Supplementary Explanation concerning the Constitutional Revision

Letter from Dr. Matsumoto to General Whitney, dated 18 February 1946, inclosing supplementary explanation of constitutional revision.
w/ Memorandum for the Record, Commenting on the above.

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Dear General,

I take the liberty of submitting to you herewith a copy of the supplementary explanation concerning the proposed constitutional revision, which I have written following our meeting last Wednesday.
It was a great pleasure to see you. I am most grateful for your helpful and enlightening views on this subject of vital importance, and beg to solicit your continued cooperation and guidance.


Brig. General C. Whitney,
Chief of the Government Section,
G.H.Q., Tokyo.

COPY


1. We may cite the United States Constitution and the English Constitution as the best examples of a democratic constitution in the world. These two great constitutions are both conceived in the same spirit and founded on the same principles of democracy; but in the outward form, the two differ radically in that the one is a written constitution while the other is a constitution made up largely of conventions. This difference is due to the difference in customs and traditions, and historical backgrounds between the two countries. It is noteworthy that there does exist such a difference in the constitutions of the two great nations of a common stock and with a common language.
The laws of a nation are largely the product of its own history. Any law or system imported or transplanted from another country will not necessarily prove as success. For instance, the English parliamentary democracy, which was adopted by many European countries, has failed to thrive on the continent. Nor the presidential democracy of the United States, transplanted in Latin American Republics, has necessarily been successful, as witness the frequent dictatorships and revolutions there. Such failures may be attributed in each case to the arbitrary transplantation of a constitutional system unadapted to the condition and circumstance of the nation concerned.
The most glaring case in which a constitution, which was drawn up in the most democratic way possible, not only failed to achieve the desired results but on the contrary was abused in the worst possible manner, is the German constitution of 1919. The Weimar Constitution stipulated clearly that sovereign powers rested with the people, and the president was to be elected directly by the people, and the legislative power was exercised by the Reichstag, and the holding of the office of the Reichskanzler was conditioned on the confidence of the Reichstag. It kept the way open for decision by plebiscite in certain cases of legislation or constitutional revision. It set forth carefully the peoples' rights and duties. And it contained numerous thoroughly democratic provisions relating to equality and inviolability of elemental human rights.
If that constitution had operated literally, the German nation would have enjoyed democracy and freedom to an extent unparalleled elsewhere. But what sort of a situation arose soon after the promulgation of the constitution does not require recounting. Hitler and his Nazi party, while abstaining from altering the Constitution directly, trampled upon its spirit by issuing all kinds of unconstitutional laws and regulations, and inaugurating an unprecedented reign of brute force.
2. The above example proves conclusively the fact that the constitution of a country can achieve the desired ends only when it is adapted to its national circumstances, and that otherwise, it will only invite abuses leading to fearful tyranny and misrule. This is not true not only of constitutions but also of all laws and institutions.
Jurists of the historical school maintain that laws originate and develop among nations and peoples just as languages originate and develop. The theory is certainly sound as long as it does not go as far as to deny the existence, as is claimed by the natural law school, of the universal sense of justice and certain fundamental legal concepts common to all races and peoples.
The juridical institution of England is built largely upon customs and conventions. The Common Law and equity have evolved through series of precedents of long centuries. Even the statute law instead of having been specially enacted, are mostly a compilation of past practices. The constitution itself consists, as already stated, of conventions for the most part.
The civil codes of France and Germany are both based upon the Roman Law. Yet there are radical differences between the two. Their constitutions, although patterned after the English parliamentary government system, differ also in substance.
Thus, the laws of different countries naturally vary in form and contents according to their respective histories and traditions, even if they are identical in the underlying principles and purposes. Any attempt to unify these varying laws is likely to end in the obstruction of their smooth and successful operation. In this respect a juridical system is very much like certain kinds of plants, which transplanted from their native soil, degenerate, or even die. Some of roses of the West, when cultivated in Japan, lose their fragrance totally.
3. The new draft constitution submitted the other day may seem outwardly meagre in bulk and of a rather neutral character. That is because the proposed revision aims to leave the existing constitution untouched as far as possible so as to avoid arousing needless antagonism on the part of the great majority of our people, who are neither radicals nor communists. On the other hand, the revised constitution marks, in practice, a big step forward toward parliamentary democracy after the English pattern, as has been stated in the "General Explanation" which was submitted previously.
Metaphorically speaking, the new constitution is a tablet sugarcoated for the benefit of the masses. As a matter of fact, under the revised constitution, since all important matters of state will be administered with the consent and support of the Diet, the sovereign powers of the emperor are, in practice, transferred to the Diet. Again, since any minister of state, who has lost the confidence of the Diet, will be automatically removed from his post, the authority to appoint state ministers lies, in practice, also in the Diet. Moreover, the emperor does nothing without the advice and assistance of his ministers. All those changes, when compared with the old system, are so drastic, as may be called "revolutionary" in a way.
The fact that hithertofore Japan was undemocratic, and witnessed during the past decade a terrible misrule of militarists, is attributable to the flaws in the old constitution, which rendered it possible for the cabinet and the military to stand aloof and outside the control of the people. The new constitution eradicates the past evils at the very root. However, after all, the question whether or not democracy shall prevail in Japan is not one of revision of the constitution, article by article, but rather of the understanding on the part of the people of what democracy really stands for and their genuine desire for a democratic government. Accordingly, it is deemed of the greatest importance to teach democracy in and out of school. If the knowledge about democratic principles are disseminated, and the democratic sentiments are developed, in the nation, the proposed new constitution will prove sufficiently elastic to bring about a situation where the sovereign power may be said to be vested in the people as far as practical politics are concerned. And when that stage has been reached, then the Diet will be in a position to vote for further revision of the constitution by exercising its right to take the initiative in constitutional amendment, as is provided for in the present draft revision.
On the other hand, if, contrary to the above process too, fundamental or radical a constitutional revision was to be effected suddenly at this time, it would only shock the moderates too severely, and cause them to assume an autogenistic attitude toward democracy itself. Under such a circumstance, there could be no assurance that the disastrous consequences of the Weimar Constitution might not be repeated again. To guard against the possible reactionarism and to introduce changes step by step has been the guiding principle behind the present revision.
In Japan today conservatism does not assert itself openly, and our newspapers and radio broadcasts are largely and distinctly left. But it would be dangerous to guage the true situation by the outward symptoms alone. It should not be forgotten that deep under the new radical movements there is a strong back current. I am not of course on the side of the conservatives. I stand for progress. What I fear is the internal friction which may be brought on by an attempt at too sudden and too drastic a move, which may beget reactionarism and in the end retard the smooth and wholesome progress of democracy.
4. It is for these reasons that the old constitution that has remained unaltered for the past 56 years has been allowed to retain its outward form more or less intact, although substantially considerable improvements have been effected.
The "General Explanation" mentioned nothing of this policy of revision. And I feel it incumbent upon me to submit a statement of it herewith. I should like to add that I have studied carefully your counter-proposal of February 13, and have arrived at the conclusion that although the formula appears to be diametrically apposed to our own, in their underlying principles the two do not stand so widely apart as seems at first sight. I desire therefore to submit for your information the present statement setting forth frankly the reasons why our draft revision has been put in the present form after most careful consideration. It is my earnest hope that you will kindly give your criticism and suggestions as to whatever points there may be in our draft for alterations and additions.
Postscript. The "General Explanation", previously submitted, contains a typographical mistake: "cf. No. 3." on Page 3, line 3, should read "cf. No. 1." There may be other textual errors and imperfections in English version, for which I offer my sincere apologies.



MEMORANDUM FOR THE RECORD:

SUBJECT: "Supplementary Explanation of Proposed Constitution Revision" Presented by Mr. Shirasu

1. Attached is a letter from Dr. Matsumoto, (Minister without Portfolio and Chairman of the Cabinet Constitutional Revision Committee), inclosing a "Supplementary Explanation" concerning his proposed constitutional revision. The letter and explanation were delivered personally to the Chief, Government Section, by Mr. Jiro Shirasu (close associate of Foreign Minister Yoshida) at 1530 hours today.

2. The "Supplementary Explanation" consists of an argument in favor of the Matsumoto draft constitution, and against the draft constitution which I submitted to Matsumoto and Yoshida on 13 February. The gist is an argument that the Matsumoto draft constitution "is a tablet, sugar coated, for the benefit of the masses" but not too "fundamental or radical" so as to "shock the moderates, and cause them to assume an antagonistic attitude toward democracy itself." Dr. Matsumoto points to the Weimar Constitution of 1919 as proving "conclusively the fact that the constitution of a country can achieve the desired ends only when it is adapted to its natural circumstances."

3. The Matsumoto memorandum is frivolous in concept, contentious in tone, and calculated to probe our lines to determine whether we meant what we said at the conference of the Foreign Ministers. He goes to the extreme in this memorandum of correcting typographical mistakes in his original memorandum, explaining the Matsumoto draft and thereby tries to regain the initiative by embroiling us in a discussion of his draft.

4. Accordingly, when General Whitney finished reading the memorandum, he asked Mr. Shirasu if he was familiar with the contents and upon receiving a negative answer, he asked him to read it. When he had finished reading it, General Whitney said: "This memorandum by Dr. Matsumoto is a repetitious defense of his draft of constitution which, as I have previously stated, has been rejected by the Supreme Commander as an instrument affording the opportunity to the people of Japan for the freedom and democracy to which they are entitled. The Supreme Commander has approved the proposed constitution which I presented to Dr. Matsumoto and Dr. Yoshida last week, and he is determined that the principles embodied in the proposed constitution shall be brought before the people and that the people shall have an opportunity for a full and free explanation thereon." General Whitney then asked Mr. Shirasu if the so-called "supplementary explanation" represented the views of the cabinet to which he replied that he thought it did not but that it represented Dr. Matsumoto's views. General Whitney then asked him if the draft of constitution which he had submitted had been presented to the cabinet, to which Mr. Shirasu replied that it had been, whereupon General Whitney said to Mr. Shirasu, "The Supreme Commander is determined that the people of Japan shall have an opportunity to pass upon the constitution principles contained in the document transmitted by me the other day. This does not mean that minor variations, the better to adapt it to the understanding or requirements of the people, are not acceptable. The Supreme Commander, however, is insistent that the principles embodied in the draft constitution which I submitted must be maintained; therefore, unless I hear from the Cabinet within 48 hours that the principles of the constitution which I submitted are acceptable to the Cabinet, and will be sponsored by it before the people, the Supreme Commander will take the constitution to the people directly and make it a live issue in the forthcoming campaign in order that the people will have the opportunity to enact this constitution."