Noah Berlin
Noah Berlin *
Tate no ryomen o miyo
--Japanese
Proverb
"Every medal has two sides" 1
The Constitution of Japan is inherently flawed, and must be amended to reflect the reality of the Emperor's role. Chapter 1 of the Japanese Constitution, which defines the role of the Emperor, does not in practice harmonize with Article 20, separating religion and state. Though seemingly not in conflict as a textual matter, a closer examination reveals that the relationship between Chapter 1 and Article 20 is not, as it stands today, legally justiciable. The need for Japanese constitutional reform is evidenced by an examination of the role of the Emperor conducted in light of current State practice, and is most notably reflected by a recent Japanese Supreme Court decision questioning the constitutionality of government payments to Yasukuni Shrine.[2]
In short, the current Japanese Emperor, by assuming his historical role as chief shaman-priest of the Shinto religion and constitutionally mandated symbol of the State, cannot truly fulfill these roles without violating, at a minimum, Articles 4[3] and 20[4] of the Japanese Constitution. In order to accommodate the current role of the Emperor, the constitution must be amended to allow an Imperial exception to the provision that strictly separates religion and State. Although constitutional amendment will not quell the controversy over the "figurehead" status of the Emperor, it will resolve the current incongruity of the constitutional jurisprudence analyzing the modern Imperial role.
The coexistence of the Imperial dynasty and the Constitution of Japan presents an illustrative example, relevant in almost every country in the world today, of the avenues by which democratic principles can collide with religious and political traditions. By examining the nature of the Imperial Monarch through the lens of the Japanese Constitutional system, and consequently understanding the Emperor's unique role in Japanese society, constitutional error can be rectified while at the same time respecting and preserving the dignity, historical background, and realpolitik of the Imperial role.
To demonstrate the conflict between the Emperor's current role and contemporary constitutional jurisprudence, it is first necessary to examine briefly the role of the Emperor in historical context. The postwar role of the Emperor was not created in a vacuum, and it cannot be reckoned without a jaundiced eye.[5] The Imperial dynasty's historical and religious traditions, unparalleled in size and scope, have created the unique constitutional dilemma Japan faces today. There are several particulars integral to assessing this constitutional conflict.
Section I of this Comment examines the Meiji Constitution of 1889.[6] This document, built around the concept of kokutai, or "national polity," is the foundation of modern Japanese constitutionalism. Section II introduces, in historical terms, the realpolitik role of the Emperor and traces the development of State Shinto. Section III analyzes the origins of the 1947 Showa Constitution through examination of the Japanese surrender to Allied forces at the conclusion of the Second World War and the resultant reformation of the Imperial institution. Section IV explores the creation and adoption of the 1947 Showa Constitution,[7] and deconstructs the dismantling of state religious practice in both practical and constitutional terms. Section V discusses the Emperor's social and religious role following the Second World War, particularly the rites associated with the death of Emperor Hirohito and the accession of Emperor Akihito.
Building upon the historical, sociopolitical, and legal context presented in Sections I through V, Section VI discusses recent constitutional jurisprudence by examining the Yasukuni Shrine and related cases, revealing how Japanese courts have addressed the sharp conflict between Imperial duties and the constitutionally mandated separation of religion and state. Section VI raises the inference that constitutional reformation is necessary. Section VII addresses possible constitutional reforms.
The cumulative analysis presented in this Comment, in summary, attempts to make it eminently clear that the reasons for the enactment of Japan's irreconcilable constitutional articles are the result of grievous misunderstandings of the Emperor's true role and the difficulties in re-democratizing Japan after the Second World War. The best course of action, therefore, is to amend Japan's 1947 Constitution to correct the mischaracterization of the Emperor's role and thus prevent repeated constitutional violations that current jurisprudence has only recently revealed.
On the Eleventh of February 1889, more than twenty years after the restoration of the Emperor Meiji to the Imperial throne,[8] the Meiji Constitution was enacted. Its enactment realized years of deliberation and consummated the desire of Japanese Imperial subjects to live by reformist principles within governmental forms forged by public opinion.[9] The document is particularly useful because it gives context to the analysis of the present Japanese Constitution.
While the Meiji Constitution contained trappings of western constitutions,[10] such as the creation of executive, legislative, and judiciary branches of government, it lacked the checks and balances of, for example, the American Constitution, and the separation of powers evident in the constitutions of many other countries.[11] While in theory the Meiji Constitution contained some of the fundamental underpinnings of democracy, in practice it created an absolute monarchy centered around and with all power emanating from the Emperor.[12] The Meiji Constitution provided for freedom of speech, religion, assembly, and association, but only insofar as they were "within the limits of the law."[13] Consequently, the government, through the Emperor, could restrict any of these freedoms, so long as the restriction was officially proscribed by law.[14] Therefore, in the decades preceding the Second World War, Japan's militarism and aggressive behavior towards its neighbors did not conflict with the Meiji Constitution because these actions were all proscribed by law that, strictly speaking,[15] emanated from the Emperor.[16]
The Meiji constitutional style is often represented by the Japanese word kokutai, or "national polity," [17] a term that is said to imply state supremacy and obedience to the Emperor.[18] The concept of kokutai, especially in the decades preceding the Second World War, was so pervasive that it functioned as the dominant paradigm of "Japanese" identity.[19] As one scholar described the glorification of kokutai in Japanese Ministry of Education elementary school textbooks preceding the War:
[Textbook] authors steadily expanded State Shinto and its vague glittering slogans, such as `Purifying the Kokutai.' More important, from 1910 onward textbook lessons taught . . . . that loyalty to the emperor and filial piety were one and the same and that the ancestral will was obedience to imperial will. The individual was nothing; the will of the emperor and the kokutai were everything.[20]
The Meiji Constitution, constructed around the concept of kokutai, has even been referred to as a kintei kempo [kenpo], or "constitution made by the ruler himself."[21] From this characterization of the Meiji Constitution, it is evident that the Emperor played a central role in the governance of Japan, serving as the binding agent that holds the kokutai together. In essence, the role of the Emperor created by the Meiji Constitution vis-à-vis the State--if one accepts the concept of kokutai--is one clear indication that separation of religion and state in a framework of Japanese constitutionalism is impossible and, by definition, a contradiction in terms. Certainly, it may be argued that the constitutional reforms of the Allied Occupation[22] eliminated kokutai, but this only illuminates the more central question of the Imperial role, which, as recent Japanese Supreme Court jurisprudence has shown, even absent the ideological extremism of ultra-right-wing kokutai theory, that the Emperor's de jure reduction to constitutional figurehead is irreconcilable with the de facto religious role that Japanese societal conventions dictate.
The Imperial powers were outlined in Chapter I of the Meiji Constitution in seventeen articles that reaffirmed the sacred, inviolable nature of the Emperor, and vested in him powers ranging from supreme command of the army and navy to the determination of civil and military salaries.[23] The Meiji Constitution contemplated Imperial rule under its terms forever. Chapter I, Article I provides: "The Empire of Japan shall be reigned over and governed by a line of Tenno unbroken for ages eternal."[24]
Though "inviolable," the Emperor was not considered to be a political leader ruling by virtue of his religious authority.[26] Rather, the Emperor was more like a "chief priest" or "shaman king."[27] Emperor Hirohito, for example, typically conducted approximately thirty Shinto rites a year.[28] While the Emperor's participation in harvest rituals was believed essential to ensure a good harvest, he rarely, if ever, proffered his opinions on political matters. In instances where the Emperor has ventured his political opinion, he has done so only in extreme circumstances.[29] After the twelfth century, the Imperial family had little power other than in the performance of ceremonial duties. True power lay with the warrior families and their paternal leaders, who were typically appointed shogun, or "warlord appointee of the Emperor."[30]
While the Meiji Constitution vested in the Emperor absolute executive power, he did not actually engage in administration of the Japanese government, as might be expected of what was, in structure, a constitutional dictatorship.[31] Rather, under the Meiji Constitution, as one commentator explained,
The cabinet is the organ, through which the Emperor's sovereignty is manifested. In the practical operation of government, the Emperor is not expected to manifest a will of his own, except in so far as he may persuade his ministers to alter what they had decided. The oligarchs were able to point to the historical precedent of an unwritten law more than a thousand years old that . . . politically, [the Emperor] shall be impersonal and let properly constituted authorities act as his responsible ministers.[32]
What the Emperor lacked in administrative power was more than compensated by the religious ascendancy he derived from the Meiji State devotion to kokutai ideology.[33] Freedom of religion, for example, was guaranteed by Article XXVIII of the Meiji Constitution, which read, "Japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief."[34] The government did allow religious freedom to be exercised, but stressed governmental legitimacy by continually reasserting the religious aspects of the Emperor through the use of kokutai ideology.[35] So as not to violate Article XXVIII, the Japanese government declared Shinto shrine ceremonies to be non-religious activities, placing them outside the protections of Article XXVIII and elevating Shintoism to an extra-legal secular social construct of the state.[36] This Meiji-era fictitious legal separation is extremely instructive in resolving the current constitutional crisis because it neatly compartmentalizes, though fictionally, certain religious aspects as "state rite" exceptions.[37]
While clinging to legal pseudo-separation, the Meiji government nonetheless employed Shinto priests as State officials, and, especially as militarism grew, Shinto became the de facto state religion.[38] As one post-war dictionary puts it, State Shinto is:
[t]he Shinto which, contrasted to Shinto as a religious corporation, is closely connected with state power through its militaristic and ultra-nationalistic ideas; it regards the Emperor as a kami [deity] in human appearance (arahitogami), and believes that the Japanese people are superior to other people and are a chosen people as descendants of Ameratasu Omikami; it was suppressed in December 1945.[39]
Though this definition is an unfair and overbroad portrayal, heavily biased against State Shinto, it accurately reflects the views which American authorities had of State Shinto during the Second World War.[40] American Occupation authorities viewed State Shinto, especially its ultranationalist aspect, as a danger, and considered its abolition an important objective in rewriting the Meiji Constitution.[41]
Though the Meiji Constitution remained in force for decades, from Japanese victory in the Russo-Japanese war at the end of the nineteenth century to the military conquest of Asia in the 1930's, it was not a document suited to the Allied victors in the Second World War. [42] Indeed, the Meiji Constitution, as it stood, was irreconcilable with the role of the Emperor envisioned by the Allied authorities in postwar Japan.[43] In sum, the Emperor's role under the Meiji Constitution was paradoxical: he was administratively impotent, but at the same time enshrined as the head of government, his power and supremacy reinforced by the kokutai and nationally mandated State Shinto.[44]
The present Constitution of Japan is the product of the Second World War, specifically the consequence of the unconditional surrender of the Japanese forces to the Allied powers on August 15, 1945.[45] The principal issue in brokering the Japanese surrender was the status of the Emperor, a subject that was debated both internally in the United States and on the world stage.[46]
Although most of the scholars and political scientists who studied Japan recognized that the Emperor had little or no real political power, they understood that his divine status was used as a rallying cry for militarism.[47] However, most of these analysts failed to appreciate that the political role of the Emperor was, and still is, inseparable from his religious role as Shinto leader.[48] This lack of insight and foresight resulted in a narrow Allied conception of the "Emperor" problem, and produced the flawed constitution that followed.
The American State Department initially recognized the Emperor issue on March 10, 1943, in a policy paper on Japan that first asked the question, "Should the continuance of the imperial household be favored?"[49] The internal debate on the issue began formally on May 25, 1943, when the State Department wrote its first assessment of the problem, entitled "Status of the Japanese Emperor."[50] This assessment presented two primary policy options open to the United States; either preserve the emperorship, or eliminate it. Arguments in favor of termination urged that doing so would curb Japanese nationalism and aggression behind the veil of Imperial authority; without the Emperor, Japan would merely be a polity rather than a divinely governed polity. Arguments in favor of preserving the Imperial dynasty recognized that, legally, the Emperor alone could amend the Meiji Constitution.[51] Accordingly, those supporting the preservation of the emperorship believed that any large-scale changes would be more effective if initiated under the political and quasi-religious authority of the Emperor.[52] The two opposing views show that the Emperor was clearly an important figure in the Japanese consciousness. The incongruous constitutional role he eventually assumed ultimately derives from the unresolved difficulties encountered in balancing Imperial survival and American constitutional principles of separation of religion and state in the Allied powers' conception of postwar Japan's political evolution.
As the War progressed, the Emperor issue continued to be a controversial one in the State Department and within the governments of the other Allied powers.[53] It is said that as many as nine-tenths of State Department Japan specialists, led by Under Secretary of State Joseph C. Grew, favored preservation of the emperorship, but that many of the departmental committees and higher-ups who reviewed the specialists' papers were opposed to its continuation.[54] Most notable of those opposed to the preservation of the emperorship was Assistant Secretary of State Dean Acheson, but this group also included other high-ranking officials such as Office of War Information director Elmer Davis.[55]
Outside the halls of government, the debate also raged in the academic world, with even more extreme arguments pressed forward by both sides.[56] One commentator believed that democracy in Japan would be incompatible with the presence of an Emperor. He wrote in October of 1944:
Democracy lies in the will of the people to rule themselves. Its source cannot be the will of a Mikado [Emperor], whether or not he is thought to be a god . . . . To destroy the present generation of militarists is not enough; the whole political, educational, and military machinery which enabled the militarists to hypnotize the masses of the people must be destroyed also. That can only be done by puncturing the myth of the divinity of the Mikado [Emperor].[57]
A second argument espoused by Imperial naysayers was that the cult of so-called "emperor-worship" was too strong.[58] They claimed that the Japanese people were too easily led to act in the name of the Emperor, even to the point of serving as "human bombs"[59] during warfare.[60]
Some of those who supported the termination of the emperorship advised that the Imperial Palace and the Ise Grand Shrine, both focal points of Imperial power,[61] should be destroyed in order to deliver a psychological blow against the Imperial system.[62] The decision not to do so is indicative of the Allied desire to keep the Imperial system alive, albeit in a severely reduced capacity. The Allies' inherent misjudgment regarding the nature of the Imperial role in carrying out their reforms was memorialized in the construction of a constitution that aspired to properly balance the need to maintain the Imperial system to democratize Japan and the need to eliminate ultranationalist kokutai ideology. Given the time constraints and the duress of the postwar reconstruction setting in which the constitutional drafters worked, it is hardly surprising that issues such as analyzing the religious context of Imperial succession rituals or Shinto mourning practices did not appear pressing, or even cognizable as issues with any constitutional import.
As the end of the war became more imminent, postwar planners contemplated new ideas, among which was the possibility that the Japanese would seek to abolish the Imperial dynasty on their own.[63] This seemed unlikely, but, nevertheless, postwar planners presumed that the Japanese would be receptive to the American desire to establish a strong democratic constitutional framework.[64]
One of the most novel and practical ideas conceived by postwar planners was the covert forced abdication of the Emperor Hirohito, a plan which intended to exploit the lack of a personal relationship between the Japanese people and any one particular emperor.[65] Some planners believed that Emperor Hirohito would accept responsibility for the war by voluntary abdication.[66] Either abdication option would have put Crown Prince Akihito, who is now Emperor, on the throne in 1946 at age fourteen.[67] There is some historical evidence that Emperor Hirohito might have voluntarily abdicated. The Emperor was quoted on June 8, 1948 as saying "I, too, think that if it were possible for me to abdicate, personally I would be happy. I have a strong sense that this would help the realization of democracy in Japan, which I would like to see happen."[68] The Emperor's voluntary abdication never materialized, due in large part to the intervention of General MacArthur, who is said to have dissuaded the Emperor from doing so.[69]
In addition to the resolution of the "Emperor question," other legal guidelines governed the establishment of Japan's 1947 Constitution. Negotiations for surrender drew heavily on the terms of the Potsdam Declaration,[70] which committed the Allies to withdraw their forces from Japan when several objectives had been achieved. Among these objectives was the establishment "in accordance with the freely expressed will of the Japanese people [of] a peacefully inclined and responsible government."[71]
The Japanese, intent on protecting the Imperial throne, agreed to the terms of the Potsdam Declaration in their surrender, but only "with the understanding that the said Declaration does not comprise any demand which prejudices the prerogatives of His Majesty as a sovereign ruler."[72] Before accepting these Japanese terms of surrender, the Americans in turn requested that "[f]rom the moment of surrender the authority of the Emperor and the Japanese government to rule the state shall be subject to the Supreme Commander of the Allied Powers who will take such steps as he deems necessary to effectuate the surrender terms."[73]
The Japanese, faced with the prospect of more atomic bomb attacks like those carried out on Hiroshima and Nagasaki, consented to the Allied terms, and at noon on August 15, the Emperor made his historical surrender broadcast to the Japanese people.[74] As the New York Times captioned a report on Allied troop reaction to the Allied plan to preserve the emperorship, "GI's in Pacific Go Wild With Joy; `Let `Em Keep Emperor,' They Say."[75] Thus, the Japanese secured the Imperial dynasty to some degree, but subject to the discretion of the Supreme Commander for the Allied Forces, General Douglas MacArthur. MacArthur's discretion, as it turned out, set the stage for the constitutional conflict that exists today.
As Supreme Commander of the Allied Powers, General Douglas MacArthur wielded absolute authority over postwar Japan.[76] When he arrived in Japan from Manila on August 30, 1945, the United States Government, despite having researched the matter thoroughly, had not yet developed its position on the Emperor's postwar status.[77]
Whether out of self-interest or in furtherance of the interest in the Japanese people, Emperor Hirohito cooperated with MacArthur to the utmost.[78] When the Emperor and General MacArthur met face-to-face for the first time on September 27, 1945, the Emperor is quoted as saying, "I come to you General MacArthur, to offer myself to the judgement of the powers you represent as the one to bear sole responsibility for every political and military decision made and action taken by my people in the conduct of the war."[79] General MacArthur was apparently pleased by the Emperor's solemn oath of responsibility, and is later reported as saying about that moment, "He was an Emperor by inherent birth, but in that instant I knew I faced the First Gentleman of Japan in his own right."[80]
In conversations with General MacArthur, Emperor Hirohito pleaded his constitutional case for not ending the war sooner. He claimed, "[b]ut I'm a constitutional monarch. If I am advised by my prime minister and the other ministers that [an action] must be done, I must do it, even if I don't like it."[81] This explanation proffered by Emperor Hirohito supports the assertion made by many scholars that Japan's oligarchic structure under the Meiji Constitution left the Emperor devoid of any substantive political power.[82] Thus, the Emperor's candid characterization of the nature of his political power provided some insights into postwar reform of his role in the Japanese political system. The question of his religious power and influence became a separate question that was not fully resolved.
It is reported that when the suggestion was put to the Emperor that he renounce his divinity, he thought it would be embarrassing to publicly take something away from himself which he never claimed to possess.[83] General MacArthur never personally commanded the Emperor to renounce his divinity, and the truth of how the Emperor decided to make a public announcement to this effect is somewhat speculative.[84] Keeping in line with his thoughts on abdication for the sake of democracy, and without going as far as abdication,[85] on New Year's Day, 1946, the Emperor read the now famous Imperial Rescript in which he denied his own divinity:
We stand by the people and we wish always to share with them in their moments of joy and sorrow. The ties between us and our people have always stood upon mutual trust and affection. They do not depend on mere legends and myths. They are not predicated on the false conception that the Emperor is divine and that the Japanese people are superior to other races, and fated to rule the world.[86]
Emperor Hirohito's announcement had the effect of renouncing his status as the arahitogami, or "divine present emperor."[87]
Following Japan's surrender, there was considerable worldwide pressure to try the Emperor as a war criminal.[88] On September 18, 1945, a democratic Senator from Georgia, Richard B. Russell, introduced just such a resolution in Congress.[89] General MacArthur is credited with convincing President Truman, as well as the senator from Georgia, to spare the Emperor from a trial before a war crimes tribunal by emphasizing the necessity, if such a course of action was pursued, of Occupation reinforcements.[90] As MacArthur wrote:
Realizing the tragic consequences that would follow from such an unjust action, I had stoutly resisted such efforts. When Washington seemed to be veering toward the British point of view [supporting a trial], I had advised that I would need at least one million reinforcements should such action be taken. I believed that if the emperor was indicted, and perhaps hanged, as a war criminal, military government would have to be instituted throughout all Japan, and guerilla warfare would probably break out.[91]
As for the Allied Forces' reconfiguration of the Emperor's postwar role, the most relevant report, entitled "209/1," was prepared by the Subcommittee on the Far East for the State-War-Navy Coordinating Committee (SWNCC).[92] Report 209/1 envisioned three principal reforms for the Imperial line. First, it intended to revise the Meiji Constitution to erase any references to the Emperor's divinity.[93] Second, it proposed to eliminate "emperor-worship" from the school system,[94] and third, it planned to end procedures that kept the emperor separated from the general public.[95] Each of these policy directives were followed by MacArthur, producing an Emperor who seemed more like the head of a European royal family rather than a Shinto head priest[96] and descendant of the Sun Goddess.[97] And yet, the new Showa Constitution, which codified reforms proposed by 209/1 and implemented by General MacArthur, when taken in concert with the Emperor's postwar status - stripped of political power --did not resolve the conflict inherent in the combination of the Japanese Imperial tradition with American-style constitutionalized separation of religion and state as envisioned by the Allies.[98]
Tada yori takai mono wa nai.
--Japanese proverb
"Nothing costs so much as what is given us."99
At several points during the month of October, 1945, General MacArthur and others within the General Headquarters of the Allied Powers (GHQ) contacted the Japanese Deputy Prime Minister and Prime Minister, intimating that revision of the still-extant Meiji Constitution was necessary, and that the Japanese Diet (Parliament) was expected to produce a draft.[100] GHQ waited until late January, 1946 for the Japanese revision.[101]
It became apparent on February 1st, when the Mainichi Shinbun[102] published a tentative draft constitution prepared by the Cabinet Constitutional Revision Committee[103] ("Matsumoto Committee") that the revision conceived by the Japanese parliamentarians would be unacceptable to MacArthur.[104] For example, regarding the Emperor, the Matsumoto Committee's first draft[105] changed only one of the Meiji Constitution provisions.[106] Where Article III of the Meiji Constitution had provided, "[t]he person of the Emperor is sacred and inviolable," the revision read, "[t]he person of the Emperor is supreme and inviolable."[107] No changes were made at all to the sovereignty of the Emperor.[108]
The Matsumoto Committee Draft was clearly inconsistent with MacArthur's conviction that the Emperor's power should be severely curtailed in Japan's postwar constitution. According to the official GHQ record, MacArthur "finally came to the conclusion that the most effective method of instructing the Japanese Government on the nature and application of . . . principles he considered basic would be to prepare a draft constitution embodying those principles."[109] Upon review of the unacceptable Matsumoto committee draft, MacArthur ordered his staff at the office the Supreme Commander for the Allied Powers ("SCAP"),[110] to create a constitution that he believed would fulfill his interpretation of the requirements of the Potsdam Declaration, particularly regarding Sections 10 and 12:
10. The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese People . . .
12. The occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japanese people a peacefully inclined and responsible government.[111]
MacArthur's staff was charged with the task of creating a working constitution embodying these ideals quickly because the first postwar general elections were only two months away. The possibility remained that if a draft was not prepared and submitted in time, the newly-elected Japanese Diet would be left to debate the merits of the ultraconservative Matsumoto draft.[112] MacArthur gave Major General Courtney Whitney the task of creating the model constitution, and Whitney and several other SCAP officials spent a week debating and preparing their draft. When the draft was presented to the Japanese officials and cabinet members, they were understandably shocked by its enormous substantive variance from the Meiji Constitution.[113] Nonetheless, about half of the cabinet members supported the SCAP draft.[114] Finally, in an effort to break the deadlock, the Emperor was consulted.[115] The Emperor supported the SCAP draft, and his support settled the matter in favor of its adoption.[116]
When the SCAP draft was given to Matsumoto's team for translation and revision, they made several changes unwelcome to the SCAP drafters.[117] The draft was finalized on March 4, 1946 after fierce negotiations between the Matsumoto and SCAP teams.[118] Popular press reaction upon publication of the new draft was overwhelmingly positive.[119]
On the Emperor Meiji's birthday, November 3, 1947, an estimated 100,000 people gathered at the Palace Plaza to celebrate the first national Imperial Ceremony after the war. [120] At the ceremony, Emperor Hirohito reported the promulgation of the new Constitution --a Constitution purportedly devoid of Imperial trappings and anchored in democratic principles--to the "national gods" in the Imperial Palace's Inner Sanctuary (kyuchu sanden).[121] Ironically, the Showa Emperor performed the very same ritual that his father, in enacting the vastly different Meiji Constitution, had performed. As one apt commentator noted, "in terms of the modern ritual idiom that had been constructed and routinized since Meiji, it was as if little had changed in the divide across 1945."[122]
The present Constitution of Japan, as enacted May 3, 1947,[123] begins with a preamble, followed by eleven chapters containing a total of 103 articles.[124] For purposes of this Comment, the relevant portions are all contained in Chapter I, entitled "The Emperor," Chapter III, Article 20, separating religion and state, and Chapter VII, Article 89, forbidding public expenditures supporting religious institutions.[125] Chapter I outlines the Emperor's symbolic position as a "symbol of the State," and its eight Articles are relatively detailed in outlining the limits of the Emperor's power and responsibilities.[126] Of special note is Article 4, which prevents the Emperor from violating any other part of the constitution.
Chapter III, Article 20 is rather clear-cut. It bars the State from engaging in any religious activity, and provides for absolute religious freedom.[127] This Article is supplemented by Chapter VII, Article 89, which provides: "No public money or other property shall be expended or appropriated for the use, benefit, or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority."[128]
Interpretive difficulties in the text of the Showa Constitution were a problem from the very beginning, first arising during the constant interchanges between Matsumoto and SCAP drafters in refining and translating the Constitution from its original English to Japanese.[129] Translation of the text in Chapter I has been viewed by one critic as a series of misunderstandings and misinterpretation to the extent that each side drew very different views from what was intended to be identical language.[130] Special interpretative problems revolve around the status and role of the Emperor and the function of such phrases as "advise and consent," "popular sovereignty," and the "people."[131]
An example of the type of controversy that arose was a heated debate stemming from Article 3, which describes one small, but important, aspect of the Emperor's new role under the Constitution. Article 3 provides: "The advice and approval of the Cabinet shall be required for all acts of the Emperor in matters of state, and the Cabinet shall be responsible therefor."[132] SCAP drafters wanted to place a check on the Emperor's power in the American constitutional tradition, by adding "advise and consent" language, and insisted upon its accurate translation into Japanese.[133]
The Matsumoto team, coming from a tradition where the Emperor, though invested with absolute power by the Meiji Constitution, had only really exercised executive power in the American presidential sense on one occasion,[134] preferred to use the Meiji Constitution translation of "advise and consent" found in Article LV.[135] Under the Meiji translation applied by the Japanese drafters, the term "advising" (hohitsu-shi), was defined as a type communication between the Ministers of State and the Emperor, rather than a literal translation of the words "advise" (jogen) and "consent" (shơnin).[136] The translative desire to rely on the Meiji understanding of "advise and consent" is reflected in numerous Cabinet discussions which repeatedly stress that, aside from the lone exception of the Emperor's decision to end the war, there had always been agreement between the Emperor and the Cabinet. The idea that changing the word hohitsu-shi implicitly marked a change in the Emperor's relation to the Cabinet, however, was a view considered so strange and at odds with history that most of the Japanese debaters simply decided that when the terms jogen and shonin were finally used no substantive change had really occurred.[137]
In sum, the arguments which took place over the language, meaning, and phraseology used in the 1947 Showa Constitution are indicative of the Japanese goal of retaining the fundamental character of the Emperor's position within the confines of an imposed constitution.[138] These arguments also show explicitly how the Japanese were willing to accept the changes imposed on them in part because the Japanese language is flexible and vague enough to draw reasonably divergent conclusions from identical language.[139]
On December 15, 1945, SCAP issued what has come to be called the "Shinto Directive."[140] The Directive was issued before the promulgation of the new Constitution,[141] and it arguably laid the foundation for Articles 20 and 89 of the 1947 Showa Constitution. The intention of the Shinto Directive was to eliminate all state-sponsored Shinto and, in theory, completely separate religion and state.[142] The over-arching goal of the Directive and its derivative constitutional provisions was to destroy any elements of ultranationalism and militarism that had been built up through the use of State Shinto.[143] In carrying out the Shinto Directive, however, the Occupation authorities allowed the existing Shinto shrines to become recognized as an "organized" religion, which was called "Shrine Shinto."[144]
Unfortunately, the Occupation authorities never anticipated or fully addressed the issue of war-dead shrines, such as Tokyo's Yasukuni Shrine, or the role the Emperor occupied as the head of the Shinto religion.[145] Questions about war-dead Shinto shrines began to emerge just after the war, but the larger question of the Emperor's role did not emerge fully until the death of Emperor Hirohito in 1989.[146] Japan has recently been forced to face these constitutional questions by test cases in High Court and Supreme Court Grand Bench challenges.[147]
Recently, one reporter queried whether the Japanese Emperor had been transformed from "the `living god' of a fanatical religious-military cult" into an "ordinary human and the head of a sedate model family?"[148]
The question of the Emperor's divinity remains valid, and is crucial in recognizing the conflict of the Emperor's role with Article 20. Emperor Hirohito, the Showa Emperor, underwent a long and intricate ritual process to actually accede to the Imperial throne in 1926.[149] The process of accession is intended to cement the temporal powers of the Emperor and bestow upon him the powers of the arahitogami, the living god.[150] Accession is a three-stage process, called in Japanese senso, sokui-rei, and daijosai, terms which, translated roughly, mean "accession," "ascending the throne," and "the great thanksgiving," respectively.[151] Daijosai, the final consummation of the accession, is the Shinto rite of transfiguration signifying the end of the ascension process.[152] According to one commentator, the daijosai has the effect of turning the Emperor from an ordinary person into "a supernatural being, whose person embraces the entire welfare of the people, and has the power to represent them before all the kami [gods]."[153] The verifiability of this occurrence is of course impossible, but proof of the Emperor's divinity was and still continues to be a highly controversial matter.[154]
In sharp contrast to the Emperor's participation in his accession rituals in the late 1920's, the popular acceptance of the Emperor as "less than divine" was a process that began with his denial of divinity in 1946,[155] and continued gradually over a long span of years. Following MacArthur's policy directives, the Emperor visited numerous parts of Japan and made a point to meet with everyday Japanese.[156] One commentator described the postwar transformation of Hirohito: "Instead of the militarized, dynamic, and masculinized figure riding on his white horse, the monarch became a civilian dressed in Western-style suits and soft hat who engaged in such peaceful pursuits as marine biology, poetry, sports viewing, and, in 1975, even visiting Disneyland."[157] The Emperor's "descent into mortality" is considered to have crystallized upon the marriage of his son Crown Prince Akihito (presently Emperor) to a commoner, Michiko Shoda, in a storybook "tennis court romance" in 1958.[158]
On the other hand, several events in recent decades brought into question the legitimacy of a non-religious Imperial role and strengthened the trend toward reactionary politics.[159] For instance, in 1974, the Emperor and Empress made a pilgrimage to Ise Shrine and revived the practice of kenji doza, a ritual using two of the three imperial symbols, the sword and jewel.[160] This ritual had been abolished after the war.[161] In August, 1977, at a summer resort in Nasu, Tochigi Prefecture, the Emperor made a public statement denying that he had actually forsaken his divine character in 1946.[162] These pro-Imperial actions were exacerbated in the 1980's by Prime Minister Yasuhiro Nakasone, who heralded in a conservative neo-nationalist government which sponsored educational reform including mandatory flag-hoisting ceremonies and the singing of the national anthem (Kimi ga yo) at school ceremonies.[163] These policies are still extremely contentious.[164]
Prime Minister Nakasone also generated controversy by his public association with Yasukuni Shrine in Tokyo, the home of many of Japan's war dead, including several notorious Class 1 War criminals, such as Hideki Tojo.[165] Other State-related Shinto events which have seemingly trampled constitutional guarantees of separation of religion and state have led to the constitutional challenges to Article 20 and Article 89 which have emerged in the last twenty-five years.[166]
Crown Prince Akihito ascended to the throne on January 7, 1989, upon the death of Emperor Hirohito.[167] Emperor Akihito vowed to respect the Constitution, "together with all the citizens."[168] On his fifty-seventh birthday in 1990, he reaffirmed this desire when he said, "I hope to perform the duties of the Emperor in a manner appropriate to the present age, as a symbol of the state and the unity of the people in accordance with the provisions of the Constitution."[169] At that time, in late 1989, the question put forth by academics and the popular media was whether Crown Prince Akihito would undergo the daijosai ceremony, whether it would be constitutional, and more importantly, whether the Crown Prince would be, in a sense, reclaiming the divinity which his father had renounced on New Year's Day, 1946?[170]
Shortly after Emperor Hirohito's death in 1989, then Prime Minister Noboru Takeshita,[171] in response to a parliamentary question, said that the daijosai ceremony had been ruled out of the Emperor's accession by the 1947 Showa Constitution.[172] Ultimately, however, Crown Prince Akihito did perform the daijosai ceremony, causing Japanese critics to claim that the "act violated the constitutional separation of church and state."[173] A coalition of Christians, Buddhists, and anti-monarchists who opposed the daijosai claimed that the ceremony would make the Emperor a living Shinto kami [god] and make Shinto a de facto state religion once again, a practice outlawed by the 1947 Showa Constitution's guarantees of religious freedom.[174] Article 20 of the Showa Constitution reads:
Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State nor exercise any political authority.
2. No person shall be compelled to take part in any religious acts, celebration, rite or practice.
3. The State and its organs shall refrain from religious education or any other religious activity.[175]
The second part of the anti-daijosai coalition's argument was based on Article 89, which provides: "No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority."[176] Critics of the daijosai were especially inflamed because the Japanese government spent almost 17 million dollars in public funds for the event.[177] Even though the ceremony could not be seen by the public except for the Emperor's entrance, it was designated by the government as an "Imperial Family Event" and a public ceremony.[178] Tensions surrounding the event were evidenced by thirty-four terrorist attacks which occurred during the weeks of Akihito's enthronement.[179]
Several minority religious groups brought lawsuits against the use of taxpayer money for religious purposes, with notable results.[180] While none of the plaintiffs recovered monetary damages, the decision handed down by the Osaka High Court was noteworthy and truly groundbreaking, especially when viewed in the context of the Yasukuni Shrine case which followed two years later. In denying the plaintiffs damages of 10,000 yen per plaintiff,[181] presiding Judge Noriyuki Yamanaka said, "[i]t cannot absolutely be denied that there is suspicion (the rites) violated the (Constitutional) rules of separation of religion and state."[182] As to their Shinto context, Judge Yamanaka conceded that "[i]t is obvious that (they) held the characteristics of a Shinto ceremony."[183] Regarding damages for "mental anguish," the court, applying somewhat vague reasoning, saw that the "disbursement of the public funds had been finalized," and did not feel that the government had affected the plaintiff's thinking or had in fact dealt them any obligation or burden.[184] The plaintiffs, pleased with their moral victory, did not appeal the case because they felt that the court "announced what we wanted to say."[185] The High Court admitted that the daijosai "may have violated the Constitution."[186]
The Supreme Court Grand Bench, an arm of the Japanese Supreme Court, is used to review the constitutionality of statutes and official acts.[187] Most recently, on April 2, 1997, the Grand Bench ruled that Ehime Prefecture's contributions of public funds as tamagushi-ryo, or Shinto cash offerings, to Yasukuni Shrine in Tokyo violated Article 20 of the Constitution.[188] This landmark Yasukuni Shrine ruling overturned a 1992 Takamatsu High Court decision and reaffirmed the "significance and effect" standard.[189] The "significance and effect" standard was initially developed in a 1977 case in which the Japanese Supreme Court ruled that a local government's use of public funds to pay for a Shinto ceremony at the opening of a municipal gymnasium in Tsu, Mie Prefecture was constitutional.[190] In the Mie Prefecture case, the Court said that it was impossible for the State, including both local and central government, to be free of all contacts with religion, and considered the ceremony, as "social protocol," to pass the "significance and effect" test.[191]
The "significance and effect" test employed in the Yaskuni Shrine ruling uses a two-part requisite formula to determine whether state-supported activities that are questionably religious in nature are unconstitutional pursuant to Article 20.[192] In a ruling supported by thirteen of the Court's fifteen Justices, the Court wrote:
(1) If the authorities' transaction's goal has a religious significance and (2) that effect is a payment to religion, a fostering, promotion, coercion, interference, or so forth, it becomes like a transaction that's part 1) and part 2) requisites have been sufficient on that occasion to become unconstitutional by way of Constitution Article 20, Clause 3 [Religious Significance Clause] (if there is a case where just one of the requisite factors is lacking, it does not become unconstitutional).[193]
The impermissible "effects" are distinguishable under the formula from "social protocol," a broad term of art that the lower court had believed to encompass Ehime Prefecture's cash offerings to Yasukuni Shrine.[194] By deciding that the cash offerings by local government officials to Yasukuni Shrine could not pass the "significance and effect" test, these payments were held unconstitutional by this standard.[195] Through the Yasukuni Shrine ruling, the Court demarcated a narrower interpretation of "social protocol" and paved the way for a restructuring of the Japanese Constitution.[196]
The application of the "significance and effect" test to the role of the Emperor as defined by Chapter 1 of the Showa Constitution reveals the fatal flaw in the Japanese Constitution's construction. In particular, Article 4 of the Showa Constitution specifies that "[t]he Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government."[197] As the Osaka High Court case revealed, the daijosai component, and presumably other facets of the Emperor's accession ceremony, violated the religious separation principles of Article 20 and in turn, implicitly violated Article 4. Presumably, the daijosai would easily fail Yasukuni Shrine's "significance and effect" test as well, because enshrining the Emperor has a clear religious "significance," and the "effect" promotes religion in a State ceremony.[198] If the daijosai and the public funding of Yasukuni Shrine are unconstitutional, it follows that the entirety of the Japanese Constitution's Chapter 1, especially Article 4, is untenable as it reads today. The Osaka High Court and Yasukuni Shrine cases show that the fiction of a non-religious Emperor cannot function, as explicitly stated in Article 4, consistently with the rest of the Constitution, especially Articles 20 and 89.
In order to avoid the conclusion that the role of the Emperor today does not violate Articles 4, 20, and 89 of the Showa Constitution, one must argue that the kokutai[199] is defunct, and the Emperor has truly been reduced to a non-religious, political figurehead. The defects in this argument are easily identified. First, Emperor Akihito did perform the daijosai,[200] an act which immediately calls into question his divinity, and a fact which trumps any claim that the Emperor is nothing more than a private non-religious figure. Second, though the Emperor is a "symbol of the state"[201] and derives his power from the people, he derives his religious power from his lineal descent and role,[202] as cemented by the daijosai, as chief shaman-priest of the Shrine Shinto religion.
If Japan were to elect, for example, a religiously non-invested Emperor to serve as the symbol of the state, no constitutional dilemma would exist. As it stands now, though, the Emperor is the functional equivalent of an American religious figure elected as President, with the federal government funding all of his or her "state" religious activities. If America were to pursue such an unlikely course, it would be faced with a choice between amending the U.S. Constitution to reflect either a change in the constitutional role of the "religious" President or a change in the strict separation of church and state. This is the choice that Japan faces today, and this is why the Showa Constitution must be amended to reflect the reality of the Emperor's position.
The present Constitution of Japan is indeed a unique historical document. Unlike the Constitution of the United States, which was amended numerous times during its first fifty years, the Japanese Constitution has remained unchanged since its promulgation on May 3, 1947.[203] Any public discussion about revising the Constitution had been somewhat of a social taboo for many years.[204] Nonetheless, proposals to revise the Constitution have been discussed abundantly in Japanese academia and government, to little effect.[205] The Commission on the Constitution, a seven-year project that began in 1957, culminated in a report 1161 pages long, culled from 40,000 pages of minutes from meetings, committee reports, hearings and other discussions of any and all problems relating to the Japanese Constitution.[206] No definitive conclusions were reached.[207] In the early 1990's, with the eruption of the Gulf War, talk revived in Japan of revising the Constitution, with most of the discussion revolving around the role of Article 9, the anti-war provision.[208] In one survey of Diet members, sixty percent came out in favor of constitutional amendments.[209] Aside from revising Article 9, many wanted amendments addressing environmental or privacy concerns.[210] Few Diet member have, however, publicly called for revision of the articles regarding the role of the Emperor.[211]
On November 3, 1994, the Daily Yomiuri, Japan's largest daily newspaper, broke the forty-seven-year-old social taboo against calling for change of the Constitution by publishing a revised draft constitution which called for very specific changes in several areas of the Constitution.[212] This populist revisionist draft called for four main points of Imperial reform:
(1) Stipulating in separate chapters national sovereignty and the status of the Emperor as the symbol of the state, which are both stipulated currently in Article 1 of the Constitution;
(2) Transferring the article on "limits to the Emperor's functions" to just before the article on "advice and approval of the Cabinet on the Emperor's acts in matters of state;"
(3) Making the roles of the Emperor more ceremonial in matters of state that can be regarded as matters of state policy, such as dissolution of the House of Representatives and convening of the Diet; and
(4) Giving the Emperor nominal functions as head of state in relation to external relations.[213]
Though the Yomiuri draft adequately addresses some pressing issues, particularly the Emperor's status as head of state, it is woefully inadequate when read in the context of the verdicts of the Osaka High Court and the Yasukuni Shrine cases. While the Yomiuri draft engages some practical political issues, seemingly clarifies the relationship between the Emperor and the people, and solves some of the clumsy Japanese used in the Showa Constitution, it fails to address the real problems inherent in the Emperor's role and the conflict between that role and Articles 20 and 89.
It appears that the best solution for Japan's constitutional dilemma is a revised Constitution with "a clearly defined position for Shrine Shinto and its ceremonies, especially those ceremonies which connect Shrine Shinto with the Imperial House."[214] In 1962, Japanese scholar Satomi Kishio unsuccessfully proposed a possible solution to this constitutional conundrum.[215] His visionary proposal now appears partially vindicated by the holdings of the Osaka High Court and Yasukuni Shrine cases. Satomi's version of Article 20 reads as follows:
The state affirms the importance of religion in the spiritual lives of the people; it equally protects all religious sects that have a proper religious value. The Emperor and the state transcend all religious sects; they do not belong to any religious sect or religious organization, and they do not give special protection to any specified religious sect or religious organization.
The state may not interfere with any of the religious sects, religious organizations, or their believers, as long as their faith, teachings, rituals and meetings, or their internal system are not against the constitution. The state can control, as determined by law, superstition, evil worship, and false religions. [216]
To fully tackle the daijosai and Yasukuni Shrine problems, Satomi's draft constitution adds constitutional regulation which neatly compartmentalizes these religious manifestations as a special type of acceptable "state rites":[217]
--The grand coronation ceremony and the ceremonies transmitted in the Imperial House, are ancient rites of the state; they are different from the activities of religious sects.
--The Ise grand shrine and other shrines designated by law are establishments where the ancient rites of the state are performed. The grand shrine and the shrines of the previous paragraph are subject to the free respect and worship of the people. Their sole task is the promotion of the unity of the popular spirit. They are not to propagate or enforce a specific religious teaching or faith, or criticize or reject the articles of faith, the teachings, and the rituals of other religions. The functions based on the characteristic traditions of each shrine are recognized so far as they preserve the time-honored customs of the people. Particulars are determined by the Grand Shrine and Shrine Laws. [218]
Applying the formula of the Japanese Supreme Court Grand Bench in the Yasukuni Shrine case to Satomi's model, contributions to Yasukuni Shrine, endowed by "free respect and worship of the people," would be considered de jure "social protocol" rather than the fostering of religion. Though Satomi's model assumes the same legal fiction the Supreme Court ruled against in the Yasukuni Shrine case, it would solve the realpolitik of the daijosai, and allow for donations to the particular Imperially-related shrines. In essence, Satomi's model codifies the Imperial throne as constitutionally acceptable "social protocol." A critic of Satomi's proposal could justifiably say that it strengthens the Emperor's symbolic role too much, explicitly revives kokutai and State Shinto, and remythologizes the Imperial role, all of which led Japan down the dark path of the Second World War. In this sense, Satomi's proposal could be considered dangerous in the same manner that the Occupation Authorities considered these elements dangerous when it ordered the Shinto Directive.[219] Japan must at the same time, however, constitutionally recognize the fact that the Emperor is, historically and traditionally, a religiously-vested figure whose behavior and public support should not repeatedly violate the Constitution.
The Emperor's role is a unique example of the conflict inherent in coexisting religions and democratic principles. Constitutional reform is necessary to reconcile the Emperor's role with Articles 20 and 89 so that the integrity of Article 4's separation of religion and state is not compromised.
The necessity of this change will surely be challenged by supporters of the status quo. After all, Imperial roles, though evident in the national anthem Kimi ga yo, and symbolized by the Japanese flag, only force themselves upon the Japanese public when extraordinary Imperial events occur, such as upon the death of an emperor, or when an emperor comments on sensitive issues of foreign policy. Perhaps the Japanese consciousness has internalized its Emperor and routinized its constitutional jurisprudence beyond change. This might explain why an angered Yukio Mishima[220] stated that, "without the Emperor the Japanese people have no identification."[221] Only Constitutional Amendment can rectify the inherent flaws in order to keep apace with the dynamic and complex reality that is the Imperial role at the dawn of the twenty-first century.
[*]
J.D. Candidate, 1999, University of Pennsylvania; B.A., Sarah Lawrence College. Thanks to the Board of Editors, Senior Editors, and Associate Editors of the University of Pennsylvania Journal of Constitutional Law for their dedication and discipline, and special thanks to Alexander Rundlet for his perseverance and unfailingly positive outlook on life and publication. I would also like to thank Jean Morden, Prof. Jefferson Adams, Prof. David Castriota, and Prof. Fawaz Gerges, superlative teachers and outstanding mentors. I also thank my parents, siblings, and friends, all of whom listened patiently and contributed thoughtful, provocative, and sometimes amusing feedback. This Comment is dedicated to the memory of Roy Morden, a man for whom I hold the deepest admiration. I never saw him frown.[1] KOTOWAZA NO IZUMI [Fountain of Japanese Proverbs] 280 (Taiji
Takashima ed. & trans., 1995) [hereinafter Japanese Proverbs].
[2] See Hanrei Heisei Yonen (gyo-tsu) Dai-156-go Heisei
Kyuunen Shigatsu Futsuka Taihtei Hanketsu [Precedential Judgement of Fundamental
Governmental Law # 156 of Apr. 2, 1997 (originating 1992)], Saikosai [Supreme
Court] (Japan), [hereinafter Yasukuni Shrine case] (visited Nov. 5, 1998)
available at <http://www.courts.go.jp>, by clicking on the Saikin
no Saikotei Hanketsu [Recent Supreme Governmental Judgements] hyperlink and
thereafter linking to the judgement entitled Heisei Yonen (gyo-tsu) Dai-156-go
Heisei Kyuunen Shigatsu Futsuka Taihtei Hanketsu [Judgement of Fundamental
Governmental Law # 156 of Apr. 2, 1997].
To access the full content of the
<http://www.courts.go.jp> website, your Internet browser must first be
configured to read Japanese characters. Microsoft Internet Explorer, version
3.02, can be configured to read Japanese characters by installing a Japanese
Character Kit, available from the <http://www.microsoft.com>
website.
[3] Article 4 of the Japanese Constitution provides, in relevant
part: "The Emperor shall perform only such acts in matters of state as are
provided for in this Constitution and he shall not have powers related to
government." KENP [CONSTITUTION], ch. 1, art. 4, translated in THE
CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS, 1947-67, app. at 302 (Dan Fenno
Henderson ed., Univ. of Washington Press 1968).
[4] Article 20 of the Japanese Constitution provides:
Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State nor exercise political authority. 2. No person shall be compelled to take part in any religious acts, celebration, rite or practice. 3. The State and its organs shall refrain from religious education or any other religious activity.
Id. at app. 304.
[5] The Emperor of Japan is traditionally conceived of as the
lineal descendant of the Sun Goddess, Ameratasu Omikami. According to
Shinto legend, She gave the sacred sword, jewel, and mirror, to her grandson
Ninigi no Mikoto before he descended upon the island of Japan. These
three Imperial treasures have been handed down from one Emperor to the next
since that time. The sword is kept at Atsuta Grand Shrine, the jewel at the
Imperial Palace, and the mirror at Ise Grand Shrine. See STEPHEN S.
LARGE, EMPEROR HIROHITO & SHOWA JAPAN: A POLITICAL BIOGRAPHY 5 (1992).
[6] The Constitution of 1889 is often referred to as the
Meiji Constitution. Meiji, meaning "enlightened rule," is the
Japanese name given to the reign of the Emperor Mutsuhito (1868-1912).
See DAIKICHI IROKAWA, THE AGE OF HIROHITO: IN SEARCH OF MODERN JAPAN 9
(1995). Each Japanese Emperor's reign is given such a name. For example,
Taisho, meaning "great justice," is the Japanese name given to the reign
of the Emperor Yoshihito (1912-1926). See LARGE, supra note 5, at
15, 223 n.3; IROKAWA, supra at 9. Showa, meaning "illustrious
peace," is the Japanese name given to the reign of the Emperor commonly referred
to as Emperor Hirohito (1926-1989). See LARGE, supra note 5, at
223 n.2; IROKAWA, supra at 9. Heisei, meaning "achieving peace,"
is the Japanese name given to the reign of the Emperor commonly referred to as
Emperor Akihito (1989-present). See LARGE, supra note 5, at 200.
Emperor Hirohito is referred to in this Comment alternatively as the
Showa Emperor or Emperor Hirohito.
[7] Like the Meiji Constitution, the 1947 Constitution is
alternatively referred to in this Comment as the Showa Constitution or
the 1947 Showa Constitution.
[8] The Emperor Meiji was restored to the throne on March 14, 1868.
This event is commonly referred to as the "Meiji Restoration," titled as such
because of the transfer of power from the neo-feudal Tokugawa Bakufu Shogunate
to a group of reformers united under a more nationalized government. See
Shin'ichi Fujii, The Constitution of Japan: A Historical Survey 43 (1965); Janet
E. Hunter, The Emergence of Modern Japan: An Introductory History since 1853,
2-5 (1989).
[9] See FUJII, supra note 8, at 266 (discussing the
celebratory nature of the enactment of the Meiji Constitution).
[10] Extensive studies were made, for example, of the French,
Belgian, and American Constitutions. See id. at 189.
[11] See THE CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS,
1947-67, supra note 3, at 6 (discussing the Meiji Constitution's
structure).
[12] Although the Emperor had supreme political power, he did not
participate in the administration of the government, but instead ruled through
the Ministers of State. It has been argued that this linkage created an
oligarchic structure of highly placed Ministers, Cabinet members, Privy Council,
and Imperial Household Ministers who truly ran the country, giving the emperor
more of a puppet status than that of absolute ruler. See GEORGE M.
BECKMANN, THE MAKING OF THE MEIJI CONSTITUTION: THE OLIGARCHS AND THE
CONSTITUTIONAL DEVELOPMENT OF JAPAN, 1868-1891, 89-90 (1957). As a result, many
were led to believe that the symbol of the emperor could be used to turn Japan
into a democracy. See infra notes 49-55 and accompanying text
(discussing wartime State Department plans for the emperorship).
[13] BECKMANN, supra note 12, at 7.
[14] See id. ("As a result the Constitution provided no limits on
the government's power to restrict any freedom enumerated in it.").
[15] The Emperor did not actually engage in administration of the
Japanese government. See supra, note 12; see also
infra notes 31-32 and accompanying text (discussing the practical
exercise of political power by the Emperor).
[16] See THE CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS,
1947-67, supra note 3, at 7-8 (discussing a cultural view of the
Emperor's power). For a political analysis of this question, see JUNJI BANNO,
THE ESTABLISHMENT OF THE JAPANESE CONSTITUTIONAL SYSTEM (J.A.A. Stockwin trans.,
Routledge 1992).
[17] See THE CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS,
1947-67, supra note 3, at 8.
[18] See id.; see also IROKAWA, supra
note 6, at 25 ("The ideology of national polity enveloped the entire Japanese
nation. It had an incredible presence . . . . There was
complete social consensus that those who violated these ideologies should be
eliminated or that they inevitably would be eliminated.").
[19] See WILLIAM P. WOODARD, THE ALLIED OCCUPATION OF JAPAN
1945-1952 AND JAPANESE RELIGIONS 11 (1972) (discussing kokutai as the
fundamental and defining politico-cultural characteristic of Japan).
[20] JAPAN EXAMINED: PERSPECTIVES ON MODERN JAPANESE HISTORY 286
(Harry Wray & Hilary Conroy eds., 1983).
[21] FUJII, supra note 8, at 279.
[22] The Allied Occupation followed the surrender of the Japanese
to the Allied Forces on August 15, 1945. See PAUL MANNING, HIROHITO: THE
WAR YEARS 161 (1986).
[23] See generally, MEIJI KENP [Meiji
Constitution], ch. 1, translated in FUJII, supra note 8, at
298-300.
[24] Id., art. I, at 298-99.
[25] Shinto literally means "the way of the kami [gods]."
See WILHELMUS H. M. CREEMERS, SHRINE SHINTO AFTER WORLD WAR II, 3 (1968).
"Shinto grew out of the earliest Japanese traditions and gradually took shape as
an organized religion under the influence of Buddhism and Chinese
culture . . . . Shinto is the only organized religion to
arise in Japan. Shinto preserves ancient Japanese heritage, and there has been
close identification between Shinto, Emperor, and State." H. BYRON EARHART,
RELIGION IN THE JAPANESE EXPERIENCE: SOURCES AND INTERPRETATIONS 6 (1997).
[26] See LARGE, supra note 5, at 7.
[27] See id. at 6.
[28] Emperor Hirohito performed these rituals even as late as
1968, long after he had disclaimed his divinity. See THOMAS CRUMP, THE
DEATH OF AN EMPEROR: JAPAN AT THE CROSSROADS 22 (1989).
[29] For a discussion of the Emperor's influence on the Japanese
surrender, see infra note 74 and accompanying text. For a discussion of
the Emperor's influence on the adoption of the present constitution, see
infra notes 112-116 and accompanying text.
[30] See HUNTER, supra note 8, at 159.
[31] See BECKMANN supra note 12, at 89.
[32] Id. at 89 (quoting Asakawa Kanichi, Some
Contributions of Feudal Japan to the New Japan, III JOURNAL OF RACE
DEVELOPMENT, 30 (1912)).
[33] See EARHART, supra note 25, at 238.
[34] MEIJI KENP, ch. II, art. xxviii, translated in FUJII,
supra note 8, at 301-02.
[35] See EARHART, supra note 25, at 238.
[36] See CREEMERS, supra note 25, at 60.
[37] See id.
[38] See id.
[39] Id. at 7 (quoting Kojien, at 1121 (Shimmura
Izuru, comp. , Tokyo, Iwanami Shoten, 1960)).
[40] See generally D.C. HOLTUM, MODERN JAPAN AND
SHINTO NATIONALISM: A STUDY OF PRESENT-DAY TRENDS IN JAPANESE RELIGIONS (rev'd
ed. 2nd prtg. 1943).
[41] See EARHART, supra note 25, at 38-39.
[42] See KYOKO INOUE, MACARTHUR'S JAPANESE CONSTITUTION: A
LINGUISTIC AND CULTURAL STUDY OF ITS MAKING 1 (1991).
[43] See LEGAL REFORMS IN JAPAN DURING THE ALLIED
OCCUPATION, A COLLECTION OF ESSAYS FROM THE WASHINGTON LAW REVIEW 8 (Washington
Law Review Association ed., 1977).
[44] See BECKMANN, supra note 12, at 95.
[45] See TETSUYA KATAOKA, THE PRICE OF A CONSTITUTION: THE
ORIGIN OF JAPAN'S POSTWAR POLITICS18 (1991).
[46] See Robert E. Ward, Presurrender Planning, in
DEMOCRATIZING JAPAN: THE ALLIED OCCUPATION 1, 3 (Robert E. Ward & Sakamoto
Yoshikazu eds., 1987).
[47] See WOODARD, supra note 19, at 9-13 (explaining
the Allied belief that the concept of a divine Emperor was used to indoctrinate
the people of Japan into supporting ultranationalism and accession).
[48] See id. (noting that the Allied perception of
the problem included mistaken beliefs about the teachings of Shinto, State
Shinto, and the divine status of the Emperor).
[49] Ward, supra note 46, at 3 (citing "Agenda for the
Meeting of March 13, 1943," National Archives, Notter Files, Box 57, P-213,
Appendix, p.2) (noting that while this policy paper from the Subcommittee on
Political Problems of the Advisory Committee on Postwar Foreign Policy did not
purport to do more than pose the question, it did open the door to formal
debate).
[50] See id. (citing "Status of the Japanese Emperor," National
Archives, Notter Files, Box 63, J-315, May 25, 1943).
[51] See id. at 4.
[52] See id.
[53] See id. at 4-5
[54] See id. at 4; see also JUSTIN WILLIAMS,
SR., JAPAN'S POLITICAL REVOLUTION UNDER MACARTHUR: A PARTICIPANT'S ACCOUNT 15
(1979) (describing the debate over the future of the Japanese Emperor).
[55] See Ward, supra note 46, at 4.
[56] See, e.g., Lawrence K. Rosinger, What Future for
Japan?, 19 FOREIGN POL'Y REP., Sept. 1, 1943, at 152; Sun Fo, The Mikado
Must Go, 23 FOREIGN AFFAIRS 1, Oct. 1944, at 17; Kenneth Colgrove, What
Shall We Do with the Japanese Emperor?, 6 AMERASIA 9, Oct. 25, 1942, at
376.
[57] See Sun Fo, supra note 56, at 24.
[58] See WOODARD, supra note 19, at 12 (stating that
the kokutai "cult" included "[v]eneration bordering on worship of the
spirits of the imperial ancestors, of the imperial rescripts, especially the
Imperial Rescript on Education (for civilians) and the Imperial Rescript for
Soldiers and Sailors (for the armed forces); and of the writings of Emperor
Meiji, notably his poems . . .[and] [u]nquestioned acceptance of
the myths taught in the official histories of the country").
[59] The "human bombs" referred to were Japanese soldiers who tied
grenades to their belts and attacked Chinese barbed-wire fences even though they
faced certain death. See Colgrove, supra note 56, at 377. The same
principle would be carried out later in the war by the kamikaze pilots who
hurled themselves at the Allied fleet. See DAVID REES, THE DEFEAT OF
JAPAN 51 (1997) ("The men in the kamikaze aircraft were only too eager to die
for their admiral and their Emperor.").
[60] See Colgrove, supra note 56, at 379 ("[T]he war
effort of Japan largely depends upon the national unity which is partially
fostered by Emperor worship.").
[61] The Ise Shrine, in Ise, contains one of the three divine
implements of the Imperial throne: the mirror of Amaterasu-o-mi-kami, the
legendary Sun Goddess who began the Imperial line of descendency. See
LARGE, supra note 5, at 1, 223 n.1.
[62] See Colgrove, supra note 56, at 376-381
(discussing the impact of destroying such significant locations).
[63] See Ward, supra note 46, at 4-5 (explaining the
impact that possible abolishment of the emperorship by the Japanese had on
debates over the future of the Imperial dynasty).
[64] See id. at 7.
[65] The depersonalized nature of the relationship between the
Emperor and Japanese people was seen in very positive terms by the novelist
Yukio Mishima. See T. FUJITANI, SPLENDID MONARCHY: POWER AND PAGEANTRY IN
MODERN JAPAN 232 (1996) ("Yet what distinguishes Mishima's diagnosis of the
culture crisis in Japan, and what characterizes it as a product of modern
Japanese history, is his call for the people to reinvigorate the national
culture through the revival of what he called `the emperor as a cultural
concept' (bunka gainen toshite no tenno) . . . Mishima
claimed that only the `invisible' emperor, a symbol that could not be seen or
objectified in its wholeness, could serve as the source of creativity for the
Japanese people.").
[66] See Ward, supra note 46, at 4-5 (noting that
these planning initiatives took place in 1944, and were met with general
disfavor by the military).
[67] See LARGE, supra note 5, at 141 (relating the
Emperor's consideration of whether or not to abdicate).
[68] Id.
[69] See id.
[70] The Potsdam Declaration was signed on July 26, 1945.
See WILLIAMS, supra note 54, at 98 (discussing which aspects of
the Japanese Constitution derived from American involvement).
[71] Id. (quoting Article 12 of the Potsdam Declaration of
July 26, 1945). Critics of the 1947 Showa Constitution maintain, with a
strong degree of accuracy, that the 1947 Constitution was imposed by the Allies
and, though promulgated officially by the Japanese government, was not
reflective of the "freely expressed will of the Japanese people." Seemingly, the
"freely expressed will of the Japanese people" is more likely reflected in the
Matsumoto draft which the Allies found unacceptable. See infra notes
109-110 and accompanying text (discussing MacArthur's expectations for
constitutional revision).
[72] MANNING, supra note 22, at 157. The decision was made
in a heated discussion of the Supreme Council on the night of August 9, 1945. At
approximately 2:00 a.m., on August 10, the Emperor, according to the diary of
Togo, himself, requested that the war be stopped, with the "sovereign"
condition. All those present acceded to the Emperor's request. At this time, the
Japanese Prime Minister and two top military Ministers agreed that if the Allies
did not retain the Imperial dynasty, they would continue the war to the death.
See HERBERT FEIS, JAPAN SUBDUED: THE ATOMIC BOMB AND THE END OF THE WAR
IN THE PACIFIC 118-120 (1961) (describing the events of August 9-10,
1945).
[73] MANNING, supra note 22, at 158.
[74] See REES, supra note 59, at 182-83.
[75] FEIS, supra note 72, at 126.
[76] See REES, supra note 59, at 198.
[77] See INOUE, supra note 42, at 160.
[78] See CRUMP, supra note 28, at 154 (discussing
Emperor's explanation for Japanese surrender).
[79] Id.
[80] Id.
[81] GEOFFREY PERRET, OLD SOLDIERS NEVER DIE: THE LIFE OF GENERAL
DOUGLAS MACARTHUR 484 (1996).
[82] See BECKMANN, supra note 12, at 89-90.
[83] See RUTH BENEDICT, THE CHRYSANTHEMUM AND THE SWORD:
PATTERNS OF JAPANESE CULTURE 309 (Houghton Mifflin ed. 1989) (1946) (describing
the Emperor's protests to renouncing his divinity).
[84] See WOODARD, supra note 19, at 253-55
(examining the circumstances surrounding the announcement).
[85] See supra notes 65-69 and accompanying text
(discussing the possibility of Emperor Hirohito's abdication).
[86] MANNING, supra note 22, at 195.
[87] The divine status of the Emperor is still a matter of
dispute. See CRUMP, supra note 28, at 157 ("It cannot be said that
the Japanese were ever completely convinced by the emperor's disclaimer.");
see also IROKAWA, supra note 6, at 126-27 (discussing
interpretations of the Emperor's renunciation of his divine status).
[88] Countries which supported the trial of Hirohito included the
United States, Australia, Great Britain, China, New Zealand, and the Soviet
Union. See INOUE, supra note 42, at 161 (describing a
congressional resolution introduced by Richard B. Russell, a Senator from
Georgia); see also MANNING, supra note 22, at 211 (describing
Australia's official request that Hirohito be tried as a war criminal); see
also CRUMP, supra note 28, at 177 (listing countries that wanted the
Emperor listed as a war criminal).
[89] See INOUE, supra note 42, at 161 (describing
Senator Russell's resolution).
[90] See MANNING, supra note 22, at 219-221 (quoting
MacArthur's response to Washington's desire to try Hirohito).
[91] CRUMP, supra note 28, at 177.
[92] See Ward, supra note 46, at 13 (describing the
Subcommittee's report).
[93] See id.
[94] See id.; see also supra
note 20 and accompanying text (discussing kokutai ideology expressed in
elementary school textbooks).
[95] See Ward, supra note 46, at 13; see,
e.g., FUJITANI, supra note 65, at 232 (discussing "the emperor as
a cultural concept (bunka gainen toshite no tenno)
[and] . . . a symbol that could not be seen or objectified in its
wholeness").
[96] See supra notes 27-29 and accompanying text
(discussing the Emperor's role as a "chief priest" or "shaman king").
[97] See Ward, supra note 46, at 13; see also
LARGE, supra note 5, at 5 (discussing the legend of the Emperor's divine
lineage).
[98] See CRUMP, supra note 28, at 156-57 (describing
reform efforts and the Japanese public's response).
[99] Japanese Proverbs, supra note 1, at
270-71.
[100] See Tanaka Hideo, The Conflict Between Two Legal
Traditions in Making the Constitution of Japan, in DEMOCRATIZING JAPAN: THE
ALLIED OCCUPATION 107, 108-09 (Robert E. Ward & Sakamoto Yoshikazu eds.,
1987) ("When Konoe Fuminaro, deputy prime minister in the Higashikuni cabinet,
visited General Douglas MacArthur on October 4, 1945, the latter made a
suggestion about constitutional revision.").
[101] See id. ("GHQ continued to wait for a Japanese draft,
however, until the end of January 1946.").
[102] The Mainichi Shinbun is one of Japan's largest daily
newspapers.
[103] Chaired by Dr. Joji Matsumoto, one of the top legal minds
of his generation, the Committee was extremely distinguished and contained
almost every expert on Constitutional law in Japan. See TETSUYA,
supra note 45, at 33; Hideo, supra note 100, at 112-14 ("The
committee members were also a very distinguished group.").
[104] MacArthur's Supreme Commander for Allied Powers (SCAP) did
not plan on offering its own revision until the Matsumoto Committee Draft was
leaked to the Japanese Press. See Hideo, supra note 100, at
110.
[105] The second draft (Draft B) contained a few additional,
though slight, revisions. See id.
[106] See id. at 111.
[107] Id; see also BECKMANN, supra note 12,
at 151 app. X (quoting Article III of the Meiji Constitution: "The
Emperor is sacred and inviolable.").
[108] Matsumoto hoped, somewhat myopically, that the Allied reply
to the Japanese offer of surrender was a literal offer. The offer stated that
"[t]he ultimate form of government shall, in accordance with the Potsdam
Declaration, be established by the freely expressed will of the Japanese
people." LARGE, supra note 5, at 127.
[109] MacArthur had assumed that the Japanese draft would have,
at the very least included reforms like: parliamentary supremacy, an executive
branch answerable to the legislature, and fundamental civil rights guarantees.
See WILLIAMS, supra note 54, at 104; Hideo, supra note 100,
at 109-110.
[110] See WILLIAMS, supra note 54, at 2.
[111] Hideo, supra note 100, at 108.
[112] See WILLIAMS, supra note 54, at 104 ("If the
Japanese continued to hedge and delay as they had for almost four months, the
people would have no choice but to vote for or against what was nearly a carbon
copy of the old Meiji Constitution.").
[113] See id. at 114 ("They received the
model charter, he recalled, `[w]ith a distinct sense of shock.'").
[114] The more conservative cabinet members queried American
officials and found them unwilling to compromise on any of the democratic
principles involved. See id. at 115.
[115] See id. ("Messrs. Shidehara and
Yoshida . . . consulted the emperor.")
[116] See id. ("The emperor resolved the matter by
supporting SCAP . . . ."). This is one of the rare occasions
in which the Emperor was consulted on political matters. See supra note
29 and accompanying text (discussing the Emperor's limited role in political
matters).
[117] See id. ("They substituted a bicameral for a unicameral
legislative system and authorized the cabinet to legislate by cabinet order in
emergency situations when the Diet could not be convoked.").
[118] See id.
[119] See id. at 133 ("Press reaction on 7 March to
the cabinet's late afternoon announcement the day before of its draft
constitution was `definitely and unanimously favorable.'" But cf. Hideo,
supra note 100, at 125 (" [T]he news media and public discussion were
subject to GHQ censorship; militaristic or extremely nationalistic views were
banned. Under these circumstances, many opportunistic and sycophantic statements
were made. To say that the draft constitution was well received is not to ignore
this expediency. Nevertheless, it is wrong to regard the enthusiasm for the new
constitution as merely a mindless popular fad.").
[120] See FUJITANI, supra note 65, at 238 ("An
estimated 100,000 people gathered together on the Palace Plaza on this day 3
November 1946 [1947], on none other than Emperor Meiji's birthday, to
participate in the festivities.").
[121] See id. ("The emperor then reported the Constitution's
promulgation to the national gods in the palace's Inner Sanctuary.").
[122] Id.
[123] See JAPAN'S COMMISSION ON THE CONSTITUTION: A FINAL
REPORT 3 (John M. Maki ed. & trans., 1980) ("[T]he Constitution of
Japan . . . had come into effect on 3 May 1947.").
[124] See generally, KENP, translated in THE
CONSTITUTION OF JAPAN AND CRIMINAL STATUTES 3-18 (The Ministry of Justice comp.,
1957).
[125] See id., see also THE CONSTITUTION OF
JAPAN, translated and reprinted in THE CONSTITUTION OF JAPAN: ITS FIRST
TWENTY YEARS, 1947-67, supra note 3, app. at 301-04, 313.
[126] See KENP, ch. 1, supra note 124, at
3-5.
[127] See id., ch. 3, art. 20; see also THE
CONSTITUTION OF JAPAN, translated and reprinted in THE CONSTITUTION OF
JAPAN: ITS FIRST TWENTY YEARS, 1947-67, supra note 3, app. at 304 ("1.
Freedom of religion is guaranteed to all. No religious organization shall
receive any privileges from the state nor exercise any political authority. 2.
No person shall be compelled to take part in any religious acts, celebration,
rite or practice. 3. The State and its organs shall refrain from religious
education or any other religious activity.").
[128] KENP, ch. 8, art. 89, translated in THE CONSTITUTION
OF JAPAN AND CRIMINAL STATUTES, supra note 124, at 18.
[129] See INOUE, supra note 42, at 266-67 ("In the
end, the negotiators created and approved two versions of the Constitution, one
in English, and the other in Japanese, which were congenial in their respective
cultural and political traditions. But neither side realized the differences in
meaning between the two versions."); see also supra notes
114-118 and accompanying text (discussing "fierce negotiations" between the SCAP
and Matsumoto teams).
[130] See INOUE, supra note 42, at 4-5.
[131] See JAPAN'S COMMISSION ON THE CONSTITUTION: A FINAL
REPORT 244, (John M. Maki ed. & trans., Univ. of Washington Press 1980);
INOUE, supra note 42, at 165.
[132] KENP, art. 3, translated in THE CONSTITUTION OF
JAPAN AND CRIMINAL STATUTES, supra note 124, at 5.
[133] See INOUE, supra note 42, at 182.
[134] This occasion refers to Emperor Hirohito's role in deciding
to surrender to the Allies. See supra note 74 and accompanying
text.
[135] "The respective Ministers of State shall give their advice
to the Emperor, and be responsible for it." BECKMANN, supra note 12, at
154.
[136] See INOUE, supra note 42, at 182 (discussing the
role of the Emperor under the new Constitution).
[137] See id. at 182, 220.
[138] See id. at 184, 220.
[139] See id. at 219-20.
[140] See CREEMERS, supra note 25, at 43
(discussing the Shinto Directive and the removal of restrictions on political,
civil, and religious liberties).
[141] See INOUE, supra note 42, at 122-23.
[142] See CREEMERS, supra note 25, at 44.
[143] See EARHART, supra note 25, at 38-39.
[144] See CREEMERS, supra note 25, at 44.
[145] See EARHART, supra note 25, at 38-39.
[146] See id.
[147] See Yoko Hani, Offerings `Unconstitutional',
37 JAPAN TIMES WEEKLY INTERNATIONAL EDITION 15, April 14-20, 1997, at 1, 5
(discussing a Supreme Court decision regarding whether the use of public funds
for Shinto cash offerings violates the Constitution); Court Says Imperial
Rites Might Violate Constitution, KYODO NEWS INTERNATIONAL, INC., Japan
Policy & Politics, Mar. 13, 1995, available in LEXIS, Nexis Library,
IAC Japan File (reporting that the Osaka High Court stated that rites
commemorating Emperor Akihito's enthronement might have violated the
Constitution's rules separating religion and state).
[148] Eugene Moosa, Japan's Emperor-From Living God to Model
Family Man, REUTERS NORTH AMERICAN WIRE, Aug. 8, 1995, available in
LEXIS, Nexis Library, Reuter North America News File (discussing the new role of
the emperorship in Japan).
[149] Emperor Hirohito acceded to the throne on Dec. 25, 1926.
See CRUMP, supra note 28, at 93; See also LARGE,
supra note 5, at 1.
[150] See CRUMP, supra note 28, at 93.
[151] See id. at 95.
[152] For a thorough treatment of the Daijosai ritual, see
ROBERT S. ELLWOOD, THE FEAST OF KINGSHIP: ACCESSION CEREMONIES IN ANCIENT JAPAN
(1973).
[153] CRUMP, supra note 28, at 107.
[154] See, e.g., EARHART, supra note 25, at 39
(stating that the denial of a mythical support for the emperor and his status as
a manifest god, although a departure from pre-war indoctrination and a surprise
for the lesser educated, was an unvoiced understanding among educated people).
There is still a very vocal minority of Japanese who decry all Allied actions in
the Second World War, including the imposition of the Showa Constitution.
These "ultranationalists" are also extremely angered by the idea that any change
in the Emperor's status has ever occurred. Over the years, there have been
several incidents of violent action by some of these factions towards any
Japanese citizen who publicly criticized the Emperor. In the late 1960's there
were said to be over 500 ultra-right-wing-organizations with a total of 120,000
members. See PAUL J. BAILEY, POSTWAR JAPAN: 1945 TO THE PRESENT 120-21
(1996).
[155] See supra notes 83-87 and accompanying text
(discussing the Imperial Rescript in which Emperor Hirohito renounced his
divinity).
[156] See CRUMP, supra note 28, at 156.
[157] FUJITANI, supra note 65, at 238.
[158] See Moosa, supra note 148.
[159] See EARHART, supra note 25, at 296
(discussing the impact on Japanese society of major social changes in the 1960's
and 1970's).
[160] See id. See also LARGE, supra note 5, at 5 (discussing the
legend of the Emperor's sacred lineage)
[161] See id.
[162] See id.
[163] See BAILEY, supra note 154, at 154-55.
[164] See id. at 154 ("In 1985 the Ministry of
Education caused uproar amongst teachers when it instructed all school heads to
ensure that the national flag was hoisted and the anthem sung at school
ceremonies.")
[165] Hideki Tojo, Japan's wartime Prime Minister, was sentenced
to death for crimes against humanity and conspiracy to wage aggressive war. See
id. at 32-33.
[166] See, e.g., Yasukuni Shrine case, supra
note 2.
[167] See Moosa, supra note 148.
[168] Id.
[169] Id.
[170] See supra notes 83-87 and accompanying text
(discussing the Imperial Rescript in which Emperor Hirohito renounced his
divinity).
[171] Takeshita resigned in disgrace after the Recruit Cosmos
Scandal. See CRUMP, supra note 28, at 213.
[172] See CRUMP, supra note 28, at 213.
[173] Moosa, supra note 148.
[174] See Ronald E. Yates, In Japan, Some Oppose Shinto
Rites, CHICAGO TRIBUNE, Nov. 22, 1990, at C35; see also KENP, art.
20, translated in THE CONSTITUTION OF JAPAN AND CRIMINAL STATUTES,
supra note 124, at 3-18.
[175] KENP, art. 20, translated in THE CONSTITUTION OF
JAPAN: ITS FIRST TWENTY YEARS, 1947-67, supra note 3, app. at 304.
[176] KENP, art. 89, translated in THE CONSTITUTION OF
JAPAN AND CRIMINAL STATUTES, supra note 124, at 18.
[177] See Irene Kunii, Japanese Emperor's Communion
Rite Stirs Divinity Debate, THE REUTERS LIBRARY REPORT, Nov. 21, 1990,
available in LEXIS, Nexis Library, Reuter Library Report File.
[178] See, Interpretations of Daijosai, THE DAILY
YOMIURI, Nov. 24, 1990, at 6 ("[T]his appropriation . . . was
defended with the argument that because . . . the enthronement
ceremony . . . is stipulated in the Constitution, and given that
the Constitution is a public document, Daijosai is to some degree a public
ceremony."); Steven A . Weisman, Akihito Performs His Solitary Rite, N.Y.
TIMES, Nov. 23, 1990, at A7 ("[S]pecatators . . . could only see
glimmerings of the ceremony in the dark.").
[179] See Enthronement Featured Elaborate Security,
THE DAILY YOMIURI, Dec. 13, 1990, at 3 (explaining that critics believed the
safety measures in place did not effectively prevent terrorist attacks, but
rather created an unnecessary distance between spectators and the
Emperor).
[180] See High Court Decision on Enthronement Rites to Be
Fixed, KYODO NEWS SERVICE, Mar. 23, 1995, available in LEXIS, Nexis
Library, Japan Economic News File (explaining how plaintiffs "practically won
the suit in gaining the High Court's admission that the government's funding of
the ritual may have violated the Constitution").
[181] Converted into U.S. currency, 10,000 yen is the equivalent
of about 90 dollars.
[182] Court says Imperial Rites Might Violate
Constitution, supra note 147.
[183] Id.
[184] Id.
[185] Id.
[186] High Court Decision on Enthronement Rites to Be
Fixed, supra note 180 (explaining the Court's reasoning that the
daijosai may have violated the Constitution's rule of separation of
religion and state).
[187] See Suit on Separation of State and Religion Goes
to Grand Bench, MAINICHI DAILY NEWS, Apr. 4, 1996, at 12 ("[T]he top court
usually refers cases to its grand bench . . . to review the
established interpretation of laws or to determine the[ir]
constitutionality.").
[188] See Hani, supra note 147, at 1, 5 ("[The]
Supreme Court proclaimed . . . offering of public funds to shinto
shrine violates the Constitution.").
[189] See Yasukuni Shrine case, supra note 2;
see also Ruling on Shrine Donations Puts Religious Freedom to Test:
Prefecture's Gifts Unconstitutional, THE NIKKEI WEEKLY, Apr. 7, 1997, at
Pol. & Soc'y 4.
[190] See Hani, supra note 147, at 1, 5 (reporting
that "the Shinto rite was not prohibited under the Constitution because it could
not lead to the extension of support, promotion, oppression or interference of a
religion").
[191] See id. (reporting that the ceremony was
considered to be "in the realm of social protocol.").
[192] See Ruling on Shrine Donations Puts Religious Freedom to
Test Prefecture's Gifts Unconstitutional, supra note 189, at Pol.
& Soc'y 4 ("Standards used by the Supreme Court in its decision were set
forth by the Grand Bench in a 1977 ruling."). Article 20 becomes meaningful in
determining the permissibility of state-supported religious activities when read
in conjunction with Article 89.
[193] See Yasukuni Shrine case, supra note
2.
As for its application, this detail, look at the American Federal case law
precedent of the Lemon test which disallows: a) Action against common custom, b)
Fostering an assistance of religious activity, c) and excessive entanglement of
nation and religion. In the Lemon test, if just one of the three parts is
lacking, it becomes constitutional and this difference between the Lemon test
and the two-part [significance and effect] test, to begin with, should be
pointed out.
Id. (as translated by this author) (contrasting the
instant test with the Lemon Test).
The Lemon Test provides:
"First, the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor inhibits
religion, finally, the statute must not foster `an excessive government
entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
(citations omitted). See also Hani, supra note 147, at
3.
[194] See Lemon, 403 U.S. at 612-13; see
also Hani, supra note 147, at 1, 5.
[195] See Lemon, 403 U.S. at 612-13.
[196] See Hani, supra note 147, at 1.
[197] KENP, ch. 1, art. 4, translated in THE
CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS, 1947-67, supra note 3,
app. at 302.
[198] See supra note 195 and accompanying text
(describing the "significance and effect" test).
[199] See supra notes 17-22, 35-37 and accompanying
text (discussing the concept of kokutai as a "paradigm of Japanese
identity," and a concept from which the Emperor derives influence).
[200] See supra notes 173-174 and accompanying text
(discussing Emperor Akihito's daijosai ceremony and the controversy it
caused).
[201] See generally, KENPO, ch. 1,
translated in THE CONSTITUTION OF JAPAN: ITS FIRST TWENTY YEARS,
1947-67, supra note 3, app. at 301-03.
[202] See supra note 5 and accompanying text
(discussing the lineage of the Emperor).
[203] See Japan: Revisionism Revived, THE ECONOMIST, May
3, 1997, at 28 ("Unlike the American constitution, which was amended and
reinterpreted extensively even during its first 50 years, the Japanese
constitution . . . has remained sacrosanct.").
[204] See id.
[205] JAPAN'S COMMISSION ON THE CONSTITUTION: A FINAL REPORT,
supra note 123, at 3.
[206] See id. at 4.
[207] See id.
[208] See Japan: Revisionism Revived, supra
note 203, at 28.
The Gulf War of 1991, however, marked a watershed. The
Japanese were left as bystanders while American and allied soldiers shed blood,
partly on oil-dependent Japan's behalf. The talk ever since has revolved around
amending the constitution, so Japan can become an "ordinary nation", able to do
its share of the dirty work around the world. The debate has taken on added
urgency since Bill Clinton's visit to Tokyo last year [1996], when it was agreed
that Japan would play a more active role in the long-standing security alliance
between the two countries.
Id.
[209] See id.
[210] See id.
[211] See id. ("[A]ny open discussion of actually
revising the constitution was until recently taboo for politicians.").
Curiously, it has been argued that Japan has no official head of state or
official national flag. The Emperor is not the official head of state because
the government considers it too "provocative" to declare him as the official
head of state, and thereby perhaps violate the1947 Constitution. Likewise, the
flag, a symbol of wartime aggression, is not officially adopted, though it is in
relatively common use. See Nicholas D. Kristof, Japan's State Symbols:
Now You See Them. . ., N.Y. TIMES, Nov. 12, 1995, § 4 (Week in
Review), at 3.
[212] See The Emperor: Clarifying the Status of the
Emperor, THE DAILY YOMIURI, Nov. 3, 1994, at 16.
[213] Id.
[214] CREEMERS, supra note 25, at 96.
[215] See id. (quoting SATOMI KISHIO, NIHONKOKU NO
KENP [THE CONSTITUTION OF JAPAN] 430 (1962)).
[216] Satomi's draft is highly problematic in many respects,
particularly when he speaks of State control of "superstition, evil worship, and
false religions." Conceivably, under Satomi's model, constitutional or statutory
authority could dictate what religions might be considered "false" or "evil."
This is clearly far too totalitarian a regime, and contradicts the
democratic principle embodied in freedom of religion. Aside from this dangerous
structure, Satomi's draft is quite practical and revolutionary.
[217] Id.
[218] See id.
[219] See supra notes 140-44 and accompanying text
(discussing the Shinto Directive).
[220] Mishima, a popular novelist, shocked Japan on November 26,
1970 by committing ritual suicide at the headquarters of the Self-Defense Forces
in Tokyo as a protest against the "decadent" Allied-imposed Constitution and
what he viewed as the delegitimization of the military. See LARGE,
supra note 5, at 170; FUJITANI, supra note 65, at 232 (describing
Mishima's view of the Emperor).
[221] See LARGE, supra note 5, at 171.