Editing Constitution of Japan (section)

=== Drafting process ===
[[File:Rowell memo 1946.jpg|thumb|The constitution of Japan was largely drafted by US lawyers in the occupation authority. This image is of a secret memo written by members of the authority on the subject of the new constitution.]]

The wording of the Potsdam Declaration—"The Japanese Government shall remove all obstacles&nbsp;..."—and the initial post-surrender measures taken by [[Douglas MacArthur|MacArthur]], suggest that neither he nor his superiors in Washington intended to impose a new political system on Japan unilaterally. Instead, they wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental issue, the writing of a new Constitution. Emperor [[Hirohito]], Prime Minister [[Kijūrō Shidehara]], and most of the cabinet members were extremely reluctant to take the drastic step of replacing the 1889 Meiji Constitution with a more liberal document.<ref>John Dower, ''Embracing Defeat'', 1999, pp. 374, 375, 383, 384.</ref>

Former prime minister [[Fumimaro Konoe]], [[Shidehara Cabinet]] and the civil constitutional study groups<ref>{{Cite book |last=Koseki |first=Shoichi |title=Nihonkokukenpo no Tanjo (日本国憲法の誕生) |publisher=Iwanami Bunko(岩波文庫) |year=2017 |pages=37–57}}</ref> formed original constitutions. The formal draft constitution, which was created by the Shidehara Cabinet, was rejected by GHQ and the government reviewed the revised drafts by various political parties and accepted liberal ways of thinking especially toward the emperor as the symbol of nationals and dispossession of a military power.

After World War II, the Allied Powers concluded an "Instrument of Surrender" with Japan, which stated that "the Emperor and the Government of Japan shall come under the subordination of the Supreme Commander of the Allied Powers". Koseki<ref name=":2">{{Cite book |last=Shoichi |first=Koseki |title=Nihonkokukenpo no Tanjo (日本国憲法の誕生) |publisher=Iwanami Bunko(岩波文庫) |year=2017 |pages=14 & 15}}</ref> interprets this statement as the GHQ's indirect rule through the Emperor and the Japanese government, rather than direct rule over the Japanese people. In other words, GHQ regarded the Emperor Hirohito not as a war criminal parallel to Hitler and Mussolini but as one governance mechanism.

The Japanese government at the end of World War II was organized by [[Higashikuni Cabinet]] (Prime Minister [[Prince Naruhiko Higashikuni]]), with [[Fumimaro Konoe]], who had served as the prime minister during the [[Manchurian Incident]] in 1931, as a minister without portfolio. The trigger of constitutional amendment was from GHQ General MacArthur's word to Fumimaro Konoe. After an unsuccessful first visit on 13 September 1945, Fumimaro Konoe paid another visit to MacArthur at the GHQ headquarters on 4 October 1945. Although the GHQ later denied this fact, citing a mistake by the Japanese interpreter, diplomatic documents between Japan and the U.S. state that "the Constitution must be amended to fully incorporate liberal elements".<ref name=":2" /> "At the meeting, the General told Konoe that the Constitution must be amended".<ref name=":2" /> In this regard, it can be said that the GHQ granted Konoe the authority to amend the Constitution. However, at this point, the Higashikuninomiya Cabinet was succeeded by the Shidehara Cabinet, and Jōji Matsumoto, the then Minister of State, stated that the Cabinet should be the only one to amend the Constitution, and the Constitutional Problems Investigation Committee was established. In other words, there was a conflict between the Konoe and Shidehara cabinets as to who should take the initiative in constitutional amendment.

However, this conflict ended with Konoe being nominated as a candidate for Class A war criminal due to domestic and international criticism. To begin with, Konoe was able to have the initiative to amend the Constitution because he had been assigned full-time by the GHQ to amend the constitution, although he was not an unappointed minister when the cabinet was changed. However, due to domestic and foreign criticism of Konoe, the GHQ announced on 1 November that Konoe had not been appointed to amend the Constitution and that he had no authority to lead the amendment of the constitution since the cabinet had changed. At that time, Konoe belonged to the Office of the Minister of the Interior, which was in charge of politics related to the Imperial Household, but since the Office of the Minister of the Interior was about to be abolished, he decided to submit a proposal for amendment before then. Konoe's proposal reflected the wishes of the GHQ and was very liberal in content, including "limitation of the imperial prerogative," "independent dissolution of the Diet," and "freedom of speech," but it was never finally approved as a draft, and Konoe committed suicide by poisoning himself. After this, the authority to amend the Constitution was completely transferred to Shidehara's cabinet.

In late 1945, Shidehara appointed [[Jōji Matsumoto]], state minister without portfolio, head of a blue-ribbon committee of Constitutional scholars to suggest revisions. The Matsumoto Committee was composed of the authorities of the Japanese law academia, including Tatsuki Minobe (美濃部達吉), and the first general meeting was held on 27 October 1945. Jōji Matsumoto presented the following four principles of constitutional amendment<ref>{{Cite book |last=Joji |first=Matsumoto |title=Kempo Kaisei Yon Gensoku |year=1945}}</ref> to the Budget Committee of the [[House of Representatives (Japan)|House of Representatives]] in 1945.<blockquote>

'''Four principles of constitutional amendment'''
# Do not change the basic principle of the Constitution of the Empire of Japan that the Emperor has total control.
# To expand the power of the parliament and, as a reflection, limit the matters related to the Emperor's power to some extent.
# Put the responsibility of the Minister of State on all national affairs, and the Minister of State shall be responsible to the Parliament.
# Expand the protection of people's freedoms and rights and take adequate relief measures.</blockquote>

The Matsumoto Committee has prepared a constitutional amendment outline based on these principles.

The {{ill|Matsumoto Commission's recommendations|ja|松本試案}}, made public in February 1946, were quite conservative as "no more than a touching-up of the Meiji Constitution".{{Citation needed|date=January 2013}} MacArthur rejected them outright and ordered his staff to draft a completely new document. An additional reason for this was that on 24 January 1946, Prime Minister Shidehara had suggested to MacArthur that the new Constitution should contain an article renouncing war.

As the momentum for constitutional amendment increased, interest in the constitution increased among the people. In fact, not only political parties but also private organizations have announced draft constitutional amendments.

The most famous of these is the outline of the draft constitution by the Constitution Study Group. The Constitutional Study Group was established on 29 October 1945 to study and prepare for the establishment of the Constitution from a leftist approach. While many political party drafts only added to the Meiji Constitution, their drafts included the principle of popular sovereignty,<ref>{{cite web |title=Documents with Commentaries Part 2 Creation of Various Proposals to Reform the Constitution/2-16 Constitution Investigation Association, "Outline of Constitution Draft," December 26, 1945 |url=https://www.ndl.go.jp/constitution/e/shiryo/02/052shoshi.html |access-date=10 August 2020 |website=National Diet Library}}</ref> which grants sovereignty to the people and regards the Emperor as a symbol of the people. The Constitutional Study Group submitted a draft to the Prime Minister's Office on 26 December 1945. On 2 January 1946, GHQ issued a statement that it would focus on the content. Toyoharu Konishi<ref>{{Cite book |last=Toyoharu |first=Konishi |title=Kempo Oshitsukeron no "Maboroshi" |publisher=Kodansha Gendai Shinsho |year=2006}}</ref> states that the GHQ may have included the opinion of the Constitutional Study Group in the draft, reflecting the situation in the United States, where people disregarded popular sovereignty at that time. Also, regarding the symbolic emperor system, since the members of the Constitutional Study Group came into contact with the GHQ dignitaries earlier than the drafting of the guidelines, the Constitutional Study Group proposed the symbolic emperor system through the GHQ dignitaries. It is analyzed that it was reflected in the GHQ proposal.

The Constitution was mostly drafted by American authors.<ref name="constitution-us-authors">{{Cite book|title=The World Transformed:1945 to the Present |last=Hunt| first=Michael| publisher=Oxford University Press| year=2013| isbn=9780199371020| pages=86}}</ref> A few Japanese scholars reviewed and modified it.<ref name="constitution-draft">{{cite news |last1=Moritsugu |first1=Ken |date=18 August 2016 |title=Biden's remark on Japan Constitution raises eyebrows |url=https://apnews.com/af44536131b34653a146b1b1807086d7 |access-date=10 August 2019 |work=AP News}}</ref> Much of the drafting was done by two senior army officers with law degrees: [[Milo Rowell]] and [[Courtney Whitney]], although others chosen by MacArthur had a large say in the document. The articles about equality between men and women were written by [[Beate Sirota]].<ref name=Dower(1999)>{{cite book| last=Dower| first=John W.|title=Embracing defeat: Japan in the wake of World War II |year=1999| publisher=W.W. Norton & Co/New Press.| location=New York|isbn=978-0393046861|pages=[https://archive.org/details/embracingdefeatj00dowe/page/365 365–367]| edition=1st| url-access=registration|url=https://archive.org/details/embracingdefeatj00dowe/page/365}}</ref><ref name=Mainichi>{{cite news|title=Beate Gordon, a drafter of Japan's Constitution, dies at 89 |url=http://mainichi.jp/english/english/newsselect/news/20130101p2g00m0in045000c.html |archive-url=https://archive.today/20130218182511/http://mainichi.jp/english/english/newsselect/news/20130101p2g00m0in045000c.html |url-status=dead |archive-date=18 February 2013 |access-date=1 January 2013 |newspaper=The Mainichi |date=1 January 2013 }}</ref>

MacArthur gave the authors less than a week to complete the draft, which was presented to surprised Japanese officials on 13 February 1946. MacArthur initially had a policy of not interfering with the revision of the Constitution, but from around January 1946, he made a statement to the Constitutional Draft Outline of the Constitutional Study Group and activated movements related to the Constitution. There are various theories as to the reason. Kenzo Yanagi <ref>{{Cite book |last=Kenzo |first=Yanagi |title=Nihonkoku Kempo Seitei no Katei: Rengokoku Soushireibu gawa no Kirokuni Yoru I |publisher=Yuikaku |year=1972 |pages=79}}</ref> mentioned the memorandum of Courtney Whitney, who was the director of the Civil Affairs Bureau of the General Headquarters, on 1 February 1946 as a reason for the attitude change. In the memorandum, it is mentioned that the [[Far Eastern Commission]] was about to be established. The Far Eastern Commission is the supreme policy-making body established by the United States, United Kingdom, the Soviet Union, China, Australia, and other allies to occupy and control Japan, and its authority was higher than that of GHQ. MacArthur learned that the Far Eastern Commission was interested in constitutional amendment, and thought that constitutional authority could be transferred to the Far Eastern Commission after the commission was established. Therefore, he might be eager to end the constitutional issue with unlimited authority before it was founded.

On 18 February, the Japanese government called on the GHQ to reconsider the MacArthur Draft, which is significantly different from the Matsumoto Draft, but Whitney rejected the proposal on 20 February. On the contrary, he asked the Japanese government for a reply within 48 hours. Then, Prime Minister Shidehara met with MacArthur on 21 February and decided to accept the MacArthur draft by a cabinet meeting on the following day.

After [[Shidehara Cabinet]] decision, Jōji Matsumoto aimed to draft a Japanese government bill based on the MacArthur Draft, and the draft was completed on 2 March of the same year.

On 4 March Jōji Matsumoto presented the draft to Whitney, but GHQ noticed that there were differences between the MacArthur Draft and the 2 March Draft. In particular, the 2 March Draft did not include a preamble, and a heated argument ensued. Finally, adjustments were made by the Japanese government and GHQ, and the draft was completed on 6 March.

On 6 March 1946, the government publicly disclosed an outline of the pending Constitution. On 10 April, elections were held for the House of Representatives of the Ninetieth Imperial Diet, which would consider the proposed Constitution. The election law having been changed, this was the first general election in Japan in which [[women's suffrage|women were permitted to vote]].

In the process of passing through the House of Representatives in August 1946, the draft of the Constitutional Amendment was modified. This is called the Ashida Amendment, since the chairman of the committee at the time was Hitoshi Ashida. In particular, Article 9, which refers to the renunciation of armed forces, was controversial.

The phrase "In order to accomplish the aim of the preceding paragraph," was added to paragraph 2 by Hitoshi Ashida without the diet deliberations. Although the reason is not clear, this addition has led to the interpretation of the Constitution as allowing the retention of force when factors other than the purpose of the preceding paragraph arise. Even now, there is a great debate over whether force for self-defense, such as the Self Defense Forces, is a violation of the Constitution.

Article 9.<blockquote>1)    Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

2)   '''<u>In order to accomplish the aim of the preceding paragraph,</u>''' land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.</blockquote>

Unlike most previous Japanese legal documents, the constitution is written in modern colloquial Japanese instead of [[Classical Japanese]].<ref>{{Cite book| last=Inoue| first=Kyoko| url=https://books.google.com/books?id=ffeE989AWrAC| title=MacArthur's Japanese Constitution| date=1991 |publisher=University of Chicago Press| isbn=978-0-226-38391-0| language=en| pages= 29–30 }}</ref> The Japanese version includes some awkward phrasing and scholars sometimes consult the English drafts to resolve ambiguities.<ref>{{Cite journal| last=Inoue| first=Kyoko| date=1987-01-01| title=Democracy in the ambiguities of two languages and cultures: the birth of a Japanese constitution| journal=Linguistics| url=https://www.degruyter.com/document/doi/10.1515/ling.1987.25.3.595/html| language=en| volume=25| issue=3| pages=595–606| doi=10.1515/ling.1987.25.3.595| s2cid=144432801|issn=1613-396X}}</ref><ref>{{Cite news| date=8 March 1958 |title=Looking back in Yearning| url=https://archive.org/details/sim_economist_1958-03-08_186_supplement/page/14/mode/2up| newspaper=The Economist| volume=186|pages=14}}</ref>

The MacArthur draft, which proposed a [[unicameral]] legislature, was changed at the insistence of the Japanese to allow a [[bicameral]] one, with both houses being elected. In most other important respects, the government adopted the ideas embodied in 13 February document in its own draft proposal of 6 March. These included the constitution's most distinctive features: the symbolic role of the Emperor, the prominence of guarantees of [[Civil and political rights|civil]] and human rights, and the renunciation of war. The constitution followed closely a 'model copy' prepared by MacArthur's command.{{sfn|Takemae|2002|p=xxxvii}}

In 1946, criticism of or reference to MacArthur's role in drafting the constitution could be made subject to [[Civil Censorship Detachment]] (CCD) censorship (as was any reference to censorship itself).<ref>John Dower, ''Embracing Defeat'', p.411: "categories of deletions and suppressions" in CCD's key log in June 1946.</ref> Until late 1947, CCD exerted pre-publication censorship over about 70 daily newspapers, all books, and magazines, and many other publications.<ref>Dower, p. 407</ref>