken instead of strengthen public order and morality. The State and its organs shall refrain from religious education or any other religious activity.11

on 22 January, provided for compensation for damages resulting from the illegal acts of government officials. None of those drafts was consulted by the Committee on Civil Rights. The Committee on the Executive came up with a similar article for its draft chapter (see Appendix F-i, Art. 10). 9. SCAPIN 93, the Civil Liberties Directive of 4 October 1945, ordered the Japanese government to abrogate all laws discriminating against anyone on grounds of race, nationality, creed, or political opinion. The Occupation showed early sensitivity to laws discriminating against foreigners in matters economic. When Rowell met with officials of the Ministry of Commerce and Industry to discuss provisions in the Japanese mining laws that prevented foreigners from directly owning any mines in Japan, he learned that the Japanese government was interpreting SCAPIN 93 as applying only to political or juridical discrimination. It refused to revise discriminatory commercial laws. Of all prewar European constitutions, only those of Portugal (1933), Czechoslovakia (1920), and Italy (1848) implicitly or explicitly provided that resident aliens were to enjoy the same rights and guarantees as citizens, unless otherwise provided by law. Japanese private drafts routinely guaranteed civil rights only to Japanese citizens. SWNCC 228 required that fundamental civil rights be accorded all Japanese and all persons within Japanese jurisdiction. 10. Cf. Czechoslovak Constitution (1920), Article 107: "Personal liberty shall be guaranteed. . . . Deprivation of, or limitations upon, personal liberty shall not be permitted save in accordance with law. Public authorities may not require personal service from any citizen save in cases provided for by law" [Shiva Rao, 191—92]. By the twentieth century, European nations did not feel compelled to insert prohibitions on serfdom or slavery into their constitutions. The constitutions of the French Revolution, however, commonly included such provisions: "Every man may engage his services and his time, but he can neither sell himself, nor be sold. His person is not an alienable property. The law does not acknowledge a state of service . . . " (Constitution of 1793, Declaration of the Rights of Man, Art. 18). Selling female children into servitude was a Japanese custom viewed by the Government Section as still sufficiently widespread to require prohibition. On 21 January, SCAP directed the Japanese government to abrogate all laws authorizing or permitting the existence of licensed prostitution and to nullify all contracts or agreements that bound or committed any woman to the practice of prostitution. 11. This article appears to be an amalgam of the limited guarantees of religious freedom included in European constitutions and the anticlerical provisions of the Mexican Constitution of 1917. Cf. Yugoslav Constitution (1921), Articles 12-7 and 12-4: "Ministers of religion may not use their spiritual

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Appendix D 14. Freedom of speech and press are guaranteed, including the right to criticize any public official, agency, or practice, or to urge the enactment, amendment or repeal of any law. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated except in cases of criminal investigation. This freedom shall not be interpreted to permit slander, black-mail, libel, the deliberate spreading of falsehoods or malicious rumors, nor the deliberate excitation of hatred against any law-abiding group, nor the wanton incitement of disturbance or violence. All persons shall be held accountable for the consequences of their words or actions.12 15. Freedom of assembly is guaranteed to all persons for the peaceful consideration or public demonstration of whatever matters may concern them. Such meetings shall at all times, except in the event of uncontrolled disorder or violence be free from interruption or interference by any governmental authority; but leaders and speakers will be responsible for the direct consequences of their activity.13 authority in the interest of parties, whether in the churches, through writings of a religious character, or otherwise in the execution of their official functions," and "No person may be compelled to take part in any religious acts, ceremonies, practices or rites . . . " [Shiva Rao, 47-48]. Like the Mexican Constitution, the Soviet Constitution of 1936 expressly separated church and state. The Philippine Commonwealth Constitution guaranteed religious freedom and sought to safeguard individual rights from the potential tyranny of church and state joining forces. One analyst of the Philippine Constitution remarked that it was unusual to find a state so firmly identified with Roman Catholicism attempting to protect individual religious freedom and establish separation of church and state, yet the Filipino framers had merely been continuing a trend started by Mexico and republican Spain [n.d., Lieutenant Robert A. Smith, "Analysis of the Proposed Constitution of the Philippine Commonwealth" (NA, RG 165: WPD Series 3389-10)]. William Woodard wrote of the Civil Rights Committee that no member was "professionally informed on religion in Japan and none had any clear idea as to how the principles enunciated would affect religious organizations . . . " [Woodard, 78]. None of the drafting committee members had any particular expertise in Japanese religious matters, but Pieter Roest, the chairman, did have an abiding interest in religions and was the probable author of this article [Beate Sirota Gordon, interview by John McCobb and Roy Watanabe, 14 Apr. 1972; Harry Emerson Wildes, interview by Ross Driver]. Roest discussed the civil liberties chapter with William Bunce, head of the Civil Information and Education Section's Religions Division, but well after the Japanese government had accepted and published Government Section's revision plan [William K. Bunce, interview by author, 9 Oct. 1973]. 12. This article was also contributed by Roest [Harry Emerson Wildes, interview by Ross Driver, 23 Apr. 1972]. In European constitutions, freedom of speech and the press were usually coupled with a prohibition of censorship except as provided by law, and then only during war. The Weimar Constitution forbade retaliation against those exercising their freedom of speech. The Norwegian Constitution (1814) allowed that all were at liberty to speak freely and frankly; but it added: "No person can be punished for any writing, whatever its contents may be, unless he has willfully and clearly, either himself shown or incited others to disobedience to the laws, contempt of religion or morality or the constitutional authorities, or resistance to their orders, or has advanced false and defamatory accusations against any person" (Art. 100). Typical of clauses guaranteeing the sanctity of the mails was Article 14 of the Esthonian Constitution (1920): "The secrecy of communications by post, telegraph, telephone or other general means, is guaranteed. The Courts may authorize exceptions to this rule in cases provided for by law" [Shiva Rao, 154]. The First Amendment to the U.S. Constitution, which establishes that Congress shall make no law abridging freedom of speech or press, is so strict in language as to allow, on its face, no exceptions, nor any balancing of the right with the duty to use it well. Almost all state constitutions, however, including that of Pennsylvania (Art. I, Sec. 7), qualify these liberties by adding that the individual is not to abuse them. None, however, goes so far as to hold the individual responsible for the "consequences" of his actions. 13. European constitutions regularly conceded the right to assemble peaceably while circumscribing their guarantee with such restrictive requirements as citizenship or prior permission. No European

Civil Rights 16. Freedom of movement, choice of domicile, and choice of occupation are guaranteed to every person, provided they do not infringe upon the rights of others. All persons shall be free to emigrate if they so desire and if the laws of the country of their choice permit their entrance and residence; but no Japanese citizen can be banished from Japanese territory.14 17. Freedom of academic teaching, study, and lawful research are guaranteed to all adults. Any teacher who misuses his academic freedom and authority shall be subject to discipline or dismissal only upon the recommendation of the national professional organization to which he belongs or in which he has a right to membership.15 III. SPECIFIC RIGHTS AND OPPORTUNITIES

18. The family is the basis of human society and its traditions for good or evil permeate the nation. Hence marriage and the family are protected by law, and it is hereby ordained that they shall rest upon the undisputed legal and social equality of both sexes, upon mutual consent instead of parental coercion, and upon cooperation instead of male domination. Laws contrary to these principles shall be abolished, and replaced by others viewing choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family from the standpoint of individual dignity and the essential equality of the sexes.16 constitutional provision approaches draft Article 15 in wording—certainly none implied that leaders were responsible for the actions of their followers—but Article 99 of the Constitution of Norway (1814) did say: "The Government shall not be entitled to employ military force against citizens of the State, except in accordance with the forms provided for by law, unless an assembly should disturb the peace. ..." 14. Freedom of movement was guaranteed by at least ten prewar European constitutions, freedom of occupation or choice of profession by seven. Freedom to emigrate was granted to all citizens by the Weimar Constitution (Art. 112) and the Yugoslav Constitution (Art. 20), with some limitations in both cases. The Yugoslav Constitution also prohibited banishment of citizens (Art. 10). In proscribing banishment, the drafting committee may also have been influenced by a Japanese practice during the Tokugawa period (1600-1867) in which any Japanese attempting to leave the country—or to return from even an involuntary sojourn overseas—was subject to the death penalty. 15. Compare the Weimar Constitution, Article 142: "Art, science, and the teaching thereof are free. The state guarantees their protection and takes part in fostering them" [Goerner, 127]. See also the Constitution of the Polish Republic, Article 117: "Scientific research and the publication of results of such researches are free . . . " [Shiva Rao, 102]. The final clause of this draft article, which was contributed by Beate Sirota, is sui generis and probably inspired by the well-publicized troubles of scholars like Minobe Tatsukichi, who lost his teaching post and whose works were proscribed for daring to suggest that the Emperor was an organ of the state [Beate Sirota Gordon, interview by John McCobb and Roy Watanabe, 14 Apr. 1972]. 16. This draft article relied heavily on the Weimar Constitution, Article 119: "Marriage, as the foundation of family life and of the preservation and growth of the nation, is under the special protection of the Constitution. It rests upon the equal rights of both sexes. The preservation of the purity and health of the family and its social advancement is the task both of the State and of the local authorities...." The Weimar Constitution's Article 109 reiterated the equality before the law of all citizens and noted: "Men and women have fundamentally the same civil rights and duties" [Shiva Rao, 228-29]. The Yugoslav Constitution of 1921 also afforded marriage the protection of the state (Art. 28). MacArthur strongly supported granting Japanese women equality with men and may have approved this article because it echoed a clause on marriage in the Philippine Commonwealth Constitution. Despite its unpopularity with Filipino politicians, a bill granting women suffrage passed the Philippine legislature in 1933 due to the concerted support of the American Governor-General, Frank Murphy. One year after the legislature gave women the vote, however, the Philippine Constitutional Convention chose to take it away, stipulating that suffrage belonged to male citizens only. The Convention's flouting of extant law was not popular with either the Philippine public or the press. Robert Smith,

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Appendix D 19. Expectant and nursing mothers shall have the protection of the State, and such public assistance as they may need, whether married or not. Illegitimate children shall not suffer legal prejudice but shall be granted the same rights and opportunities for their physical, intellectual and social development as legitimate children.17 20. No child shall be adopted into any family without the explicit consent of both husband and wife if both are alive, nor shall any adopted child receive preferred treatment to the disadvantage of other members of the family. The rights of primogeniture are hereby abolished.18 21. Every child shall be given equal opportunity for individual development, regardless of the conditions of its birth. To that end free, universal and compulsory education shall be provided through public elementary schools, lasting eight years. Secondary and higher education shall be provided free for all qualified students who desire it. School supplies shall be free. State aid may be given to deserving students who need it.19 22. Private educational institutions may operate insofar as their standards for curricula, equipment, and the scientific training of their teachers do not fall below those of the public institutions as determined by the State.20

analyzing the draft constitution in a report forwarded to MacArthur, noted that the Convention had elsewhere committed itself to equality of the sexes in a clause stating that marriage "'as the foundation of the family . . . rests upon the equal civil rights of both sexes, and no law impairing this equality is valid.'" Smith considered this one of the most drastic and far-reaching provisions in the draft, but noted that because centuries of Spanish domination had exacerbated native tendencies to view women as chattel, the clause was not likely to survive [n.d., Lieutenant Robert A. Smith, "Analysis of the Proposed Constitution of the Philippine Commonwealth" (NA, RG 165: WPD Series 3389-10)]. Beate Sirota drafted most of the articles in this section, except for the articles on the right to organize (Art. 31), labor rights (Art. 32), and state ownership of the land (Art. 36), which were probably contributed by Wildes [Beate Sirota Gordon, interview by John McCobb and Roy Watanabe, 14 Apr. 1972]. 17. Cf. Weimar Constitution, Article 119:"... Motherhood has a claim to the protection and care of the state" [Goerner, 122]. An even more likely model was the Soviet Constitution (1936), Article 122, which provided for "state protection of the interests of mother and child, state aid to mothers of large families and to unmarried mothers, maternity leave with full pay, and the provision of a wide network of maternity homes, nurseries, and kindergartens" [Goerner, 215]. The draft clause regarding illegitimate children derived from the Weimar Constitution, Article 121: "Illegitimate children shall be provided by law with the same opportunities for their physical, mental, and moral development as legitimate children" [Goerner, 123]. Meiji civil law discriminated against illegitimate children in matters of inheritance. 18. This provision was designed to eradicate a peculiarly Japanese custom, the adoption of a male child (or even male adult) as principal heir, often into a family by no means childless. Since inheritance as codified by Meiji law was based on primogeniture (primarily to keep a family's agricultural holdings intact), substantial rights and privileges devolved upon whoever was lucky enough to be born first—or to be adopted to displace the firstborn. 19. The Weimar Constitution provided for the education of the young in public schools; it also stipulated: "Attendance at school is obligatory. ... Instruction and school supplies in the elementary and continuation schools are free" (Art. 145). For those children qualified for training at secondary and higher schools but "in poor circumstances," the Weimar offered public assistance [Goerner, 123, 127]. Similarly, the Soviet Constitution (1936) offered a compulsory free eight-year education and state grants. The Soviet guarantee of a right to education extended to adults as well as children. 20. Cf. Weimar Constitution, Article 147: "Private schools ... require the approval of the state and are subject to the laws of the state. Approval shall be granted if the private schools do not fall below the public schools in their educational aims, equipment, and in the scientific training of their teachers . . . " [Goerner, 128].

Civil Rights 23. All schools, public or private, shall consistently stress the principles of democracy, freedom, equality, justice, and social obligation; they shall emphasize the paramount importance of peaceful progress, and always insist upon the observance of truth and scientific knowledge and research in the content of their teaching.21 24. The children of the nation, whether in public or private schools, shall be granted free medical, dental and optical aid. They shall be given proper rest and recreation, and physical exercise suitable to their development.22 25. There shall be no full-time employment of children and young people of school age for wage-earning purposes, and they shall be protected from exploitation in any form. The standards set by the International Labor Office and the United Nations Organization shall be observed as minimum requirements in Japan.23 26. Every adult Japanese has the right to earn a living by productive work. Insofar as a suitable occupation cannot be found for him, provision shall be made for his necessary maintenance. Women shall have the right of access to all professions and occupations, including the right to hold office, and shall receive the same compensation as men for equal work.24 27. In all spheres of life laws shall be designed only for the promotion and extension of social welfare, and of freedom, justice and democracy. All laws, agreements, contracts or relationships, public or private, which restrict or tend to destroy the welfare of the people shall be replaced by others which promote it.25

21. Cf. Weimar Constitution, Article 148: "All schools shall inculcate moral education, civic sentiment, and personal and vocational efficiency in the spirit of German national culture and of international conciliation . . . " [Goerner, 128]. Sirota replaced these principles with ones more congenial to the spirit of the immediate postwar era. Ironically, she did not choose to include a clause from this same Weimar article providing that every pupil was to receive a copy of the Republic's constitution upon completion of his education. See also the Constitution of the Czechoslovak Republic, Article 119: "Public instruction shall be carried on so as not to be in conflict with scientific research" [Shiva Rao, 22. The Yugoslav Constitution, Article 27-5, provided for free medical aid and supplies for poor citizens. 23. Cf. Weimar Constitution, Article 122: 'Youth shall be protected against exploitation as well as against neglect of their moral, mental, or physical welfare . . . " [Goerner, 123]. The Polish (1921) and Mexican (1917) Constitutions included detailed provisions regarding the employment of minors and women. The Polish Constitution, Article 103, forbade the "employment for wages of children or adolescents who should be attending school . . . " [Shiva Rao, 100]. 24. Cf. Weimar Constitution, Article 163-2: "Every German shall have the opportunity to earn his living by economic labor. So long as suitable employment cannot be procured for him, his maintenance shall be provided for. . . ." And Article 1 28 provided: "All citizens without distinction are eligible for public office in accordance with the laws and according to their ability and services. All discriminations against women in the civil service are abolished . . . " [Goerner, 132, 123—24]. Likewise, the Soviet Constitution granted its citizens the right to work (Art. 118), accorded women "the same rights as men to work, payment for work, rest and leisure," and placed women "on an equal footing with men in all spheres of economic, government, cultural, political, and other social activity" (Art. 122) [Goerner, 215]. 25. Years spent in prewar Japan had given Beate Sirota a skeptical view of the Japanese family system, a system in which individual rights were traditionally subordinated to the welfare of the larger family unit, sometimes to their extinction. In this article, Sirota took aim against the prewar Civil Code, which buttressed the family system by legally sanctioning discrimination against women in matters legal, political, economic, and social. For a description of the prewar Code's operation, see Watanabe Yozo, "The Family and the Law: The Individualistic Premise and Modern Japanese Family Law," in Arthur Taylor von Mehren, ed., Law in Japan: The Legal Order in a Changing Society (Cambridge: Harvard University Press, 1963), 365 ff.

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Appendix D 28. The State shall assume the burden of extensive public health measures. Peaceful sports shall be encouraged.26 29. Adequate systems of social insurance, including old age pensions, dependency allotments, mothers' assistance, accident-, health-, disability-, unemployment-, and life insurance, shall be provided by law under terms and provisions meeting at least the minimum standards approved by the International Labor Office and the United Nations Organization. Special protection shall be afforded to women, children, and underprivileged groups. It is the duty of the State to protect its citizens against all want and neglect not willfully incurred.27 30. All workers are entided to adequate rest, leisure and recreation. Minimum standards for working conditions, wages and hours shall be prescribed by law in accordance with International Labor Organization standards. Employers shall be obliged to grant their employees such free time (without loss of earnings) as is required for the performance of the employee's civic duties and the exercise of his civil rights.28 31. Japanese citizens have the right to organize freely in societies, unions or associations for any peaceful purposes; but secret political, militaristic or ultra-nationalistic organizations are prohibited, as shall be all organizations cultivating civil, international or interracial antagonism and strife.29 32. Employers and employees shall have the right to collective bargaining. Labor, except in essential services, shall have the right to strike; but the deliberate wrecking

26. Cf. Yugoslav Constitution (1921), Article 27: "It shall be the concern of the State: (i) to ameliorate the general hygienic and social conditions affecting the health of the nation;... (3) to take measures for the preservation of the health of all citizens . . . " [Shiva Rao, 50]. 27. Cf. Weimar Constitution, Article 161: "The Reich will... create a comprehensive system of insurance for the maintenance of health and fitness for work, the protection of motherhood and provision for the economic consequences of old age, infirmity, and the vicissitudes of life" [Shiva Rao, 238]. See also the Yugoslav Constitution, Article 31: "Workmen's insurance against accident, sickness, unemployment, disablement from work, old age, and death shall be regulated by special legislation" [Shiva Rao, 51]. The draft article's clause providing special protection to mothers, children, and the underprivileged may have been inspired by Article 119 of the Weimar Constitution, which afforded mothers and children the protection and care of the state. The Soviet Constitution also guaranteed maintenance throughout sickness, disability, and old age (Art. 120). 28. The right to rest and leisure was established in Article 119 of the Soviet Constitution, which went into some detail about working hours. The right to recreation was implicitly guaranteed through provision for "a wide network of sanatoriums, holiday homes, and clubs for the accommodation of the working people" [Goerner, 215]. The Weimar Constitution, Article 162, committed Germany to initiating "international regulation of the legal conditions of workers, with a view to securing for the working class of the world a universal minimum of social rights" [Shiva Rao, 238]; Article 160 further specified: "Anyone employed on a salary or as a wage earner has the right to the free time necessary for the exercise of his civil rights . . . " [Goerner, 131]. 29. Cf. Weimar Constitution, Article 124: "All Germans have the right to form associations or societies for purposes not contrary to criminal law. This right cannot be limited by preventive measures.... Every association has the right of incorporation in accordance with the civil law. No association may be denied this right on the ground that it pursues a political, socio-political, or religious object" [Goerner, 123]The Committee drafted this article with an eye to the U.S. Initial Post-Surrender Policy for Japan, which provided for the suppression of institutions supportive of militarism and aggression, and SCAPIN 548 (4 January 1946), a GS-sponsored directive that banned any organization or party advocating resistance to the Occupation, exclusion of foreigners from Japanese commerce or trade, opposition to free intellectual and cultural intercourse between Japan and other nations, or support for Japanese hegemony in Asia.

Civil Rights of employer-employee cooperation by outside labor- or employer-organizations is prohibited.30 33. Intellectual labor and the rights of authors, artists, scientists and inventors shall be protected by law, whether they be Japanese or foreign.31 34. All forms of expression other than speech and press shall be accorded the same essential freedom, but legal measures for the suppression of indecent or degrading literature, plays, moving pictures, radio-broadcasts, and exhibitions shall be permissible for the protection of youth and the maintenance of high public standards.32 35. The right to own property is inviolable, but property rights shall be denned by law, in conformity with the public welfare.33 36. The ultimate title to the land and to all natural resources resides in the State as the collective representative of the people. Hence the ownership of land and its resources is to be interpreted as a lease, the right to which is forfeited by misuse or continued non-use, and the transfer of which is a transfer of leasehold rights subject to regulation by law, not a transfer of private property.34 37. Private property may be inherited, but the right of the State to share in inherited estates is undeniable and shall be fixed by law.35

30. No prewar European constitution employed such terms as "collective bargaining," although the Constitution of Czechoslovakia (1920) did grant the right of association "for the purpose of safeguarding and ameliorating economic conditions and the status of workers and employees" (Art. 114) [Shiva Rao, 193]. The Weimar Constitution likewise gave labor the right to organize (Art. 159) and appeared to give oblique sanction to the right to strike (Art. 151-2). The Mexican Constitution recognized both the strike and the lockout, but attempted to establish the bounds of legality for each through provisions such as the following: "Strikes shall only be considered unlawful when the majority of the strikers shall resort to acts of violence against persons or property, or in case of war when the strikers belong to establishments and services dependent on the Government..." (Art. 123-18) [Shiva Rao, 325]. The Trade Union Law passed by the Eighty-ninth Diet and promulgated in late December 1945 gave the right to organize and bargain collectively to some sectors of Japanese labor but withheld it from police, firemen, and prison employees. 31. Cf. Weimar Constitution, Article 158: "Intellectual labor, the rights of the author, the inventor, and the artist enjoy the protection and care of the Reich . . . " [Goerner, 138]. 32. Cf. Weimar Constitution, Article 118-2: "No censorship shall be enforced, but restrictive regulations may be introduced by law in reference to cinematograph entertainments. Legal measures are also admissible for the purpose of combatting bad and obscene literature, as well as for the protection of youth in public exhibitions and performances." 33. Both the Weimar and Yugoslav Constitutions qualified property rights with a public welfare clause (Arts. 153 and 37, respectively). 34. Cf. Constitution of the United States of Mexico (1917), Article 27: "The ownership of lands and waters comprised within the limits of the national territory is vested originally in the Nation, which has had, and has, the right to transmit the title thereof to private persons, thereby constituting private property. . . . The Nation shall have at all times the right to regulate the development of natural resources, which are susceptible to appropriation, in order to conserve them and equitably to distribute the public wealth . . . " [Shiva Rao, 284]. State ownership of land and its resources was also provided for in the Soviet Constitution of 1936, Article 6. The analogy of property ownership to leasehold rights seems to have originated with the drafting committee. 35. Cf. Weimar Constitution, Article 154: "The right of inheritance is guaranteed in accordance with the civil law. The share of the state in inheritances is determined in accordance with the laws" [Goerner, 130]. Inheritance was also considered a right subject to state regulation in the Yugoslav Constitution (Art. 39) and the Mexican Constitution (Art. 123-28).

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Appendix D 38. Contracts are protected by law, but usury is prohibited, and legal transactions which are contrary to public policy are null and void. The State shall not grant any monopolies.36 39. Property imposes obligations. Its use by the owner shall at the same time serve the public good. Where the public interest is clearly served better by public ownership, private property may be expropriated on the basis of law, and only upon fair compensation.37 40. The organization of Japan's economic life must conform to the principles of justice and democracy, to the end that all citizens may be guaranteed a decent standard of living. Within these limits the economic liberty and rights of the individual shall be assured.38 41. Cooperative as well as private enterprise shall be encouraged. Only such enterprises shall be transferred from private to public ownership as are deemed suitable for socialization by finding of an impartial, non-political economic council on which the government, labor, management and the public are equally represented. Such transfers are to be regulated by law.39 IV. JURIDICAL RIGHTS40

[42.] ARREST. No person, save those arrested in the act of law-breaking shall be apprehended except upon warrant issued by a competent officer of a court of law specifying the offense upon which the person may be charged. No person shall be arrested or detained without being at once informed of the charges against him nor without the privilege of counsel; she [sic] shall not be held incommunicado nor detained without adequate cause which must be immediately shown in open court upon demand of the accused or his counsel.

36. Cf. Weimar Constitution, Article 152: "Freedom of contract shall prevail in economic relations, subject to the provisions of the laws. Usury is forbidden. Contracts which are opposed to morality are void" [Shiva Rao, 236]. Similarly, the Yugoslav Constitution prohibited usury (Art. 36), and the Mexican Constitution proscribed monopolies (Art. 28). 37. Cf. Yugoslav Constitution (1921), Article 37: "... The obligations imposed by the private ownership of property shall be recognized. The use of property must not be injurious to the interests of the community. . . . Expropriation for reasons of public utility shall be permissible upon conditions determined by law and in return for fair compensation" [Shiva Rao, 52]. See also Weimar Constitution, Article 153: "... The ownership of property entails obligations. Its use must at the same time serve the common good" [Shiva Rao, 236]. 38. Cf. Weimar Constitution, Article 151: "The organization of economic life must correspond to the principles of justice, and be designed to ensure for all a life worthy of a human being. Within these limits the economic freedom of the individual must be guaranteed ..." [Shiva Rao, 236]. An almost identical provision appears in the Esthonian Constitution (1920), Article 25. 39. Cf. Weimar Constitution, Article 156: "The Reich may by legislation ... transfer to public ownership private economic undertakings which are suitable for socialization . . . " [Shiva Rao, 237]. See also Yugoslav Constitution, Article 29: "The State shall given material assistance to national cooperative organizations and other national economic associations not working for profit..." [Shiva Rao, 51]. On the origins of the council mentioned in the committee's draft, the Yugoslav Constitution provided for the establishment of an "Economic council... for the purpose of elaborating social and economic legislation . . . " (Art. 44) [Shiva Rao, 53]. 40. This final section of the chapter was untitled and unnumbered in the original. The title given here appears on the report of the drafting committee to General Whitney [Rowell Papers]. This section was the work of Harry Emerson Wildes, who apparently emulated the Pennsylvania Constitution's penchant for incorporating a host of points into a single article.

Civil Rights No person shall be deprived of life, liberty or property except according to procedures established by the Diet under this constitution nor shall any person be denied the right of appeal to the courts.41 [43.] SEARCH & SEIZURE. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, nor shall any warrant be issued except upon probable cause, supported by oath, and particularly describing the place to be searched and the person or things to be seized. Each search or seizure shall be made upon separate warrant issued for the purpose by a competent officer of a court of law.42 [44.] TORTURE. The use of torture, whether physical or mental, is absolutely forbidden to any public officer and strict punishment shall be inflicted upon any officer found guilty of such abuse. Excessive bail shall not be required, nor cruel and unusual punishments inflicted.43 41. European prewar constitutions differed considerably in their provisions on arrest and detention. One similar to this draft clause is the Constitution of Greece (1927), Article 11: "Except for the case of a flagrant offense no person shall be arrested or imprisoned except by virtue of an order giving reasons, delivered by the judicial authority and specifying the time of arrest or of imprisonment. Any person arrested for a flagrant offense or by virtue of an order shall be tried before the competent police magistrate without a delay of more than twenty-four hours counting from the moment of arrest. . . . The police magistrate is required without delay of more than forty-eight hours following the arrest either to place the person arrested at liberty or issue against him an order of arrest. . . ." Several other European constitutions used the twenty-four-hour rule (or imposed similar time limits), but few specified that the sole grounds for arrest were an offense committed in flagrante or a court order. None guaranteed right to counsel or offered security against being held incommunicado. Some, such as the Portuguese Constitution (1933) and the Weimar Constitution, provided for habeas corpus (Arts. 8 and 114, respectively). The final clause of the draft article contrasts with the Fifth Amendment to the U.S. Constitution, which provides for no deprivation of life, liberty, or property without due process of law. By specifying instead "except according to procedures established by the Diet under this constitution," the Civil Rights Committee may have been influenced by the Committee on the Diet. The latter feared that using the phrase "due process of law" or referring to procedures established by law might be construed by the Japanese as permitting the use of executive ordinances in setting the rules of judicial procedure. Drafts produced by Matsumoto and private Japanese groups preferred the phrase "as provided by law," which the GS drafters thought might be a catchphrase used to exclude Diet participation. 42. The language of this article derives from the Fourth Amendment to the U.S. Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, support by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." No American state or European constitution specified the need for separate warrants for each search or seizure, although the Mexican Constitution (1917) implied it: "... Every search warrant, which may only be issued by the judicial authority, and which must be in writing, shall specify the place to be searched, the person or persons to be arrested, and the object sought, to which the proceedings shall be strictly limited . . . " (Art. 16) [Shiva Rao, 280]. 43. Coercion of confessions was considered by the Occupation a major problem in the Japanese system of criminal justice. The Kenpo Kenkyukai reform plan suggested a ban on torture, but the sole Western constitution prohibiting torture appears to have been the Mexican Constitution (1917), Article 22: "Punishments by mutilation and infamy, by branding, flogging, beating with sticks, torture of any kind, excessive fines, confiscation of property and any other unusual or extraordinary penalties are prohibited" [Shiva Rao, 283]. Both the Yugoslav Constitution of 1921 (Art. 19) and the Spanish Constitution of 1931 (Art. 29) made provision for punishing officials guilty of infringing constitutional safeguards pertaining to arrest and custody. The final clause of the draft article comes from the Seventh Amendment to the U.S. Constitution: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." There is no indication why the proscription of excessive fines was omitted.

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Appendix D [45-] TRIAL. In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. He shall be clearly informed of the nature and cause of the accusation immediately upon arrest, or within 24 hours of such arrest; he shall, at his trial, be confronted with all the witnesses against him and be permitted through counsel to cross-examine such witnesses, and he shall have the right of compulsory process for obtaining witnesses, at public expense, in his favor. At all times the accused shall have the assistance of competent counsel who shall, if the accused be unable to secure the same by his own efforts, be assigned to his use by the government. No person shall be twice placed in jeopardy for the same offense.44 [46.] EX POST FACTO LAWS. No ex-post facto law shall be enacted, nor any punishment inflicted penalizing any person for an act lawful at the time it was committed. No person shall be declared guilty of a crime except upon fair and open trial wherein the accused shall be properly represented by competent counsel, nor shall any person be deprived of civil rights without a trial. Trial by jury shall be accorded to anyone charged with a capital offense, and to anyone accused of a felony, at the request of the accused.45 [47.] TESTIMONY. No person shall be compelled to testify against himself, nor shall the testimony of a wife or husband be accepted in evidence against the spouse of such wife or husband. No confession shall be valid unless made in die presence of counsel for the accused, nor shall it be valid if made under compulsion or torture or threat. No person shall be convicted and punished in cases where the only proof against him is his own confession.46 44. Cf. U.S. Constitution, Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense." The drafting committee also inserted the twenty-four-hour rule used in certain European constitutions to govern arraignment of the accused. This may have been redundant, because a less explicit guarantee was made in draft Article 42 concerning arrest and custody. Regarding the clause on double jeopardy, compare the Fifth Amendment to the U.S. Constitution: "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." Following the pattern of the Pennsylvania Constitution, the draft article did not mention a presumption of innocence. 45. Cf. U.S. Constitution, Article I, Section 9-3: "No Bill of Attainder or ex post facto Law shall be passed." Eight prewar European constitutions also prohibited inflicting punishment for acts lawful at the time committed, however later denned. Although the remainder of the draft article was reminiscent of the Fifth Amendment to the U.S. Constitution in style, it replaced that Amendment's guarantee of a grand jury with assurances of a fair and open trial. European constitutions usually acknowledged simply the right of the accused to trial by the court of proper jurisdiction. Perhaps thinking of the American judicial system, the Committee on Civil Rights neglected to include any prohibition against extraordinary tribunals, although at least one European constitution included such a clause, as did the Pennsylvania Constitution. American state constitutions almost invariably grant a right to trial by jury in all criminal cases, a grant also made in the Sixth Amendment to the U.S. Constitution. Trial by jury for cases involving life imprisonment or death had been introduced to Japan by the Jury Law of 1923. Modeled after the civil law system in which the judge questioned the defendant and instructed the jury not only as to the law but also as to the facts, the system was tried experimentally for a few years but discontinued entirely in 1943. 46. Cf. U.S. Constitution, Fifth Amendment: ". . . nor shall [any person] be compelled in any criminal case to be a witness against himself...." Among federal and state constitutions, only that of Utah

Civil Rights [48.] EXTRADITION. The right of extraditing persons from Japan who have fled from or escaped justice in foreign countries shall not be denied in such cases when official representatives of such foreign nations may request it.47 APPENDIX D-2 Draft of the Committee on Civil Rights, as amended by the Steering Committee on 8 February 1946 CIVIL RIGHTS I. GENERAL

1. The people of Japan are entitled to the enjoyment without interference of all fundamental human rights that do not conflict with the equal enjoyment of those rights by others. 2. The enumeration in this Constitution of certain freedoms, rights and opportuni ties shall not be construed to deny or disparage others retained by the people.48 The fundamental human rights hereinafter by this constitution conferred upon and guaranteed to the people of Japan result from the age-old struggle of man to be free. They have survived the exacting test for durability in the crucible of time and experience and are conferred upon this and future generations in sacred trust, to be held for all time inviolate.49

has a provision preventing one spouse from testifying against another (Art. I, 12). Similarly, only the constitution of Louisiana (1921) prohibits "treatment designed by effect on body or mind to compel confession of crime." Louisiana further provides that no confession is to be admissible "unless freely and voluntarily made" (Art. I, Sec. 11). No constitution, American or European, required the presence of counsel to validate a confession, and none interdicted convictions based solely upon the confession of the accused. Such clauses in this draft chapter were revolutionary for their time—and their context. "It has been suggested that a constitutional provision require that no confession be admitted in evidence in any court proceeding unless the counsel for the accused was present at the time the confession was made," Rowell had earlier written in a memorandum for Whitney to send SCAP. "This is an extreme provision, but many Japanese lawyers are of the opinion that it would not unduly interfere in the administration of justice" [i i Jan. 1946, Whitney to C/S (Rowell Papers)]. Whether the drafting committee knew of this suggestion is not clear. 47. When mention was made of it at all in any European constitution, extradition was usually prohibited, at least as applied to citizens of that state. 48. According to Ellerman's minutes, "Commander Hussey objected to Article [2] on the grounds that it reserved unenumerated rights to the people. Residual power is in the Diet and the people can have no rights against a Diet which is their own creation. It is stated elsewhere in the Constitution that the will of the people, exercised through the Diet, is supreme" [8 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Hussey also observed that this article might fit a state constitution, but not a national one [Ellerman Notebook D (Michigan: Hussey Papers)]. In fact, the article was taken almost verbatim from the Ninth Amendment to the U.S. Constitution. 49. This article, which was Whitney's idea, was added after the meeting between the drafting committee and the Steering Committee on 8 February. So proud was the General of his contribution that he monitored its progress through subsequent negotiations with the Japanese and would not countenance the alteration of a single syllable. When the Japanese government balked at accepting anything so alien in literary style, Kades replied that it came from "higher authority," which deterred tampering [Charles L. Kades, interview by author, 29 Sept. 1973]. The article was later moved to Chapter X (Art. 97 of the Constitution as finally adopted by the Diet).

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Appendix D 3. The freedoms, rights and opportunities provided by this Constitution derive from are maintained by the self-disciplined cooperation of the people. They therefore involve a corresponding obligation on the part of the people to prevent their abuse and to employ them always for the common welfare. Hence every freedom entails a corre spending responsibility, every right a corresponding duty, and every opportunity a corresponding effort on the part of those who benefit by it.50 4. No subsequent amendment of this Constitution and no future Constitution, law or ordinance shall in anyway limit or cancel the rights to absolute equality and justice herein guaranteed to the people; nor shall any subsequent legislation subordinate public welfare, democracy, freedom or justice to any other consideration whatsoever. Any existing legislation in conflict with the principles embodied in this Constitution shall be null and void.51 5. The feudal system of Japan shall cease. All Japanese by virtue of their humanity shall be respected as individuals. Their right to life, liberty and the pursuit of happiness within the limits of the general welfare shall be the supreme consideration of all law, and of all governmental action.52

50. Discussion of Article 3 was deferred [Ellerman Notebook D (Michigan: Hussey Papers)], but the drafting committee modified the article immediately after this session. 51. As Ellerman recorded, "A sharp and fundamental difference of opinion developed between the Steering Committee and the Drafting Committee in the discussion of Article [4], that asserts that no future Constitution, law or ordinance shall limit or cancel the rights guaranteed in this Constitution, or subordinate public welfare and democracy to any other consideration. Colonel Kades strongly objected to the assumption of infallibility implicit in this Article and the denial of one generation of the rights of future generations to order their own affairs. As written, amendments to the Bill of Rights would be invalid and change could come only through revolution. "Colonel Roest defended this Article by premising that the present age has arrived at a certain stage of Progress, and that no future generation should be permitted to abrogate the rights now accepted as inherent in the state of man. He continued, that it was not enough, as Colonel Kades believed, to set up a democratic government in Japan, but rather that we must guarantee for all time the social and moral advances made up to the present. Mr. Wildes expressed the belief that the omission of Article [4] inevitably opened the gates to Fascism in Japan. "Commander Hussey pointed out that Article [4] not only attempted to exalt opinion and a theory of government to the stature of constitutional law, but it was impractical as well. Enforcement of this Article will depend upon the interpretations of the Supreme Court rather than upon precise rules laid down in the Constitution. "No satisfactory compromise could be reached. It was decided to submit Article [4] to General Whitney for decision on inclusion or omission. (In the final draft of the document, this Article was omitted.)" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. In Ellerman's minutes, Hussey is pictured as strongly opposed to the article; in her notes (and apparently in actuality), he was more inclined to include it than were Rowell or Kades. "I would have raised Cain if this had stayed in," Kades said later. "I felt very strongly on it" [Ellerman Notebook D (Michigan: Hussey Papers); Charles L. Kades, interview by author, 29 Sept. 1973]. When this article, typed separately, was submitted to the Chief along with the final version of the chapter, Whitney passed both on to MacArthur, whose sole substantive change to the entire draft constitution was scrapping this clause [Charles L. Kades, interview by author, 29 Sept. 1973]. 52. According to Ellerman, "The Steering Committee objected to the original form of Article [5], that states that the right of individuals to life, liberty and the pursuit of happiness shall be the supreme consideration of all law. This conflicts with the earlier clause that gives the common welfare precedence over the right of the individual. The text was amended to include 'within the general welfare'" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The clause abolishing feudalism came from MacArthur's "basic points" for inclusion in the revised constitution.

Civil Rights 6. All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic, educational, and domestic relations on account of race, creed, sex, caste or national origin. No patent of nobility shall from this time forth embody within itself any national or civic power of government. No rights of peerage except those of the Imperial family shall extend beyond the lives of those now existent. No special privilege shall accompany any ownership or grant of tide, honor, decoration or other distinction; nor shall any such ownership or grant of distinction, whether now existing or hereafter to be conferred, be valid beyond the lifetime of the individual who now owns or may receive it.53 7. The people are the ultimate arbiters of their government. They have the inalienable right to elect choose their public officials and to dismiss them by the process of impeachment or recall. All public officials are servants of the whole community and not of any special groups. In all elections, secrecy of the ballot shall be kept inviolate, nor shall any voter be answerable, publicly or privately, for the choice he has made.54 8. Every person has the right of peaceful petition for the redress of grievances, as well as for the enactment, repeal or amendment of laws, ordinances and regulations; nor shall any person or organization be in any way discriminated against for making such a petition. 9. Every citizen has the right to compensation for damage inflicted or loss sustained by an official act not in accordance with the law.55

53. The Steering Committee members revealed their legal backgrounds by moving to prevent the possible, if far-fetched, interpretation that juristic persons (as well as natural persons) enjoyed equality before the law. The clauses limiting peerage rights and privileges, inserted here at the Steering Committee's insistence, were from MacArthur's basic points [Ellerman Notebook D (Michigan: Hussey Papers) ]. 54. As Ellerman wrote, "The Steering Committee objected to the clause in Article [7] that states that the people have the inalienable right to elect their public officials. Colonel Kades stated that this makes it necessary for all public officials to be elected, although constitutional provision had been made only for the election of members to the Diet. It was decided that the text should be amended to read, 'They (i.e., the people) have the inalienable right to choose their public officials and to dismiss them'" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. SWNCC 228 stipulated that the electorate was to be based upon wide, representative suffrage. The Steering Committee raised, but did not settle, the question of whether this was the appropriate place to insert a guarantee of universal suffrage. It may have been one of those points lost among the details. An explicit statement of universal suffrage was not included until much later, and then at the insistence of the Far Eastern Commission. 55. According to Ellerman, "The Steering Committee recommended the omission of Article [9] that gives every citizen the right to compensation for damage inflicted or loss sustained by any official act not in accordance with the law. Colonel Rowell pointed out that this provision gives encouragement to procurators and police in the use of third degree and torture in order to secure a confession. If a man is charged and the authorities fail to secure a conviction, the authorities are liable to lawsuit and the payment of damages. Commander Hussey added that making the State liable to suit involves a highly complicated procedure. "Colonel Roest defended the provision on the grounds that it gives protection to citizens by preventing the police from invading private homes, beating up people, taking property, etc. Colonel Kades stated that lawless actions on the part of officers of the law can be prevented by ordinary law; they can be sued as persons and damages collected if they are convicted. The Article was omitted" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Rowell's objection—that such a clause provided incentive for extorting confessions—was one he had raised earlier with regard to a private Japanese reform draft that provided for indemnifying those acquitted of crimes. But draft Article 9 was quite different in purport. An arrest in which lawful

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Appendix D 10. Aliens shall be entitled to the equal protection of Japanese laws, provided they recognize the obligations of observing the laws. When charged with any offense they are entitled to use the assistance of their diplomatic representatives and of interpreters of their own choosing. Naturalization shall not be made compulsory.56 II. FREEDOMS

11. Freedom of person is the inalienable right of all law abiding Japanese. No indi vidual person unless convicted of crime shall be held in enslavement, serfdom or bondage of any kind. Involuntary servitude including compulsory labor for a term where payment in advance has been made . except as a punishment for crime, is prohibited.57

procedures were faithfully observed could hardly be considered an "official act not in accordance with the law." The purpose of the clause was to discourage high-handed behavior by the state. The major obstacle to acceptance lay in the doctrine of sovereign immunity, which the Steering Committee, with its common law background, found impossible to reconcile with a right to compensation. In American legal history there were no adequate definitions of the terms under which an individual might sue the state. The sole item of precedential value was a piece of Reconstruction legislation, Section i of the so-called Ku Klux Klan Act of 1871, which, as revised, read: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress" [R.S. 1979, 42 U.S.C. 1983]. But the purpose of the Ku Klux Klan Act was to offer a federal remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law" [Monroe v. Pape, 365 U.S. 176 (1960)]. The Steering Committee was cognizant that such legislation traditionally vested responsibility in the individual and not in the state employing him. The Steering Committee rejected the draft article because the prospect of suing the state, rather than the responsible official in his private capacity, made them uncomfortable. "I didn't think that a citizen, as a citizen, had the right to sue officials," Kades later commented. He and Rowell feared such a constitutional guarantee would "cause a tremendous amount of litigation and the courts wouldn't have time to decide anything else" [Charles L. Kades, interview by author, 29 Sept. 1973]. Perhaps more important, the Steering Committee envisioned the chapter on the Judiciary as offering relief from official abuses of power by granting the courts a power of review they had never before possessed over decisions of the executive. If Kades and the others had known more of the history of administrative litigation in Japan, they might have reconsidered. The heart of the matter for the Japanese was notjusticiability but ultimate government accountability for the actions of its agents. The Diet later sought to insert an indemnification provision and a clause similar to this chapter's draft Article 9 (though more explicit regarding governmental responsibility). When approached by Diet leaders regarding this in the summer of 1946, Kades raised no objections. The result was Articles 17 and 40 of the present Japanese Constitution. 56. As Kades observed, resident aliens were normally considered bound by the laws of the host state, whether they formally recognized them or not [Ellerman Notebook D (Michigan: Hussey Papers) ]. Extending equal protection of the laws to aliens was required by SWNCC 228. 57. As Ellerman recorded, "In Article [ 11 ] Colonel Rowell objected to the limitation placed upon freedom of person in the statement that 'Freedom of person is the inalienable right of all law-abiding Japanese.' The qualifying clause is reminiscent of usage in the present Japanese constitution where the enjoyment of certain rights is guaranteed 'within the limits of the law.' Commander Hussey and Colonel Kades objected to this first sentence of Article [i i] on the grounds that it was too sweeping a statement; there is no such thing as complete freedom of person. Its inclusion in the Constitution would mean that every time the State wanted to take action, objections could be made that the action involved an invasion of freedom of person. The real intent of this Article is that no person is property. Therefore it is adequate to provide that 'no person shall be held in enslavement, serfdom or bondage of any kind'" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The Steering Committee found the phrase "freedom of person" disconcertingly vague [Charles L. Kades, interview by author, 29 Sept. 1973]. When Roest denned this as freedom of control over one's own faculties, Rowell observed that such a broad interpretation would interfere with such requirements

Civil Rights 12. Freedom of thought and conscience shall be held inviolable. No legislation or decree of any land shall ever be issued that would in any way limit it or interfere with it. 13. Freedom of religion is guaranteed to all. No religious organization shall receive special privileges from the State or its national or local authorities, nor may ecclesias tical functionaries abuse their spiritual authority for political purposes . nor exercise political authority. No person shall be compelled or pressed to take part in any religious acts, celebrations, rites or practices. No religious body will be recognized as such if under the dis guise of religion, it should stir up and practice antagonism to others or should weaken instead of strengthen public order and morality. The State and its organs shall refrain from religious education or any other religious activity.58

as compulsory vaccinations. Rowell further objected to reserving this guarantee—or any others—to Japanese alone, and only to "law-abiding" Japanese at that [Ellerman Notebook D (Michigan: Hussey Papers) ]. 58. According to Ellerman's minutes, "As originally written Article [13] not only guaranteed freedom of religion but expressly forbid all ecclesiastics from political activity of any kind. The Steering Committee questioned both the wisdom and the practicality of the latter provision. Colonel Kades objected that the denial of political activity to ecclesiastics involved the denial to them of freedom of speech and press as well. A special prohibition of this kind has no place in a Constitution, which should be a Bill of Rights, rather than a Bill of Restrictions. "Colonel Roest stated that the Article was designed to prevent the abuse of spiritual authority to political ends. Japan has been a priest-ridden country for generations and political tyranny has been reinforced by the threat of spiritual punishment. It must be made clear to the Japanese that no political authority is attached to any ecclesiastical organization. "Commander Hussey agreed that people are persuaded to political action by the authority of the church, but pointed out that this is a matter of individual conscience, unlikely to be corrected by constitutional provision or statutory law. The further provision that 'no religious body will be recognized as such if under the disguise of religion, it should stir up and practice antagonism to others or should weaken instead of strengthen public order and morality' could be used to justify the suppression of any new religious sect because it might disturb the established public order. On the one hand the Drafting Committee forbids ecclesiastical penetration into politics but on the other, it condones State interference with religion. "The Article was shortened and amended by the Steering Committee to read as a straightforward guarantee of freedom of religion and the separation of church and state" [8 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Roest defended his draft strongly, arguing that the ecclesiastical authority of certain sects was so powerful that members would pursue any political action advocated by their leaders. Adopting this clause would force "public reflection" upon a problem usually ignored by "most religious people." But as one participant observed, Roest's view of the world seemed premised upon "profound distrust of mankind's intelligence" [Ellerman Notebook D (Michigan: Hussey Papers) ]. Roest apparently shared a common GHQ misconception that Shinto priests were "the chief agitators of a narrow-minded nationalism" [Wilhelmus H. M. Creemers, Shrine Shinto after World War II (Leiden: E. J. Brill, 1968), 46]. The Steering Committee noted that the draft article attempted to cover specific possibilities, whereas a constitution should be restricted to universals. Rowell, remarking that the Japanese government did not consider Shinto a religion, wondered if the final clause might not become a loophole permitting Shinto's reentry into school curricula [Ellerman Notebook D (Michigan: Hussey Papers)]. Since the Meiji era, the status of Shinto shrines had been problematical. The Japanese government finally deemed them nonreligious institutions, vesting supervisory authority over them in a Shrine Board within the Ministry of Welfare. Although informed by the Japanese government in October 1945 that Japan had no state religion and that the shrines were not treated administratively as religious institutions, the Civil Information and Education Section began its studies of Shinto with the assumption that it was a religion and should be regarded as such—an assumption shared by Shinto leaders. Finally, the Japanese government was forced to concede the essentially religious character of the shrines, even those historically associated with the Imperial family. Ironically, such recognition saved

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Appendix D 14. Freedom of assembly, speech and press are guaranteed, including the right to criticize any public official, agency, or practice, or to urge the enactment, amendment or repeal of any law. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated except in cases of criminal investigation. This freedom shall not be interpreted to permit slander, black mail, libel, the deliber ate spreading of falsehoods or malicious rumors, nor the deliberate excitation of hatred against any law abiding group, nor the wanton incitement of disturbance or violence. All persons shall be held accountable for the consequences of their words or actions. All forms of expression other than speech and press shall be accorded the same essential freedom, but legal measures for the suppression of indecent or degrading literature, plays, moving-pictures, radio-broadcasts, and exhibitions shall be permissible for the protection of youth and the maintenance of high public standards.59 15. Freedom of assembly is guaranteed to all persons for the peaceful consideration or public demonstration of whatever matters may concern them. Such meetings shall at all times, except in the event-of uncontrolled disorder or violence be free from inter ruption or interference by any governmental authority; but leaders and speakers will be responsible for the direct consequences of their activity.60

Shinto, for suppressing a religion would have violated SCAP's announced policy of religious freedom [Creemers, 46—49; Woodard, 58 ff.]. A test of the Government Section's tolerance arose almost immediately with the formation of the Japan Buddhist Political Party, which sought representation in the Diet to prevent the government from resurrecting its policy of discriminating against Buddhism and in favor of Shintoism. The party's platform opposed Shinto as a religion but tolerated its propagation as a system of national mythology and morality. General Whitney recommended observing the party but taking no action against it. The party seemed harmless enough, and Whitney noted that dissolving the group would "raise the issue of the right to organize politically when no militarist or ultra-nationalist leadership or ideology are involved. Until now this right has not been in doubt" [26 Feb. 1946, GS to C/S (WNRC, RG 331: SCAP, ACS: Class. Dec. File ooo.i J No. i, Box 763)]. 59. As Ellerman wrote, "Article [14] guaranteed freedom of speech and press but restricted this freedom to the exclusion of slander and libel. Colonel Kades objected to the prohibition of libel and slander as a serious delimitation on the freedom of speech. Any criticism of government policy or action could be effectively muzzled by terming it slander or libel and hence liable to court action. The responsibility for proving slander or libel should be upon the individual and not upon the State. In the U.S. Constitution the guarantee of freedom of speech was written in to prevent the passage of a criminal libel law. "This paragraph was struck out and the Article rewritten to stand as a simple guarantee of the freedom of assembly, speech and press and all other forms of expression, without constitutional limitation" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The American legal tradition permits tort actions for libel, but subjects these to certain limitations designed to preserve the public interest in a free press. This draft article, however, raised the specter of state criminal prosecutions for libel. Although the Steering Committee deleted the final paragraph, the drafting committee added another clause taken from their draft Article 34. This, too, was deleted by the Steering Committee in conference the following day. 60. According to Ellerman, "In considering Article [15] the Steering Committee objected to the limitation placed upon freedom of assembly by the inclusion of the qualifying clause 'for peaceful consideration.' Instead of hedging the basic freedoms, the emphasis must be thrown upon the responsibility of the State to protect the people in the exercise of freedom of speech, press and assembly. "The clause was omitted" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. It was Kades who insisted that basic freedoms not be subjected to limitation within the constitution [Ellerman Notebook D (Michigan: Hussey Papers)]. Later Kades said that qualifications scared the Steering Committee, "because we were afraid we'd end up with the provisions of the Meiji Constitution—'except as otherwise noted.'" The Steering Committee realized that stating these freedoms absolutely might cause the Japanese courts interpretive difficulties: "[W]e knew that freedom of speech

Civil Rights 16. Freedom of movement? and choice of domicile, and choice of occupation are guaranteed to every person, provided they do not infringe upon the rights of others conflict with the general welfare.61 All persons shall be free to emigrate if they so desire and if the laws of the country of their choice permit their entrance and residence; but no Japanese citizen can be banished from Japanese territory. Emigrants shall be permitted to change their nationality. 17. Freedom of academic teaching, study, and lawful research choice of occupation are guaranteed to all adults. Any teacher who misuses his academic freedom and authority shall be subject to discipline or dismissal only upon the recommendation of the national professional organization to which he belongs or in which he has a right to membership.62 Article . It shall be the duty of government to protect these freedoms.63 III. SPECIFIC RIGHTS AND OPPORTUNITIES SOCIAL AND ECONOMIC RIGHTS 18. The family is the basis of human society and its traditions for good or evil permeate the nation. Hence marriage and the family are protected by law, and it is hereby ordained that they shall rest upon the undisputed legal and social equality of both sexes, upon mutual consent instead of parental coercion, and upon cooperation instead of male domination. Laws contrary to these principles shall be abolished, and replaced by others viewing choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family from the standpoint of individual dignity and the essential equality of the sexes.64 didn't mean the freedom to cry 'Fire!' in a crowded theater; but the Japanese wouldn't necessarily know that Justice Holmes had said that and that your own freedom of speech didn't mean you could say anything you wished to regardless of its effects" [Charles L. Kades, interview by author, 12 Dec. 1973]. The Japanese courts would have to figure out their own qualifications, in response to specific cases; it was not the duty of the constitution to set those limits. 61. Kades found the language of this article self-contradictory; Rowell had reservations about the manner in which freedom of occupation was qualified [Ellerman Notebook D (Michigan: Hussey Papers)]. The restriction was removed by transferring the right to free choice of occupation to Article 17, which guaranteed it only to adults. 62. As Ellerman recorded, "Article [17] guaranteed freedom of academic teaching, study, and lawful research, and restricted the authority for dismissal of teachers to professional organizations or societies. The Steering Committee objected to the guarantee of research since the Allies intend to severely restrict some kinds of research and entirely forbid others. "Colonel Kades outlawed the restriction upon dismissals as procedure impertinent in a Constitution and properly belonging in statutory law, if anywhere. Colonel Roest defended its inclusion as a necessary corollary to academic freedom and as a specific against future 'monkey trials.' Colonel Kades objected that this clause vested constitutional authority in irresponsible bodies; no powers of government can be given to or exercised by any authority or society that is not responsible to the Diet. "The clause was dropped from the amended text" [8 Feb. 1946, Ellerman Minutes (Rowell Papers)]. 63. This unnumbered article was an afterthought added by the drafting committee to their report to General Whitney (for its basis, see footnote 60 to this appendix). The Steering Committee did not include it in the final draft presented to the Japanese government. 64. According to Ellerman, "Articles [18] through [25] of the original draft gave detailed orders for the establishment of social welfare, public health, free education, orderly adoption and child labor laws in Japan. The Steering Committee contended that meritorious though diey might be, these provisions were die concern of statutory regulation and not constitutional law. "Colonel Roest stated that inclusion of social welfare provisions was accepted practice in modern European constitutions. It is peculiarly necessary to include diem here since state responsibility for

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Appendix D A P P E N D I X D-3

First draft of the Committee on Civil Rights, as amended by the Steering Committee on 9 February 1946 CHAPTER III65

[Articles i and 2 were revised by the Steering Committee on 8 February.] 3. The freedoms, rights and opportunities provided enunciated by this Constitution are maintained by the self disciplined cooperation eternal vigilance of the people. They therefore involve a corresponding obligation on the part of the people to prevent their abuse and to employ them always for the common welfare.66 [Articles 4-13 were revised by the Steering Committee on 8 February.] 14. Freedom of assembly, speech and press are guaranteed, including the right to criticize any public official, agency, or practice, or to urge the enactment, amendment or repeal of any law. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated. the welfare of its people is a new concept in Japan and demands constitutional approval to encourage its widespread acceptance. At present women are chattels here, bastards take precedence over legitimate sons on the mere whim of a father, and any peasant can sell his daughter if the rice crop is bad. Commander Swope countered that even if we incorporate detailed instructions on the care of nursing mothers and the adoption of sons, conditions will not improve until the Diet passes implementary legislation. Mr. Wildes agreed but fervently urged that we force the Japanese Government to go on record for these things. "Colonel Rowell objected that the setting-up of a complete system of social welfare was not part of the Government Section's responsibility. Insistence upon these provisions might cause so much resentment that the Japanese Government might reject our constitutional draft in toto. Mr. Wildes answered that we do have the responsibility to effect a social revolution in Japan and that the most expedient way of doing so is to force through with the Constitution a reversal of social patterns. Colonel Rowell answered that you cannot impose a new mode of social thought upon a country by law. "No compromise solution could be found in this confusion of opposing social theories, so the Steering Committee recommended that General Whitney be consulted on the inclusion of this Section. General Whitney recommended that the minutia of social legislation be omitted and a general statement made that social security shall be provided" [8 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Roest defended the draft articles as "not mere details on paper but enormously important," while Wildes portrayed GS as faced with a unique opportunity to bring to Japan the latest in "advanced social thinking." Because of their impassioned arguments—and Beate Sirota's lobbying before (and after) the meeting—Kades was inclined to support at least draft Article 18. Toward the end of the meeting, however, he asked if the entire section did not "hang or fall together" [Ellerman Notebook D (Michigan: Hussey Papers)]. Contrary to the impression given by Ellerman's typed minutes, General Whitney was not consulted until after the second conference on 9 February. By then, the drafting committee had come up with an alternative, namely, an expanded Article 27. 65. This meeting settled the question of where the civil liberties section would go: it would be Chapter III [Ellerman Notebook D (Michigan: Hussey Papers) ]. The text here is based upon the report prepared by the drafting committee after its 8 February session with the Steering Committee. Articles were unnumbered in the report, but for the sake of clarity I have carried over the numbering from the original draft. 66. As Ellerman recorded, "In a rereading of Article [3], that states that The freedoms, rights and opportunities provided by this Constitution derive from the self-disciplined cooperation of the people,' Col. Kades objected to the use of the term 'self-disciplined' as a weasel word, open to misconstruction. The text was amended to read 'The freedoms, rights and opportunities enunciated by this Constitution are maintained by the eternal vigilance of the people'" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)].

Civil Rights All forms of expression other than speech and press shall be accorded the same essential freedom, but legal measures for the suppression of indecent or degrading lit crature, plays, moving pictures, radio broadcasts, and exhibitions shall be permissible for the protection of youth and the maintenance of high public standards.67 [Articles 15-17 were revised by the Steering Committee on 8 February.] 18. The family is the basis of human society and its traditions for good or evil permeate the nation. Hence marriage and the family are protected by law, and it is hereby ordained that they Marriage shall rest upon the undisputed indisputable legal and social equality of both sexes, founded upon mutual consent instead of parental coercion, and upon maintained through cooperation instead of male domination. Laws contrary to these principles shall be abolished, and replaced by others viewing choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family from the standpoint of individual dignity and the essential equality of the sexes.68 [Articles 19—25 were discarded.]69 26. Every adult Japanese has the right to earn a living by productive work. Insofar as a suitable occupation cannot be found for him, provision shall be made for his necessary maintenance. Women shall have the right of access to all professions and occu pations, including the right to hold office, and shall receive the same compensation as men for equal work.70

67. In preparing a report to General Whitney, the drafting committee integrated draft Article 34 into draft Article 14 (as revised on 8 February). The Steering Committee did not approve: "Objection was made to Article [14] that assures freedom to all forms of expression other than speech and press but provides that legal measures may be taken for the suppression of indecent and degrading literature, plays, films, etc., in the interests of the protection of youth and the maintenance of high public standards. The Steering Committee believed it excessive to give constitutional blessings to the crusading pursuits of the Public Decency and Purity Leagues, and dangerous to afford any justification for police supervision of public expression. Any novel or play that criticized the government could be suppressed by labelling it 'degrading' or 'indecent.' The restrictive clause was discarded" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. At least one member of the Steering Committee conceded that restrictions on public expression might be established in statutory law, but maintained that providing such broad exceptions in the constitution would be giving the Japanese government too much interpretive leeway [Ellerman Notebook D (Michigan: Hussey Papers) ]. 68. Upon second reading, Kades reconsidered his earlier support of draft Article 18. He had no objections to the tenor or purport of the clause, but he questioned its syntax from a legal point of view. "Mutual consent," he noted, was not the perfect antithesis of "parental coercion," nor did marriage rest upon it alone. The state, as well as the individuals concerned, had an interest in matrimony and family matters. More important, perhaps, this article might interfere with a parent's right to discipline his child by rendering the rod unconstitutional [Ellerman Notebook D (Michigan: Hussey Papers) ]. 69. The impasse over Articles 19 through 25 was not resolved on 8 February. Knowing the Steering Committee did not favor their inclusion, the drafters expanded Article 27 to include the principles covered in their original draft by Articles 19-25, 28-30, 32, and 33. The revision was probably suggested by Article 27 of the Yugoslav Constitution (1921), which declares that the amelioration of enumerated social problems is "the concern of the State" [Shiva Rao, 50—51]. The compromise proved fairly satisfactory to the Steering Committee and to Sirota, who conceded later that the result "did not really leave out the most important rights" [Joseph Gordon, Beate Sirota Gordon, and Irwin Hersey, interview by John McCobb and Roy Watanabe, 6 Apr. 1972]. 70. The second clause was probably deleted by the drafting committee in preparing their report to Whitney.

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Appendix D 27. In all spheres of life laws shall be designed only for the promotion and extension of social welfare, and of freedom, justice and democracy. All laws, agreements, contracts or relationships, public or private, which restrict or tend to destroy the wel fare of the people shall be replaced by others which promote it. To this end the Diet shall enact legislation which shall: Protect and aid expectant and nursing mothers, promote infant and child welfare, and establish just rights for illegitimate and adopted children, and for the underprivileged: Establish and maintain free, universal and compulsory education, based on ascertained truth: Prohibit the exploitation of children: Promote the public health: Provide social insurance for all the people: Set proper standards for working conditions, wages and hours and establish the right • P T A i ^ T J ^y.g, ^.^ f^.-vfyr\_-r**rr£*

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occupations: and Protect intellectual labor and the rights of authors, artists, scientists, and inventors whether native or foreign.71 [Articles 28-31 were discarded.]72 32. Employers and employees shall have the right to collective bargaining. Labor, except in essential services, shall have the right to strike; but the deliberate wrecking of employer employee cooperation by outside labor or employer organizations is prohib itedr The right of workers to organize and to bargain and act collectively is guaranteed.73 33. Intellectual labor and the rights of authors, artists, scientists and inventors shall be protected by law, whether they be Japanese or foreign.74 71. According to Ellerman, "Col. Rowell objected to the vague inclusiveness of Article [27] that states that 'In all spheres of life laws shall be designed only for the promotion and extension of social welfare, and of freedom, justice and democracy. . . .' Of necessity many laws are designed for purposes other than the promotion of social welfare. If all of these laws were discarded most private contracts would be made null and void. Further, a provision of this kind tends to encourage legislative interference in private affairs. The Steering Committee rewrote the Article to state that laws shall be designed for the promotion of social welfare in all spheres of life. The guarantee that those which tend to restrict the general welfare shall be replaced was omitted" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. This last clause was deleted after Kades inveighed against it as far "too sweeping" and a potential threat to private property [Ellerman Notebook D (Michigan: Hussey Papers) ]. The Steering Committee had no reservations regarding the clause acknowledging the rights of workers to organize, bargain collectively, and strike. Only upon Whitney's subsequent protest was the right to strike eliminated (see footnote 73 to this appendix). 72. See footnote 69 to this appendix. The Steering Committee observed that recognition of the right to organize, provided in draft Article 31, really belonged with the list of basic freedoms in Section II [Ellerman Notebook D (Michigan: Hussey Papers)]. This guarantee was ultimately transformed into a statement of freedom of association and incorporated into draft Article 16. 73. As Ellerman recorded, "Objection was made by General Whitney to Article [32] that gives workers the specific right to strike. He expressed the fear that this article might be subject to the unfortunate interpretation of standing as a constitutional encouragement to strike. The Article was amended to read The right of workers to organize [and to bargain] and act collectively is guaranteed'" [9 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The phrase "act collectively" implied a right to strike but was sufficiently ambiguous that it "might be a subject that would have to be decided later by the courts." General Whitney had no quarrel with judicial recognition of a right to strike; he merely took exception to "being so blunt in the constitution" [Charles L. Kades, interview by author, 29 Sept. 1973]. The Chief of GS was consulted by the Steering Committee after its meeting with the civil rights drafting group. 74. See footnote 69 to this appendix.

Civil Rights 34. All forms of expression other than speech and press shall be accorded the same essential freedom, but legal measures for the suppression of indecent or degrading lit erature, plays, moving pictures, radio broadcasts, and exhibitions shall be permissible for the protection of youth and the maintenance of high public standards.75 35. The right to own properly is inviolable, but property rights shall be defined by law, in conformity with the public welfare. 36. The ultimate title fee to the land and to all natural resources resides in the State as the collective representative of the people. Hence the ownership of land and its resources is to be interpreted as a lease, the right to which is forfeited by misuse or continued non use, and the transfer of which is a transfer of leasehold rights subject to regulation by law, not a transfer of private property are subject to the right of the State to take them, upon just compensation therefor, for the purpose of securing and promoting the proper conservation, development, utilization and control thereof and to enact legislation necessary or expedient therefor.76

75. Article 34 was incorporated into Article 14. See footnote 67 to this appendix. 76. According to Ellerman's minutes, "In Article [36] ultimate tide to the land and to all natural resources is given to the State and 'hence the ownership of land and its resources is to be interpreted as a lease, the right to which is forfeited by misuse or continued non-use. . . . " Colonel Kades stated that the strict interpretation of this Article would involve the abolishment of all private ownership of real property. Private ownership of land and its resources should not be referred to as a 'leasehold.' Colonel Roest stated that this Article was deliberately designed to weaken the traditional belief that the individual can do as he likes with land without regard to the general welfare. Colonel Kades granted that the ultimate fee of all land and its resources resides in the State and that the State has the right to take whatever it needs for the public use. But provision must be made for adequate compensation when property is so taken. This Article was rewritten in the terms recommended by the Steering Committee" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Understandably, Kades felt uncomfortable departing from Anglo-American concepts of real property ownership; but his objections to draft Article 36 had a more specific basis. As a result of the American Revolution, the people of New York had succeeded the British Crown in the ownership of all lands within the state not previously conveyed by royal grants; the people had become "the source of all private tides" [12 Dec. 1973, Kades to author]. Knowing his New York constitutional history, Kades had no problem with the principle that the people, by virtue of their sovereignty, possess the original and ultimate property in and to the land; he did question whether draft Article 36 was an adequate expression of that principle. The state's right of eminent domain derived therefrom, yet Article 36 could be construed to allow condemnation of land but not of any improvements to it or buildings on it [Ellerman Notebook D (Michigan: Hussey Papers) ]. Kades also balked at some of the draft's shorthand usages, such as "title": "'Tide' is sometimes used in the sense of a person having security, like a pledgee has a lien on property and has a type of tide. I think that maybe what I was trying to do was make it explicit that we meant ownership of land. But on die other hand, when you say 'ownership,' it sounds as if you mean proprietary rights, and we didn't quite mean that either. It I had a copy of die New York Constitution at hand, I probably would have said 'die ultimate property,' and that's what I was searching for" [Charles L. Kades, interview by audior, 29 Sept. 1973]. A second consideration was the obligation of just compensation imposed upon the state by draft Article 39. As Kades pointed out, under the terms of Articles 36 and 39, it was conceivable that the Japanese people might be obliged to compensate die Emperor for the Imperial properties that the Economic and Scientific Section was proposing to transfer to die state [Ellerman Notebook D (Michigan: Hussey Papers) ]. No decision had been made on the ESS proposal, nor did the draft constitution yet embrace any scheme to nationalize die Imperial holdings, as it would shortly. Kades evidendy anticipated nationalization, though, for he was concerned dial die draft should "make it clear somewhere diat his [die Emperor's] property wasn't being taken by right of eminent domain but by some absolute expropriation" diat would not involve die State (or SCAP) in questions of due process or just compensation [Charles L. Kades, interview by author, 29 Sept. 1973].

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Appendix D 37. Private property may be inherited, but the right of the State to share in inher ited estates is undeniable and shall be fixed by law.77 38. Contracts arc protected by law, but usury is prohibited, and legal transactions which are contrary to public policy are null and void. The State shall not grant any monopolies.78 39. Property imposes obligations. Its use by the owner shall at the same time serve the public good. Where the public interest is clearly served better by public ownership, private property may be expropriated on the basis of law, and only upon fair compensation. 40. The organization of Japan's economic life must conform to the principles of jus tice and democracy, to the end that all citizens may be guaranteed a decent standard of living. Within these limits the economic liberty and rights of the individual shall be 41. Cooperative as well as private enterprise shall be encouraged. Only such enter prises shall be transferred from private to public ownership as are deemed suitable for socialization by finding of an impartial, non political economic council on which the government, labor, management and the public are equally represented. Such trans fers are to be regulated by law. The state may undertake the exclusive production manufacture or distribution of goods or services essential to public health or welfare but shall not enter into partnerships nor grant subsidies to any favored indi\iduai-ef group, nor may it grant or delegate unrestricted monopoly privileges.80

77. According to Ellerman, "Colonel Rowell objected to Article [37] that gives constitutional blessings to the right of inheritance. The right of inheritance has never been a fundamental right, and it should be subject to withdrawal any time the people and their representatives deem advisable. The Article was discarded" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. 78. As Ellerman recorded, "The Steering Committee objected to Article [38] that states that 'Contracts are protected by law but usury is prohibited and legal transactions which are contrary to public policy are null and void. The State shall not grant any monopolies.' First, in matter the Article is largely concerned with affairs that should be regulated by statutory law; secondly, this provision makes it impossible for the State to promote the general welfare by the grant of subsidies to certain industries (i.e., the merchant marine, fisheries, etc.). Col. Roest justified the prohibition of State subsidies and the grant of monopolies as a check to Government subsidization of war industries and the Zaibatsu. Commander Hussey answered that the Diet controls the purse and can thus prevent State subsidization of any industry it deems not in the public service. The Article was omitted in the final draft" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The clause banning monopolies had already been transferred to Article 41 in the drafting committee's report to General Whitney. It was deleted during discussion of that article [Ellerman Notebook D (Michigan: Hussey Papers)]. 79. The Steering Committee concluded this article had been substantially covered elsewhere, particularly by Article 27 [Ellerman Notebook D (Michigan: Hussey Papers) ]. 80. See footnote 78 to this appendix. Article 41 was rewritten by its drafters (as shown by underlining) prior to this session with the Steering Committee, which then rejected the revised article (as shown by strikeout). Designed to undo various ties between Japanese business and government, the article was supposed to be a barrier to nationalization, not an encouragement. Kades agreed with the drafting committee's intent, but suggested that what they really wished to ensure was the widest possible distribution of ownership in the means of production. Hussey favored deleting the article, but Kades, believing the Diet should be free to promote economic activities conducive to the general welfare, wanted to include a few guidelines, if only to offset the interpretation that the state was permitted no economic activity under the new constitution. The Steering Committee considered (but did not adopt) making a simple statement that the economic life of Japan should operate in the public interest, to which end the state might engage in economic activities [Ellerman Notebook D (Michigan: Hussey Papers) ].

Civil Rights IV. JURIDICAL RIGHTS81

[42.] ARREST. No person, save those arrested in the act of law-breaking shall be apprehended except upon warrant issued by a competent officer of a court of law specifying the offense upon which the person may be charged. No person shall be arrested or detained without being at once informed of the charges against him nor without the privilege of counsel; she shall not be held incommunicado nor detained without adequate cause which must be immediately shown in open court upon demand of the accused or his counsel. No person shall be deprived of life, liberty or property except according to procedures established by the Diet under this constitution nor shall any person be denied the right of appeal to the courts. [43.] SEARCH & SEIZURE. The right of the people to be secure in their persons, houses homes, papers and effects against unreasonable searches and seizures shall not be violated, nor shall any warrant be issued except upon probable cause, supported by oath, and particularly describing the place to be searched and the person or things to be seized.82 Each search or seizure shall be made upon separate warrant issued for the purpose by a competent officer of a court of law. [44.] TORTURE. The use of torture, whether physical or mental, is absolutely forbidden to any public officer and strict punishment shall be inflicted upon any officer found guilty of such abuse. Excessive bail shall not be required, nor cruel and unusual punishments inflicted. [45.] TRIAL. In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal. He shall be clearly informed of the nature and cause of the accusation immediately upon arrest, or within 24 hours of such arrest; he shall, at his trial, be confronted with all the witnesses against him and He shall be permitted through counsel full opportunity to cross-examine such all witnesses, and he shall have the right of compulsory process for obtaining witnesses, at public expense, in his favor on his behalf at public expense. At all times the accused shall have the assistance of competent counsel who shall, if the accused be unable to secure the same by his own efforts, be assigned to his use by the government. No person shall be twice placed in jeopardy for the same offense. No person shall be declared guilty of a crime except upon fair and open trial, nor shall any person be deprived of civil rights without a trial. Trial by jury shall be accorded to anyone charged with a capital offense, and to any one accused of a felony, at the request of the accused/3

81. Most changes to this section were the work of the drafting committee and were made prior to the meeting of 9 February. Ellerman's notes suggest that no member of the drafting committee was present for discussion, the Steering Committee having adjourned to Whitney's office for consultation with the General [Ellerman Notebook D (Michigan: Hussey Papers) ]. 82. Kades wished to include an even more explicit statement of the inviolability of the home; Hussey argued that the present article was sufficient [Ellerman Notebook D (Michigan: Hussey Papers)]. 83. As Ellerman wrote: "General Whitney questioned the provision in the Article on Trial that the accused shall, at his trial, be confronted with all the witnesses against him and be permitted through counsel to cross-examine such witnesses. This has not been our procedure at the War Crimes Trials now in progress; in the Yamashita trial, affidavits have been used in court and Yamashita has had no opportunity to cross-examine this evidence. The Japanese might criticize us for establishing one

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Appendix D [46.] EX POST FACTO LAWS. No ex-post facto law shall be enacted, nor any punishment inflicted penalizing any person for an act lawful at the time it was committed. No person shall be declared guilty of a crime except upon fair and open trial wherein the accused shall be properly represented by competent counsel, nor shall any person be deprived of civil rights without a trial. Trial by jury shall be accorded to anyone charged with a capital offense, and to any one accused of a felony, at the request of the accused.84 [47.] TESTIMONY. No person shall be compelled to testify against himself, nor shall the testimony of a wife or husband be accepted in evidence against the spouse of such wife or husband. No confession shall be valid unless made in the presence of counsel for the accused, nor shall it be valid admitted in evidence if made under compulsion er, torture or threat, or after prolonged arrest or detention. No person shall be convicted and punished in cases where the only proof against him is his own confession.85

kind of trial procedure in the Constitution, while finding it more convenient to use another procedure in our conduct of the War Crimes Trials. "Colonel Rowell answered that the War Crimes Trials are under military law, and die Constitution sets up civil laws. Further, there is litde reason to believe diat our conduct of the Trials will shock Japanese judicial sensibilities. Japanese law has never provided for the cross-examination of witnesses in the American fashion. "The text was amended to read 'The accused shall be permitted full opportunity to cross-examine all witnesses'" [g Feb. 1946, Ellerman Minutes (Rowell Papers)]. The Charter establishing the International Military Tribunal for the Far East, issued by General MacArthur in January, closely followed the Nuremberg Charter in providing that the tribunal should "'not be bound by technical rules of evidence,'" but "'shall admit any evidence which it deems to have probative value.'" Those "technical rules" with their narrow standards for admissibility are central to die Anglo-American legal tradition, but in civil law systems such as Japan's, far broader rules of evidence obtain, on the dieory diat judges trained in die law do not require die protection from prejudicial (diough impeachable) evidence diat juries do [Richard H. Minear, Victors'Justice: The Tokyo War Crimes Trial (Princeton, N.J.: Princeton University Press, 1971), 118—19]. American rules of evidence disallow die use of affidavits or depositions in place of direct testimony and subsequent cross-examination. Such practices, however, were allowed at Nuremberg, Tokyo, and odier postwar trials, including diat of General Yamashita in Manila. In setting evidentiary rules, MacArdiur gave a free hand to the military commission appointed in 1945 to try Yamashita for war crimes committed by subordinates during his tenure as commander of die Japanese forces in the Philippines. Ostensibly owing to difficulties in transporting witnesses in die chaotic months after Japan's surrender, die commission admitted affidavits, hearsay, and depositions in lieu of oral testimony, even diough use of the last was barred by the Rules of War because it was not susceptible to cross-examination. The U.S. Supreme Court took a dim view of diese evidentiary rulings, diough it nonedieless upheld Yamashita's conviction. So strong was die Court's disapproval, however, that the War Department feared the Yamashita appeal might be upheld. The Department urged MacArdiur to keep affidavit and deposition testimony to a minimum in future trials and to supplement depositions with oral testimony wherever possible [17 Jan. 1946, WX 93094, SERVTAG to CINCAFPAC (WNRC, RG 331: SCAP, ACS: Class. Dec. File 000.5 Yamashita, 60x763)]. The second clause of draft Article 45, regarding die right of die accused to be informed of charges against him widiin twenty-four hours, was deleted by die drafting committee. The committee also incorporated two clauses from Article 46. The last of diese, on die right to trial by jury, was deleted by die Steering Committee, probably in die belief diat this would be seen as alien to die Japanese judicial system [Ellerman Notebook D (Michigan: Hussey Papers]. 84. The first clause of Article 46 was rewritten and placed at die end of die chapter; die second was transferred to Article 45, but subsequendy revised; and die third was stricken. 85. According to Ellerman, "In die discussion of die Article on Testimony and Confession, General Whitney questioned die wisdom of die provision diat 'No confession shall be valid unless made in die pres-

Civil Rights [48.3 EXTRADITION. The right of extraditing persons from Japan who have fled from or escaped justice in foreign countries shall not be denied in such cases when official representatives of such foreign nations may request it.86

ence of the counsel for the accused.' This outlaws the use of spontaneous confession made immediately after the commission of a crime. Confession without counsel should be accepted in evidence if it is made without duress. Colonel Rowell stated that this provision was valid as a hedge against special Japanese abuses. Traditionally, here, the procurator is unwilling to go into court unless he has a confession, so he will go to extreme lengths, using third-degree, torture, threat, to secure a confession before bringing the case to trial. General Whitney acknowledged the prevalence of the abuse of confession in Japan but stated that sufficient hedge against abuse would be provided by the proscription that no confession shall be admitted in evidence if made under compulsion, torture or threat, or after prolonged arrest or detention" [9 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Whitney believed that the clause prohibiting torture in draft Article 44 offered sufficient guarantee against attempts to extort confessions. The General conceded that confessions made in the absence of counsel, once counsel had been appointed, should be invalid. But as Rowell pointed out, such a provision offered more potential for abuse than protection: the State could simply deny the accused access to counsel until a confession had been obtained [Ellerman Notebook D (Michigan: Hussey Papers) ]. 86. The Steering Committee concluded that draft Article 48 belonged in bilateral treaties or in the treaty section of the constitution, if there was one. It was inappropriate in a chapter on civil rights [Ellerman Notebook D (Michigan: Hussey Papers)].

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APPENDIX E

The Diet

By early October 1945, some of the younger delegates to Japan's lower house were already contacting the Government Section to express their desire for change.1 When Diet members complained that reactionaries were taking "too prominent a part" in the budding reform movement, Commander Guy Swope and Captain Frank Rizzo cautiously replied that all "groups desirous of working reforms in the Japanese governmental system were free to formulate their programs, propagate their ideas, and seek adherents so long as their actions were not inimical to the directives and orders of the Supreme Commander."2 It was not an encouraging start. Government Section seemed either unwilling or unable to do much more than endorse freedom of expression. Swope and Rizzo knew almost nothing about abuses under the Meiji Constitution or about failed efforts by the House of Representatives to revise the Diet Law back in the 19305. And the youthful Diet members sitting opposite them had no proposals for reform ready to offer. Reform of the Diet was an area to which the Government Section had given little substantive thought. Insofar as it considered problems of governmental organization, the report of Lieutenant Colonel Milo E. Rowell on the Meiji Constitution focused on extraconstitutional bodies, such as the Privy Council, that were not responsible to the people and exempt from Diet

regulation. When the Shidehara government put before the Eighty-ninth Diet a proposed revision of the Election Law of 1925, the Section turned its attention not to the workings of the Diet, but to the mechanics of winning membership in the lower house. Within two weeks, the bill had passed both houses with minor changes, and it was promulgated on 17 December. The reform act extended suffrage to women, a requirement that had been set down by MacArthur in conference with the Prime Minister back in October. It also reduced the voting age from twenty-five to twenty, a compromise between leftists, who wanted the age lowered to eighteen, and the conservatives who, with apparent SCAP concurrence, thought Japanese youth too immature to vote. Even as revised, the reform act excluded whole categories from the franchise, such as those who were incompetent or bankrupt, those on welfare or without fixed domiciles, heads of noble families, and people condemned to penal servitude. That last category potentially included members of leftist parties recently released from prison where they had been serving time for political crimes. At Government Section's request, on 19 December the Civil Intelligence Section hastily sent out a directive to restore voting rights to freed political prisoners. The revised Election Law continued the practice of automatically registering voters

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The Diet through census lists, and it adopted enlarged electoral districts along with a system of restricted plural voting, a change designed to break the hold of reactionary political machines and give new parties and independents a break. Over objections from the misnamed Progressive Party, larger electoral districts had been pushed through the Diet on a rumor that SCAP favored them. Government Section expected the conservatives to try to undercut the intent of the new law by running larger slates of candidates and pressing for a straight party vote. The revised Law introduced strict restrictions on campaigning, another potential boon for the smaller, newer parties if it succeeded in curbing competition from their richer rivals. But the Law required a written ballot, a device criticized by some at GS as the equivalent of a literacy test and potentially discriminatory. The Government Section split down the middle on the new Law's merits.3 Some opposed the Election Law, in both its original and its revised versions, because it disenfranchised certain groups and would permit small but well-disciplined parties to elect a disproportionate number of their candidates. Handwritten ballots gave village headmen and mayors too much discretionary authority: their power to pass upon the validity of a ballot not only impaired secrecy but might conduce to errors by nervous voters. Since municipal authorities were responsible to the Home Minister, there was also potential for abuse by the incumbent administration. After both sides pled their cases, GS Chief Brigadier General Courtney Whitney decided the Japanese had the right to amend their legislation as they wished. He recommended to the Supreme Commander that SCAP authorize the holding of national elections, but also call for "vigorous enforcement of the punitive provisions of the law and such steps as may be necessary to preserve inviolate the secrecy of the bal-

lot." SCAP, he thought, should also start working to democratize the lower levels of government as well as the top levels.4 The Election Law debate within GS focused attention on Japan's political parties and the makeup of the Diet, though not necessarily on the problems involved in reforming its two houses. One of those who had supported the new Election Law was Commander Guy J. Swope, the head of Government Section's Legislative and Liaison Branch and point man on issues concerning the Diet. Swope believed that large districts and limited plural voting were "most likely to produce a strong membership of various schools of political thought," provided the new Law was "applied with full realization of its possibilities"—and its limitations. To Swope, it was an interim measure for a Japan that was not yet ready for full responsible party government. It also stood a good chance of electing Representatives of local prominence who were not locked into any party network, much like the delegates to the American Constitutional Convention of lySy. 5 Swope was one member of GS with an insider's knowledge of how legislatures worked. An "ardent New Dealer," as Justin Williams called him, Swope had served a single term in the U.S. House of Representatives from 1937 to 1939; he also had some experience with state politics, having served as budget secretary and a member of the Governor's Cabinet in Pennsylvania. His early career had been varied, to say the least. Swope had been a public school teacher (starting at the tender age of sixteen, with only an elementary school education), an IRS agent, and a public accountant with his own firm. His wartime career had continued a pattern of short, diverse stints. For a brief period spanning the outbreak of the War, Swope had been, respectively, auditor of Puerto Rico, its Governor, and Director of the Division of U.S. Territories and Island Possessions, Department of the Interior. He subsequently

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Appendix E served as district director for the Office of Price Administration before going on active duty with the U.S. Naval Reserve in 1943. In 1944, Swope did a turn as deputy military governor of Saipan. He was in his mid-fifties when he went to GS. Easygoing and "a very sensible, pragmatic kind of fellow," Swope not only embraced F.D.R.'s political ideals; he bore a striking resemblance to the man, with the same broad shoulders, facial features, and open, smiling visage, minus Roosevelt's signs of strain and ill health.6 Because of his stint in Congress and his recent contacts with Japanese legislators, Swope knew more about parliamentary procedures than any other drafter working on a model constitution for Japan, and he undoubtedly had the strongest role in shaping the chapter on the Diet. But the nominal head of the drafting committee was Lieutenant Colonel Frank E. Hays, who outranked Swope. Twelve years younger than Swope, Hays had a B.A. from the University of Nebraska and his law degree from Georgetown Law School. He was admitted to the Wyoming bar in 1940, but through the early 19405 worked as a research assistant for the U.S. Senate, compiling a report on Senate election cases from 1913 on for the Committee on Privileges and Elections. During the war, he commanded an infantry division in the Southwest Pacific. Hays attended the School of Military Government and received his civil affairs training at the University of Chicago, where he wrote a scholarly paper entitled "Forces Influencing the Japanese Cabinet, 1885—1945." Hays was not assigned to the Government Section until December 1945, the day before Whitney arrived, and then was allocated to its Korean Branch; he was promptly reassigned to the Public Administration Branch as its deputy chief, under Colonel Charles Kades. Hays was scheduled to take charge of the Planning Group, which was contriving how GS would implement those sections

of the basic Joint Chiefs of Staff directive on the Occupation assigned to its charge. A holdover from the tenure of General William E. Crist, head of SCAP's former Military Government Section, the Planning Group never really performed, and it was scrapped by Whitney in late January, when many of the civilian specialists recruited for it were incorporated into Government Section's offices in the Dai-Ichi Building. Hays continued as Kades' "righthand man," later becoming Chief Plans and Operations Officer and finally a special assistant to Whitney.7 Hays was "just as nice a man as could be, but not an intellectual" or a notably incisive personality; he was "terribly concerned always about his prerogatives and his position."8 Osborne Hauge, the third member of the Committee on the Diet and a Lieutenant in the Naval Reserve, was thirty-two and a former resident of Washington, D.C. A graduate of Saint Olaf College in Minnesota, Hauge had edited a weekly newspaper in North Dakota for two years, then served as publicity director for the National Lutheran Council for five. In 1942, he joined the staff of the Norwegian Embassy, where his primary work was in public relations until he received his commission in 1944. He graduated from the Navy School of Military Government at Princeton and received civil affairs training at Stanford University. Originally picked for the Government Section's Korea Branch by another Norwegian-American officer who was feeling nostalgic, Hauge was reassigned to serve as assistant to Swope, who headed the short-lived Operations Group within Kades' Public Administration Branch.9 About Gertrude Norman, the final member of the drafting committee, less is known. One of the group of civilian specialists assembled by the Foreign Economic Administration to work as planners for the Occupation, Norman was a musicologist by training, but her wartime work for the U.S. government was mainly in eco-

The Diet nomics. She had been in France working on her doctorate when the Germans arrived. In the scramble to leave the country, her doctoral research was lost, and she ended up at the American consulate processing visa applications. Sensitive and socially well connected, Norman suffered from glaucoma and insomnia. A friend from the Government Section compared her to Judy Garland in beauty, energy, and mood swings. Like Garland, she was "intensely neurotic" and tended to selfmedicate, not always wisely. Mornings often saw her asleep instead of at the office. She was sent back to the States after less than a year in Japan, victim of her erratic work habits. "One of the most talented people I've ever known," commented one friend. "Gertrude could play a late Beethoven sonata well enough to make you weep, or whip you up a smart hat." But she could not adjust to life in occupied Japan.10 Her contribution to the chapter of the constitution on the Diet was minimal at best. The Committee on the Diet received more practical guidance than did some other drafting groups. Rowell's report on the Meiji Constitution and SWNCC 228 went into some detail on how the Diet ought to function; contacts at the former British Embassy in Tokyo supplied odd bits of information on how their system worked. Committee members consulted a number of foreign constitutions, developing a "wash list" of items they felt should be included, then discussing these until they achieved a rough consensus.11 The possibility of introducing a presidential system was never seriously considered. The drafters believed that "since the parliamentary system was at least in form what they had, and because this was what they obviously wanted, it would be unfair, unwise to try to press them to accept a system that was quite alien to their experience, limited as that had been."12 The drafting committee also had MacArthur's offhand suggestion that the legislature be made unicameral. Here, again,

was the influence of the Philippine Constitutional Convention of 1934. Filipinos felt the bicameral system had been forced upon them by the United States and that a unicameral system was preferable. The Spanish Constitution of 1931 included a unicameral legislature, and, more to the point, the original native constitution, the Malolos Constitution of 1898, provided for a single house. As one delegate to the Philippine Constitutional Convention put it, "[O]ur legislature will be stronger, will be more responsible, will be more efficient, will be more democratic, will be more representative" if a single house.13 The Convention's scholarly president, Claro M. Recto, was quoted in the New York Times as favoring a unicameral system, which he characterized as "'more economical, simpler to prevent passing the buck and to expedite legislation.'"14 Having a single house, Recto contended, would bring discussion of legislative measures out of conference committees that met behind closed doors and into the public forum of the chamber.15 Notwithstanding strong delegate sentiment in favor of unicameralism, however, the first draft of the proposed Commonwealth constitution provided for two houses.16 Philippine legislators argued that switching from the bicameral system used in the United States would prejudice their chances of having Washington accept the constitution. Conservatives raised the need for checks and balances: a Philippine Senate would be "a very considerable break on the law-passing tendencies of the House." Chairman of the House Committee on Appropriations, Representative Serafin Marabut, reversed the Convention's course, however, by arguing that a single chamber was "an essential economy for a country which is facing greatly depleted revenues."17 The cost of enacting legislation in the Philippines was already disproportionately high—and rising faster than general revenues, Marabut pointed out. But it was his

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Appendix E statistics that "staggered" delegates, for they associations would select their own deleclearly showed that it cost more to main- gates, not merely nominate candidates tain each legislator and more to enact each who would be voted upon by the people bill than the Commonwealth could afford.18 as a whole. "I was in favor of a more pure Privately, the American Governor-General democracy," said Kades. "Direct election confided to Philippine leaders that he was and direct vote."22 Whitney strongly "by no means unsympathetic toward the agreed.23 Government Section ultimately permitunicameral idea if it could be utilized to effect a general economy in Government."19 ted the Diet to remain bicameral, provided On 4 February, after Whitney and Kades that both houses were directly elected by made their presentation to the Government the voters. A new chapter on the Diet was Section staff regarding basic principles to drawn by Frank Hays and Cyrus Peake durbe incorporated into the draft constitution, ing negotiations with the Japanese in early Swope and Hauge discussed with Comman- March. Among themselves, Section staff der Alfred R. Hussey, Jr., the viability of joked that the Japanese wanted to keep MacArthur's suggestion on unicameralism. two houses because they already had two Notwithstanding SCAP's preference, some buildings, one for the Representatives in GS still "strongly favored" a bicameral and one for the Peers, and "they couldn't legislature "to prevent lower house [from] let one of these buildings go to waste."24 running away with things . . . ," yet they MacArthur's prompt retreat from his supwere also aware that a "functional or cor- port for a unicameral system surprised porate upper house [was] not to be seri- most of GS.25 Within months of writing the chapter ously considered."20 Hussey came down in favor of a bicameral system, whereas Swope on the Diet, Swope and others realized and Hays leaned toward MacArthur's idea other reforms were necessary to expand of a single house. The following day, Hus- the powers of the legislature. In a memosey and Swope added details to the emerg- randum to Whitney on 23 May, Swope ing picture of the new legislature: the Diet concluded that the organization and rules was to serve a four-year term unless dis- of the Diet had to be redesigned to elimisolved by the government; new elections nate its subordination to the executive and would be held thirty days from dissolution, to enable it to function as "an indepenand convocation of a new Diet would come dent, effective, intelligent legislative body." Needed reforms included establishing perwithin another thirty days.21 The Committee's initial draft provided manent standing committees to consider for a unicameral legislature, but later the all proposed legislation and maintain surJapanese objected to the one-house system veillance over executive agencies charged proposed by the Supreme Commander. In with administering given laws. Modeled its place, they advanced a second house on French and American legislative comthat would consist of "representatives of mittees, these would replace the singlegroups, occupational groups, professional session committees used under the Meiji groups and scholars, and economic inter- Constitution and unspecialized committees ests." Kades was vehemently opposed. "I adopted from the British, thus giving Diet thought it resembled the Fascist corporate members the continuity they needed to state under Mussolini," he recalled. He also acquire expertise in given areas. Another thought "this was in violation of the prin- suggested internal reform was altering the ciple of universal suffrage and all people dates of the Japanese fiscal year or advancvoting for all their representatives." Under ing the opening of the Diet's business sesthe Japanese plan, trade and professional sions so as to extend the period in which

The Diet the legislature was permitted to consider the proposed budget. Insufficient time for thorough review and debate allowed the government to railroad its budgetary plans through the Diet: "Members are reduced to criticizing lump sum items in very general terms since their information and their time are extremely limited."26 Further desirable reforms were allowing Diet members to make speeches during time not consumed by formal debate; strengthening the rights of independents and minority party members to participate in questioning Cabinet ministers, prefer1

1

1

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111

1

ably by a mechanism that would replace the

Negotiating Conference, which included only representatives of relatively strong parties and had sole power to allocate time for interpellations among Diet members;

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and increasing the compensation paid Diet members to enhance their prestige and secure their livelihood. Swope also recommended that research facilities and basic clerical and secretarial services be provided Diet members. Perhaps the most important recommendation, however, was that the Board of Audit become an organ of the Diet, to be responsible exclusively to the people's representatives on the model of the General Accounting Office in the United States.27 D

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APPENDIX E - l First draft of the Committee on the Diet by Lieutenant Colonel Frank E. Hays, Commander GuyJ. Swope, Lieutenant Osborne Hauge, and Gertrude Norman [Hussey Papers, 24-C] CHAPTER III THE DIET

Article [ i ]. The Diet shall be the highest organ of state power and shall be the sole law-making authority of the state.1 i. Nowhere did SWNCC 228 specify that the Diet had to be the supreme organ of state power, although that might be inferred. The Committee on the Diet discussed whether "the concept of three equal branches" of government was viable in Japan and decided it was not. "In view of the abuses of the executive in Japan in past years," recalled Osborne Hauge, "there was a feeling that maybe one way of safeguarding the rights and wishes and needs of the people would be by giving their elected representatives real authority." By explicitly calling the Diet "the highest organ of state power," it was hoped that "in the event of a stand-off among the elements, the branches of government, the Diet would prevail" [Osborne Hauge, interview by author, 12 and 20 May 1976]. Colonel Kades, who may have played a part in selecting the precise wording, strongly believed in legislative supremacy, a belief not controverted by his partial support of Lieutenant Milton Esman's drive for a stronger executive. Kades had no intention of increasing the powers of the executive branch, but he did want to stabilize the executive by assuring Cabinets a certain minimal tenure. Kades' later doubts about the Supreme Court's right of review are consistent with his conception of the legislature, which he thought should be empowered to overrule the Court on questions of constitutionality [Charles L. Kades, interview by author, 12 Dec. 1973]. By making the Diet the "sole law-making authority of the state," the drafting committee intended to quell the use of executive ordinances in place of substantive legislation—and encourage the Diet to initiate legislation. Japanese scholars might consider it inaccurate to refer to the Diet as the sole lawmaking authority, because courts create their internal rules and local public entities enact their ordinances. The Committee on the Diet used "law," however, as the strict equivalent of the Japanese

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Appendix E Article [2]. The Diet shall consist of one House of elected representatives with a membership of not less than 300 nor more than 45O.2 Article [3]. The qualifications of electors and of candidates for election to the Diet shall be determined by law. Article [4]. In determining qualifications for membership in the Diet there shall be no discrimination on grounds of sex, race, creed, color or social status.3 Article [5]. Members of the Diet shall receive a compensation as determined by law.4

"horitsu." Only the Diet is empowered to enact laws (horitsu), although other entities may establish or enact ordinances, rules, regulations, bylaws, and so on. 2. One of MacArthur's basic points held unintended consequences: if the peerage was abolished, as SCAP had decreed, some substitute must be found for the House of Peers. After consulting with MacArthur on this, Whitney told Kades that "it wasn't in the form of a directive or anything like that, but unless we came up with a better idea, MacArthur thought the parliament should be unicameral..." [Charles L. Kades, interview by author, 28 Sept. 1973]. The idea probably came to MacArthur from the Philippine Constitutional Convention, which had abandoned a bicameral system after one delegate shocked the convention with a speech enumerating the diseconomies of a two-chamber legislature. The drafting committee had some misgivings, for the only unicameral legislature anyone knew was Nebraska's, and they had little information about how it worked. On the other hand, committee members disliked Japanese analogies between their House of Peers and the British House of Lords, a body the drafting committee considered vestigial, feeling that "it wasn't a very strongly contributing element and that the real business of government in Parliament essentially was done in the House of Commons." The Committee on the Diet realized that once the peerage was abolished there would be strong pressure to reconstitute the upper house from "the big business interests and the land-owning interests"— in other words, to make it representative of the monied classes. Finding adequate and fair criteria for a two-house legislature proved difficult. "In the U.S. you can argue that this is a big, expansive country and you need a House of Representatives and you need the Senators, that they have a balancing effect," recalled Hauge. But in a much smaller, more homogeneous country like Japan, "we didn't quite see how you could distinguish between the members of the House of Representatives and the people who might serve in something approximating the Senate. We knew that what the Japanese had in mind . .. was that the members of the upper house would be sort of special-interest representatives... the biggest taxpayers, the big landowners," and "big business interests" [Osborne Hauge, interview by author, 5 May 1976]. This would contradict the prescriptions of SWNCC 228. It seemed easier to forestall the pressure for representation of vested interests by simply adopting a unicameral system. Figures for minimum and maximum membership were not idly chosen. The committee was aware that the House of Representatives had more members than the top limit they set. Assuming that Japan would eventually adopt a system of single-member electoral districts, the committee reduced membership to reflect the number of electoral districts that they believed would be established [Hauge interview]. 3. These specifications were implied by SWNCC 228, which stated that the legislature must be "fully representative of the electorate." 4. The Meiji Constitution included no guarantee of salary for legislators; salaries and per diem were covered in the Law of the Houses of the Diet. SWNCC 228 did not address the issue of ill-paid legislators. In creating a constitutional guarantee of compensation, the drafting committee followed the U.S. Constitution (Art. I, Sec. 6, para. i). Their purpose was twofold: they hoped to increase accountability to the voting public by stipulating that compensation had to be handled by law rather than by internal regulations, and they wished to ensure the Diet's independence from the executive branch. "If you had the executive branch determining the salaries of members of the Diet," one committee member observed later, "this would be a disaster for the Diet. There was certainly an awareness of the need to include in this section provisions that would ensure that the Diet would have independence." It was not intended to preclude Diet members from having outside sources of income [Osborne Hauge, 12 and 20 May 1976]. Since the first GS staff studies on Diet operations did not appear until months after this chapter of the constitution was written, it is difficult to gauge how aware the drafters were of past Japanese practices, abuses, and efforts at reform. Regular Diet members had an official rank within government that put them below ministerial bureau chiefs—and even further below Cabinet Ministers. Speaker,

The Diet Article [6]. Members of the Diet shall in all cases, except those specified by law, be free from arrest while attending the sessions of the Diet or while travelling to and from such sessions; and for any speech, debate, or vote in the Diet, they shall not be held responsible elsewhere.5 Article [7]. The term of members shall be four years, but it may be terminated at an earlier date by dissolution of the Diet as provided herein.6 Article [8]. For the purpose of electing members of the Diet the state shall be divided into election districts. One member shall be elected to the Diet from each such district. Election districts, to be established by law, shall be composed of contiguous territory, shall not cross prefectural boundary lines, and shall be approximately equal in population. (Alternative: For the purpose of electing members of the Diet, the state shall be divided into election districts. The basis of representation from each district shall be determined by law.)7 Deputy Speaker, and Parliamentary Vice Ministers in the lower house had higher rank than regular members of the Diet, but their loftier status (and perquisites) only divorced them from their colleagues and allied them with the bureaucracy. The drafting committee did know of the disparity between Diet salaries and those paid upper levels of the bureaucracy (Vice Ministers made about twice as much as Diet members). The Government Section considered this a factor in past subordination of the legislative branch [SCAP, GS, Political Reorientation of Japan, Vol. I, 154; Osborne Hauge, interview by author, 5 May 1976]. 5. Articles 51 and 53 of the Meiji Constitution provided limited freedom from arrest and freedom of debate for Diet members. Matsumoto intended to broaden the latter by allowing the Diet to demand release of a member imprisoned before the start of a session. The phrasing of draft Article 6, however, came directly from the U.S. Constitution (Art. I, Sec. 6, para, i). Such a clause was considered essential to the Diet's independence, because "you couldn't have an executive branch . . . that could contrive to arrest members of the Diet" during legislative sessions. The committee felt that "given what had happened in Japan in those years before the war and during the war, some kind of assurance was essential" [Osborne Hauge, interview by author, 12 May 1976]. 6. The Meiji Constitution provided no set term for the lower house, for when it was written government by party cabinets alternating in power was neither foreseen nor considered desirable. The Committee on the Diet favored adopting a maximum term, as in Britain, where a five-year term for the House of Commons was set by the Parliament Act of 1911. But five years (or six years, as in the U.S. Senate) was considered too long, whereas two years (as in the U.S. House of Representatives) was not enough. There was no scientific basis for settling on four years, except that period seemed "long enough to assure reasonable tenure for doing what a man sets out to do, or giving him reasonable security to help attract good people to run." Having been a one-term Representative in Congress, Swope had "strong feelings that two years was not enough" [Osborne Hauge, interview by author, 12 May 1976]. 7. The Meiji Constitution said nothing about general elections, nor did SWNCC 228. Including specific provisions regarding electoral districts reflects the influence of the U.S. Constitution (Art. I, Sec. 2) and the Nebraska State Constitution of 1875 (Art. 3, Sec. 5, provides for division of the state into legislative districts in language similar to that of the GS draft article). The Section's internal debate over reform of the Japanese Election Law was another major influence. As revised by the Eighty-ninth Diet in December 1945, the Election Law provided for enlarged electoral districts and restricted plural voting, a new scheme in Japan and a compromise between proportional representation and a single-vote system. Frank Hays, Chairman of the Committee on the Diet, was one of those opposed to restricted plural voting; Swope and Hauge, although they did not agree with the voting scheme, supported the revised Election Law for other reasons. In other words, the drafting committee was basically against proportional representation as a system that would contribute only "to the further splintering of political parties" [Osborne Hauge, interview by author, 12 May 1976]. That scores of parties were suddenly being formed to capitalize upon the upcoming elections only seemed to confirm this. During arguments for and against the revised Election Law, Milo Rowell had suggested that what Japan really needed was to reduce the size of her larger electoral districts, most of which were coterminous

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Appendix E Article [9]. Whenever a vacancy shall occur in the Diet the Government shall cause a special election to be held in the district so affected, except when the Diet shall otherwise decide, as determined by law. A Diet member chosen by special election shall serve for the balance of the unexpired term.8 Article [10]. The first election after the adoption of this constitution shall be held on a day in November 1946. The Government shall announce the election not less than 30 days, nor more than 40 days before such day. Subsequent elections shall be held as provided by law.9 Article [ 11 ]. The Diet shall meet in annual session. The first regular session shall convene on 15 January 1947. Thereafter regular sessions of die Diet shall be held each year, beginning on the 15th day of January. (Alternative: The Diet shall meet in annual session as determined by law.)10 Article [12]. The Government may call special sessions and shall do so on petition of not less than twenty-five per cent of the members of the Diet.11 with prefectural boundaries. An alternative would be to retain the larger districts but redraw them so as to give each an equal number of seats, with voters permitted to cast a ballot for each seat [7 Jan. 1946, Rowell to Chief, GS (WNRC, RG 331: SCAP, GS: "Election Laws, 1946-47, Arguments Pro and Con," Box 2033)]. The Committee's draft article reflected Rowell's "one district, one man" approach. Recalled Hauge: "[W]e thought that in the long term you'd have a more responsible representation and a representation by people more disposed to represent the interests of their particular election district if you broke it up" into single-member electoral districts. Such considerations as the cost and burden of campaigning through larger districts were secondary to the belief that smaller districts meant "a greater sense of direct relationship between the people and their representatives" [Osborne Hauge, interview by author, 12 May 1976]. 8. This clause was dictated by the drafting committee's assumption that legislators would come from single-member electoral districts, and "some provision had to be made for insuring the continued representation of the people of a district" if their representative died or was disabled before his four-year term expired. Continuity of representation was the issue, not preventing the executive from appointing replacements [Osborne Hauge, interview by author, 12 May 1976]. 9. This was not a direct borrowing from American custom, much as it appears to be. The drafting committee assumed that the constitution would be enacted and promulgated within a very short period of time, perhaps just a few months. They further assumed that it would be proper to hold general elections within six months of promulgation, or most likely sometime in the fall. September and October were ruled out on the grounds that electioneering would interfere with the rice harvest, and GS considered it important that "farmers and peasants and the smaller people of the country should be encouraged to participate." By November, the major work on the farms would be over; if the elections were held much after that, they would get lost amid preparations for the long New Year's holiday [Osborne Hauge, interview by author, 12 May 1976]. 10. SWNCC 228 directed that the legislature meet at will. This implied not only that the Diet be able to convene itself but also that it should decide upon the length of its sessions rather than being bound by the three-month sessions stipulated by the Meiji Constitution. The Committee based their article upon the procedure for convocation of Congress established by the Twentieth Amendment, which set 3 January as the nominal date of convocation. In practice, convocation usually falls slightly later, for customarily the second session of an outgoing Congress selects the convocation date of its successor. The drafting committee wished to have the Diet convene as soon as possible after the elections, but realized "it would be impractical to do it until after the New Year's holidays," which in Japan last through the first week of January [Osborne Hauge, interview by author, 12 May 1976]. 11. This was intended to implement SWNCC 228's requirement that the Diet meet at will. The Meiji Constitution allowed convocation only upon decision of the government and issuance of an Imperial ordinance (Art. 43); the Matsumoto Committee proposed allowing the Diet to request convocation of an extraordinary session upon petition of one-third of each House. As Hauge explained: "What we were trying to do was to include anything and everything that we could think of that would help assure not only a voice for the Diet [but one] even of minorities within the Diet.... This was simply another means of trying to give them a chance to be heard, or even to reconvene the Diet if needed" [Osborne Hauge, interview by author, 12 May 1976].

L

The Diet Article [13]. The Diet shall be the judge of the elections and the qualifications of its members. The denial of a seat to anyone who is certified to have been elected and whose right to the seat has been questioned shall require the vote of a majority of the members present. On a motion for expulsion of a member the vote of not less than two-thirds of the members present shall be required to effect such expulsion.12 Article [14]. A quorum to transact business shall consist of not less than fifty per cent of all the members. Except as otherwise provided herein all actions of the Diet shall be by majority vote of those present.13 Article [15]. In case of a tie the presiding officer shall cast the deciding vote. Article [16]. The Diet shall choose its presiding officer and other officials. It may determine the rules of its proceedings, punish members for disorderly behavior and expel them in accordance with the procedure set forth in Article [i3].14 12. The source for this article was not SWNCC 228 but the U.S. Constitution, Article I, Section 5, paragraphs i and 2, which stipulated that each House should judge the elections and qualifications of its members. Frank Hays was the likely author. His prewar experience with the Senate Committee on Privileges and Elections made him conversant with the diverse ways that chamber had handled the hundred-plus Senate seats contested since adoption of the Constitution. He knew, too, how jealously the Senate guarded its right to judge the eligibility of its own members [see Frank E. Hays, ed., Senate Election Cases from 1913 to 1940 (Washington: U.S. Government Printing Office, 1940)]. During debate within Government Section over the revised Election Law, some staffers objected to the Law's lax treatment of election violations. Under Japanese criminal procedure, charges could be filed only by the procurator, precluding defeated candidates or others from filing complaints before the court for alleged violations of the Election Law. The revised Law authorized the courts to invalidate a contested election upon finding not only that the alleged violations occurred but that they substantially affected returns. Thus, a candidate might violate the law repeatedly, but if he won with a large enough margin, his election could not be voided. Whether the drafting committee was aware of Diet procedure for handling contested seats is not clear. As Government Section subsequently learned, members of the lower house were seated not by being sworn in but by presenting certificates of election signed by the prefectural governor. If any suspicion of fraud tainted his seat, a member would usually decline to appear in the House pending investigation of his case by the Minister of Justice. He might be cleared in court of violating the election laws, but his case could still be subject to review by the House Qualifications Committee. The GS drafters wanted not only to make the Diet responsible for judging its own but to ensure that citizens could challenge the right to a seat by petitioning the legislature, a technique used in the United States to bring disputed seats to the attention of the House or the Senate. The drafting committee discussed a case in which a senator-elect from North Dakota was adjudged worthy to occupy his seat after boasting to colleagues of his numerous violations of the law as "great examples of his energy and initiative and the way he took care of his legal clients." Judgment by one's peers, the committee realized, sometimes resulted in mistakes of tolerance, but the importance of giving the Diet power to make such decisions outweighed the occasional poor result [Osborne Hauge, interview by author, 12 May 1976]. 13. The language of this and the following draft article followed the Meiji Constitution, which provided, however, for a quorum of one-third (Art. 46). The idea of increasing the percentage required for a quorum came from Swope, but it reflected the committee's view that it was important for the majority to be adequately represented—and important to guard against tyranny by a disciplined minority. The larger quorum, based loosely upon the U.S. Constitution (Art. I, Sec. 5), was also designed to ensure "maximum participation" by all members of the Diet. Oddly enough (and apparently inadvertently), the drafting committee did not adopt a related provision from the U.S. Constitution, namely, that the legislature has the power to compel the attendance of its members [Osborne Hauge, interview by author, 12 and 20 May 1976]. 14. The Meiji Constitution gave the Diet power, theoretically, to enact its own rules (Art. 51), but these were merely procedural regulations supplementary to the Law of the Houses, the Diet's basic charter and a law framed by the executive branch rather than the legislative. The drafting committee took its language from the U.S. Constitution (Art. I, Sec. 5). Although Rowell had earlier recommended that the Diet be authorized to appoint a standing committee to act in its behalf during periods of recess or adjournment and although creation of such a

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Appendix E Article [17]. Bills passed by the Diet shall be referred to the Cabinet for promulgation. If the Cabinet fails to make such promulgation within ten days after receipt of the bill from the Diet, the bill shall nevertheless become law.15 Article [18]. The deliberations of the Diet shall be public, and no secret sessions shall be held. The Diet shall maintain and publish a record of its proceedings and this record shall be made available for inspection by the public. The individual votes of members on any question shall be recorded in the journal upon the demand of twenty per cent of those present. (Alternative: All deliberations of the Diet shall be held in public unless it decides by formal action that any particular proceeding requires secrecy. The Diet shall keep and publish a journal of its proceedings except such portions as it may decide to withhold because of required secrecy. The individual votes of members on any question shall be recorded in the journal upon the demand of twenty per cent of those present.)16 committee was a prominent feature of Diet reform proposals of the 19305 (and of Japanese constitutional revision proposals), the GS drafters never considered this [Osborne Hauge, interview by author, 12 May 1976]. Two months later, Swope and Esman recommended establishing standing committees on the American model to help legislators accumulate expertise in given areas, develop legislation with the aid of competent staff, and maintain surveillance over the executive branch's implementation of laws [23 May 1946, Swope and Esman to Chief, GS (Michigan: Hussey Papers, i8-C)]. In June 1946, the Government Section announced that the Diet could not "adequately reflect and execute the will of the people" within the confines of its existing internal regulations. Swope conferred with Higai Senzo, speaker of the House of Representatives, on revising the lower House rules [6June 1946, Swope to Chief, GS (WNRC, RG 331: SCAT, GS: Memos to Chief, Book II, Box 2142)]. It took months before the Diet worked up enough courage to inform the Cabinet that it, not the executive branch, would draft a new version of the Law of the Houses as well as the rules for its own proceedings. 15. Under the Meiji Constitution, bills passed by the Diet required the counter-signature of a Minister of State before being forwarded to the Emperor for promulgation (Arts. 55 and 6), but nothing was said about the time frame within which this had to be done. To tighten procedure and eliminate the Imperial prerogative of promulgation, the drafting committee adopted a ten-day period for Cabinet promulgation. This was borrowed from the U.S. Constitution, which specifies that bills not vetoed by the President within ten days after receipt from Congress become law (Art. I, Sec. 7). The drafters picked their words carefully, however, to keep the Cabinet from having any veto (including a pocket veto) over Diet legislation. There was some discussion of giving the Diet power to promulgate its own legislation, but the committee ultimately followed the tradition of reserving promulgation to the executive branch [Osborne Hauge, interview by author, 12 May 1976]. 16. The Meiji Constitution provided for secret sessions upon demand of the government or resolution of the House concerned (Art. 58). This was amplified by the Law of the Houses, under which "resolution" was defined as a motion of the President of the House or of not less than ten members, agreed to by a simple majority of the House. No debate was allowed on motions for a secret session. Matsumoto proposed to eliminate the government's right to demand a secret session, but he still permitted the Diet to vote for secrecy. Government Section did not realize how hidden Diet operations were until Swope began negotiating with the Central Liaison Office to set up a procedure for GHQ to screen legislation submitted to the Eighty-ninth Diet. Discovering that the Diet worked "in virtual secrecy" as a matter of routine, Government Section insisted that the legislature open its doors to Allied and Japanese press, to SCAP personnel, and to the public. After opening day, the Peers tried to resume in camera sessions, but they were ordered by GHQ to admit the press and the public. The drafting committee prepared two versions of this draft article for the Steering Committee to decide upon. The language for the alternative came from the U.S. Constitution (Art. I, Sec. 5). Hauge thought the idea of limited secret sessions of the whole might have originated with Frank Hays by analogy from executive sessions of congressional committees. Hays was considered a bit of a dreamer. The pragmatic Swope, on the other hand, would have considered it "fairly unrealistic to expect that the whole of the Diet, hundreds of members, could meet in executive session . . . in any really meaningful way" [Osborne Hauge, interview by author, 12 May 1976].

The Diet Article [19]. The approval of the Diet shall be required for the adoption of any budget, and it shall have the authority to reduce, increase, or reject any items in the budget or to suggest new items. The authorization of the Diet shall be required for all taxes or duties levied, obligations incurred, or expenditures made in behalf of the Executive Branch.17 Article [20]. The Diet shall have the power to conduct investigations, to compel the attendance and testimony of witnesses, and the production of records. It may punish for contempt in such cases.18 Article [21]. The Diet may make representations to the Government on any subject. It shall receive petitions from the public.19 Article [22]. Cabinet ministers or their delegates may, at any time, take seats and speak in the Diet.20 Article [23], Upon the passage of a resolution of non-confidence by a majority of the total membership of the Diet, the Government shall either resign within ten days 17. SWNCC 228 directed that the legislature have full power to reduce, increase, or reject any items in the budget, or to suggest new items, and that no budget become effective without its express approval. The second clause of the draft article is reminiscent of Article 14 of the French Declaration of the Rights of Man (1789): "All citizens have the right to decide, by themselves or by their representatives, the necessity of the public tax, to follow the use of it, and to determine the quota, the assessment, the collection and duration of it" [Goerner, 39]. The drafters used their variation on this theme "to underscore the essential primacy of the Diet... to make the Diet more equal than the executive branch" [Osborne Hauge, interview by author, 12 May 1976]. 18. SWNCC 228 did not require that the legislature be given full investigative powers; it did note, however, that the power of the Diet to establish committees of inquiry had been severely limited by its inability to compel witnesses. Rowell's report on the Meiji Constitution recommended that the Diet be given authority "to investigate the operation of any branch of government; to issue subpoenas and administer oaths; to petition the highest court for writs of Mandamus, Prohibition, and Quo Warranto" [6 Dec. 1945, Major Milo E. Rowell, "Report of Preliminary Studies and Recommendations of Japanese Constitution" (Rowell Papers) ]. Nothing in the U.S. Constitution explicitly gives Congress the power to investigate; but such authority, derived from the "necessary and proper" clause (Art. I, Sec. 8, para. 18), has come to be considered inherent. It was not until the latter half of the nineteenth century that Congress really began utilizing its investigative authority. Some early court decisions appeared to abridge that power, but in McGrain v. Dougherty, 273 U.S. 135 (1927), it was established that Congress has the power "to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." 19. This was a holdover from the Meiji Constitution (Arts. 40 and 50). Of the Diet's powers to make representations, SWNCC 228 commented that this was of "little practical significance," for neither the Throne nor the government was obliged to respond. The drafting committee intended that under the new constitution representations would be made only to the executive branch. "[W]e would not have considered it appropriate for the Diet to be making representations to the Emperor, who presumably was essentially a figurehead . . .," recalled Hauge. The committee assumed that this article included the Diet's right to interpellate members of the Cabinet, and it felt that a Minister "should not be permitted to discharge his obligation by having a flunky appear." Yet the drafters chose not to require that Ministers themselves appear to answer Diet interpellations, "because it was argued that with the periodic change in Cabinet officers, in many cases the Minister's staff would be better informed than the Cabinet Minister himself, more knowledgeable about particular issues, and better able to provide the answers sought by the Diet" [Osborne Hauge, interview by author, 12 May 1976]. 20. This was also retained from the Meiji Constitution (Art. 54). During the 19308, the House of Representatives attempted to compel the appearance of Cabinet Ministers before the Diet upon request, but the Peers vetoed the proposal. Whether the drafting committee was aware of this is unclear. There was "relatively extensive discussion" within the committee about the British practice of permitting Cabinet ministers to participate in sessions of Parliament, a practice the drafters sanctioned in this article [Osborne Hauge, interview by author, 12 May 1976].

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Appendix E or order the Diet to dissolve. When the Diet has been ordered dissolved a special election of a new Diet shall be held not less than thirty days nor more than forty days after the date of dissolution. The newly elected Diet shall be convoked within twenty days after the date of election.21 Article [24]. The Diet is the only body empowered to amend the constitution. (See section on Amendments.)22 Article [25]. The Diet shall sit as a court of impeachment to try members of the Judiciary against whom proceedings have been instituted, as determined by law. Convictions shall require the vote of two-thirds of the members present.23 Article [26]. All treaties must be ratified by the Diet. However the Diet may, as specified by law, authorize the Government to conclude treaty, trade, or other executive agreements.24

A P P E N D I X E-2 Draft of the Committee on the Diet, as revised by the Steering Committee CHAPTER HI IV THE DIET Article [ i ]. The Diet shall be the highest organ of state power and shall be the sole law-making authority of the state. 21. The Meiji Constitution required that a new House of Representatives be convoked within five months of dissolving the old House (Art. 45). Matsumoto sought to reduce this to three months. SWNCC 228 required that a Cabinet losing the confidence of the legislature either resign or appeal to the electorate. The time frame used by the drafting committee came from a rough knowledge of how the British system operated and what in England was considered a reasonable amount of time for electioneering. The committee also felt strongly that "if the Diet has been dissolved, it's necessary to proceed with a new election just as quickly as possible." Contrary to interpretations later placed upon a related article by the Japanese, the drafters intended that the Diet could be dissolved only after passage of a nonconfidence resolution or failure of a confidence vote [Osborne Hauge, interview by author, 12 May 1976; see also Appendix F-2, note 17]. 22. SWNCC 228 required the drafting and adoption of constitutional amendments in a way that would express the free will of the Japanese people. One problem with Japan's present system of government, it noted, was the Diet's inability to initiate amendments. Rowell also made recommendations on this in his report, suggesting that the Constitution be amendable "only by some process whereby the consent of the representatives of the people is required" [6 Dec. 1945, Rowell, "Report of Preliminary Studies and Recommendations of Japanese Constitution" (Rowell Papers)]. The drafting committee met Rowell's specifications, though it did not expressly guarantee the Diet's right to initiate amendments. The drafters assumed that right was inherent. They also did not wish to prevent the executive branch from recommending amendments for consideration [Osborne Hauge, 12 May 1976]. 23. SWNCC 228 made no recommendations regarding impeachment, but Rowell's report did. Rowell believed that the legislature must have the power to institute and try charges of impeachment; he did not specify who might be subject to impeachment. Following the U.S. Constitution (Art. I, Sec. 3), the drafting committee limited the field of subject officials to members of the judiciary, presumably because members of the executive would be governed by civil service regulations or removable by political processes. 24. SWNCC 228 noted that under the Meiji Constitution the Diet had only the most indirect influence over the powers to declare war, make peace, and conclude treaties, all of which were Imperial prerogatives. Rowell recommended that the Diet be given the power to ratify treaties. The drafting committee agreed. "Since a treaty is an obligation of the government," noted one member, "if the Diet is the highest organ of state power, it should have the right to ratify" [Osborne Hauge, interview by author, 12 May 1976].

The Diet Article [2]. The Diet shall consist of one House of elected representatives with a membership of not less than 300 nor more than zfge 5OO.25 Article [3]. The qualifications of electors and of candidates for election to the Diet shall be determined by law, and in determining such qualifications there shall be no discrimination on grounds of sex, race, creed, color or social status.26 Article [4]. In determining qualifications for membership in the Diet there shall be no discrimination on grounds of sex, race, creed, color or social status. Article [5]. Members of the Diet shall receive a compensation from the national treasury as determined by law. Article [6]. Members of the Diet shall in all cases, except those specified by law, be free from arrest while attending the sessions of the Diet or while travelling to and from such sessions; and for any speech, debate, or vote in the Diet, they shall not be held responsible legally liable elsewhere. Article [7], The term of members shall be four years, but it may be terminated at an earlier date by dissolution of the Diet as provided herein. Article [8]. For the purpose of electing members of the Diet the state shall be divided into election districts. One member shall be elected to the Diet from each such dis trict. Election districts, to be established by law, shall be composed of contiguous ter ritory, shall not cross prefectural boundary lines, and shall be approximately equal in population. (Alternative: For the purpose of electing members of the Diet, the state shall be divided into election districts. The basis of representation from each district shall be determined The method of election, apportionment, and voting shall be determined by law.27 Article [9]. Whenever a vacancy shall occur in the Diet the Government shall cause a special election to be held in the district so affected, except when the Diet shall other wise decide, as determined by law. A Diet member chosen by special election shall serve for the balance of the unexpired term.28

25. According to Ellerman's minutes, "On the suggestion of Colonel Kades the membership of the Diet was set within 300 and 500, instead of within 300 and 450, as originally specified. The present membership of the Diet [sic; House of Representatives] is 465, and a reduction of seats would be protested by the Japanese and necessitate a reapportionment of seats" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The principle of setting a constitutional ceiling on Diet membership was strongly supported by Commander Swope [Ellerman Notebook C (Michigan: Hussey Papers) ]. 26. Kades believed this antidiscrimination clause belonged in the Bill of Rights, but others on the Steering Committee favored retaining it in the chapter on the Diet. On such issues, Kades recalled, "I never insisted on my point of view, because if it was in another part of the constitution, what substantial difference did it make? I always thought that this was going to be thoroughly revised in any event by the Japanese" [Charles L. Kades, interview by author, 12 Dec. 1973]. The clause was retained, but removed from draft Article 4 and appended to Article 3 of the Steering Committee's report to General Whitney [Ellerman Notebook C (Michigan: Hussey Papers)]. 27. As Ellerman recorded, "Article [8] of the original draft specified the method and condition of election for Diet members. Col. Kades objected that provisions of this kind are essentially statutory rather than constitutional law, and that the Diet will be competent to write its own election law. The article was struck out" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. 28. In opposing draft Articles 8 and 9, Kades stressed again and again that the "Diet's hands should be left free" to devise its own arrangements for the election of its members—and that these might, or might not, include the type of representation being promoted by the drafting committee [Ellerman Notebook C (Michigan: Hussey Papers); Osborne Hauge, interview by author, 12 May 1976].

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Appendix E Article [10]. The first election after the adoption of this constitution shall be held on a day in November 1946. The Government shall announce the election not less than 30 days, nor more than 40 days before such day. Subsequent elections shall be held as provided by law.29 Article [ 11 ]. The Diet shall meet in annual session. The first regular session shall convene on 15 January 1947. Thereafter regular sessions of the Diet shall be held each year, beginning on the i5th day of January. (Alternative: The Diet shall meet in annual session as determined by law.)Article [12]. The Government may call special sessions and shall do so on petition of not less than twenty-five per cent of the members of the Diet. Article [13]. The Diet shall be the sole judge of the elections and the qualifications of its members. The denial of a seat to anyone who is certified to have been elected and whose right to the seat has been questioned shall require the vote of a majority of the members present. On a motion for expulsion of a member the vote of not less than two thirds of the members present shall be required to effect such expulsion.30 Article [ 14]. A quorum to transact business shall consist of not less than fifty per cent one-third of all the members. Except as otherwise provided herein all actions of the Diet shall be by majority vote of those present. In case of a tie the presiding officer shall cast the deciding vote.31 Article [15]. In case of a tie the presiding officer shall cast the deciding vote. Article [16]. The Diet shall choose its presiding officer and other officials. It may determine the rules of its proceedings, punish members for disorderly behavior and expel them in accordance with the procedure set forth in Article [13]. On a motion for expulsion of a member a vote of not less than two-thirds of the members present shall be required to effect such expulsion. Article [17]. Bills passed by the Diet shall be referred to the Cabinet for promulga tion. If the Cabinet fails to make such promulgation within ten days after receipt of 29. Notwithstanding the clear language of Article 10, some members of the Steering Committee objected that such a late election date would interfere with SCAP's plans to have a new Diet sit as a constitutional convention [Charles L. Kades, interview by author, 12 Dec. 1973]. When it was pointed out that this provision applied only to the first Diet convened after adoption of the Constitution, some jester piped up to say that 2 September (VJ Day) would be more appropriate for a national election in Japan. The Steering Committee, uncertain whether a postadoption election should be mandatory or not, finally decided that the matter would be best handled outside the constitution [Ellerman Notebook C (Michigan: Hussey Papers)]. 30. The Steering Committee balked at the expulsion clause because it was not clear whether it applied to election violations, to infringement of Diet regulations, or to other undefined offenses. Fearing it might sanction the arbitrary expulsion of unpopular Diet members, the Committee narrowed its focus by transferring the clause to Article 16 of the chapter [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973]. 31. According to Ellerman, "Article [14] defined a quorum to transact business as consisting of not less than 50% of all the members. Colonel Kades and Commander Swope argued that this figure was too high; a quorum should be fixed at one-third of all the membership. If the requirement is higher, formation of a quorum can be manipulated as a delaying action for bills" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Contrary to Ellerman's typed minutes, her notes show Commander Swope actually defending a simple majority quorum as the practice in the U.S. House of Representatives. Kades preferred a quorum of one-third because it was required at that time by Japanese law. In this he was supported by the rest of the Steering Committee [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973].

The Diet the bill from the Diet, the bill shall nevertheless become law. No law shall be passed except by bill.32 Article [18]. The deliberations of the Diet shall be public, and no secret sessions shall be held.33 The Diet shall maintain and publish a record of its proceedings and this record shall be made available for inspection by the public. The individual votes of members on any question shall be recorded in the journal upon the demand of twenty per cent of those present. (Alternative: All deliberations of the Diet shall be held in public unless it decides by formal action that any particular proceeding requires secrecy. The Diet shall keep and publish a journal of its proceedings except such portions as it may decide to withhold because of required secrecy. The individual votes of members on any question shall be recorded in the journal upon the demand of twenty per cent of those present.) Article [19]. The approval of the Diet shall be required for the adoption of any budget, and it shall have the authority to reduce, increase, or reject any items in the budget or to suggest new items. The authorization of the Diet shall be required for all taxes or duties levied, obligations incurred, or expenditures made in behalf of the Executive Branch.34 Article [20]. The Diet shall have the power to conduct investigations, to compel the attendance and testimony of witnesses, a»d the production of records^and to punish for refusal to comply. It may punish for contempt in such cases.35 32. As Ellerman wrote, "In discussion of Article [17], providing for the referral of bills to the Cabinet for promulgation, Col. Kades questioned the lack of provision for an executive veto. Commander Swope defended this omission on the score that Cabinet promulgation should be no more than a procedural formality. The Diet must have decisive and ultimate power over all legislation" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Ellerman's minutes misrepresent the import of Kades' query. He was not suggesting that the executive be granted veto power; rather, he was apprehensive that this article might be interpreted as implying such power. Article I, Section 7, of the U.S. Constitution, from which this clause was derived, allowed the President ten days in which to veto a bill passed by Congress. To Kades, Article 17 "muddied the waters" by inadvertently introducing the Cabinet into the lawmaking process, a process Government Section was "trying to concentrate . . . entirely in the Diet." If no veto power was intended—and the drafting committee did not desire to extend such power to the executive—the article was a "fulmen brutum," a waste of words. By omitting the article, bills would become law upon passage by the Diet or when the Diet, not the Cabinet, fixed their date of promulgation [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973]. 33. According to Ellerman, "In the discussion of Article [18], the Steering Committee questioned the provision that all deliberations of the Diet shall be public and that no secret sessions shall be held. It is conceivable that while in progress debates involving international negotiations should not be made public. In defense of the prohibition, Col. Hays said that an unequivocal prohibition of all secret session is the only way to prevent Japanese abuse. Proceedings that legitimately demand secrecy can be handled in committee" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Staff split on the issue of secret sessions, but the lines of divergence are not clear. Kades appears to have favored permitting them; Hussey was probably opposed. Commander Swope felt secrecy had practical uses, but he supported the rest of the drafting committee in favoring a blanket prohibition [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973]. 34. Swope observed that Article 19 had been included in the draft in obedience to SWNCC 228. The Steering Committee thought it more appropriate to the chapter on finance, which cut across several other chapters, including that on the Emperor. As Kades explained, "... MacArthur had made a special point of the budget, and I thought we should put it all in one section so he could see how we'd handled it" [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973]. 35. According to Ellerman's minutes, "In Article [20] it is stated that the Diet may punish for contempt in its conduct of investigations. Col. Kades objected that this provision might be manipulated

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Appendix E Article [g i ]. The Diet may make representations to the Government on any subject. It shall receive petitions from the public.36 Article [22]. Cabinet ministers or their delegates may, at any time, take seats and speak in the Diet. The Prime Minister and the Ministers of State whether or not they hold seats in the Diet may at any time appear before that body for the purpose of presenting and arguing bills and shall appear when required to answer interpellations.37 Article [23]. Upon the passage of a resolution of non-confidence by a majority of the total membership of the Diet, the Government shall either resign within ten days or order the Diet to dissolve. When the Diet has been ordered dissolved a special election of a new Diet shall be held not less than thirty days nor more than forty days after the date of dissolution. The newly elected Diet shall be convoked within twenty days after the date of election.38 to suppress criticism of the Government, that it would come to be construed as 'lese majeste.' This clause was cut out of the revised draft" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. If the drafting committee wished to use a legal term like "contempt," they should first define it, Kades asserted. Undefined, the term was potentially dangerous. One possibility particularly feared by Kades was that contempt charges might be used against those criticizing the Emperor within the Diet. This was not idle speculation, given that lese-majeste was still part of the Criminal Code and that charges were still pressed against critics of the Throne. Although the Diet needed a means of enforcing compulsory process, Kades wondered whether it should also be responsible for handling cases of contempt. Even within the United States, he observed later, there have been no trials for contempt in the House or Senate for a long time. During the Watergate hearings there might have been such a trial to punish those refusing to surrender the Nixon tapes; but the Ervin Committee instead went to the courts, because those offered faster resolution. Giving the Diet the power "to punish for refusal to comply" was not entirely satisfactory, but the Steering Committee decided "we might as well put it in and see what the Japanese had to say" [Ellerman Notebook C (Michigan: Hussey Papers); Charles L. Kades, interview by author, 12 Dec. 1973]. 36. As Ellerman wrote, "On the recommendation of the Steering Committee Article [21], giving the Diet the privilege of making representations to the Government, was struck out as superfluous. The Diet is the supreme body of the land, and need not be authorized to make representations to the Cabinet" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. 37. Commander Swope had second thoughts about his Committee's draft Article 22. At his request, it was revised to compel the Prime Minister and his Cabinet to answer interpellations from the Diet floor. Recalling that a similar clause had been in the draft chapter on the executive (Art. 4), the Steering Committee had the drafting group incorporate the language of that chapter into their final report [Ellerman Notebook C (Michigan: Hussey Papers)]. It is not clear how much the GS staff knew about Diet interpellations at this point. An early system of formal interpellations requiring written questions signed by at least twenty-five legislators had long since been abandoned in favor of informal question periods similar to British practice. In the House of Commons, questions are submitted in writing to the Clerk two days prior to a given question period. In occupied Japan, written questions were submitted first to a Negotiating Conference composed of the leaders of parties with at least thirty Diet members. Obtaining permission prior to asking the question was requisite, even for the Diet's so-called "free discussion period." The Negotiating Conference had substantial power in allocating interpellation time: minority groups and independents had to band together to secure their share of interpellations. To a group of visiting British MPs, the Japanese system seemed unduly restrictive. The Government Section saw that there was potential for abuse by the Negotiating Conference but apparently did little to alter it [14 Oct. 1947, m/c, GS conference with UK Parliamentary Delegation (WNRC, RG 331: SCAP, GS: "Conferences, Book I," Box 2229-6)]. 38. According to Ellerman, "In the discussion of Article [23], that requires a new election held within 40 days after the dissolution of the old Diet, Col. Kades objected to the shortness of the time limit. He thought it conceivable that an election campaign fought on the basis of important issues might well take as long as two months. Colonel Kades was over-ruled by the other members of the Steering Committee and the Diet Committee and the Article remained as originally written" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ].

The Diet Article [24]. The Diet is the only body empowered to amend the constitution. (See section on Amendments). Article [25]. The Diet shall sit as constitute from among its members a court of impeachment to try members of the Judiciary against whom proceedings have been instituted, as determined by law. Convictions shall require the vote of two thirds of the members present.39 Article [26]. All treaties must be ratified by the Diet. However the Diet may, as spec ified by law, authorize the Government to conclude treaty, trade, or other executive agreements. The Diet shall establish the several Ministries of State.

The time limit seemed short to Kades because he was thinking of the protracted campaigns of American elections. In a parliamentary system such as Britain's, elections follow the dissolution of Parliament and the issuance of writs of election in as little as twenty days. Kades also suggested instituting a term of office for the Prime Minister, inasmuch as "the Prime Minister would be elected by the House of Representatives and . . . he would be the Executive—the Cabinet would not be the Executive but the Prime Minister would be." The Prime Minister would be guaranteed a minimum term after which he would have to retain the confidence of the Diet to remain in office. "What I had in mind," Kades explained later, "was the constant fall of French governments, and that even though we wanted to put the Diet in the position of the supreme department of government . . . the executive shouldn't be at the mercy of the Diet and simply an executive at the will of the Diet" [Charles L. Kades, interview by author, 12 Dec. 1973]. On this point, Kades was strongly opposed by both the rest of the Steering Committee and the drafters. A similar conflict between the perceived need for a strong executive and the policy goal of legislative supremacy emerged during the debate on the chapter on the executive. 39. As Ellerman wrote, "Colonel Kades questioned the advisability of members of the Diet constituting a court of impeachment to try members of the judiciary against whom proceedings have been instituted. Commander Swope and Col. Rowell argued that the Diet was the only body left with the authority to try members of the judiciary, for the judiciary can't sit as a court of impeachment for its own members. Col. Kades then protested that the 2/3 vote requirement for conviction was too high to ever secure an impeachment. Compromise was reached by the decision to use the Diet as a court of impeachment for the Judiciary, but to drop the 2/3 vote requirement for conviction" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The Steering Committee objected to the vagueness of the draft article, which implied that the entire Diet might sit in judgment, as in the case of the U.S. Senate. This was changed to allow the Diet to appoint a committee of impeachment for the actual trial of charges [Ellerman Notebook C (Michigan: Hussey Papers)]. Believing that "it would be better for the judges to discipline themselves," Kades saw impeachment as cumbersome and ineffectual [Charles L. Kades, interview by author, 12 Dec. 1973]. The two-thirds vote requirement to which he objected came from the U.S. Constitution.

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APPENDIX F

The Executive

Groundwork for much of the chapter on the executive began to be laid back in November 1945, when Lieutenant Milton Esman started researching the Japanese bureaucracy. Another Pennsylvanian (from Pittsburgh), Esman was then twenty-seven, with a B.A. from Cornell and a doctorate from Princeton in public administration. He brought impeccable academic credentials to his work in Government Section, though little practical experience, for he had worked only briefly for the U.S. Civil Service Commission before entering the Army in 1942. Like most other Section personnel, Esman had gone through military government training (at the Army's School of Military Government in Charlottesville) and through civil affairs studies (at the Harvard Civil Affairs Training School).1 Concerned about the Japanese government's plans to reduce its personnel by 50 percent, Esman noted that this scheme, if implemented by the existing bureaucracy "without political direction from a reforming agency at the top," would leave unimpaired the influence of the cliques that had dominated the government for decades.2 He feared that those who "had actively cooperated with the militarists might utilize this personnel reduction program further to entrench themselves in office." Government Section, he recommended, should investigate the proposed reduction program

and its implementation; it should also begin a comprehensive inquiry into the structure of the Japanese civil service.3 One of the important questions SCAP needed to examine was whether an unreformed, unrepentant bureaucracy might not "nullify the program of the Supreme Commander and even of their own political leaders by administrative sabotage."4 Yet understanding the Japanese civil service was a "tedious and painstaking" process, for there were few English-language materials on the bureaucracy, and most of Esman's research depended upon interviews with Japanese officials. Since Japanese administrative concepts were so different from American ones, Esman had to check information repeatedly with different sources to make certain he correctly understood it. By the end of 1945, his studies had not yet reached the point where Esman felt confident about making any proposals for reform. Word of his work prompted a public promise of reform from the Shidehara Cabinet, though few specifics.5 By January 1946, however, Esman had become acquainted with Royama Masamichi, then editor in chief for the Chuo Publishing Company and formerly professor of public administration at Tokyo Imperial University for almost two decades. Royama was conversant, if not current,

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The Executive with Western literature on public administration, and to Esman he seemed "years ahead of the officials and University professors who have visited this office."6 In a memorandum prepared at Esman's request, Royama concluded that the Shidehara Cabinet's plan for reforming the civil service would never eliminate its "fundamental defects." To do that required, for starters, replacing personnel whose "mentality and working methods" had become "too legalistic and formalistic to entertain the idea of public service or to acquire an insight into the kind of social changes and human relations in which government operates." It required, in other words, developing a credo of serving the people, one wholly alien to and absent from the Japanese bureaucracy. Royama criticized the Meiji Constitution and civil service ordinances for stressing allegiance to the Emperor and for inculcating the belief that bureaucrats "are independent of the Diet and they are not responsible to the public for their administrative conduct." Unfortunately, the civil service could not be reformed unless the Constitution and related laws were rewritten to establish the principle of responsibility to the legislature and to secure respect for individual rights.7 Royama also decried the tremendous power of Ministers in overseeing all details of personnel management within their departments. Although he did not suggest that the Diet be responsible for establishing new standards, he did recommend having a single coordinating agency, analogous to the American Civil Service Commission, that would be superior to Cabinet Ministers when it came to personnel matters. Esman liked that idea. Civil servants should be "public employees of the national administration," governed by standards enacted by the Diet, he wrote the Chief of Government Section, Brigadier General Courtney Whitney. Personnel practices should be nondiscriminatory, yet the Jap-

anese bureaucracy was riven by cliques, each seeking its own advantage.8 By late January, Esman had concluded that the Japanese bureaucracy was unwilling and unable to reform itself. "Unless a thorough-going democratization and modernization of the civil service is carried out" under relentless pressure from GHQ, he wrote his Chief, the objectives of the Occupation would never be realized. Civil service reform should be made a major priority by Government Section.9 Colonel Charles Kades, GS second in command, thought Esman overstated the urgency of civil service reform, but he was overruled by General Whitney, to whom "all problems involving fundamental reform are on 'major priority.'"10 Esman ended up on the Committee on the Executive partly because he had done his dissertation on public administration and was presumed to know something about the executive branch.11 Believing the Japanese people would face "problems of enormous social tensions, the problems of poverty and reconstruction," Esman felt the country needed an executive that was stable and effective more than it needed a legislature with powers it was too weak and fragmented to use. Postoccupation Japan, he thought, was likely to resemble France under the Third Republic or prefascist Italy." [U] nless there was a strong executive to provide a countervailing influence, an executive that was able to bargain with [the legislators] and in many cases discipline them," he recalled, "you would get such disorder and such breakdown that democratic institutions wouldn't survive in Japan."12 Although Esman's preference for a powerful executive did not survive the Steering Committee, the draft chapter's emphasis on public service, on the state's responsibility for the acts of public employees committed within the scope of their authority, and on merit and nondiscrimination in public employment also reflected his ideas.

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Appendix F But Esman was only one of three on a committee that took literally Whitney's injunction to make the draft a joint effort. The chairman, Dr. Cyrus H. Peake, recalls that they all "worked together... and would sit there and just draft."13 A Minnesotan, age forty-five, Peake, like Esman, brought impressive credentials to the task at hand. He had a B.S. from Northwestern University and a master's and doctorate from Columbia University. After graduating from college, he taught in Japan for two years and subsequently did a year's graduate work in Paris. By the late 1920$, Peake was lecturing on Chinese affairs at Columbia; in 1937, he became an assistant professor there. Like so many of the civilian experts recruited for GS, Peake had worked for the Foreign Economic Administration during the war. He had also served as managing editor for the prestigious Far Eastern Quarterly from 1941 to 1946 and had some knowledge of Chinese and Japanese.14 Peake saw himself as someone "instinctively . . . in the center," anxious to move Japan toward democracy, but concerned about not pushing it too far left. Diffident about the idea of drafting even a model constitution for a defeated enemy, Peake thought the Steering Committee might be promoting changes too radical for Japan, although he later subscribed fully to GS's reforms.15 Little is known about the Committee's third member, Jacob I. Miller, a civilian sent by the Foreign Economic Administration. Miller remained at GS for only a month before being transferred to the Economic and Scientific Section to work on price controls. That it was largely Esman's work that came before the Steering Committee was due to the strength of the Lieutenant's views and to Peake's belief that the drafting committee should present a menu of alternatives from which the Steering Committee might choose in formulating a final draft. More concerned that a particular point of view not be overlooked than that

the draft chapter be wholly consistent, Peake relied on the Steering Committee to iron out the "problems and inconsistencies" of the chapter on the executive.16 The drafters faced problems common to most of the Section: lack of research material and lack of interaction with other drafters. The members may have had some contact with the civil rights group, but there was no systematic effort to keep up with what other drafting committees were doing. The Committee on the Executive had the instructions given in SWNCC 228, but those were followed only "insofar as they applied to any particular article."17 Esman borrowed a few English-language books on comparative government and constitutions from the Tokyo Bureau of Municipal Reform and a few more from Professor Royama's personal library. Yet the books sat unused on his desk, never opened by anyone on the Steering Committee or the drafting committee.18 One of the first drafting groups to get under way, the Committee on the Executive began planning its chapter immediately after Whitney's briefing on 4 February. After putting in twelve hours on its first draft, the committee members felt they had exhausted the limits of their knowledge on the executive branch.19 Since the status of the Emperor under the new constitution "hadn't been clearly defined to us in our minds," as Peake later said, the Committee on the Executive patterned its draft fairly closely after the Meiji Constitution. But instead of trying to clarify the relationship between the Emperor and the government, it worked on defining the relationship between the Prime Minister and his Cabinet. Recalled Dr. Peake: "The Steering Committee had reserved to itself the task of defining the Emperor's position and roles, and we could not really establish the Cabinet's relationship both to the Emperor and [to] the Diet until that decision was verbally formalized." Accordingly, the committee's draft read "as if we didn't know

The Executive the Emperor was to be a symbol" but would continue nominally to rule as he had under the Meiji charter. Unsure whether the Emperor would even be part of the executive branch, the committee's draft provided that the Emperor nominate the Prime Minister, though Peake personally believed the draft should follow the British system of having Parliament designate the Prime Minister and the monarch attest his appointment.20 This was the course eventually adopted. But until MacArthur's spare lines on the position of the Throne were incorporated into the draft constitution, the chapter on the Executive rolled Emperor and Prime Minister together into a strong governing duo. That proved anathema to the Steering Committee, which wanted to vest the preponderance of power in the Diet and overrode the heated objections of Esman and Miller to the change. The Steering Committee members "were very nice to me;

they listened," recalled Esman, but as a young lieutenant "my bargaining power was somewhat limited." As a veteran of the New Deal, Kades was the most sympathetic to the idea of "an effective executive," so sympathetic, in fact, that Esman thought he had convinced the Colonel; "but when the chips were down," he later remembered, "I lost out almost completely.. .. "21 Drafts of the Chapter on the Executive and Supporting Documents Following are two drafts based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining. Following the drafts are a memorandum written to the Steering Committee by two members of the Committee on the Executive and Ruth Ellerman's minutes of the second meeting of the Steering Committee with the Committee on the Executive.

APPENDIX F-l First draft of the Committee on the Executive by Cyrus H. Peake, First Lieutenant Milton J. Esman, and Jacob I. Miller [Michigan: Hussey Papers,

THE EXECUTIVE Article i. The executive power is vested in the Cabinet. In the exercise of its power the Cabinet shall be collectively and directly responsible only to the legislature and indirectly through the legislature to the people.1 Article 2. The Prime Minister shall be nominated by the Emperor. He shall form a Cabinet which shall serve at the pleasure of the legislature.2 1. SWNCC 228 required that Ministers of State be chosen with the advice and consent of the legislature and that they form a Cabinet collectively responsible to the legislature. Cyrus Peake, chairman of the drafting committee, believed that the principle of collective responsibility would guard against a resurrection of the old system of dual government and privileged access to the Throne on the part of the military [Cyrus H. Peake, interview by author and Charles R. Stevens, iSJune 1972]. Inasmuch as Cabinet Ministers were to be responsible to the Prime Minister and the Diet (rather than to the Throne), the Committee gave no thought to banning preferential access to the Emperor. Collective responsibility for the Cabinet had been advocated in Japan as early as 1881, principally by the Kqjunsha, a political club organized by Baba Tasui, Yano Fumio, and others. Premised on the British model of alternating party cabinets, the Kqjunsha proposal was denounced by the government as radical, extreme, and destructive of the national polity. 2. The drafting committee neglected to specify that ministerial appointments were subject to the Diet's advice and consent, as required by SWNCC 228. The Committee may not have had enough

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Appendix F Article 3. The Cabinet shall be composed of a Prime Minister, Ministers of State and Ministers without Portfolio who shall at all times be civilians. Cabinet members shall be placed by the Prime Minister at the head of such executive departments and agencies as the legislature may from time to time authorize and invest with administrative responsibilities. Each Minister of State shall be guided by and be personally responsible to the Prime Minister for the administration of his department.3 Article 4. The Prime Minister and the Ministers of State whether or not they hold seats in the legislature may at any time appear before that body for the purpose of presenting and arguing bills and answering interpellations. Article 5. The Cabinet shall remain in office only as long as it retains the confidence of the legislature. If the Cabinet should receive a vote of no confidence in the legislature, or should for any other reason decide to resign, the Prime Minister shall submit the joint resignation of his Cabinet to the legislature and report his resignation to the Emperor. If he requests a general election the Emperor will prorogue dissolve the legislature, call a general election within thirty days and request the retiring Prime Minister to form an interim Cabinet until the election is held. Whenever a vacancy shall occur in the office of Prime Minister the Emperor shall designate a Prime Minister who shall form a Cabinet in conformity to the provisions within this Chapter. (Alternative: The Cabinet shall remain in office only so long as it retains the confidence of the legislature. If the Prime Minister should decide, because of a vote of no confidence or for any other reason, to resign he shall submit his resignation to the legislature and report his action to the Emperor. As the result of a vote of no confidence or for any other reason he may direct the Emperor to dissolve the legislature and call a general election in keeping with the provisions of this constitution. Upon the convening of a new legislature, the Prime Minister shall submit the resignation of his cabinet. Whenever a vacancy occurs in the office of Prime Minister, the Emperor shall designate a Prime Minister who shall form a Cabinet in conformity with the provisions of this Constitution.)4 time to digest SWNCC 228, and Lieutenant Esman, for one, did not believe that the drafters were entirely bound by that policy paper. It is not clear from the text if the Emperor's power to nominate the Prime Minister included the power to select as well. Esman intended that the Emperor have the power to appoint the Prime Minister, believing the Emperor would choose the majority leader in the Diet in a manner "similar to the British system, [and] that there was nothing to fear. His idea of the Emperor was more along the lines of the British King" [Charles L. Kades, interview by author, 12 Dec. 1973]. Since the chapter on the Emperor was in separate hands, the extent to which the Imperial prerogatives would be curbed was not apparent to the Committee on the Executive. 3. SWNCC 228 assumed that the military's authority would disappear with abolition of Japan's armed forces. To guarantee that, it recommended that the services be formally and permanently subject to civil control by requiring that all Ministers of State or Cabinet members be civilians. SWNCC 228 gave no directions on what percentage of Cabinet members, if any, were to be selected from the Diet. In his report on the Kenpo Chosakai draft, Rowell noted that it would be desirable to require that the Prime Minister or other Ministers be chosen from among the people's elected representatives. The Committee on the Executive appears not to have known of Rowell's report or of the Kenpo Chosakai draft. 4. The initial version of this article, with its provision that the Prime Minister could dissolve the Diet after a vote of nonconfidence or for other reasons, was drafted by Esman [Milton Esman, interview by Russell Sveda, 28 June 1972]. The "alternative," which provided for the old Cabinet to continue in office until convocation of a new legislature (rather than using a special interim Cabinet), appears in the Hussey Papers as an addendum to the committee's first draft. Its author is not known. Both provisions were designed to comply with SWNCC 228's requirement that a Cabinet, upon losing the confidence of the legislature, either resign or appeal to the voters. Esman strongly believed that

The Executive Article 6. The Prime Minister shall call upon the Emperor to prorogue dissolve the legislature and call a general election three years and eleven months after the previous general election.5 The new legislature shall be convened by the Emperor within ten days after the election. The Cabinet shall present its resignation immediately following the convening of a new legislature. At the direction of die Prime Minister, the Emperor shall summon special sessions of the legislature. Article 7. The Prime Minister stands at the head of the Ministers of State, introduces bills, reports general affairs of State to die legislature and exercises general control over the various branches of the Administration. The Prime Minister and his Cabinet discharge the following functions: Conducts foreign relations and negotiates treaties and agreements with other governments and international agencies. The Prime Minister shall submit to the legislature for its discussion and approval through a majority vote all treaties and international conventions. The Prime Minister shall keep die legislature informed at all times on the status of foreign relations.6 Select and direct the activities of public employees of the national administration according to standards established by the legislature. Public employment shall be a nonpolitical career service based on merit only and open to all Japanese citizens without regard to religion, politics, sex or any otiier discrimination except ability.7 the Prime Minister should have the right to dissolve the Diet so as to balance the latter's right to vote nonconfidence in the Cabinet. Although Peake disagreed with both the principle and the language (in particular with Esman's provision that the Emperor designate a Prime Minister), he allowed the original article to go before the Steering Committee [Cyrus Peake, interview by author and Charles R. Stevens, 16 June 1972]. 5. Esman wanted the executive to have the power to dissolve the legislature and appeal to the people without necessarily having first received a vote of nonconfidence from the Diet. The idea of a roughly four-year term was to give stability and strength to the executive by approximating the presidential ideal Esman had in mind. 6. Americans believed that one of the prime causes of Pearl Harbor was the Diet's ignorance of the truth regarding Japan's history of aggression in Manchuria and China. SWNCC 228 noted that although the Diet had some successes in embarrassing the government with questions from the floor, Cabinet members were free to "make evasive replies or refuse to answer at all" on specious grounds of military or diplomatic security [27 Nov. 1945, SWNCC 228, Appendix B (NA, RG 165: CAD SWNCC Collection, SWNCC 228)]. 7. The specificity of this draft clause reflects Esman's research into reforming the Japanese civil service. Esman recalled with some frustration that the Steering Committee did not then understand "either the character of the Japanese administration or how powerful that bureaucracy had been all through the 19305, or the fact that this bureaucracy survived intact" through the war. "I had to fight like hell to demonstrate to them that the Japanese bureaucracy was a serious problem in the democratization of Japan, and I had not yet succeeded in doing so at this time. . . ." Only later did GHQ recognize the Japanese bureaucracy as a formidable foe, when they saw how their reforms were being "systematically thwarted." By making the Japanese civil service dependent upon the Diet for its rules of conduct and operation, Esman hoped the bureaucrats would no longer be able to look upon themselves as servants of the Emperor who operated on a plane well above the people and their elected representatives. The idea "that this great and proud bureaucracy should have to come to the Diet to have to get laws passed which governed their pay and their conditions of service and their powers was terribly offensive to them" [Milton Esman, interview by Russell Sveda, 28 June 1972 (emphasis in original) ].

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Appendix F Appoint judges with the consent of a majority of the legislature. See that the laws are faithfully and efficiently enforced. The efficient management of public business by the Ministers of State shall be his ultimate responsibility. Prepare an annual budget, submit it to the legislature, and execute the budgetary Acts. Make a detailed accounting, at the conclusion of each fiscal year, of all public expenditures. No expenditure shall be valid unless the funds therefor authorized have been authorized and appropriated by the legislature.8 Issue executive Orders to carry out the provisions of this Constitution and the Acts of the legislature enacted pursuant thereto. Proposed Orders shall be submitted to the legislature and become effective in ten days unless rejected by a majority vote. Orders enacted during recesses of the Diet shall be provisionally effective, but may be rejected by the legislature within the first 30 days of its next session. Emergency Orders take effect when issued, but may be annulled by a subsequent resolution of the legislature under the terms of this article. Grant pardons, commutations of punishment, and rehabilitations. Article 8. Acts of the legislature and Executive Orders shall be promulgated by the Prime Minister after they are signed by him and countersigned by the competent Minister of State.9 Article 9. On assuming office, the Prime Minister and all members of his Cabinet shall subscribe to a pledge of faithful and impartial public service. This pledge shall be formulated and enacted by the legislature.10 Article 10. The State shall accept responsibility for the acts of public employees committed within the scope of their authority without prejudice to the power of the State judicially to recover damages from its employees.11 8. This clause was intended to implement SWNCC 228'$ requirement that the legislature have sole authority over financial measures. 9. The Meiji Constitution provided that laws, Imperial ordinances, and Imperial rescripts bear the counter-signature of a Minister of State (Art. 55) as well as the Imperial Seal, for technically they were promulgated by the Emperor. Draft Article 8 was probably patterned after the French practice of requiring that acts of the President be counter-signed [Third Republic, Law on the Organization of the Public Powers, 1875, Art. 3]. 10. This would seem to reflect Esman's idea of instilling a doctrine of public service into the Japanese government. A first step was to accustom officials to thinking of themselves not as servants of the Emperor, but as servants of the people. Dr. Esman, however, did not recall that the article was his contribution [Dr. Milton J. Esman, interview by Russell Sveda, 28 June 1972]. 11. During his research into the Japanese civil service system, Esman learned of a practice that had important constitutional implications. "Following the continental system of jurisprudence," he wrote, "Japanese public officials are not personally liable for damages committed in the course of their official duties. The State assumes such liability. Depending on the sum of damages alleged, local and district courts determine whether the official was acting privately or officially. If officially, the State intervenes in the case and assumes liability for the damages assessed by the court." This was an arrangement "adhered to by convention" rather than specified in the Meiji Constitution. Although the Ministry responsible was supposed to honor the court's decision, it could not legally be forced to do so, Esman noted. "Whether this system has been abused to the injury of private citizens requires further study," he concluded [2 Jan. 1946, Esman to Chief, GS (WNRC, RG 331: SCAP, GS: Memos for Chief, Book I, Box 2142)]. To guard against abuse by the government and ensure that court decisions unfavorable to it were honored, Esman gave constitutional sanction to the principle of state accountability for the acts of public employees. When the Committee on Civil Rights likewise attempted to incorporate the principle of state accountability for the illegal acts of its officials, it ran into Steering Committee opposition [see Appendix D-2, note 55].

The Executive Article 11. Public officials may be impeached for dereliction of duty, malfeasance in office, or violation of public trust. Impeachment charges shall be brought by the legislature and tried before the Supreme Court. Conviction by a majority of the judges of the Supreme Court shall not limit the liability of such officials to subsequent civil or criminal liability. Cabinet Ministers shall not be subject to civil or criminal procedures during their tenure of office; their liability shall be deferred but not mitigated until they retire from office. APPENDIX F-2 Draft of the Committee on the Executive, as amended by the Steering Committee on 7 February 1946 CHAPTER IV THE EXECUTIVE

Article * XXIX. The executive power is vested in the Cabinet. In the exercise of its power the Cabinet shall be collectively and directly responsible only to the legislature and indirectly through the legislature to the people.12 Article * XXX. The Prime Minister shall be nominated by the Emperor. The Emperor appoints as Prime Minister the person designated by the Diet. He shall form a Cabinet which shall serve at the pleasure of the legislature.13 The Prime Minister shall with the advice and consent of the Diet appoint Ministers The Prime Minister may remove individual Ministers at will. Whenever a vacancy occurs in the office of Prime Minister or upon the convening of a new Diet, the Cabinet shall collectively resign and a new Prime Minister shall be designated. Pending such designation, the Cabinet shall continue to perform its duties.14 12. For a subsequent revision to this article, see footnote 28 to this appendix. 13. According to Ellerman's minutes, "Commander Hussey objected that the wording of 'The Prime Minister shall be nominated by the Emperor' implied discretionary power in the hands of the Emperor in the appointment of the Prime Minister. This article was rewritten to read 'The Emperor appoints as Prime Minister the person designated by the Diet' and incorporated in [to] the Chapter on the Emperor [sic]" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. 14. As Ellerman recorded, "Article [2], defining the membership of the Cabinet, was amended to tighten the Diet's control over the Cabinet. Col. Rowell insisted that Ministers can be appointed only to those ministerial offices specifically authorized by the Diet. Moderate executive powers are vested in the Prime Minister, however, by permitting him to remove Ministers at will" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. The Steering Committee later suggested that the last clause of draft Article 5 be rewritten and incorporated into Article XXX. Oddly enough, the Steering Committee ignored a suggestion made in Rowell's December report that all Cabinet members be chosen from within the Diet. Rowell contended that only elected representatives of the people should hold Cabinet posts that permitted access to the Throne, thereby ensuring that solely civilians would head the Army and Navy ministries. The Steering Committee discussed but ultimately rejected the idea. With adoption of the clause on the renunciation of war (and the presumed abolition of the armed forces), the idea of requiring that the military ministries be headed by civilians lost its force. In addition, the Steering Committee may have omitted the requirement so as to give the prime ministers maximum flexibility in choosing a Cabinet, for the Japanese had strong feelings that men of ministerial caliber might not always be found within the Diet [Milo E. Rowell, interview by author, 4 May 1972].

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Appendix F Article 3 XXXI. The Cabinet shall be composed of a Prime Minister, Ministers of State and Ministers without Portfolio who shall at all times be civilians. Cabinet mem bers shall be placed by the Prime Minister at the head of such executive departments and agencies as the legislature may from time to time authorize and invest with admin istrative responsibilities. Each Minister of State shall be guided by and be personally responsible to the Prime Minister for the administration of his department.15 The Prime Minister introduces bills on behalf of the Cabinet, reports to the Diet on general affairs of state and the status of foreign relations and exercises control and supervision over the several executive departments and agencies. Article 4. The Prime Minister and the Ministers of State whether or not they hold seats in the legislature may at any time appear before that body for the purpose of pre senting and arguing bills and answering interpellations.16 Article 5. The Cabinet shall remain in office only as long as it retains the confidence of the legislature. If the Cabinet should receive a vote of no confidence in the legisla ture, or should for any other reason decide to resign, the Prime Minister shall submit the joint resignation of his Cabinet to the legislature and report his resignation to the Emperor. If he requests a general election the Emperor will prorogue dissolve the leg islature, call a general election within thirty days and request the retiring Prime Min ister to form an interim Cabinet until the election is held. Whenever a vacancy shall occur in the office of Prime Minister the Emperor shall designate a Prime Minister who shall form a Cabinet in conformity to the provisions within this Chapter. (Alternative: The Cabinet shall remain in office only so long as it retains the confi dence of the legislature. If the Prime Minister should decide, because of a vote of no confidence or for any other reason, to resign he shall submit his resignation to the leg 15. Rowell was concerned that the Cabinet might create numerous Minister without Portfolio posts, all lacking Diet authorization. The Steering Committee raised the issue of specifying that Cabinet ministers be members of the legislature (see footnote 14 to this appendix), which would ease their confirmation by the Diet. But on Peake's observation that the Japanese would have more "leeway" if no such requirement was imposed, the item was dropped [Ellerman Notebook C (Michigan: Hussey Papers) ]. The notion of requiring that a certain percentage of the Cabinet be from the Diet was later raised by the Far Eastern Commission and incorporated into the draft constitution over the objections of the Japanese government [Charles L. Kades, interview by author, 12 Dec. 1973]. 16. The Steering Committee members rejected this article partly because they were apprehensive about some of its implications and partly because they felt "the members of the Cabinet would be pretty busy running their departments and shouldn't be in the Diet all the time the Diet was in session answering their questions." Kades' understanding of the draft article was not simply that Ministers would have the right (and duty) to appear before the legislature to answer questions, but that they would have as well "the right to debate from the floor." Kades recalled, "I think we felt that the Ministers of State weren't necessarily going to be members of the legislature, and that if they were not members of the legislature they ought not to have the privileges of members of the legislature, because then you might have domination again by the executive" [Charles L. Kades, interview by author, 12 Dec. 1973]. The Steering Committee was aware that special Parliamentary Vice Ministers from each department sat in the Diet on a more or less permanent basis to introduce bills on behalf of their respective ministries. They were members of the executive, however, and not members of parliament. Less worried about imposing the constitutional duty of answering Diet interpellations upon the Cabinet than about forcing out the old system of "hybrid vice-ministers who dominated the Diet because those were the persons who introduced the bills," the Steering Committee feared Article 4 might encourage the Cabinet to continue overwhelming the Diet with administration bills while discouraging elected representatives from initiating bills of their own [Kades interview].

The Executive islature and report his action to the Emperor. As the result of a vote of no confidence or for any other reason he may direct the Emperor to dissolve the legislature and call a general election in keeping with the provisions of this constitution. Upon the con vening of a new legislature, the Prime Minister shall submit the resignation of his cab inet. Whenever a vacancy occurs in the office of Prime Minister, the Emperor shall designate a Prime Minister who shall form a Cabinet in conformity with the provisions of this Constitution.)17 Article 6. The Prime Minister shall call upon the Emperor to prorogue dissolve the legislature and call a general election three years and eleven months after the previous general election. The new legislature shall be convened by the Emperor within ten days after the election. The Cabinet shall present its resignation immediately following the convening of a new legislature. At the direction of the Prime Minister, the Emperor shall summon special sessions of the legislature.18 Article f XXXII. The Prime Minister stands at the head of the Ministers of State, introduces bills, reports general affairs of State to the legislature and exercise general control over the various branches of the Administration. The Prime Minister and his Cabinet discharge the following functions: In addition to other executive responsibilities, the Cabinet shall: Conducts foreign relations and negotiates treaties and agreements with other gov ernments and international agencies.; The Prime Minister shall submit to the legislature for its discussion and approval through a majority vote all treaties and international conventions. Conclude such 17. The Steering Committee believed that standard parliamentary practice gave the Prime Minister the choice of resigning or calling for new elections after a vote of nonconfidence; therefore, an article spelling this out was superfluous. Rowell also objected to the alternative draft of Article 5 for ignoring the Cabinet's collective responsibility, a point he wanted underlined. Because the procedure for dissolving the Diet was already specified in the chapter on the Diet, the article was scrapped [Ellerman Notebook C (Michigan: Hussey Papers) ]. The final clause regarding a vacancy in the premiership was, however, rewritten and transferred to Article XXX (see footnote 14 to this appendix). The Government Section later had reason to rue its dismissal of this article. In a dispute with the Diet nearly three years later over a bill setting government workers' salaries, Prime Minister Yoshida attempted to use the Emperor to dissolve the Diet, even though his administration had received no vote of nonconfidence. Whitney told Yoshida that the Supreme Commander was "seriously concerned" over the Cabinet's attempt to utilize the Emperor to effect dissolution, because this would raise questions among the Allies as to whether the Japanese were trying to restore governing powers to the Throne. Yoshida, uncomprehending, replied that the Emperor was permitted to dissolve the Diet with the advice and consent of the Cabinet. True, replied Whitney, but this was "a ministerial function to be performed after the constitutional basis was laid by the House of Representatives through either the passage of a vote of non-confidence or the failure to pass a vote of confidence." Without one of these, the Prime Minister was acting unilaterally, and nowhere in the Constitution was he granted such power. MacArthur's suggested compromise was for the Cabinet to present its pay bill to the Diet upon the condition that once this bill and related items were passed, the opposition party would pass a resolution of nonconfidence, thus permitting dissolution of the Diet [27 Nov. 1948, Kades, m/r of conference between Yoshida, Whitney, and Kades (WNRC, RG 331: SCAP, GS: Central Files, Memos for Record, 1948, Box 2232)]. 18. According to Ellerman, "The Steering Committee recommended the omission of Article [6], providing for general elections and the convening of new legislatures. These procedures are treated in the Chapter on the Diet" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)].

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Appendix F treaties, international conventions and agreements with the consent of the Diet by prior authorization or subsequent ratification as it deems in the public interest:19 The Prime Minister shall keep the legislature informed at all times on the status of foreign relations. Select and direct the activities of public employees of the national administration according to standards established by the legislature. Public employment shall be a non political career service based on merit only and open to all Japanese citizens without regard to religion, politics, sex or any other discrimination except ability. Administer the civil service according to standards established by the Diet: Appoint judges with the consent of a majority of the legislature. See that the laws are faithfully and efficiently enforced. The efficient management of public business by the Ministers of State shall be his ultimate responsibility. Faithfully execute laws and administer the affairs of state: Prepare and submit to the Diet an annual budget, submit it to the legislature, and execute the budgetary Acts. Make a detailed accounting, at the conclusion of each fiscal year, of all public expenditures. No expenditure shall be valid unless the funds there for authorized have been authorized and appropriated by the legislature.; Issue executive Orders and regulations to carry out the provisions of this Constitution and the Acts of the legislature enacted pursuant thereto, law, but no such order or regulation shall contain a penal provision: and Proposed Orders shall be submitted to the legislature and become effective in ten days unless rejected by a majority vote. Orders enacted during recesses of the Diet shall be provisionally effective, but may be rejected by the legislature within the first 30 days of its next session. Emergency Orders take effect when issued, but may be annulled by a subsequent resolution of the legis lature under the terms of this article. Grant amnesty, pardons, commutations of punishment, reprieve and rehabilitations.20 19. This clause came from the draft prepared by the Committee on the Emperor. It was included in that Committee's report to Whitney with a note that it should be transferred to the chapter on the executive. 20. The Steering Committee found this entire article ambiguous. For example, any member of the Cabinet (as well as any legislator) ought to be able to introduce bills: was the Prime Minister able to preempt this right? As Ellerman wrote, "The Steering Committee recommended that Article [7], denning the duties of the Prime Minister, be rewritten to emphasize the collective responsibility of the Cabinet rather than the executive preeminence of the Prime Minister. To prevent abuse of power by the Prime Minister, it is explicitly stated that 'The Prime Minister introduces bills on the behalf of the Cabinet,. . .' To prevent abuse of executive power while the Diet is not in session Colonel Rowell suggested that the Cabinet's power to issue orders and regulations to carry out the provisions of the Constitution be restricted by the provision that 'no such order or regulation shall contain a penal provision'" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Rowell's suggestion about excluding penal provisions was unanimously accepted by the Steering Committee. According to Kades, "The Cabinet at that time put out ordinances which had the force and effect of law. Between sessions of the Diet we thought that might be appropriate, the Cabinet's acting as an executive committee acts between sessions of the entire board of directors, for example, of a corporation. But we thought that the Cabinet should not have power to prescribe any regulation or issue any ordinance which would have the force and effect of criminal law, or carry a criminal sanction. If the Cabinet had that power, it would be acting as a second legislature" [Charles L. Kades, interview by author, 12 Dec. 1973]. Less aware than Rowell or Hussey of how the Cabinet's power had been misused in the past, Kades did know about SCAP's use of the Cabinet to issue "Potsdam Ordinances" for accomplishing the objectives of the Occupation. The Government Section considered that practice dangerous in its precedential value. The Steering Committee feared that in the absence of a specific prohibition, a complacent Diet might delegate the power to establish penal provisions to the Cabinet [Kades interview]. The Steering Committee also objected to the wording of Esman's civil service clause, probably on the grounds that permitting the Prime Minister to select and direct the activities of public employees

The Executive Article 8 XXXIII. Acts of the legislature Diet and Executive Orders shall be promul gated by the Prime Minister after they are signed by him and countersigned by the com petent Minister of State signed by the competent Minister of State and countersigned by the Prime Minister.21 Article 9. On assuming office, the Prime Minister and all members of his Cabinet shall subscribe to a pledge of faithful and impartial public service. This pledge shall be formulated and enacted by the legislature.22 Article 10. The State shall accept responsibility for the acts of public employees com mitted within the scope of their authority without prejudice to the power of the State judicially to recover damages from its employees.23 Article 11 XXXIV. Public officials may be impeached for dereliction of duty, malfea sance in office, or violation of public trust. Impeachment charges shall be brought by the legislature and tried before the Supreme Court. Conviction by a majority of the judges of the Supreme Court shall not limit the liability of such officials to subsequent civil or criminal liability7. Cabinet Ministers shall not be subject to civil or criminal pro cedures judicial process during their tenure of office without the consent of the Prime Minister, but no right of action shall be impaired by reason hereof: their liability shall be deferred but not mitigated until they retire from office.24 might result in partisan application of their talents and time [Ellerman Notebook C (Michigan: Hussey Papers) ]. 21. Peake explained to the Steering Committee that requiring the signatures of both the Prime Minister and a Minister of State on executive orders and legislative acts was to make it clear that the Prime Minister and his Cabinet were ultimately responsible, not the Emperor [Ellerman Notebook C (Michigan: Hussey Papers)]. 22. As Ellerman reported, "The Steering Committee recommended the omission of Article [9], requiring that the Prime Minister and members of his Cabinet subscribe to a pledge upon assuming office" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Kades recalled being advised that "the oath had no significance in Japan; it was a foreign concept that was being intruded into the organic law of Japan" [Charles L. Kades, interview by author, 12 Dec. 1973]. 23. The Steering Committee believed state responsibility for the acts of its employees should be covered by statutory law [Ellerman Notebook C (Michigan: Hussey Papers) ]. Considering the provision in light of their experience as lawyers, the senior officers felt "it would be conducive to litigation and would overload the court dockets." Ignorant at the time of Japan's system of administrative litigation, Kades was unaware that most private Japanese reform proposals included some provision for indemnification, often for damages to private citizens caused by the illegal acts of public officials [Charles L. Kades, interview by author, 12 Dec. 1973]. The Kenpo Kenkyukai and Social Democratic Party drafts, however, provided for state indemnification of those accused of crimes but acquitted. Rowell, aware of this, felt the idea unwise—not because it would result in hordes of civil lawsuits for damages, but because it might encourage prosecutors to press even harder for convictions, presumably through the use of extorted confessions, as insurance against acquittals. See Appendix D to this book, footnote 8, regarding a similar provision in the draft chapter on civil rights. 24. As Ellerman recorded, "The Steering Committee recommended that the clauses in Article [ 11 ], defining procedures for the discharge of unfaithful public officials, be omitted from the Constitution and provided for in statutory law. However, in order to give Cabinet Ministers protection from the police, provision was made that 'Cabinet Ministers shall not be subject to judicial process during their tenure of office without the consent of the Prime Minister'" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Rowell believed that removals from office should be covered in the Civil Service Code, not the constitution [Ellerman Notebook C (Michigan: Hussey Papers) ]. Kades wanted the provision on impeachment removed, believing it an unwieldy and unworkable process. Aware of Esman's strong antipathy to the entrenched Japanese bureaucracy, the Steering Committee thought that "ultimately there would be changes in die civil service laws," at which time the Japanese could deal with such issues as "the removal of incompetents on a lower level" [Charles L. Kades, interview by author, 12 Dec. 1973].

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Appendix F A P P E N D I X F-3 Memorandum to the Steering Committee from Lt. Milton J. Esman and Jacob I. Miller of the Committee on the Executive [Rowell Papers]

We dissent from the provisions of this draft which deny to the Prime Minister authority to dissolve the Diet and appeal to the people when major legislation introduced by him fails to receive favorable consideration from the Diet. This omission gravely compromises the workability of a cabinet system. It reproduces the very weakest feature of French experience by inducing the executive to resign while denying him any bargaining power in cases of disagreement with the Diet. Or it inflicts on the Japanese the most difficult feature of the American system, the possibility of a deadlock between the executive and the legislature, the Diet rejecting the Prime Minister's bills, the latter, though discredited, clinging to office. It is not likely, in our opinion, that the Prime Minister would abuse his power to dissolve, since every dissolution endangers his continuity in office as well as that of the legislature. Under the proposed system, a Diet will seldom vote non-confidence, since it may by other devices reject government measures without risking its own tenure. Government under modern conditions requires a strong and responsible executive. Responsibility is amply provided in the draft proposal. But the effectiveness of an executive depends on his ability to pilot a consistent policy through the legislature. A Diet, representing as legislatures must, divergent political, sectional and economic interests, will tend to pull in many directions. Under these conditions an irresponsible Diet is as much to be feared as an irresponsible executive. The irresponsible tendencies of the Diet, in keeping with decades of experience in Parliamentary government, can best be disciplined by an executive who enjoys the power to dissolve a Diet which fails to act favorably on his major proposals. This power and the threat of its use tend to assure a stable yet responsible executive. The omission of this important power may, contrary to our intention, saddle the feeble and inexperienced Japanese democracy with devices which have seriously tried the most delicate political skill of veteran democratic peoples. There is a greater likelihood of success if we provide the Japanese with governmental devices which long experience has indicated are most likely to develop stable democratic institutions.25 No thought, apparently, was given to providing for the removal of high-level appointees for incompetence or malfeasance. Presumably, they could be removed by the Prime Minister; but if he refused to act, the only recourse for the Diet would be a vote of nonconfidence. 25. Absent from the 7 February session with the Steering Committee, Esman was appalled to see the changes wrought in his draft. Scholarship on comparative government from the 19305, with which Esman was well versed, contrasted the British system of a relatively powerful Prime Minister with the systems of France and Italy, where weak executives had resulted in instability, "the breakdown of democratic and constitutional forms." Esman recalled, "We knew of the experience of Italy, where an extended period of instability helped to discredit... democratic and parliamentary government, and people then were willing to acquiesce in authoritarian forms of government because they would provide order and they would provide for the necessary public services. . . ." Political scientists of the period, like Esman, were concerned not only that governments be democratic and responsible, but that they be able to govern [Dr. Milton J. Esman, interview by Russell Sveda, 28 June 1972]. Accordingly, Esman's original draft was modeled after the British system in its grant of power to the Prime Minister to dissolve the Diet in cases of disagreement and its proviso that the Prime Minister be

The Executive A P P E N D I X F-4 8 February 1946, Ellerman Minutes, second meeting of the Steering Committee with the Committee on the Executive [Rowell Papers]

Lt. Esman strongly opposed the changes made by the Steering Committee in the original draft of the Chapter on the Executive. i. Lt. Esman contended that the Prime Minister must be appointed by an authority above party politics, hence by the Emperor. This argument was premised on the belief that the Diet will be made up of many splinter parties, with unreconcilable differences amongst themselves, and with no one party able to achieve a clear majority. Under these conditions the selection of a Prime Minister can be little more than a compromise choice, arrived at after weeks of haggling, and as a compromise choice it is unlikely that he will be able to marshal Dietary support for Cabinet policies for any length of time. On the other hand, the Emperor can be expected to choose a Prime Minister quickly who can command majority support and thus prevent an executive vacuum occurring.26 The Steering Committee remained unconvinced. Col. Rowell stated that a Prime Minister selected by the Emperor was incompatible with SWNCC 228. Colonel Kades expressed cynicism as to whether selection of a Prime Minister by the Emperor would be either more efficient or quicker than appointment by the Diet. The Diet might refuse not only the Emperor's first nominee but successive ones as well. Also, the Emperor might manipulate his discretionary power in the appointment of the Prime

designated by the Emperor. But Esman's ideas conflicted with instructions to the drafting committee to replace past Japanese practices with democratic alternatives. When the Steering Committee tempered his strong executive, Esman lobbied privately, particularly with Kades, who "empathized with us, [because] he was swinging with New Deal kinds of ideas, which meant that you had to have an effective executive" [Esman interview]. SWNCC 228, however, noted that in the past nonconfidence resolutions in the Diet had frequently resulted in dissolution of the lower house and an election that, although it supported the legislators against the government, was not followed by the latter's resignation. In their eagerness to redress the balance of power between executive and legislature, SWNCC 228 and the Steering Committee opted for a weak executive. They "felt that's the way you democratize the country, and that's the way you keep the executive from reassuming a dominant and irresponsible role," Esman explained. But he contended that the only way to achieve a stable and effective government, particularly given Japan's economic and political precariousness, was "not by diffusing power in a weak and inexperienced Diet, where the squabbling that would take place might discredit the entire political process," but by developing a strong executive capable of dealing with the country's overwhelming postwar problems [Esman interview]. Pieter Roest, chairman of the Committee on Civil Liberties, shared Esman's vision of fractured and warring political parties; but Esman was not aware that he had an ally in Roest, nor did Roest explore this concern within his own Committee's draft [22 Nov. 1972, Cyrus Peake to author]. 26. Esman believed that a Prime Minister should emerge from the Diet fairly quickly, but his Cabinet choices might not. The sanctifying force of an Imperial nomination would make the Premier an "effective rallying point," perhaps minimizing the Diet's propensity to dissent [Ellerman Notebook D (Michigan: Hussey Papers) ]. Esman analogized the Emperor to the British King and thought that, as in England, "the Emperor would choose the majority leader" as his Prime Minister-designate [Charles L. Kades, interview by author, 12 Dec. 1973]. But in the absence of a majority party such as that found in a stable, basically two-party system like Britain's, Esman believed an Imperial nomination would resolve the dilemma and reduce the intriguing that accompanied strict parliamentary selection. Only Rowell appears to have considered the possibility that privileged—and extraconstitutional—bodies of advisers might emerge to assist the Emperor in making his choice for premier.

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Appendix F Minister as a device for running the country without the Diet.27 In any case, any inefficiency involved in having the appointment of the Prime Minister made by the Diet is overbalanced by the danger of giving the Emperor or his advisers discretionary power. 2. Lt. Esman contended that the executive power should be explicidy vested in the Prime Minister as the head of his Cabinet and not in the Cabinet as a collective body. It is inconsistent to give the Prime Minister the power to hire and fire his Ministers at will, yet state that the executive power is vested in die Cabinet. Col. Rowell and Mr. Peake disagreed with Lt. Esman. Throughout SWNCC 228, the Cabinet and not the Prime Minister is referred to as the executive branch of government. Colonel Kades recommended that the residual executive power be vested in the Prime Minister, and the first Article of the Chapter be amended to read "The executive power is vested in the Prime Minister as head of the Cabinet."28 An elaboration of Lt. Esman's argument for a strong executive is given in his dissenting Memorandum filed with the Steering Committee.

27. Rowell noted that the Emperor and the Prime Minister might team up to run the nation by repeatedly dissolving Diets. The Emperor might not follow Esman's scenario; his choice might be someone he knew was incapable of securing Diet acceptance. What would happen, Rowell asked, if the Emperor were to submit to a newly elected Diet of roughly the same composition as its predecessor the name of the retiring Prime Minister as his choice for the new head of government [Ellerman Notebook D (Michigan: Hussey Papers) ] ? 28. Although Colonel Kades partially supported Esman's desire for a stronger executive (Esman had privately lobbied for his help), the two men had different models in mind. Esman wanted a presidential executive, Kades a parliamentary one subject to recall by the Diet. Kades' model would never have possessed such presidential attributes as veto power [Charles L. Kades, interview by author, 12 Dec. 1973]. The drafting committee originally conceived of the Emperor as at least titular head of state. Kades' statement regarding residual executive power may have been an attempt to introduce the concept of the Prime Minister as head of state, a concept the Steering Committee adopted in the course of this meeting [Ellerman Notebook D (Michigan: Hussey Papers) ]. Article XXDC was revised by the Steering Committee as follows: "The executive power is vested in the Cabinet Prime Minister who together with other Ministers of State shall constitute a Cabinet. In the exercise of ito power the Cabinet shall be collectively and directly responsible only to the legislature and indirectly through the legislature to the people." Esman's victory, however, was short-lived. When Hussey, absent from the meeting on 8 February, learned of the changes made, his protests brought reconsideration, and the executive power was once more vested in the Cabinet as a whole.

APPENDIX G

The Judiciary

Lieutenant Colonel Milo E. Rowell did the initial drafting of the chapter on the judiciary, and Commander Alfred R. Hussey did the revising. Their work was strongly influenced by the experience of both as practicing lawyers in California and Massachusetts, respectively. Hussey also had a special interest in constitutional law, his uncle having written several scholarly books on the U.S. Supreme Court.1 To a lesser extent, the chapter also shows the influence of the Kenpo Kenkyukai draft revision, which Rowell saw as a guiding light.2 Difficulties inherent in so thoroughly revising established Japanese constitutional practices—and perfectionism on the part of both men—put this chapter through three or four rewrites before it was even considered by the Steering Committee on 7 February. Later drafts reflect the views of Colonel Charles L. Kades, a New York attorney who had worked for both Secretary of the Interior Harold Ickes and Secretary of the Treasury Henry Morgenthau and who was senior officer on the Steering Committee. A third member of the drafting committee was Margaret Stone, who was thirty-three and a veteran of the Foreign Economic Administration's Reoccupation Division and of the State Department. Stone, who had a B.A. from the University of Chicago and some training in Japanese, had become interested in the country while preparing

6

a civil affairs handbook on working conditions for women in Japan. When a man for whom she had waited throughout the war returned from Europe newly married to an Irish girl, she decided to accept a job with SCAP, coming to the Government Section as part of a contingent of FEA hires who were supposed to work on longterm planning for the Section. Assigned to work for GS's Local Government Branch under Major Cecil Tilton, she soon grew dissatisfied; she also alienated her somewhat self-important boss with her directness and tendency to take over at meetings. Her real interest was in labor economics, and when GS head General Courtney Whitney refused to grant her permission to go into the field as an observer during national elections in Japan, claiming the work was unsafe for women, Stone requested a transfer to the Economic and Scientific Section, where she remained for three years as a statistician.3 Ill-suited by her background to work on the chapter on the judiciary, Stone was able to contribute little to it.4 Rowell and Hussey began their work early. Shortly after the Section briefing of 4 February, they had already come up with the catchphrase that would lead the chapter: "A strong and independent judiciary is the bulwark of the people's rights."5 Rowell, though departing radically in substance from the Meiji Constitution, attempted to preserve its form and numbering, a decision

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Appendix G that resulted in oddly elongated and prosy law was really only "a screen, a facade" for draft articles. At a preliminary conference, a highly discriminatory indigenous system Rowell and Hussey (and possibly Stone) operating behind it. "The way in which the considered—and rejected—using elected Japanese were using the civil law was what procurators and an elected judiciary. Both I was after," he remembers, "not the fact men agreed that some system of recall for that it was civil law."8 Rowell held a series of meetings with judicial officials was needed. Uncertain how to treat the procuracy, they also considered members of the Japanese bar to gather intransferring provisions regarding procura- formation on how Japanese criminal protors to the chapter on the executive.6 cedure operated and on possible reforms. Whether because so many GS staffers But "none of their suggestions were really were lawyers or because the Japanese bar fundamental," perhaps owing to their lack had a fair consensus regarding flaws in the of familiarity with other judicial systems. system, more thought went into reforming Instead, the Japanese lawyers focused on the Japanese judicial apparatus than into symbolic gestures, such as putting the prosreformation of almost any other branch of ecution and the defense on the same level government. Early in the Occupation mem- within the courtroom. Rowell was more bers of the soon-to-be-defunct Military Gov- interested in reducing reliance on confesernment Section began interrogating offi- sion and eliminating such inducements cials of the Ministry of Justice to educate to confess as torture or indefinite pretrial themselves as to the Ministry's organization, incarceration. Like any good common law the operations of the Court of Administra- lawyer, he wanted to see cases built on intive Litigation, the availability of English- vestigation, evidence, and corroboration.9 Rowell also drew upon a paper prepared language materials on the Japanese judicial system, and so on.7 Characteristically, the by the Bar Association for Judicial Reform, American officers involved were later trans- a small group of Japanese lawyers who casferred out of the Section or shipped home. tigated their judiciary for abdicating its The process had to start all over again, and duty to protect civil rights. The judiciary's tracing the steps of his predecessors became ignoble response to prewar and wartime repression derived from its being "an intethe job of then-Major Rowell. From his training in civil affairs, Rowell gral part of the nation's bureaucratic syshad developed a view of Japanese criminal tem," the Bar Association contended. To procedure as highly dependent upon con- become a judge with lifetime tenure, one fessions extorted from defendants. What had only to pass the required civil service particularly rankled Rowell was the dis- examination; professional legal experience advantage imposed upon the defendant was not required. Judicial and procuratorand his lawyer by being relegated to "the ial salaries and scales of advancement were pit," while above them on the bench sat virtually identical—if anything, judicial both judge and procurator. Rowell found salaries and job rankings were actually the whole system "completely contrary to lower than for comparative administrative Anglo-Saxon jurisprudence, and pretty positions, and judicial officers lacked many much contrary to civil law in Europe. The of the perquisites enjoyed by bureaucrats defendant didn't have much of a chance." of similar rank. Career identification with Rowell could accept that a system of civil the bureaucracy made it highly unlikely that law adopted from Germany and France "a judge's sentiments, attitude and outlook in the nineteenth century was different upon life should vary even in the slightest from his own heritage of common law; but degree from that of administrative offihe believed that the superposition of civil cials. . . ."10

The Judiciary To this group of reform-minded Japanese lawyers, restructuring the judiciary meant requiring that only experienced attorneys be appointed to the bench and that a Supreme Judge, rather like England's Lord Chancellor, be chosen from among the ablest members of the bar. Another basic reform the group proposed was to put teeth into standing provisions in the Criminal Code that forbade unlawful confinement and torture by public officials by empowering the victims of such illegal actions to bring criminal actions against the officials responsible. The Bar Association further held that the "sanctity of fundamental personal rights" should be protected by dismissing judicial officials who infringed those rights.11 Rowell never got around to preparing a draft directive for SCAP on judicial reform. He was scheduled to return home shortly; there was no real policy guidance from Washington on which to base a directive; and more pressing matters, such as the purge, intervened. In early 1946, the Ministry of Justice undertook its own reorganization, and Rowell told delegates from the Far Eastern Advisory Commission that Government Section was holding off on directives regarding the judiciary pending this "voluntary reform." If the government's reorganization did not go far enough, Rowell continued, GS would recommend other steps to SCAP.12 What he omitted to say was that GHQ had little reason to believe that voluntary efforts would be anywhere near sufficient, for the reorganization involved not structural reform but merely a substantial reduction in personnel. Clearly, Rowell's research and the liberal Kenpo Kenkyukai draft had an influence on him. The emphasis on judicial independence that appeared in his draft chapter was not a mere borrowing from the American experience: Rowell and Hussey were responding to specific Japanese complaints. The judicial system sketched in

this chapter later evolved in the direction of American-style adversary procedure, but that was not Rowell's idea or inherent in the changes he, Hussey, and Kades introduced. It was a development created by others who brought their own values and experiences to reforming the Japanese judiciary. When the Steering Committee reviewed the draft chapter on the judiciary, competing philosophies of government divided the group. "Judges are to be appointed for life, they are to be independent of all discipline but their own, executive and administrative courts are ruled out, and the supreme rule-making power is vested in the Supreme Court," observed Kades, who "questioned the extreme power given to the judiciary and suggested that the kind of Supreme Court established in this draft might develop into a judicial oligarchy, dominating all other branches of government." Rowell retorted that "the courts in Japan have had neither dignity nor independence. They have been the tool of the Procurator and ajudge's career depended upon subservience to the Police. The power of the Court, therefore, has been given a deliberate build-up to compensate for its former lack of stature." Besides, he added, the Diet's power "has been strengthened enormously in this Constitution and an independent judiciary will not invade the prerogatives of the legislature." It was unlikely that there would develop a "judicial oligarchy" that might abuse the Constitution, because "the Diet has been given the power of review over all judicial decisions, except for those involving provisions in the Bill of Rights."13 Kades' apprehension that the judiciary might evolve into "a third house of the Diet" and possibly become "superior to the Diet" plagued him from the start. Even while the chapter was being drafted, he had suggested allowing the Diet to overrule the Supreme Court, except for cases involving civil rights. Such a practice was not unknown in the United States. For most of

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Appendix G the nineteenth century, a committee of the New York State Senate had functioned much as a privy council in reviewing decisions by that state's highest court. Kades believed that Rowell and Hussey were too wedded to the American Supreme Court as a model. "I thought the Supreme Court's function in the U.S. was different from the Supreme Court's function in Japan," he later recalled, "because in the U.S. the Supreme Court has to determine when a state is exceeding its power vis-a-vis the state. Those are the types of cases in which the court should clearly have power to declare a law unconstitutional because it invades the power of the other sovereign." But was such a grant of power necessary in the absence of a federal system? Kades' recollection was that for the first hundred years of its existence, the U.S. Supreme Court had exercised its power with great restraint, restricting itself to declarations of unconstitutionality against only state, not federal, laws. He worried that such power in the hands of the relatively inexperienced Japanese judiciary might be abused, and he felt it would "militate against the Diet's being the supreme organ of state power." Moreover, unless the Diet were given review power over at least some types of Supreme Court decisions, there would be no way

of remedying judicial ill usage except by amending the Constitution.14 Rowell, however, "felt very strongly" that the courts required an extraordinary grant of power to boost their prestige and enable them better to protect civil liberties. Kades was willing to defer to Rowell, partly because of the strength of his views and partly because he knew that the enormous task of revising the Japanese Civil and Criminal Codes and Codes of Procedure would be delegated to an expert in German civil and criminal procedure who had already been hired and was on his way to Tokyo.15 Ironically, Kades would later come to agree with the emphasis placed by Rowell and Hussey upon judicial independence. As he discovered when the Constitution was approaching enactment by the Diet, far more than rewriting the laws, demolishing the Ministry of Justice was critical to making the courts truly independent. Drafts of the Chapter on the Judiciary and Supporting Documents Following are two drafts based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

A P P E N D I X G- 1 First draft of the Committee on the Judiciary, as rewritten by Committee members Lieutenant Colonel Milo E. Rowell, Commander Alfred R. Hussey, and Margaret Stone1

CHAPTER V Article [57]. A strong and independent judiciary being the bulwark of the people's rights, the whole judiciary judicial power ofjapan the Japanese should be is vested in a supreme judicial court and in such inferior courts as the Imperial Diet shall from

i. This is a composite draft, based on the A and B drafts found in the Hussey Papers (Michigan: Hussey Papers, 24-F). Because of the number of rewrites given the chapter on the judiciary, I have combined drafts here and in Appendix G-2.

The Judiciary time to time establish.2 No extraordinary tribunal shall be established. All judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the law.3 The supreme judicial court shall have under the constitu ttoft has the whole rule making power whereby under which it shall determines the rules and powers and procedures of practice, procedure, the administration of attorneys, set the regulation of the prudential affairs of the courts and such other matters as may probably properly affect the free exercise of the judicial power, and all such powers may be delegated to the inferior courts as the supreme judicial court shall determine. It may delegate the power to make rules for inferior courts to such inferior courts. Public procurators, court officers and court officials and all other persons appearing before the courts shall be bound by the rules and judgments of the courts.

2. This introductory clause was Hussey's [Milo E. Rowell, interview by author, 5 May 1972. One of the first items on which Rowell and Hussey agreed was the need to lead with a basic statement of principle. The remainder of the clause recalled the U.S. Constitution (Art. I, Sec. i), except that references to a "supreme judicial court" derived from the Massachusetts State Constitution (Part II, Chap. Ill, Art. II). 3. In his December report on constitutional reform, Rowell recommended that the highest court be given jurisdiction over all disputes involving administrative matters. Under Japanese procedures then in place, disputes concerning official application of any law were heard first by the governmental agency that had allegedly misapplied the law. Only after the hearing had gone through the ministerial level could suit be brought, and then only in the Court of Administrative Litigation if it fell within certain listed categories. Modeled after an Austrian court, the Court of Administrative Litigation was established in 1890 through the Gyosei Saibanshoho (Law of Administrative Litigation). Also in 1890 the Soganho (Petitions Law) established the procedure to be followed for the administrative hearings required prior to the institution of a suit at law in this court. As might be expected in a court whose judges were bureaucrats, the Court of Administrative Litigation usually sided with the executive. Moreover, access to the Court was limited not only by severe statutory restrictions upon types of cases and circumstances under which they might be brought, but by the Court's small size and the absence of any inferior courts to dispose of minor cases. The Court of Administrative Litigation could rule only when statutes had been patently misapplied or misinterpreted; it had no jurisdiction in areas delegated by law to agency discretion—and Japanese law traditionally granted massive discretionary authority to executive agencies. In addition, the Court's procedures were ill-defined, its procedural safeguards nil. Perhaps most damaging in the eyes of American lawyers, decisions of the Court of Administrative Litigation could not be appealed to the regular courts. There was no means by which conflicts between decisions of the regular judiciary and the Court of Administrative Litigation could be reconciled, except through the Privy Council, which chose not to perform that function [SCAP, GS, Political Reorientation in Japan, Vol. I, 191; Dan Fenno Henderson, "Law and Political Modernization in Japan," in Ward, Political Development in Modern Japan, 427]. Aware of these problems, the Administrative Court had proposed broadening its jurisdiction and instituting an appellate system, but neither of these prewar recommendations was heeded. In 1937, the Daishinin (Court of Cassation, or "Supreme Court") ruled that it was empowered under the 1890 Court Organization Law to review questions of ultra vires official actions in certain cases, but this ruling never had much practical effect [Sato v. Japan, 16 Daishinin Keiji Hanreishu 193, cited by Henderson, p. 426]. It is not clear whether Rowell and Hussey, at the time of their drafting, knew much more about the Court of Administrative Litigation than that it was a handmaiden of the executive branch. Their clause prohibiting extraordinary tribunals was specifically added to force abolition of the Court of Administrative Litigation and transfer its jurisdiction to the regular courts. At this point little thought was given to procedural details and problems of adjudicating the validity of official acts. (In fact, GS did not begin to consider this in any detail until September 1946.) To emphasize the intended separation of the judicial from the executive branch, Rowell and Hussey added the clause stressing obedience to the dictates of conscience and Constitution. Such language expressed a hope (but no firm conviction) that the judiciary might be strengthened enough to become the co-equal of the legislative and executive branches [Milo E. Rowell, interview by author, 5 May 1972].

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Appendix G (? The Imperial Diet shall include in the annual budget such sums as it shall deter mine to be necessary for the full and free administration of the courts, to be expended in such manner as the supreme judicial court shall determine.)4 Article [58]. The Supreme judicial Court shall consist of not less than nor mofe than justices and a chief justice and such number of associate justices as may be determined, all of whom should shall be appointed by the government cabinet. All such appointments should shall be confirmed at the first general election held following the initial appointment and thereafter at every general election which shall occurs immediately following the expiration of 10 calendar years from the next prior confirmation. Subject to such confirmation, all such justices shall hold office during good behavior and shall receive adequate compensation at regular stated intervals which shall not be decreased during their terms of office.5 4. In his December report on constitutional reform, Rowell proposed that the courts function as representatives of the Emperor and the procurators as agents of the executive branch. There was no specific recommendation of administrative separation of the courts from the Ministry of Justice, although Rowell may have been edging in that direction. He did consider the courts effectively under the control of the procurators rather than the judges. Accordingly, he drafted this provision making procurators and other officers of the court subject to the rule-making powers of the court. Deleted during preliminary revision of the first draft, the clause was restored when the chapter came before the Steering Committee. Hussey and Rowell discussed the great power being vested in the courts and concluded that such a grant was advisable given the past history of executive control over (and abuse of) the judiciary. They stood firm against Kades, who feared they might be creating a judicial oligarchy [Milo E. Rowell, interview by author, 4—5 May 1972]. Allowing the court to frame its own rules to help ensure its independence sounds familiar to Americans, but it is merely a matter of custom. The U.S. Supreme Court promulgates procedural rules only by means of an extraordinary and presumably revocable delegation of power by Congress. Subsequent rewording of this chapter's rule-making clause broadened it enough to create problems of interpretation for the Japanese—and to prompt the Government Section to try to reduce the scope of the grant. 5. The origins of the clause on popular review are somewhat muddy, with Rowell and Kades both claiming it as their own. Thinking impeachment "too difficult" to use and fearing judicial abuse of power, Kades first suggested giving judges fixed terms instead of lifetime tenure. Hussey noted that Massachusetts employed such a system, though only for justices of the peace, who were given sevenyear terms but could be reappointed. Kades further suggested a term of ten to fifteen years, subject to reappointment but with mandatory retirement at age sixty-five. From this derived the idea of allowing the voters to participate in deciding whether to reappoint. Kades proposed a ten-year "review period" for inferior courtjudges and a fifteen-year period for Supreme Courtjustices [Ellerman Notebook C (Michigan: Hussey Papers) ]. Kades recollects putting forth the idea of popular review in the knowledge that Rowell could hardly oppose it, since his home state featured such a system. Remembering how the American Supreme Court of the 19305 had been responsive only to its own prejudices, he held that the justices "should recognize that they, like the members of the Diet, were accountable to the people." Popular review was also seen as a way of frustrating court packing. Rowell and Hussey offered some resistance on the grounds that it might unduly influence judicial decision making—indeed so strong were Hussey's fears the process of popular review would put the courts under too much "political pressure" that the Steering Committee decided to restrict review to Supreme Court justices only. Rowell capitulated, ultimately seeing the measure as one more way of giving "power to the people." Justices "would realize that every ten years they were going to be subject to review by the electorate, and that. . . would incline the Court not to become arbitrary." It also might force the Court to keep abreast of social change and pay more attention to civil rights. The idea was modeled upon California's system of popular review for judges of the State Supreme Court and the District Court of Appeal, although at Kades' suggestion the interval between "retention" elections was extended to ten years, whereas in California it is four to eight years, depending upon the court under review [Charles L. Kades, interview by author, 12 Dec. 1973; Ellerman Notebook C (Michigan: Hussey Papers); Milo E. Rowell, interview by author, 4-5 May 1972]. The remainder of draft Article 58 derived from the U.S. Constitution (Art. Ill, Sec. i). "Good behavior" was standard common law usage. Compare the Massachusetts Commonwealth Constitution

The Judiciary Article [59]. The judges of the inferior courts shall be appointed by the government from a list which for each vacancy shall be composed contain the names of at least two persons nominated by the supreme judicial court and two persons nominated in such other manner as the Diet may provide.6 All such justices shall hold office during good behavior and shall receive adequate compensation at regular stated intervals which compensation shall not be decreased during their terms of office. Article [60]. The Supreme Court is the court of final resort.7 The supreme judicial court shall have appellate jurisdiction of all cases arising under the courts and all laws, ordinances, and regulations enacted or established thereunder. It shall have exclusive jurisdiction of all questions involving the acts of officials of the national government appointed by the cabinet. It shall have appellate jurisdiction8 In aH cases involving the determination of the constitutionality of any law, ordinance, regulation or imperial or official act of any officer, agent or employee of the government, but its judgment in any such case not involving the interpretation of Chapter II of the constitution may be set aside by vote of 2/3 of the whole number of representatives of the Imperial Diet had at a session regularly convened, upon petitions taken thereto by any person whose rights have been affected by such judgment, according to rules established by the Imperial Diet, the Supreme Court has final jurisdiction in cases arising under Chapter II9 of this constitution and has final judicial review in all other cases subject only to review by the Diet. Decision of the Supreme Court which is subject to review may be set aside only by the concurring vote of 2/3 of the whole number of representatives.

of 1780 (Chap. Ill, Art. I): ". . . All judicial officers, duly appointed, commissioned and sworn, shall hold office during good behavior. ..." There is similar phrasing in the New York State Constitution of 1821 (Art. V, para. 3). The drafting committee assumed that what constituted "good behavior" would be spelled out in the subsequent Court Law [Milo E. Rowell, interview by author, 5 May 1972]. The clause forbidding reductions in pay for justices (and for lower court judges in the following article) was designed to prevent the Japanese government from trying to influence judicial decisions or retaliate against judges by docking their pay. 6. The drafting committee divided over the mode of appointing lower court judges, with Rowell favoring appointment by the Supreme Court, Hussey standing by executive appointment, and Kades advocating direct election [Milo E. Rowell, interview by author, 5 May 1972; Charles L. Kades, interview by author, 12 Dec. 1973]. Kades again raised the issue of electing judges during drafting of the Court Organization Law later in the Occupation. Although the idea was supported by almost all of the Government Section, it was strongly opposed by Alfred C. Oppler, the head of the Courts and Law Division, who felt it would be destructive of the judicial system. Kades refused to press over Oppler's objections [Charles L. Kades, interview by author, 12 Dec. 1973]. 7. This clause was apparently added at Hussey's suggestion as a prohibition against executive tribunals. Kades thought there should be "some kind of executive justice," but Rowell retorted that in the past Japan relied excessively upon administrative courts that served to protect the bureaucracy against the citizenry. Rowell and Hussey would countenance administrative courts only so long as they came under the Supreme Court and were subject to its rule-making power and its right of ultimate review. With the Supreme Court firmly at the apex of the judiciary, they felt, the "legislature can establish any kind of court it likes" [Ellerman Notebook C (Michigan: Hussey Papers)]. 8. The original version of this article derived from the U.S. Constitution (Art. Ill, Sec. 2). Since the Japanese Supreme Court was to possess rule-making power, it would be drawing the perimeters of its jurisdiction according to this chapter's guidelines. But those guidelines, as originally set forth in the Committee's draft, would have placed an intolerable case burden upon the Court, particularly since the Committee intended that the Supreme Court would be a smaller body than its predecessor, the Daishinin. Recognizing this (and perhaps worried about granting the high court too much power), the Committee substantially narrowed the scope of the Supreme Court's jurisdiction. 9. The reference is to the chapter on civil rights, later designated Chapter III.

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Appendix G The Diet shall establish rules of procedure for reviewing decisions of the Supreme Judicial Court.10 Article T6i1. Trials of political offenses, offenses of the press and cases wherein the rights of citizens as reserved in Chapter II of this constitution are in question and all judgments shall be conducted publicly. Other trials may be conducted secretly only when the court unanimously declares publicity to be dangerous to public order or morals.11 APPENDIX G-2 Draft of the Committee on the Judiciary, as submitted to the Steering Committee12 CHAPTER V THE JUDICIARY

Article 57. A strong and independent judiciary being the bulwark of the people's rights, the whole judicial power of the Japanese is vested in a Supreme Court and in such inferior courts as the Diet shall from time to time establish. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive Branch be given full judicial power. All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws enacted pursuant thereto. The Supreme Court feas is vested with the rule-making power under which it determines the rules of practiceT and of procedure, the administration admission of attorneys, regulation of the prudential affairs the internal discipline of the courts, the administration of judicial affairs, and such other matters as may properly affect the free exercise of the judicial power. It may delegate the power to make rules for inferior courts to such inferior courts. No disciplinary action shall be administered by any executive agent or authority, and removals shall be accomplished by public impeachment only.13

10. Kades recalled that he thought of the Japanese Supreme Court "as passing upon a case between two adversaries and not as initiating a case of its own, or even being asked by the Cabinet to give an advisory opinion." This view was probably shared by Rowell and Hussey, as it came closest to the practices of the American Supreme Court. But their draft article did not preclude development along other lines, such as a quasi-constitutional court on the Austrian model. A number of state constitutions (including that of Massachusetts) permit their governments to seek opinions from the highest state court on pending legislation, and the drafting committee refrained from prohibiting such an extension of the Supreme Court's responsibilities. Kades himself at the time visualized the Japanese high court "more as the supreme court of a state rather than the Supreme Court of the United States," because it was to be similar to "the court of last resort in a state, rather than a court trying to balance the relationship of the state to the federal government..." [Charles L. Kades, interview by author, 12 Dec. 1973]. 11. This clause, which replaced Article 59 of the Meiji Constitution, is likely the work of Hussey, who was outspoken in his opposition to secret tribunals. 12. This is also a composite, incorporating the next-to-last and the final Committee drafts [Drafts C and D, Committee on the Judiciary (Michigan: Hussey Papers, 24-F)]. 13. This final clause continued the Committee's work of perfecting separation of the courts from the executive branch.

The Judiciary Article 58. The Supreme Court shall consist of a chief justice and such number of associate justices as may be determined by the Diet. ,all of whom All such justices shall be appointed by the Cabinet and shall hold office during good behavior, provided however that upon the petition of ten percent of the registered electorate, the Cabinet shall direct that all appointments to the Supreme Court shall be reviewed by the direct vote of the people at the next succeeding general election: but no such appointment shall be twice subjected to such review within any ten-year period. All such appointments shall be confirmed at the first general election held following the initial appointment and thereafter at every general election which occurs immediately fol lowing the expiration of 10 calendar years from the next prior confirmation. Subject to such confirmation, All such justices shall hold office during good behavior and shall receive, at regular, stated intervals, adequate compensation at regular stated intervals which compensation shall not be decreased during their terms of office. Article 59. The judges of the inferior courts shall be appointed by the government Cabinet from a list for which each vacancy shall contain the names of at least two persons nominated by the Supreme Court. All such justices shall hold office during good behavior and shall receive, at regular, stated intervals, adequate compensation at reg ular stated intervals which compensation shall not be decreased during their terms of office. Article 60. The Supreme Court is the court of final resort. In cases involving Where the determination of the constitutionality of any law, ordinance, regulation or official actT is in question, the judgment of the Supreme Court has final jurisdiction in all cases arising under or involving Chapter II of this Constitution is final: and has final judicial review in all other cases where determination of the constitutionality of any law, ordinance, regulation or official act is in question, the judgment of the Court is subject only to review by the Diet. Decision A judgment of the Supreme Court which is subject to review may be set aside only by the concurring vote of 2/3 of the whole number of representatives of the Diet. The Diet shall establish rules of procedure for reviewing decisions of the Supreme Judicial Court. In all cases affecting ambassadors, consuls, and ministers of state, the Supreme Court has exclusive original jurisdiction.14 Article 61. Trials of political offenses, offenses of the press and cases wherein the rights of citizens as reserved in Chapter II of this constitution are in question and all judgments shall be conducted publicly. Other trials maybe conducted secretly only when the court unanimously declares publicity to be dangerous to public order or morals. Trials shall be conducted and judgments declared publicly. Where, however, the Court unanimously deetees determines publicity to be dangerous to public order or morals. a trial may be conducted privately, except that but trials of political offenses, offenses of the press, and cases wherein the rights of citizens as reserved in Chapter II of this Constitution are in question, shall be conducted publicly without exception. APPENDIX G-3 Draft of the Committee on the Judiciary, as amended by the Steering Committee on 7 February 1946

14. This added final clause came from the U.S. Constitution (Art. Ill, Sec. 2, para. 2).

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Appendix G CHAPTER V THE JUDICIARY

Article 57. A strong and independent judiciary being the bulwark of the people's rights, the whole judicial power of Japan is vested in a Supreme Court and in such inferior courts as the Diet shall from time to time establish. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive Branch be given final judicial power.15 All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws enacted pursuant thereto. The Supreme Court is vested with the rule-making power under which it determines the rules of practice and of procedure, the admission of attorneys, the internal discipline of the courts, the administration of judicial affairs, and such other matters as may properly affect the free exercise of the judicial power. Public procurators shall be officers of the court and subject to its rule-making power.16 Jt The Court may delegate the power to make rules for inferior courts to such courts. No disciplinary action shall be administered by any executive agent or authority organ or agency, and removals shall be accomplished by public impeachment only. Article 58. The Supreme Court shall consist of a chief justice and such number of associate justices as may be determined by the Diet. All such justices shall be appointed by the Cabinet and shall hold office during good behavior, or upon [sic: until] the attainment of the age of 65 years whichever is the sooner.17 provided however that upon 15. According to Ellerman's minutes, "Commander Hussey defended the prohibition of extraordinary tribunals and the denial ofjudicial power to executive courts by pointing out that there has been too much of Star Chamberjustice in Japan and that administrative courts consistently have protected the bureaucracy at the expense of the citizen. Final compromise on this issue was reached by amending the clause to read 'nor shall any organ or agency of the Executive [Branch] be given final judicial power.' This will permit administrative courts to exist but under and subject to the Supreme Court. . . . The only proper place for the rule-making power and final judicial power is the Supreme Court. Within this frame of reference, the legislative branch of government can establish any kind of court it desires" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Kades had objected to the original clause, fearing that it might prohibit even administrative hearings. Hussey resolved the impasse by suggesting that the executive be deprived only of final judicial power. This change allowed the executive to set up administrative courts, but any decisions thereof would be subject to Supreme Court review. Rowell and Hussey were adamant in refusing to sanction any tribunals not under the authority of the Supreme Court. Some private Japanese proposals for constitutional reform included provision for indemnifying citizens subjected to false arrest or those whose lives had been blighted by the illegal acts of government officials. This was discussed by the Committee on the Judiciary, but such a provision never made it into their draft chapter [Milo E. Rowell, interview by author, 5 May 197 2 ]. Similar proposals were put forth in the draft chapters on civil rights and the executive. 16. The Steering Committee agreed that "revival of the Public Procurator's abuse of power can only be prevented by explicitly making him subject to the Court" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Although the drafting committee gave some thought to removing the provisions on procurators to the chapter on the Cabinet, they decided against keeping the procurators as agents of the executive branch, probably out of concern that the Japanese courts needed additional protection against domination. In his December report on constitutional reform, Rowell noted that control of the courts by procurators acting as the representatives of the Emperor's will, rather than by judges, was an abuse that needed correcting. At Hussey's insistence, the Steering Committee added the clause subordinating the procuracy to the courts [Ellerman Notebook C (Michigan: Hussey Papers)]. 17. The draft gives age sixty-five, the retirement age suggested by Kades according to Ellerman's notes. Her typed minutes, however, have the Steering Committee discussing an age limit of seventy for the justices [Ellerman Notebook C (Michigan: Hussey Papers); 7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. The lower age was more in keeping with American practice at the time, but the higher limit

The Judiciary the petition of ten percent of the registered electorate, the Cabinet shall direct that all appointments to the Supreme Court shall be reviewed by the direct vote of the people at the next succeeding general election; but no such appointment shall be twice subjected to such review within any ten year period the name of each incumbent shall be submitted to the electorate to determine his retention in office at the first general election following his appointment and every 10 years thereafter. Upon a majority vote of the electorate not to retain the incumbent the office shall become vacant. All such justices shall receive, at regular, stated intervals, adequate compensation which shall not be decreased during their terms of office. Article 59. The judges of the inferior courts shall be appointed by the Cabinet from a list which for each vacancy shall contain the names of at least two persons nominated by the Supreme Court.18 All such justices shall hold office during good behavior for a term of 10 years with privilege of reappointment19 and shall receive, at regular, stated intervals, adequate compensation which shall not be decreased during their terms of office. No judge shall hold office after attaining the age of 65 years. Article 60. The Supreme Court is the court of final resort. Where the determination of the constitutionality of any law, ordinance, regulation or official act is in question, the judgment of the Supreme Court in all cases arising under or involving Chapter II of this Constitution is final; in all other cases where determination of the constitutionality of any law, ordinance, regulation or official act is in question, the judgment of the Court is subject to review by the Diet. A judgment of the Supreme Court which is subject to review may be set aside only by the concurring vote of two-thirds of the was adopted by the Steering Committee for the final draft. The issue of age limits became a sore point with the Japanese when the Court Organization Law was being written [Milo E. Rowell, interview by author, 5 May 1972]. 18. The Constitution enacted by the Diet did not include this requirement of two nominations per vacancy, and the new Japanese Supreme Court at first intended to supply only one nominee for each post. This would have given the Cabinet no choice in the matter of selection. Alfred C. Oppler, head of the Government Section's Courts and Law Division, prevailed upon the Court to offer additional nominees. 19. When Kades broached the possibility of electing the judiciary to curb abuses of power, Rowell and Hussey objected: "Commander Hussey stated that the dignity of the Court is weakened if judges are elected for a term of years rather than appointed to hold office during good behavior. A judge's ability for impartial action is impaired if he must gain office by running as a political candidate on a party platform" [7 Feb. 1946, Ellerman Minutes (Rowell Papers)]. Rowell, too, thought the spectacle of judges running against each other would damage the integrity and repute of the courts [Ellerman Notebook C (Michigan: Hussey Papers) ]. Rowell knew, however, that the Kenpo Kenkyukai supported popular election of the President of the Supreme Court and the Procurator-General, and a substantial number of Japanese lawyers he had interviewed favored electing lower court judges. Unaware of this, Kades thought the Japanese might oppose having an elected judiciary. New York State then elected its judges, but he acknowledged that publicity campaigns during a bitterly contested fight to provide the state with a new Chief Justice had injured the office. Finally, Kades suggested a compromise combining the appointive system favored by Rowell and Hussey with limited terms of service. The ten-year term was arbitrary, suggested by the ten-year period for public review mentioned in draft Article 58 [Charles L. Kades, interview by author, laDec. 1973]. The phrase "with privilege of reappointment" probably originated with Hussey; its purpose was to signify that there was no inherent right to reappointment. The question of electing lower court judges resurfaced during drafting of the Court Organization Law the following year. Of a staff largely altered from the original makeup of the Government Section, at least two-thirds now favored electing inferior court judges "because the members of the Section at that time felt that the court as then constituted—or the bureaucracy—was sabotaging the intention of the constitution. . . ." The steadfast opposition of Alfred Oppler to an elected judiciary persuaded Kades not to institute such a system [Charles L. Kades, interview by author, 12 Dec. 1973].

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Appendix G whole number of representatives of the Diet. The Diet shall establish rules of procedure for reviewing decisions of the Supreme Court. In all cases affecting ambassadors, consuls, and ministers of state, the Supreme Court has exclusive original jurisdiction. Article 61. Trials shall be conducted and judgments declared publicly. Where, however, the Court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses of the press, and cases wherein the rights of citizens as reserved in Chapter II of this Constitution are in question, shall be conducted publicly without exception.

APPENDIX H

Public Finance

Colonel Charles Kades assigned the chapter of the constitution on finance to his friend Captain Frank Rizzo, because he thought it addressed the toughest of the Supreme Commander's several points "insofar as understanding what MacArthur had in mind." When given MacArthur's laconic instructions to pattern the budget after the British system, Rizzo complained that he had not the foggiest idea what the "British system" was.1 But he knew, even before the assignments were handed out, that tackling the Japanese budget would fall to him, for he was Government Section Chief Whitney's chief adviser on economics and finance now that his work on overseeing the closing of Japanese diplomatic missions was largely over.2 Rizzo began drafting on 4 February; by the evening of 6 February his chapter was finished, and the next day it was discussed with the Steering Committee. Considered one of the most competent men in GS, Rizzo, who was then in his early forties, was a bright, tough New Yorker who had a degree in electrical engineering from Cornell. He had switched fields early, going to Wall Street as an investment broker and dealer. Managing partner of Clinton Gilbert & Co., Rizzo had also served as chief economist and technical expert for the National Association of Securities Dealers. After entering the Army in 1942,

he worked as a cost control officer at the New Orleans Port of Embarkation. Rizzo received wartime training for occupation duty at Duke in the Military Government Fiscal Officers' course as well as at the Yale Civil Affairs Training School. He also saw duty with the Provost Marshal General's Office, where he edited and coordinated publication of civil affairs manuals and policy guides, and with War's Civil Affairs Division, where he helped draft policy directives on economic and financial problems in the occupied and liberated areas of Europe (and, later, Okinawa). It was at CAD that he and Kades became acquainted. "My first sight of Japan," Rizzo recalled, "was on a rainy Sunday afternoon" in midSeptember after an overnight stop at Okinawa. But his interest in Japan went back to the late 19208, when he had begun taking courses in Japanese at Columbia University; it continued throughout his time in Washington, when he had studied Far Eastern history, political science, and international relations at George Washington University.3 At Kades' insistence, Rizzo was the only financial expert not transferred to the Economic and Scientific Section when Colonel Kramer cannibalized the Military Government Section for his own staff. Instead, Kades lured Rizzo to the newly established Government Section with promises of

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Appendix H "important and interesting work ahead." "I took the bait," Rizzo recalled, "and never regretted that I did."4 Williams calls him "modest, industrious, and mentally poised," a man who could do research and write clearly.5 He was also someone who felt comfortable assuming diverse roles. When Kades left the Government Section in 1949, Rizzo became Deputy Chief; when Whitney resigned after MacArthur's firing, Rizzo became chief. He supervised the compilation and editing of Political Reorientation of Japan, the Government Section's official (if not entirely candid) history of its work during the Occupation. Rizzo stayed in Japan after the Occupation to manage, and eventually head, the International Inspection and Testing Corporation, a company that inspects goods for shipment from Japan to certify that they meet contract specifications. Despite the baffling curtness of MacArthur's prescript, Rizzo had a fair amount of material to draw upon for his chapter. In addition to U.S. policy directives and statements and his own "general knowledge of how things were under the old regime and how we wanted them to be under the new," Rizzo consulted the U.S. Constitution, several European and state constitutions, civil affairs policy guides, and operational manuals issued by the U.S. Army's Provost Marshal General. He even borrowed from Matsumoto's draft, adopting its provisions for a temporary threemonth budget (also included in the Progressive Party's draft) and for reserve fund expenditures in excess of appropriations therefor. Having read the Meiji Constitution and Ito's Commentaries on it before going to Japan, Rizzo had perhaps a greater familiarity with the Japanese charter than others at GS. But although he had discussed governmental and constitutional reform with Japanese officials and "informed laymen" since arriving in Tokyo, Rizzo's discussions and research had not

been as extensive as those of others in the Section.6 Serendipitously, the Economic and Scientific Section had been doing some thinking about how to revise those provisions of the Japanese Constitution related to budgeting. In a memorandum sent GS only days before Whitney convened his constitutional convention, Lieutenant Carroll Hinman, who was with ESS's Public Finance Branch, recommended the revision or deletion of eight articles in the Meiji Constitution pertaining to national finances. He counseled that, contrary to Article 10 of the Meiji Constitution, the Diet, not the Emperor, should determine the organization of executive agencies and the salaries of all civil and military officials: "If the Diet is to be given complete and untrammelled control of the budget, which is absolutely essential if Japan is to become a successful parliamentary democracy, it must also be given control of these two powers which determine the structure and substance of a large part of the budget."7 Hinman further advised deleting a clause in Article 62 of the Meiji Constitution that exempted "administrative fees or other revenue having the nature of compensation" from a constitutional requirement that the imposition of a new tax, or the modification of rates of an existing one, be determined by law. "To be really effective, the budget should show the complete government fiscal program for the year to which it applies, including all revenues, expenditures and loans," he wrote. "Effective democratic control of that program by a responsible legislative body will be heightened to the extent that the program is presented as one comprehensible whole, and weakened to the extent that it is presented piece-meal. . . ." Hinman advised deleting a clause in Article 64 that permitted the government to spend in excess of appropriations, provided it obtained the Diet's approval later. "All expenditures

Public Finance should receive prior approval by the Diet through inclusion in the Budget," he commented. If unforeseen circumstances required considerable expenditure, the government could meet the crisis by submitting a supplementary budget to a special session of the Diet; if the expenditure required was small, it could be handled through the Reserve Fund. For similar reasons, Hinman recommended deleting Article 70, which permitted the government to take "all necessary financial measures" by means of Imperial ordinance when the Diet could not be convened. "It is difficult to conceive of future circumstances under which it would be absolutely impossible to convoke the Diet," wrote Hinman.8 Regarding the expenses of the Imperial Household (Art. 66 of the Meiji Constitution), Hinman counseled that these "be made wholly subject to the discretion of the Diet by including them in their entirety in the national budget." This would provide "a forceful annual reminder that the Emperor is an organ of the State, not its master. ..." Article 67 of the Meiji Constitution prevented the Diet from rejecting or reducing certain fixed expenditures that pertained to the Emperor's prerogatives or were set by law. Hinman recommended deleting the article: "The power of the Diet over all expenditures of government should be complete and unrestricted, since it is the only body representing the popular will." Similarly, he thought Article 68, which allowed the government to meet undefined "special requirements" by seeking Diet approval of a fixed amount to be set aside in a "Continuing Expenditure Fund" for a fixed number of years, was "inconsistent with the principles of representative government" because it circumscribed "the ability of a new Diet majority to change the policies of the previous majority it had just defeated at the polls." Items requiring long-term continuing expenditure should

be shown in the budget, with the stipulation that this would in no way prevent future Diets from approving or disapproving continuation of the item or changing its amount. "No Diet," Hinman added, "should have the power to bind it successor to a fixed fiscal program, or any other kind of program."9 One of the most famous provisions of the Meiji Constitution, Article 71, allowed the government to invoke the previous year's budget whenever the Diet failed to approve its new one. The provision "provides a convenient way of assuring continuance of essential government services," noted Hinman, but it also "opens the door to legislative deadlock... and enables the Cabinet and the Diet majority to evade, or at least to delay accepting, a responsibility they should rightly assume promptly." The provision would be better left out, Hinman concluded.10 While drafting, Rizzo was not allowed to discuss his work with officers at ESS or with others outside GS; but he already had the benefit of their thinking in check sheets such as Hinman's.11 Not that he always agreed with it: a fiscal conservative himself, Rizzo so closely followed the Steering Committee's instructions to emulate the Meiji Constitution that his draft more closely resembled its model than did any other committee's draft. The only reforms taken from Washington policy papers were SWNCC 228's stipulations that the budget needed the express approval of the Diet to become effective and that the Throne's income was to be turned into the public treasury and its expenses appropriated by the Diet as part of the annual budget. FromJCS 1380/15, the basic policy directive, Rizzo took the ban on state financial support of religion and the general proposition that the Diet was supreme in exercising the financial powers of the State. Some of Rizzo's other articles, however, seemed to counteract the legislature's powers, per-

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Appendix H .

...

.

.

haps because his clauses too closely resem-

bled their Meiji models. To the Steering Committee, it sometimes seemed as if Rizzo was sacrificing democratic principles to Japanese customs.

Drafts of Public Finance J J the Chapter r Following are drafts based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

APPENDIX H-l First draft of the Committee on Public Finance by Captain Frank Rizzo [Hussey Papers, 24~D]

FINANCE 1. (New) The powers of the State to levy taxes, borrow money, expend public money, issue and regulate the value of coins and currency shall be exercised through the Diet.1 2. (Article 62 revised) The imposition of a new tax or the modification of the rates (of an existing one) shall be determined by law. The raising of national loans and the contraction of other liabilities to the charge of the National Treasury shall require the consent of the Diet.2 3. (Article 63 unchanged) The taxes levied at present shall, in so far as they are not remodelled by a new law, be collected according to the old system. 4. (Articles 64 to 68 inclusive, revised) The expenditure and revenue of the State require the consent of the Diet by means of an annual Budget. The annual Budget shall set forth the complete Government fiscal program for the next ensuing fiscal year, including the proposed expenditures and anticipated income of all the ministries, agencies and other organs of the State.3

1. SWNCC 228 recommended that the legislature have "sole authority over financial measures" so as to strengthen government responsibility to the people. Rizzo's enumeration of the "full budgetary powers" to be conferred on the Diet was reminiscent of the U.S. Constitution (Art. I, Sec. 8). 2. Rizzo followed ESS's recommendations, deleting the middle clause of the original article (which exempted "administrative fees or other revenue having the nature of compensation" from the requirement that new taxes could not be imposed, nor the rates of existing ones changed, except by law). He also followed ESS's advice in revising the final clause to ensure that there were no exceptions to the requirement that the state could not contract liabilities to the national treasury without the consent of the Diet [30 Jan. 1946, Hinman, "Suggestions for Revision of Japanese Constitution" (WNRC, RG 331: SCAP, ESS: Admin, and Mgmt. Div., Class. Dec. File, 010, Vol. I, Box 6385)]. 3. SWNCC 228 required that no budget become effective without express approval of the legislature. Rizzo believed that the first clause of the Meiji Constitution's Article 64 did this adequately, but he adopted Lieutenant Hinman's recommendation to delete the second clause (which permitted the government to spend in excess of appropriations or to expend funds on items not covered by the budget, provided the Diet subsequently approved its actions). "To provide a means for the government to make unbudgeted expenditures at its discretion, to be later submitted to the Diet for approval, undermines the whole principle of democratic control of public expenditures by a responsible Diet," Hinman had written. "Subsequent Diet approval of such expenditures is largely meaningless, since the choice is between blanket approval, reneging on obligations accepted in good faith by suppliers or employees, or enforcing personal liability on the government officials who authorized or paid any item to which the Diet takes exception" [30 Jan. 1946, Hinman, Hinman, "Suggestions for Revision of Japanese Constitution" (WNRC, RG 331: SCAP, ESS: Admin, and Mgmt. Div., Class. Dec. File, 010,

Public Finance The entire income of the Imperial Household shall be turned into the public treasury and the expenses of the Imperial Household shall be appropriated by the Diet in the annual Budget.4 5. (New) The Diet may disapprove, reduce, increase or reject any item in the Budget or add new items. The Diet shall make no appropriations for any fiscal year in excess of the income provided for that period.5 6. (New) No public money or property shall be appropriated, applied or donated directly or indirecdy for the use, benefit or support of any system of religion, church,

Vol. I, Box 6385]. To preclude this, Rizzo added the requirement that the budget set forth the complete fiscal program for the year. 4. SWNCC 228 specified that the entire income of the Imperial Household must be turned in to the public treasury and the Household's expenses appropriated by the legislature as part of the annual budget. Rizzo seemed unaware of Rowell's negotiations with ESS and the Natural Resources Section over Crown lands, not to mention their tentative conclusions that the assets as well as their income would have to come under Diet control [see Appendix B]. The Imperial House Law then provided that expenditures of the Imperial Household be defrayed by the state at a certain fixed amount (Art. 47). This fixed amount became a Civil List of ¥4,500,000, which had been voted on annually since 1910. By 1940 the Civil List covered only the salaries of the several thousand civil servants employed by the Imperial Household Ministry, with the Emperor defraying additional expenses out of his personal income of approximately ¥30,000,000 per year. Patterning the budget after the British system, according to MacArthur's instructions, might have suggested retaining a modified Civil List as a form of Privy Purse. Under the British system, Parliament votes each new reign a fixed sum to cover personal and miscellaneous expenses; the same amount is automatically appropriated each year, the amount changing only with the accession of a new monarch. After briefly considering the idea of a Privy Purse, Government Section dropped the device as "anachronistic," reasoning that "statutory allowances for the Emperor and his family within the national budget would be more consistent with the Emperor's new constitutional status and would facilitate control over the national budget by the Diet." As a "side benefit," subordinating the Imperial Household Office to the Prime Minister and making its budget part of the larger national budget would make it "more amenable to control" [7 June 1974, Frank Rizzo to author]. The Civil List came under discussion again during Diet debate on the proposed constitution as a possible means "to protect the dignity of the sovereign and avoid having his personal household expenses the subject of Diet discussion every year" [13 Aug. 1946, Peake to Chief, GS (WNRC, RG 331: SCAP, GS: Memos to Chief, GS, Book III, Box 2142)]. 5. This article's first clause came from SWNCC 228, which provided that the legislature was to have "full power to reduce, increase, or reject any items in the budget, or to suggest new items." The second clause reflected Rizzo's own conservative fiscal philosophy. Undoubtedly aware that the Japanese government had overextended itself to finance the war, Rizzo may have been concerned about continuing inflationary levels of expenditure to pay for reconstruction. Although this draft article did not survive beyond the "MacArthur Draft," the principle of the legislature's right to initiate items in the budget abode at GS. In 1949, the Australian member of the Far Eastern Commission pressed to have the Constitution amended so as to forbid introducing any financial bill in either House without Cabinet authorization. Under the Constitution and related laws the Cabinet customarily initiated financial measures, but the principle of Cabinet priority did not preclude the right of any Diet member to propose a money measure either as an original bill or as an amendment to a Cabinet bill. As the Government Section noted, "[T]he threat, combined with the basic and as yet uncontested constitutional right, of members to submit money bills is an ever-present deterrent to Cabinet arbitrariness and Cabinet surrender to the still-powerful bureaucracy." Although the principle behind the Australian proposal might operate successfully in a parliamentary system like Britain's, Government Section feared that in Japan it might result in the Cabinet's resorting "to the Napoleonic technique of forcing the people's representatives always to choose between a Cabinet measure as submitted and no measure at all, allowing no latitude for a third, less drastic course of action" [i Apr. 1949, Justin Williams to Chief, GS (WNRC, RG 331: SCAP, GS: "The Constitution, 1945-50," Box 2225)].

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Appendix H sect, denomination, religious institution or association, or for any charitable, educational or benevolent purposes not under the control of the State.6 7. (Article 69 revised) In order to supply unavoidable deficiencies in the Budget and to meet requirements unprovided for in the same, a Reserve Fund shall be provided in the Budget. Where a reserve fund is appropriated for necessary expenditure other than by the Budget, a debate at the Investigation Committee of the Diet shall be necessary. If a Reserve Fund should be paid, it shall be necessary to ask approval of the Diet later.7 8. (Article 71 revised) If the budget should fail to secure Parliamentary approval within the fiscal year, the government shall make a temporary budget with the period of 3 months within the limits of the budgets of the preceding fiscal year under the provisions of the Financial Law and enforce it. In the case of the preceding item if the Imperial Diet should be out of session, the government shall immediately convoke a session and submit the budget [from] which is removed the part concerning the period of that fiscal year fixed in the preceding item. If the budget fixed in the preceding item should fail to secure Parliamentary approval within the period fixed in Item i, the Government shall make and enforce a 6. This article originated in JCS 1380/15, the Basic Initial Post-Surrender Directive on Japan, which provided that SCAP was to "require the Japanese Government to cease financial and other support of National Shinto establishments." This was elaborated in SCAPIN 448 of 15 December 1945, the "Shinto Directive" that ordered the Japanese government to cease "sponsorship, support, perpetuation, control and dissemination of Shinto by national and local government employees. It also ordered the immediate cessation of "all financial support from public funds and all official affiliation with Shinto and Shinto shrines," abolished public educational institutions devoted to the study and dissemination of Shinto, and forbade the use of public funds to support similar private institutions. Enlarging upon the freedom of religion guaranteed in SGAPIN 93 of 4 October 1945, the directive aimed at separating religion from the state and preventing its misuse for political ends [SCAP, GS, Political Reorientation of Japan, Vol. II, 467—68]. Rizzo does not recall discussing this draft article with either William K. Bunce, head of the Civil Information and Education Section's Religions Division and the author of the "Shinto Directive," or with Pieter Roest, whose Civil Rights Committee was composing a clause on freedom of religion. By the time Rizzo began drafting, the CIES position on separation of church and state had already been well delineated, not only in the "Shinto Directive" but in informal check notes, as SCAP memorandums were called, to GS. Rizzo's draft article, which went slightly beyond the CIES position, was influenced by the New York State Constitution (Art. VII, Sec. 8), which provided that no state funds "be given or loaned to or in aid of any private corporation or association, or private undertaking." The New York Constitution also authorized the legislature to provide for the "aid, care and support" of the needy, handicapped, and so on, through "agencies and institutions authorized by the state board of social welfare . . . " [7 June 1974, Frank Rizzo to author; New York State Constitution, as amended 1939]. Up to 1874, the rule in New York had been that there were no restrictions upon legislative appropriations to private individuals or groups on grounds of equity, gratitude, or charity. William Woodard has theorized that a possible model for this draft article was a provision in the Philippine Constitution (1935) forbidding the expenditure of public funds "for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion . . . " (Art. VI, Sec. 13-3) [Woodard, 78; U.S. Senate, Constitution of the Philippines, 74th Cong., ist Sess., 1935, p. 6]. Such ideas as were borrowed from the Philippine Commonwealth Constitution came directly from MacArthur. I doubt that any compendia consulted by GS included a copy of the constitution of a state not yet independent. 7. As drafted, this article almost perfectly followed Matsumoto's proposed revision of the Meiji Constitution's Article 69. Rizzo simply omitted reference to the "Imperial" Diet. Rizzo followed Hinman's advice in deleting the Meiji Constitution's Article 70, which allowed the government to institute emergency financial measures by ordinance when the Diet could not be convoked [30 Jan. 1946, Hinman, "Suggestions for Revision of Japanese Constitution" (WNRC, RG 331: SCAP, ESS: Admin, and Mgmt. Div., Class. Dec. File, 010, Vol. I, Box 6385)].

Public Finance temporary budget according to Item i. The rule of the preceding item shall be applicable correspondingly to this case.8 9. (Article 72 unchanged) The final account of the expenditures and revenue of the State shall be verified and confirmed by the Board of Audit, and it shall be submitted by the Government to the Diet together with the report of verification of the said Board. The organization and competency of the Board of Audit shall be determined by law separately. 10. (New) At regular intervals no less than yearly the government shall report to the Diet and the people on the state of the public finances. APPENDIX H-2 Draft of the Committee on Finance, as revised by the Steering Committee on 7 February 1946 CHAPTER FINANCE Article i. (New) The powers of the State to levy taxes, borrow money, expend pub lie money appropriate funds, issue and regulate the value of coins and currency shall be exercised through the Diet. Article 2. (Article 62 revised) The imposition of a new tax or the modification of the rates (of an existing one) shall be determined by law. The raising of national loans and the contraction of other liabilities to the charge of the National Treasury shall require the consent of the Diet. Article 3. (Article 63 unchanged) The taxes levied at present shall, in so far as they are not remodelled by a new law, be collected according to the old system. Article 4. (Articles 64 to 68 inclusive, revised) The expenditure and revenue of the State require the consent of the Diet by means of an annual Budget? The annual Budget shall set forth the complete Government which shall reflect the fiscal program for the next ensuing fiscal year, including the all proposed expenditures and anticipated income of all the ministries, agencies and other organs of the State.9 8. Article 71 of the Meiji Constitution allowed the government to implement the previous year's budget if its proposed budget failed of acceptance. Hinman noted that this offered "a convenient way of assuring continuance of essential government services," but that it could also lead to "legislative deadlock" and should be deleted [30 Jan. 1946, Hinman, "Suggestions for Revision of Japanese Constitution" (WNRC, RG 331: SCAP, ESS: Admin, and Mgmt. Div., Class. Dec. File, 010, Vol. I, 80x6385)]. Uncertain how other drafting committees were handling the relationship between Diet and Cabinet, Rizzo drew upon Matsumoto's provision for a three-month temporary budget to cover the contingency of Diet failure to pass the regular budget [Ellerman Notebook C (Michigan: Hussey Papers)]. He was evidently not aware that those in Government Section who had analyzed the Mainichi version of Matsumoto's draft rejected this scheme as negating the Diet's power to establish the budget. Recalling that an identical budgetary scheme appeared in a Progressive Party draft constitution, Rizzo favored the temporary budget idea: "[A] quarter of a year seemed a convenient interim budget unit, long enough to enable the Government to compose its differences with the Diet or seek a new mandate, while permitting essential running expenditures to be met ad interim, but not long enough to vitiate the Diet's ability to control the Government" [7 June 1974, Frank Rizzo to author]. 9. Rizzo himself had doubts about the second clause of this article, since there was some question as to how the Japanese government might react to such a stringent and explicit requirement. Kades

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Appendix H The entire income of the Imperial Household shall be turned into the public treasury and the expenses of the Imperial Household shall be appropriated by the Diet in the annual Budget. Article 5. (New) The Diet may disapprove, reduce, increase or reject any item in the Budget or add new items. The Diet shall make no appropriations appropriate no money for any fiscal year in excess of the income provided for that period.10 Article 6. (New) No public money or property shall be appropriated, applied or donated directly or indirectly for the use, benefit or support of any system of religion, church, sect, denomination, or religious institution or association, or for any charitable, educational or benevolent purposes not under the control of the State. Article 7. (Article 69 revised) In order to supply unavoidable deficiencies in the Budget and to meet requirements unprovided for in the same, a Reserve Fund shall may be provided in the Budget. Where a reserve fund is appropriated for necessary expenditure other than by the Budget, a debate at the Investigation Committee of the Diet shall be necessary.

generalized the language of the clause somewhat, but Rizzo insisted on retaining its emphasis on the budget's inclusiveness [Ellerman Notebook C (Michigan: Hussey Papers)]. The Steering Committee may have feared that this article could tempt the Cabinet to exert too much control over the proposed budgets of various governmental branches. This became a source of genuine concern the following year, when the draft Finance Law was under discussion between GHQ and the Japanese government. Government Section believed that "to preserve the independence of the Courts, the Diet and the Board of Audit, budget requests of these three agencies should not be subject to revision by either the Minister of Finance or the Cabinet but should be incorporated in the General Budget as received. The Cabinet may, if it wishes, add its comments or recommendations on these portions of the budget in transmitting the budget to the Diet" [30 Dec 1946, m/r, Frank Rizzo (WNRC, RG 331: SCAP, GS: "Finance No. i (1946-50)," Box 2229-C)]. The Japanese government, on the other hand, argued forcefully that this procedure would deprive the Cabinet of its "constitutional right and duty to 'prepare' the budget and, further, that it would violate the integrity of the executive budget" [13 Feb. 1947, m/r, Rizzo (WNRC, RG 331: SCAP, GS: "Finance No. i (1946-50)," Box 2229-C)]. 10. According to Ruth Ellerman's minutes, "Under Article [5] the Diet is forbidden to make appropriations for any fiscal year in excess of the income provided for that year. Colonel Kades questioned the wisdom of this delimitation since it would make impossible the long-term planning involved in public works programs. Total funds for such projects cannot be appropriated out of the income or borrowings of any one fiscal year (or even spent within one year), but the Diet should have the power to authorize initial appropriations and schedule further appropriations to be used over a period of successive years. Captain Rizzo defended the original prohibition by pointing out that the Diet should be permitted to examine critically each year's budget. Further, the Diet should be faced with the necessity of providing as well as spending, and no one Diet should have the power to commit future Diets to appropriation. The Steering Committee concurred and the Article was retained" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Kades' objections to the draft article stemmed from experience in trying to develop public works programs during President Roosevelt's first term: "[We] were constantly stymied in trying to have a long-range program because we did not have sufficiently large appropriations to plan. Appropriations would terminate; then when we got another appropriation, by the time we did the planning, the appropriation would run out." But the rest of the Steering Committee thought this "was an idiosyncrasy of mine," recalled Kades. Conservative in matters of finance, other Steering Committee members felt that empowering the Diet to spend beyond its income would not be sound fiscal policy [Charles L. Kades, interview by author, 12 Dec. 1973]. Rowell particularly supported the article, seeing in it the death of pork-barrel politics. Hussey suggested the slight revision [Ellerman Notebook C (Michigan: Hussey Papers) ].

Public Finance If a Reserve Fund should be paid, it shall be necessary to ask obtain approval of the Diet later.11 Article 8. (Article 71 revised) If the budget should fail to secure Parliamentary approval within the fiscal year, the government shall make and enforce a temporary budget with the covering a period of 3 three months within the limits of the budgets of the preceding fiscal yeara under the provisions of the Financial Law and enforce it such conditions as the Diet may prescribe. In the case of the preceding item if the Imperial Diet should be out of session, the government shall immediately convoke a session and submit the budget from which is removed the part concerning the period of that fiscal year fixed in the preceding item. If the budget fixed in the preceding item should fail to secure Parliamentary approval within the period fixed in Item i, the Government shall make and enforce a tempo rary budget according to Item i. The rule of the preceding item shall be applicable correspondingly to this case.12 Article 9. (Article 72 unchanged) The final account of the expenditures and revenue of the State shall be verified and confirmed by the Board of Audit, and it shall be submitted by the Government to the Diet together with the report of verification of the said Board. The organization and competency of the Board of Audit shall be determined bylaw separately by the Diet.13 Article 10. (New) At regular intervals no less than yearly the government shall report to the Diet and the people on the state of the public finances. 11. When the Steering Committee questioned using a reserve fund, Rizzo explained that it was to be used solely for "small excess housekeeping expenses and for calamities" [Ellerman Notebook C (Michigan: Hussey Papers) ]. The Steering Committee deleted the second clause to preclude establishing a reserve fund without budgetary authorization. Kades believed that through statutory law the Diet could set limits upon reserve fund expenditures [Charles L. Kades, interview by author, 12 Dec. 1973]. 12. Rizzo adopted the idea of a temporary budget from the Japanese without realizing that it had already been rejected by others in Government Section (see footnote 8 to this appendix). The Steering Committee protested: "Article [8], providing for the making of a temporary budget in the event that a Cabinet fails to secure parliamentary approval for its budget within the fiscal year, was discarded. It was intended to provide running expenses for a period in which Cabinet and Diet might be at loggerheads. Commander Hussey stated that the Constitution must not provide any possible loophole for an executive budget. If a Cabinet cannot secure parliamentary approval for its budget within a year, that Cabinet must be forced to resign. Unavoidable expenditures can be paid out of the reserve fund, until approval is secured or a new Cabinet is formed" [7 Feb. 1946, Ellerman Minutes (Rowell Papers) ]. Contrary to what is described in Ellerman's minutes, the Steering Committee initially struck only the second clause of Rizzo's article, on the grounds that the government must be forced to compose its budgetary differences with the Diet, or face the alternatives of calling new elections or resigning [Ellerman Notebook C (Michigan: Hussey Papers)]. Over the objections of Kades and Hussey, the first clause appeared in Rizzo's report to General Whitney [n.d., Rizzo to Chief, GS (Rowell Papers)]. It was rewritten, however, to block any future interpretation that the Cabinet, rather than the Diet, could set conditions for a temporary budget. Ultimately, this clause was deleted. 13. Rowell suggested this revision to emphasize that the Board of Audit was responsible to the Diet and independent of the Cabinet [Ellerman Notebook C (Michigan: Hussey Papers)]. It is not clear whether he thought it should be an agency of the Diet, like Congress's General Accounting Office. Some months later, Guy Swope recommended that the Board's integrity would be enhanced and its freedom ensured if a new provision were inserted in the draft constitution making it an agency "'established by and responsible exclusively to the Diet'" [23 May 1946, Swope to Chief, GS (WNRC, RG 331: SCAP, GS: Memos to Chief, GS, Book II, Box 2142)]. Apparently, Whitney and the rest of his staff were satisfied with the language of the draft constitution as it stood. Swope's suggestion was never adopted.

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APPENDIX I

Local Government

Local government reform was on a par with constitutional and land reform in importance, at least in the eyes of those in Government Section. "Just as the new Constitution will take power from the hands of the Emperor and Government and place it in the hands of the People's representatives, just as Land Reform will take the land from landlords and transfer it to the tenants," some members of the Section extolled, "so will the power in the prefectures, cities, towns, and villages be transferred from the hands of the bureaucrats, appointed by Tokyo, to the hands of persons freely elected by citizens of the local entities."1 When Government Section was created in October 1945, one of its first acts was to investigate the Regional GovernmentsGeneral (RGG), an administrative network imposed by Tokyo over local governments as Japan's war fortunes worsened.2 On 28 September 1945, the Imperial Japanese government recommended that the RGG be replaced by "Regional Administrative Affairs Bureaus," a move prompted by an earlier request from the Supreme Commander for information on the operation of the RGG.3 At a conference in midOctober, Government Section asked Japanese officials to submit their proposals for these new "Administrative Affairs Bureaus." Only a sketch was forthcoming. General William E. Crist, then Chief of GS, informed SCAP that the Regional

Governments-General were plainly designed to provide "complete control" of local government and permit the Japanese military to step in to assume command of each regional unit once Japan was invaded. The proposed Regional Administrative Affairs Bureaus would serve much the same purpose, although tight control over local government would be exercised by civilians in Tokyo rather than by the military. While purporting "to promote the unity of local administration by facilitating coordination and adjustment between the prefectural offices and the central government," the proposed system was really a relic of Japan's recent totalitarian past. "No effort or desire on the part of the Japanese Government to decentralize and to promote local autonomy in civilian administration has been evident," Crist noted. This proposed reorganization would delay decentralization and put "one more obstacle in the way of securing local self-government" and the democratization SCAP was supposedly promoting. Crist recommended that the Japanese government be permitted to abolish the RGG but not to install in its place any new apparatus for control from the top.4 Although Crist managed to get the concurrence of the Assistant Chief of Staff for G~3, he was overruled by the Deputy Chief of Staff for Operations, Major General Stephen J. Chamberlin. Chamberlin reasoned that interposing the proposed

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Local Government Administrative Bureaus between Tokyo and the prefectural governments would neither retard nor advance Japan's democratization. More important, retaining this system of centralized control made the Occupation's work easier. Finally, Chamberlin argued, the "democratization of the Japanese Government must come from the bottom. In other words, the prefectural governments must be elective, and at that time it would be proper to abolish any control on the regional level."5 The Supreme Commander agreed. The Regional Governments-General were dissolved, and the Regional Administrative Affairs Bureaus established.6 The latter would not be eliminated until 1947, and then only after a tussle in which the Home Ministry pressured local government officials to form "voluntary" administrative associations. Government Section later lamely characterized abolition of the RGG as an example of the Japanese government's efforts to reform itself. Eliminating the RGG, the Section explained to delegates from the Far Eastern Advisory Commission, "facilitated a return to peacetime conditions."7 What GS had formerly considered a move to maintain the status quo was now labeled progress for the sake of Allied consumption. The Far Eastern Advisory Commission was not told that the Government Section had unsuccessfully opposed the Japanese government's replacing the RGG with another totalitarian control device. It is not apparent from the record whether SCAP was swayed more by arguments of administrative expedience or by Chamberlin's invocation of a grassroots approach. Crist literally interpreted the Potsdam Declaration as requiring the immediate elimination of obstacles to the growth of incipient democratic sentiments; Chamberlin took the view that a feeling for democracy could develop only from the ground up. One stood for reform from above, the other for reform from below— although with the latter approach, reform

seemed susceptible to sacrifice in the name of expedience. Another factor was Grist's reluctance to back the ideas of his subordinates if it meant a fight with his superiors. Here, as in other areas, the Government Section retreated from making additional policy recommendations; instead it resumed studying the relationship between local and central government in Japan. Starting in October, Professor Tanakajiro of Tokyo Imperial University, an expert on administrative law, briefed members of GS on Japan's system of local government.8 There were occasional conferences with the Japanese, although most of those with Home Ministry officials dealt with that agency's personnel reduction program rather than with its supervision of local government.9 There were also trips to watch prefectural governments in action. After visiting Yamanashi-ken, Major Cecil Tilton concluded: "In the history of Japan the prefectural governor and his government have never been considered anything more than the one as an official and the other as an arm of the Central Administration. It should not be surprising, therefore, to find that little self-government in a western manner is being exercised in the prefectural government per se. . . ."10 Like Rowell with his interest in Japanese criminal procedure, Tilton became bent on reforming local Japanese administration to conform to American ideas of self-governance. A professor of political science at the University of Connecticut, with both B.S. and M.S. degrees from the University of California at Berkeley and an M.B.A. from Harvard, Tilton served briefly in the Office of Price Administration, where he worked on implementing gas rationing in Puerto Rico and the Panama Canal Zone. He received his military government training at Fort Custer and the Army's School of Military Government at Charlottesville. From Charlottesville, he joined Rowell as an instructor at the Civil Affairs Training

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Appendix I School at the University of Chicago. After a six-month stint there, Tilton was transferred to the Provost Marshal General's Office, where through the second half of 1944 he worked on the Army's Civil Affairs Handbook on the government and administration of Japan. Published in January 1945, the handbook drew upon Tilton's military government training, Library of Congress holdings pertaining to Japanese governmental administration, and the expertise of Yanaga Chitoshi, later a professor at Yale.11 Part of the initial contingent of military government officers assigned to Crist in Manila, Tilton found himself preparing segments of SCAP's daily operational reports to the War Department. Not until January 1946, "when the Government Section had settled down" under General Courtney Whitney, did Tilton begin serious research, examining statutory law and Imperial ordinances relating to local government and the numerous administrative regulations implementing them.12 The beginning of 1946 saw Tilton touring the prefectures, ostensibly to gauge the preparations necessary for holding elections to prefectural and local assemblies but really to study relations between Tokyo and the provinces.13 He was also involved in the continuing debate within GS over reforming the Japanese election laws. Charged with securing sample ballots from various states for comparative purposes, Tilton discovered that Illinois used a ballot "the size of a newspaper" with almost one hundred names on it.14 That was enough to swing many in GS to favoring retention of the present Japanese ballot, which was economical in size but required handwritten entries that made it liable to disqualification. Once Whitney convened the Section as a constitutional convention early in February, Tilton knew that "for local government my work would not be long, would not be as involved as the other divisions of the Constitution. . . ,"15 Detail and specificity

were not needed, nor, owing to sparse policy guidance, were they known. Only a framework could be erected. Joining Tilton was Lieutenant Commander Roy Malcolm, a graduate of the University of Southern California, where his father taught. Malcolm, Jr., came by his interest in Japan naturally: his father, an ardent Democrat and eminent political scientist, was involved with both the China and Japan Societies of Southern California and lectured widely on American-Far Eastern relations. The son, however, was in GS only long enough to work on this chapter and to give Whitney a tour of voting booths, part of a survey of preparations by the Japanese for national elections to be held in April.16 Philip O. Keeney was also supposed to be involved, but he had only recently joined GS and, already under suspicion as a security risk, did not participate in drafting the chapter on local government or any other.17 In writing the chapter on local government, Tilton and Malcolm did not seek to remedy specific Japanese practices; they considered Japan's entire system of local administration antithetical to democracy. The U.S. Initial Post-Surrender Policy said nothing about democratizing local government, andJCS 1380/15, the basic directive to SCAP, required only that local authorities be given responsibility for local enforcement of national policy. The sole guidance offered by SWNCC 228 was, first, that as many prefectural officials as possible should be popularly elected or locally appointed, and second, that municipal and prefectural assemblies should be "strengthened." The latter presumably meant that their powers should be heightened at the expense of those of the central government, but Washington had made no suggestions on how to do this. In fact, SWNCC 228 specifically recommended that this reform be left "to be initiated by a genuinely representative national government."18 It is doubtful that Tilton knew of the recommendations for decentralization initially

Local Government made by the State Department's Interdivisional Area Committee for the Far East but later eliminated from policy papers. Private Japanese reform proposals rarely took up the cause of local government.19 There was no model for the chapter, save for Til ton's training and experience "as to what a local government ought to be." Watching the gradual transfer of power from local authorities to the federal government during Roosevelt's three terms had buttressed Til ton's avowedly right-wing sympathies and his belief in the virtues of local autonomy.20 As Williams later wrote: "That it was impossible to transplant to Japan the principles and practices of local autonomy as they evolved from the experiences of American frontiersmen was not his fault; he had no choice but to carry out as best he could the basic directive's irresolute injunction that 'local responsibility for the local enforcement of national policy will be encouraged.'"21 But in drawing up the chapter on local government, Tilton and Malcolm went beyond the dictates of policy papers received by SCAP. The latter promoted the develop ment of local responsibility; they went for local autonomy. Their draft was promptly rejected by the Steering Committee, ostensibly because it followed the American practice of reserving to local authorities those powers not specifically granted to the central government.22 Exactly what the draft said, however, is unclear. Colonel Charles Kades recalled the committee's draft as being "much more detailed" than the simple three-article version identified by Lieutenant Colonel Milo E. Rowell as being from the Local Government Committee (see Appendix I-i).23 To Kades Tilton's draft was "much too broad," for it granted local entities "the power to do anything to meet local conditions," without respecting the powers or prerogatives of the national legislature or the national interest. There was also some lawyerly disdain for the language as being "too vague

and indefinite." The reliance of laymen like Tilton on imprecise and multifarious terms was a problem encountered by the Steering Committee in other chapters. Colonel Kades felt the wording "could be construed to create city-states, in effect, which could make their own laws and have their own criminal laws. . . . There was no limitation on what the local legislature could do, except that it had to be constitutional."24 The Government Section's official history bears this out. Political Reorientation of Japan delicately states that the original draft "was debated at length and finally extensively revised, the major objection to the committee's draft being that it established a form of local sovereignty with residuary powers reserved to local public entities."25 That is a fair statement of the objections to the original, but the draft was scarcely debated, nor was it used as a basis for subsequent drafts. On 6 February it was eliminated from further consideration by the Steering Committee, which subsequently held several short sessions to discuss outlines for a new chapter. Sometimes ideas popped up in the course of discussing other committees' drafts. For example, the afternoon of 6 February, during debate over the chapter on the Emperor, the Steering Committee tentatively decided to provide for forfeiture or removal from office of local officials convicted of felonies.26 This, however, was one of those items that never made it into the final draft. A new chapter in the handwriting of Commander Alfred R. Hussey, Jr., with an addition suggested by Rowell, was reworked by the Steering Committee, probably rewritten by Rowell, and finally adopted on 11 February. At its final session on the chapter, the Steering Committee debated whether to add a clause defining the status of local officials upon enforcement of the new constitution. Rowell thought this might infringe upon the Diet's prerogative, while Hussey pointed out that no such provision

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Appendix I had been drafted for national officials, let alone local ones. Kades suggested the urnbrella clause ultimately adopted, namely, a statement in the constitution's final chapter that all public officials duly holding office as of the date of enforcement would continue in their positions.27

Qn

Following are drafts based upon the original Government Section documents, with deletions indicated by strikeouts and additions by underlining.

APPENDIX 1-1 First draft of the Committee on Local Government, presumably by Major Cecil Tilton and Lieutenant Commander Roy L. Malcolm [Rowell Papers]1

LOCAL GOVERNMENT SECTION I

POWERS

In order to provide for the lawful administration of government in their respective jurisdictions, the prefectural, city, town and village governments in order to meet the local conditions will have the power to levy and collect taxes; the power to establish and maintain a local police force;2 and other such powers of government not specifically reserved in this Constitution or at variance with the laws passed by the Diet. SECTION II

LAWS

In order to provide for the lawful administration of government in their respective jurisdictions, the prefectures, cities, towns and villages in order to meet local conditions will have the power to establish laws and ordinances in conformity with this constitution and the laws passed by the Diet. SECTION III

ELECTIVE OFFICES

The governor of each prefecture, the mayor of each city, the head-men of the towns and villages and all the members of each respective assembly will be elected to office by popular vote. All other officials will receive office by either popular election or by local appointment.

1. This draft was identified by Milo E. Rowell as the Committee's original one. It has not been possible to corroborate his identification. 2. Subsequent drafts of this chapter did not specifically guarantee local control over the police. Decentralization of the Japanese police became one of the more controversial Occupation reforms. Even before the 1947 Valentine and Olander reports on police reorganization, Tilton and his staff (as well as the Public Safety Division of Civil Intelligence Section) made preliminary recommendations for reforming the police. Some resistance to the idea of local control over the police developed later within the Government Section, led by Alfred C. Oppler, who feared "the return to a condition of daimyoseparatism and lawlessness" [22 May 1946, Oppler to Chief (WNRC, RG 331: SCAP, LS: Legis. and Justice Div. Chronological File, 1946, Box 1500)]. Reform of the police eventually came about not so much to bolster the power of local entities as to break the hold of the Home Ministry, which SCAP perceived as intransigent and duplicitous.

Local Government APPENDIX 1-2 Draft of the Chapter on Local Government by Alfred R. Hussey [Hussey Papers, 24-H]

LOCAL GOVERNMENT The chief executive officer of all governmental subdivisions (levels of government below the national govt.) including3 Governors of prefectures, mayors of cities and towns and such other local officials as the Diet may determine shall be elected by direct popular vote witiiin their several communities. The right of suffrage shall not be denied. The people of the several communities shall be secure in their right to govern their own affairs of internal discipline and administration within such laws as the Diet may enact. All laws governing the administration or organization of local government shall be uniform in their application. Laws concerned with and having special application to a single community shall not become effective until accepted by a majority of the registered electorate of such community at an election specifically called for that purpose.4

A P P E N D I X 1-3 Draft of the chapter on local government, as initially revised by the Steering Committee

LOCAL GOVERNMENT The chief executive officer of all governmental subdivisions (levels of government below the national govt.) including Governors of prefectures, mayors of cities and towns prefectures, cities, towns, and all other bodies politic and corporate, and such other local of their officials as the Diet may determine shall be elected by direct popular vote within their several communities. The right of suffrage shall not be denied.5 The people of the several communities bodies politic and corporate shall be secure in their right to govern manage their ewa property, affairs of internal discipline and administration and government within such laws as the Diet may enact and to frame their own charters within the limits the Diet shall set. All laws governing the admin istration or organization of local government shall be uniform in their application. Laws concerned with and having special application to a single community shall not 3. This introductory clause was added by Milo E. Rowell. 4. The last two clauses echoed Rowell's December report on the Meiji Constitution, which also recommended guarantees for managing local tax and property matters not adopted in this draft. Rowell's report further stipulated that the national government was not to interfere with the exercise of lawful authority by duly elected local officials, except through the courts or impeachment. By February, Rowell had evidently rethought his position that these points should be included in the Constitution, for the draft that emerged from the Steering Committee was far more general than his earlier suggestions on local government. 5. This clause was stricken as redundant. Suffrage was to be guaranteed in the "Bill of Rights." Through an apparent oversight, however, no article in the MacArthur Draft specifically granted suffrage, although two (Articles XIII and XIV) hinted at its existence.

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Appendix I become effective until accepted by a majority of the registered electorate of such community at an election specifically called for that purpose. No local or special act applicable to a body politic or corporate can be legislated where a general act can be made applicable, unless it be made subject to acceptance of the majority of the electorate of such community. APPENDIX 1-4 Chapter on local government, as revised by the Steering Committeefor final incorporation, 11 February 1946

LOCAL GOVERNMENT Article LXXXVI. The governors of prefectures, the mayors of cities and towns and the chief executive officers of all prefectures, cities, towns and all other subordinate bodies politic and corporate having taxing power, the members of prefectural and local legislative assemblies, and such other of their prefectural and local officials as the Diet may determine shall be elected by direct popular vote within their several communities. Article LXXXVII. The people inhabitants of the several bodies politic and corporate metropolitan areas, cities and towns shall be secure in their right to manage their property, affairs and government and to frame their own charters within such laws as the Diet may enact and to frame their own charters within the limits the Diet shall set. Article LXXXVIII. The Diet shall pass no local or special act applicable to a body politic or corporate metropolitan area, city or town can be legislated where a general act can be made applicable, unless it be made subject to acceptance of the a majority of the electorate of such community.6

6. According to Ruth Ellerman's minutes, "The original Committee Draft of the Chapter on Local Government was discarded as inadequate, and a new draft prepared by the Steering Committee. This draft guarantees a limited local autonomy for metropolitan areas, cities and towns and other subordinate bodies politic and corporate, having taxing power. These bodies are privileged to manage their own affairs and frame their own charters within the limits defined by the Diet. Provision is made for the election by direct popular vote of the chief executive officers of all subordinate bodies politic and corporate having taxing power, and the members of local and prefectural legislative assemblies and such other prefectural and local officials as the Diet may determine. The Diet is forbidden to pass a special act applicable to a local community where a general act can be made applicable, unless the special act is approved by a majority of the electorate of the community concerned. In general, the final draft of the Chapter on Local Government is a reconciliation of two opposing views. One represented by Colonel Rowell, a strong home rule man, and the other by Colonel Kades, a warm central government man" [i i Feb. 1946, Ellerman Minutes (Rowell Papers)].

APPENDIX J

A Comparison of the MacArthur Draft and the Japanese Government Draft of 2 March 1946

This is a comparison of the "MacArthur Draft," as finalized by Government Section on 13 February 1946 and presented to the Japanese, and the Japanese Government Draft of 2 March, as translated by GS staff interpreters [Michigan: Hussey Papers, 26-C]. The latter differs somewhat from the "First Government Draft" that appears in Political Reorientation [Vol. II, 625—30], which is a more polished translation prepared by the Japanese government in response to a request from Colonel Charles Kades in 1948. In the draft presented here, the roughness

of translation, reordering of articles, and occasional errors contributed to GS's doubts about how faithfully the Japanese were complying with their demands. It was primarily this translation, with all its inadequacies, that formed the basis of the marathon negotiating session of 4-5 March 1946 between Japanese representatives and Government Section. Parenthetical comments in the text are the translators' notes, and ellipsis points at the end of an entry signify that the succeeding clause appears in another section.

MacArthur Draft

2 March 1946Draft1

We, the Japanese People, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nationals and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim the sovereignty of the people's will and do ordain and establish this Constitution, founded upon the

i. For the full Japanese text of the 2 March draft, see Abe, Sato, and Miyata, 285-320.

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2 March 1946 Draft

universal principle that government is a sacred trust the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people; and we reject and revoke all constitutions, ordinances, laws and rescripts in conflict herewith. Desiring peace for all time and fully conscious of the high ideals controlling human relationship now stirring mankind, we have determined to rely for our security and survival upon the justice and good faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society designed and dedicated to the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance, for all time from the earth. We recognize and acknowledge that all peoples have the right to live in peace, free from fear and want. We hold that no people is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all peoples who would sustain their own sovereignty and justify their sovereign relationship with other peoples. To these high principles and purposes we, the Japanese People, pledge our national honor, determined will and full resources.2

2. According to Minister Matsumoto Jqji's accompanying explanation, the preamble had not been incorporated into the Japanese draft because it was incompatible with Article 73 of the Meiji Constitution, which governed amendments, and with the Imperial Edict of 1889, by which the Emperor reserved to himself the exclusive right to alter the Constitution. Matsumoto suggested instead incorporating the spirit of the Government Section preamble into either a Diet resolution or an Imperial Rescript to be issued at promulgation [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi/'/wraMfo, No. 84 (i5june 1955), 14]. Matsumoto had indicated his distaste for the Preamble in his meeting with GS staff on 22 February. The only argument of Matsumoto's that would have held any weight with Government Section Chief Courtney Whitney and his officers was the need to preserve legal continuity. But that was in conflict with GHQ's insistence that the constitution be a creation of the people, not the Throne, thus making an Imperial rescript a singularly inappropriate vehicle for carrying the principles of the preamble. The preamble, which GS considered essential, was restored.

The MacArthur and Japanese Government Drafts

MacArthur Draft CHAPTER I

2 March 1946 Draft CHAPTER I

THE EMPEROR

THE EMPEROR

Article i. The Emperor shall be the symbol of the State and of the Unity of the People, deriving his position from the sovereign will of the People, and from no other source. Article 2. Succession to the Imperial Throne shall be dynastic and in accordance with such Imperial House Law as the Diet may enact. Article 3. The advice and consent of the Cabinet shall be required for all acts

Article i. The Emperor shall be the symbol of the state and of the unity of the people, deriving his position from the sovereign will of the people.3 Article 2. The Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law.4 Article 3. The advice and consent (?)5 of the Cabinet shall be required for all acts

3. To assist Sato Tatsuo in drafting, Matsumoto gave him Japanese "models" of Chapters I and II of the MacArthur Draft. Drawn up by Matsumoto, these were incorporated almost verbatim into Sato's text. In his draft of Article i, Matsumoto had referred to "popular will" as being the source of the Emperor's position, but at Shidehara's suggestion, this was changed to "supreme will"(shiko). Matsumoto interpreted the Potsdam Declaration's reference to "the freely expressed will of the Japanese people" as mandating no change to the Emperor's position, inasmuch as "the will of the Japanese people absolutely supports the Emperor system" [Sato Tatsuo, Nihon-koku Kenpo Seiritsu-shi, Vol. I, 264]. The GS interpreters who translated Article i were apparently guided more by memory of the MacArthur Draft than by how the Japanese rendition was actually worded. The Japanese draft made no mention of "the sovereign will of the people." Kades at first objected to Matsumoto's deleting the phrase "and from no other source," to which Matsumoto replied that including these words made a tautology of an article that was perfectly clear without them [Matsumoto, 22]. Later, the Americans complained that the Japanese version stated that the Emperor "retains his position" [chii o hoyu su] through the will of the people. This did not convey the sharp break from the past that GHQ wanted to suggest [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 85 (i July 1955), 9—10]. The article was eventually revised to read: "The Emperor, in accordance with the supreme will of the Japanese people, shall be the symbol of the State and of the unity of the Japanese people." 4. Kades took Matsumoto sharply to task for failing to specify that the Imperial Household Law was to be enacted by the Diet. Matsumoto explained that provision had been made elsewhere for Diet enactment of laws necessary to implement the Constitution (Article 66) and for the Throne's initiation of amendments to the Imperial Household Law (Article 106) [Matsumoto, 22]. During subsequent negotiations with the GS staff, Sato revived these arguments, adding that his government only wished to ensure that the Emperor might take the lead in reforming what was a private family law. The Japanese were particularly reluctant to abandon Article 106 because of Matsumoto's strong backing of it and of the principle of Imperial control over revisions to the Imperial House Law [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 85 (i July 1955), lo> Ellerman Notebook E (Michigan: Hussey Papers)]. Although GS had maintained that the principle of the Diet's absolute right to initiate amendments and bills was absolute, the Section compromised. Whereas the MacArthur Draft referred to "such Imperial House Law as the Diet may enact," the Article 2 that emerged from conference spoke of "the Imperial House Law passed by the Diet." The Japanese felt they had carried their point and retained the right of initiating amendments to the Law in the hands of the Emperor. 5. The main question raised by Article 3 was whether the sense of the American "advice and consent" was adequately conveyed by the Japanese word hohitsu (counsel, assistance). Matsumoto argued that it was the Diet's function to give advice and consent to the Cabinet, and the Cabinet's to give counsel to the Emperor. To require Cabinet consent for Imperial functions that were reduced to the purely ceremonial would seem strange in Japanese eyes (not to mention personally repugnant to Matsumoto).

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2 March 1946 Draft

of the Emperor in matters of state, and the Cabinet shall be responsible therefor. The Emperor shall perform only such state functions as are provided for in this Constitution. He shall assume no governmental powers, nor shall he assume nor be granted such powers. The Emperor may delegate his functions in such manner as may be provided by law. Article 4. When a regency is instituted in conformity with the provisions of such Imperial House Law as the Diet may enact, the duties of the Emperor shall be performed by the Regent in the name of the Emperor, and the limitations on the functions of the Emperor contained herein shall apply with equal force to the Regent. Article 5. The Emperor appoints as Prime Minister the person designated by the Diet. Article 6. Acting only on the advice and with the consent of the Cabinet, the Emperor, on behalf of the people, shall perform the following state functions:

of the Emperor in matters of state, and the Cabinet shall be responsible therefor. Article 4. The Emperor shall be limited to those state functions provided for in this constitution. He shall have no powers related to government. The Emperor may delegate some of his functions, as provided for by law.6 Article 5. When, in accordance with the Imperial House Law, a regency is established, the regent shall exercise his powers in the Emperor's name. In this case, paragraph one of the preceding article will be applicable.7

Article 6. The Emperor shall appoint the Prime Minister after the resolution thereon is passed by the Diet. Article 7. The Emperor shall perform the following functions of state for the people through die advice and consent (?) of the Cabinet.8

After twenty minutes of strenuous argument between Matsumoto and Kades, the issue was still unresolved [Matsumoto, 22—23]. Sato subsequently attempted to convince the Americans that consent as well as counsel was implied by hohitsu. He was undercut, however, by an old translation of the Meiji Constitution in which the word was rendered simply as "advice." Rizzo consulted a dictionary for ideas, and Kades suggested adding shonin or kyosan, both of which meant "approval." The latter was favored by the Americans, for it, too, appeared in the Meiji Constitution (e.g., Article 5: "The Emperor exercises the legislative power with the consent of the Imperial Diet"). Perhaps influenced by Japanese arguments that the language used to describe the relationship between Emperor and Cabinet should not be identical to that used to define relations between Diet and executive, the Americans decided to change the English wording from "consent" to "approval." On this basis, Sato secured their agreement to the Japanese word sando, a term that connoted approval as well as the idea of support [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi,"/wnsMto, No. 85 (i July 1955), 10]. 6. The MacArthur Draft permitted the Emperor to delegate all of his functions, if he so wished; this was restored [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi,"/t«irato, No. 85 (i July 1955), 11]. 7. Instead of insisting upon the wording in the MacArthur Draft, Government Section asked the Japanese to revise their draft to conform to the usage of the preceding article, thus specifying that the Regent would perform the Emperor's "state functions" (kokumu). Although the Japanese did not understand the reason behind this request, they acceded to it [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 85 (i July 1955), 11]. Just before publication, however, they substituted kenno, a word synonymous with "powers" (kengen) as used in the 2 March draft. The English translation was not changed. 8. As with Article 3, GS insisted on requiring the Cabinet's "advice and approval" (hohitsu sando) for the Emperor to perform functions of state. The MacArthur Draft also specified that the Emperor was

The MacArthur and Japanese Government Drafts

MacArthur Draft

2 March 194 6 Draft

Affix his official seal to and proclaim all laws enacted by the Diet, all Cabinet orders, all amendments to this Constitution, and all treaties and international conventions; Convoke sessions of the Diet; Dissolve the Diet; Proclaim general elections; Attest the appointment or commission and resignation or dismissal of Ministers of State, ambassadors and those other state officials whose appointment or commission and resignation or dismissal may by law be attested in this manner; Attest grants of amnesty, pardons, commutation of punishment, reprieves and rehabilitation; Award honors; Receive ambassadors and ministers of foreign States; and Perform appropriate ceremonial functions.

I. Amendment of the constitution, and promulgation of laws, cabinet orders and treaties. II. Convocation of Diet. III. Dissolution of House of Representatives. IV. Orders calling for the general election of members of the House of Representatives.9 V. Appointment and dismissal of Ministers of State, Ambassadors, and other officials provided for by law.10 VI. General and special amnesty, commutation of punishment, reprieve, and restoration of rights. VII. Awarding of honors. VIII. Receiving foreign ambassadors and ministers. IX. Performance of ceremonial functions.

Article 7. No grants of money or other property shall be made to the Imperial Throne, and no expenditures shall be made by the Imperial Throne, unless authorized by the Diet.

Article 8. No property can be given to, or received by, the Imperial House, and no receipts and disbursements can be made thereby without the consent of the Diet.

CHAPTER II

CHAPTER II

RENUNCIATION OF WAR

ABOLITION OF WAR

Article 8. War as a sovereign right of the nation is abolished. The threat or use of

Article 9. The recognition of war as a sovereign right of the nation and the

to act only on this basis; the Japanese draft omitted the "only." Sato argued that the legal significance of the two versions was the same, but GS disagreed. When Sato left the room for a few minutes, "only" (nomi) was inserted in the Japanese text. It appeared in the draft submitted to the Cabinet for approval on 5 March, but not in the English translation concurrently sent SCAR When no objection was raised to the latter, "only" was removed from the Japanese text [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 85 (i July 1955), 11]. 9. The MacArthur Draft had the Emperor proclaiming general elections; the Japanese version had him issuing orders (meirei) calling for them. Apparently believing the latter implied substantive authority rather than a purely ceremonial duty, the Americans objected. i o. Angry that the Americans were demeaning the Emperor by turning him into a glorified public notary, Matsumoto had not included the word "attest" in the Japanese text. Sato carefully explained that Article 7 dealt entirely with purely ceremonial matters and that this clause gave the Emperor no substantive powers, inasmuch as authority to appoint and fire Ministers of State and other officials was handled in the chapter on the executive. Government Section disagreed and demanded that the Japanese stipulate that the Emperor only attest (ninsho) appointments made by the Cabinet [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 85 (i July 1955), 11—12].

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MacArthur Draft

2 March 1946Draft

force is forever renounced as a means for settling disputes with any other nation. No army, navy, air force or other war potential will ever be authorized and no rights of belligerency will ever be conferred upon the State.

threat or use of force is forever abolished as a means of settling disputes with other nations. The maintenance of land, sea, and air forces, as well as other war potential, and the right of belligerency of the state will not be recognized.11

CHAPTER III

CHAPTER III

RIGHTS AND DUTIES OF THE PEOPLE

RIGHTS AND DUTIES OF THE PEOPLE

Article 9. The people of Japan are entitled to the enjoyment without interference of all fundamental human rights. Article 10. The fundamental human rights by this Constitution guaranteed to the people of Japan result from the ageold struggle of man to be free. They have survived the exacting test for durability in the crucible of time and experience, and are conferred upon this and future generations in sacred trust, to be held for all time inviolate. Article 11. The freedoms, rights and opportunities enunciated by this Constitution are maintained by the eternal vigilance of the people and involve an obligation on the part of the people to prevent their abuse and to employ them always for the common good.

Article 10. The people shall not be prevented (obstructed, hindered) from enjoying any of the fundamental human

Article 12. The feudal system of Japan shall cease. All Japanese by virtue of their humanity shall be respected as individuals. Their right to life, liberty and the pur-

rights.

In view of their precious origin, the fundamental human rights guaranteed to the people by this constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.12

Article 11. The enjoyment of the freedoms and rights guaranteed to the people by this constitution shall be maintained by the eternal vigilance of the people, and the people shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare. Article 12. All of the people shall be respected as individuals, and their right to life, liberty, and the pursuit of happiness shall, within the limits of the public

11. Asked for his opinion, Whitney held that the Japanese version was "incomplete" and needed clarifying because it did not explicitly prohibit the maintenance of armed forces. Not recognizing the maintenance of war potential, GS held, was not the same as never authorizing it [Ellerman Notebook E (Michigan: Hussey Papers); see also Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi,"/MmMto, No. 85 (i July 1955), 12]. The article was revised to reflect GS's interpretation. 12. In explaining why they had abridged the MacArthur Draft's Article 10, the Japanese stated that its purple prose was not the stuff of which laws were made in their country. The American side at first accepted this, but after a brief consultation with Whitney requested that the purple prose be restored out of deference to the General's pride of authorship. As Sato pointed out, incorporating such overblown phraseology into the constitution risked revealing its true authorship. Before the draft was published on 6 March, the two sides had compromised by transferring Article 10 to the chapter on the supreme law (Article 94, para, i) [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi,"/ttns«to, No. 85 (i July 1955), 12-13].

The MacArthur and Japanese Government Drafts

MacArthurDraft

2 March 1946Draft

suit of happiness within the limits of the general welfare shall be the supreme consideration of all law and of all governmental action. Article 13. All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste or national origin. No patent of nobility shall from this time forth embody within itself any national or civic power of government. No rights of peerage except those of the Imperial dynasty shall extend beyond the lives of those now in being. No special privileges shall accompany any award of honor, decoration or other distinction;

welfare, be given the greatest consideration in legislation and in governmental affairs.13 Article 13. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.14

No privileges shall accompany peerage, decoration, or any other award of honor.15

13. When GS asked why the clause regarding the feudal system was omitted from the Japanese draft, Sato replied that feudalism was no longer extant in Japan and referring to it would strike the Japanese as strange. Did landlord-peasant relations not reflect remnants of feudalism? the Americans asked. Whitney referred the issue to MacArthur, who approved deleting the clause because it seemed "needlessly offensive" to the Japanese. "Obviously, this Constitution ends the feudal system and there is no need to belabor the point," he added [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi,"/tm.rafo, No. 85 (i July 1955), 23; Ellerman Notebook E (Michigan: Hussey Papers); [4-5 Mar. 1946], "Members of Government S. review Matsumoto draft and bring it into line with G.S. draft," and Chap. Ill, Rights and Duties of the People (Michigan: Hussey Papers, 26-C)]. 14. The MacArthur Draft variously used "Japanese," "People," "person," and "men." For simplicity's sake, Sato had rendered these all as kokumin, which meant "people" but in the literal sense of "nationals." This sometimes played havoc with GS's intended meaning. Because Article 14 of the Japanese draft extended equal protection of the law to foreigners, Sato did not believe he had violated the American intent. GS insisted on restoring the language used in the MacArthur Draft, but the Japanese text that emerged from the negotiations read simply "all people" (subete no hito). The Americans' first choice, which was scrapped because it so offended Japanese negotiators, was "all persons, regardless of whether they be Japanese or not" [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi/'/wrawfo, No. 85 (ijuly 1955), 11, 13]. In listing proscribed discriminations, GS had specified "national origin," being concerned about the unequal treatment of foreigners. Sato substituted "family origin," believing this a more important basis for discrimination in Japan (and intending that it should cover "caste" as well). Adding "national origin" to the clause, as GS wanted him to do, would duplicate Article 14, he argued. Not comprehending why the Americans wanted the item repeated, Sato and his colleagues concluded that there must be some subtle difference between the two articles that eluded them. It was not the only time they had this reaction. Sato's arguments did not carry at first, but after the marathon negotiations ended, the Japanese were permitted to delete the reference to "national origin" [Ellerman Notebook E (Michigan: Hussey Papers); Sato, 13]. 15. The Japanese were not required to restore the second clause of Article 13, notwithstanding that it came from the pen of the Supreme Commander. They were required to follow the MacArthur Draft's version of the final clause, with a few minor changes. Through this article, the negotiators tried to use the Japanese draft as their script, but, confused by Sato's reordering of this chapter, the Americans reverted to using the MacArthur Draft. This put Sato at a disadvantage: instead of explaining his work, he had to defend his departures from the English used in the MacArthur Draft.

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MacArthur Draft nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it. Article 14. The people are the ultimate arbiters of their government and of the Imperial Throne. They have the inalienable right to choose their public officials and to dismiss them. All public officials are servants of the whole community and not of any special groups. In all elections, secrecy of the ballot shall be kept inviolate, nor shall any voter be answerable, publicly or privately, for the choice he has made. Article 15. Every person has die right of peaceful petition for the redress of grievances, for the removal of public officials and for the enactment, repeal or amendment of laws, ordinances or regulations; nor shall any person be in any way discriminated against for sponsoring such a petition. Article 16. Aliens shall be entitled to the equal protection of law.

2 March 19 4 6 Draft

Article 15. Government officials and other public officials are public servants and the source of the authority to elect and dismiss them shall rest with the whole people. (Note:Japanese translation says this should read "elect, appoint and dismiss.")16 Article 16. In all elections secrecy of the ballot shall be inviolate and no voter shall be held responsible for the choice of candidates he has made. Article 17. Every person (all of the people) shall have the right to petition for redress of damages, for the removal of public officials, and for the enactment, establishment, alteration and abolition of laws and ordinances (TA/:Jap translator used more inclusive terminology) and no person shall come to any harm through such petitions.17 Article 14. Foreign nations [sic; nationals] shall possess the right of equal protection under the law.18

16. Government Section seized on the Japanese draft's failure to refer to the people as ultimate arbiters of government. It took all of Sato's persuasive powers to get the Americans to accept that this was amply clear from the first article of the draft. The MacArthur Draft specified that the people had the power to choose and dismiss public officials. This had been rendered in Japanese as "elect and dismiss" (sennin oyobi kainiri). That seemed too restrictive to the Americans, who wanted to emphasize that the people did not merely bestow power; they also chose the recipients of it. The Japanese wording was changed to "choose and dismiss" (sentei oyobi himeri). Pieter Roest, who had helped draft this chapter, complained that the Japanese text ignored the idea that officials are servants of the entire community. That point was made explicit in the text published on 6 March [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 86 (15 July 1955), 46; Ellerman Notebook E (Michigan: Hussey Papers)]. 17- "Redress of damages" (songai no kyusai) was too narrow, the Americans contended. Songai could include the concept of "wrongs," but "grievances" required a separate word. The conferees finally tacked on the vague phrase "and other matters," despite some complaints from GS that this sullied the purity of the English version [Ellerman Notebook E; Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 86 (15 July 1955), 46]. 18. In reviewing the Japanese draft, GS realized that the original English text was ambiguous: it guaranteed foreigners equal treatment against each other, but not necessarily against Japanese citizens. Apparently GS considered revising the article to state that foreigners would "possess the same rights of protection under the law as Japanese citizens." But, swayed perhaps byJapanese arguments that the article was redundant, GS decided to strike it and rely upon the statement of equality under law given in Article 13 [Ellerman Notebook E (Michigan: Hussey Papers)].

The MacArthur and Japanese Government Drafts

MacArthur Draft

2 March 1946 Draft

Article 17. No person shall be held in enslavement, serfdom or bondage of any kind. Involuntary servitude, except as a punishment for crime, is prohibited.

Article 29. No person shall be forced to do any sort of work against his will, or to do compulsory hard labor, except as criminal punishment.19

Article 18. Freedom of thought and conscience shall be held inviolable.

Article 19. The freedom of thought and conscience of every person shall be inviolate. Article 18. Every person (all of the people) shall have religious freedom and no person shall be compelled to take part in worship, prayer or any other religious activity. No religious group shall participate in politics nor receive any special privileges from the state. Neither the state nor any of its organs shall carry on religious education or any other religious activity. Article 20. Every person shall have freedom of speech, writing, publication, assembly and association to the extent that they do not interfere with peace and order.20 There shall be no censorship except in cases specifically provided for by law. Article 21. The secrecy of correspondence and other means of communication of every person shall be inviolate. Measures necessary for the maintenance of public peace and order shall be provided for by law. [See Article 20]

Article 19. Freedom of religion is guaranteed to all. No religious organization shall receive special privileges from the State, nor exercise political authority. No person shall be compelled to take part in any religious acts, celebration, rites or practices. The State and its organs shall refrain from religious education or any other religious activity. Article 20. Freedom of assembly, speech and press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 21. Freedom of association, movement and choice of abode are guar-

19. Roest found the Japanese version vague and inadequate. Despite Japanese assertions to the contrary, GS maintained that bondage still existed in Japan and insisted on restoring its prohibition. References to "enslavement" and "serfdom" were dropped, however [Ellerman Notebook E (Michigan: Hussey Papers); Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 86 (15 July 1955), 46]. The Japanese draft included a prohibition of the exploitation of children, which corresponded to Article 24 of the MacArthur Draft. See note 25 to this appendix. 20. The Government Section held that the qualifying clauses used in Articles 20 and 21 invalidated their intention of securing these freedoms; they demanded that these rights be made absolute. Ironically, Sato's reference to censorship was inspired by the Weimar Constitution, which had inspired a similar clause in the original draft of the chapter on civil rights. That clause, too, was struck down by the Steering Committee as objectionable [Ellerman Notebook E (Michigan: Hussey Papers); Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 86 (15 July 1955), 47].

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anteed to every person to the extent they do not conflict with the general welfare.

Article 26. Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.21 The freedom of every person to move to a foreign country or to divest himself of his nationality shall be inviolate. Article 22. The freedom of every person to study (learn) is inviolate.22 [See Article 26.] Article 37. Marriage shall be based only on the mutual consent of both sexes. Moreover, it shall be maintained through mutual cooperation, with the equal rights of husband and wife as a basis.23

All persons shall be free to emigrate and to change their nationality. Article 22. Academic freedom and choice of occupation are guaranteed. Article 23. The family is the basis of human society and its traditions for good or evil permeate the nation. Marriage shall rest upon the indisputable legal and social equality of both sexes, founded upon mutual consent instead of parental coercion, and maintained through cooperation instead of male domination. Laws contrary to these principles shall be abolished, and replaced by others viewing choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family from the standpoint of individual dignity and the essential equality of the sexes.

21. During discussion of Chapter III the night of 4 March, Sato asked the GS staff why only Article 21 of the MacArthur Draft granted certain rights to the extent that there was no conflict with the general welfare. He and his colleagues were having a difficult time appreciating the American view that certain rights were absolute, whereas others might be circumscribed by the greater need of the public good. Guided by the work of the Kenpo Mondai Chosa linkai, as well as by his knowledge of past abuses under the Meiji and Weimar Constitutions, Sato had qualified civil rights, usually by inserting the phrase "as provided by law." In so doing, he thought he was guaranteeing legal protection to such rights; GS thought he was gutting them [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi/'/Mrawto, No. 83 (i June 1955), n; No. 86 (15 July 1955), 46]. 22. There was dissatisfaction with Article 22, which seemed to guarantee little but the freedom to study and do research. Recalling the attempted suppression of Minobe's constitutional theories in the 19305, Government Section staff wanted a broader guarantee [Ellerman Notebook E (Michigan: Hussey Papers) ]. The article was revised to ensure academic freedom; freedom of occupation remained relegated to another article. 23. Articles such as this one were pared down considerably by the Japanese from their MacArthur Draft versions, which had surprised Matsumoto and Sato with their minute and excessive detail. Government Section accepted Sato's explanation that the first sentence in the MacArthur Draft (Article 23) had no legal meaning, and it accepted his reworking of the rest of the article to eliminate redundancies. Even the Americans seemed to regard his version as an improvement over the original. They did require, however, that the Japanese reinsert the final clause specifying the enactment of new laws regarding property rights, inheritance, and other family matters. It had not occurred to Sato that the GS drafters were attempting to provide a guide for subsequent legislation [Sato Tatsuo, "Nihonkoku Kenpo Seiritsushi," Jurisuto, No. 83 (i June 1955), 11; No. 86 (15 July 1955), 47].

The MacArthur and Japanese Government Drafts

MacArthur Draft

2 March 194 6 Draft

Article 24. In all spheres of life, laws shall be designed for the promotion and extension of social welfare, and of freedom, justice and democracy.

Article 38. All laws pertaining to the life of the people must be prescribed with the object of guaranteeing freedom, upholdingjustice, and promoting (developing) public welfare and democracy. Article 23. Every person shall have the right to receive an equal education corresponding to his ability, as provided for by law. Every person shall be obligated to see to it that all of the children under his protection receive the common education as provided for by law. Such education shall be free.24 Article 29. . . . The exploitation of children is prohibited.25

Free, universal and compulsory education shall be established.

The exploitation of children shall be prohibited. The public health shall be promoted. Social security shall be provided. Standards for working conditions, wages and hours shall be fixed. Article 25. All men have the right to work. Article 26. The right of workers to organize and to bargain and act collectively is guaranteed. Article 27. The right to own property is inviolable, but property rights shall be defined by law, in conformity with the public welfare.

Article 24. . . . Matters pertaining to wages, working hours, and other working conditions shall be provided for by law. Article 24. Every person shall have the right to work, as provided for by law.26 Article 25. Every worker shall have the right to organize, to bargain collectively and to carry out other group activities as provided for by law.27 Article 35. The right of every person to own property shall be inviolate. The substance and scope of the right to own property shall be prescribed by law to the extent that it does not conflict with the public welfare.

24. Confused by the omnibus nature of GS's Article 24, Sato divided its clauses among different articles. The Government Section accepted much of his reworking, but it did not believe that Sato's Article 23 was as strong a statement of the right to education as theirs, primarily because he qualified it with "as provided by law." Sato, who had drawn upon one of the KMCI drafts, which provided for both the right and duty to receive an education, thought he had gone beyond the MacArthur Draft. His views were finally adopted, with some slight changes to his language [Sato Tatsuo, "Nihonkoku Kenpo Seiritsu-shi," Jurisuto, No. 83 (i June 1955), n; No. 86, 47—8; Ellerman Notebook E (Michigan: Hussey Papers) ]. 25. The clause regarding exploitation of children was transferred to the right-to-work article (Article 25 in the published draft of 6 March 1946). 26. The Japanese version of this article, which combined Articles 24 and 25 of the MacArthur Draft, was adopted, but the right to work was made absolute. 27. GS deleted the phrase "as provided for by law."

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Article 28. The ultimate fee to the land and to all natural resources reposes in the State as the collective representative of the people. Land and other natural resources are subject to the right of the State to take them, upon just compensation therefor, for the purpose of securing and promoting the conservation, development, utilization and control thereof. Article 29. Ownership of property imposes obligations. Its use shall be in the public good. Private property may be taken by the State for public use upon just compensation therefor. Article 30. No person shall be apprehended except upon warrant issued by a competent officer of a court of law specifying the offense upon which the person is charged, unless he is apprehended while committing a crime.

Any measures necessary for the public welfare shall be provided for by law. However, just compensation must be given.

Article 31. No person shall be arrested or detained without being at once in-

[See Article 30] 30

Article 36. The right to own property is accompanied by obligations. It shall be used for the public welfare.28

Article 30. No person whatsoever shall be arrested without a lawful warrant except if he is (apprehended while) (Note: this verb does not appear) committing a crime, or be detained without du