Chapter 7
The New Constitution

From February 4 to February 13, 1946, GS drafted a new constitution for Japan. With only minor changes it became the law of the land in May 1947 and has remained in effect without amendment ever since. General MacArthur termed it "probably the single most important accomplishment of the occupation."^[1] It was surely the most far-reaching—and audacious—of the many actions he took in Japan.

Making the new constitution led to serious clashes between SCAP and the FEC, strained MacArthur's relations with his own government, and raised doubts about his candor in reporting what he was doing in Japan. The SCAP draft constitution aroused consternation among Japan's leaders, and thereafter it provoked intense feeling and debate. But for all these frictions, the result was a remarkable political instrument, called by one senior Japanese "a beautiful jewel that came out of a senseless war."^[2]

The inspiration for drafting a new constitution came from Courtney Whitney.^[3] Fresh from his triumph in pushing through the purge in January, Whitney persuaded MacArthur to have a draft constitution prepared and given to the Japanese as a "model." The supreme commander saw this as a way to shore up the position of the emperor and to bind Japan to a policy of pacifism. He was concerned that if he did not act swiftly, the new FEC might soon tie his hands. He therefore commissioned GS to sit in conspiratorial secrecy as a "constitutional convention" to draft the charter. MacArthur took an unusually keen interest in the whole operation and followed it carefully, leaving Whitney

to supervise the drafting and steer the document through the Japanese legal shoals.

MacArthur had received only general guidance from Washington about constitutional change. At no time had he been told that a new constitution would be necessary to achieve Allied goals, although he had been advised of numerous reforms that should be made in Japan's political structure to make it representative and democratic. Sir George Sansom, a member of the soon-to-expire FEAC, thought the existing constitution would be compatible with Allied goals if three changes were instituted: make the cabinet responsible to the Diet, or parliament; reduce the powers of the house of peers, the nonelected upper house; and give the Diet full power to make the annual budget.^[4] American views were more ambitious.

In the fall of 1945, when Sansom gave these views, the U.S. government had not yet formulated any specific ideas about constitutional reform. On November 6, 1945, the political adviser informed the State Department of MacArthur's view that "as the Japanese Government has been directed by the Supreme Commander through the prime minister to initiate a constitutional revision, none of us should be involved until the Japanese Government itself formally submits something on the matter"; he was referring to MacArthur's statement to Shidehara on October 11 of the need for "liberalization of the constitution."^[5] When Atcheson drafted a message in mid-November telling the State Department of his concern that the Japanese were moving too slowly, MacArthur added a paragraph to the effect that the message did not reflect his views, which were "very much more optimistic." The political adviser seemed to be out of step with the general.^[6]

Meanwhile, Washington had been working on a statement of U.S. policy on political reform. Atcheson received an advance copy on December 13, which he sent to MacArthur with the suggestion that liaison be set up with the Japanese to make sure they were aware of the views of the United States. MacArthur did not react to this advice. He received the final copy of the Washington policy on January 11, 1946, and this document was reportedly used by GS as a guide in its drafting endeavor.^[7] By that time General Whitney had taken charge of GS, leaving Atcheson with a negligible role in the making of the constitution.

Drafted largely by Hugh Borton, a Columbia University expert on Japan, the Washington policy paper bore the number SWNCC 228 (SWNCC referred to the State-War-Navy Coordinating Committee, an interagency planning group) and was entitled "Reform of the Japanese

Governmental System." First it described the major defects of the existing political system, such as concentration of power in a small group of personal advisers to the emperor; the weakness of the lower house of the Diet; the emperor's overriding prerogatives, such as the right to select the prime minister and to exercise "supreme command" of the armed forces; and inadequate protection of civil rights. The paper then recommended goals for U.S. policy: an executive branch responsible to the electorate or to a fully representative legislature, guarantees of fundamental civil rights, popular sovereignty, and "the drafting and adoption of constitutional amendments or of a constitution in a manner which will express the free will of the Japanese people." The paper contended that the emperor system could not be retained as it was: the people should decide the eventual form of government, but they should be encouraged to abolish the emperor institution or reform it. If they decided to retain it, the emperor must act only on the advice of the cabinet and should be deprived of all authority in military matters.

SWNCC 228's last caveat was that "only as a last resort should the Supreme Commander order the government to effect the above listed reforms, as the knowledge that they had been imposed by the Allies would materially reduce their acceptance and support." Inserted by the Joint Chiefs of Staff, this clause reflected concern that the "proposed reforms may foment unrest in Japan to such a degree as to require increases in occupational forces." SWNCC 228 was later referred to the FEC as a U.S. proposal. In accord with the usual procedure, it was also sent to SCAP for information so that Tokyo would know what Washington was thinking and doing. The FEC approved SWNCC 228 as Allied policy, with minor changes, on July 2, 1946. All member governments including the Soviet Union and Australia thus approved giving Japan the right to decide whether to retain the emperor institution.^[8]

In early 1946 the Matsumoto committee set up by Shidehara continued to work on revising the 1889 constitution, but the scope of the planned reforms, especially in regard to the role of the emperor, was limited. The prime minister stated publicly that he saw no need for broad revision of the constitution. The political parties and several private groups prepared drafts of a new constitution; some, like that of the Socialist Party, were quite liberal, and others, like those of the Progressives and the Liberals, were quite limited. There was no contact between the Japanese government and SCAP on this matter. Indeed, at that stage GS had few contacts with the Japanese on any political matters.^[9]

SCAP experts told the visiting FEAC in January 1946 that many changes were being made in Japan's system of government but that "we do not amend the constitution as such." The Philippine representative on the FEAC said he did "not understand why constitutional revision was not part" of GS's work; several other representatives appeared to think that revision would eventually be necessary. MacArthur seemed to end the debate, however, when he told the FEAC on January 30 that the matter of constitutional reform "had been taken out of his hands by the Moscow agreement" setting up the FEC. Nevertheless, three days after meeting the FEAC MacArthur instructed his staff to draft a new constitution. He acted because his most trusted adviser, Courtney Whitney, had convinced him that he had the authority he needed, that he had to move quickly before Washington intervened, and that the Japanese were stalling on reform.^[10]

SCAP's role in constitutional reform having been questioned, Whitney first requested a study of MacArthur's authority. Drafted by Kades, the study was sent to the supreme commander on February 1.^[11] It argued forcefully that MacArthur had both general authority from the Allied powers to take such steps as he thought proper to carry out the surrender terms and specific authority, under the surrender terms and U.S. policy, to take measures to strengthen democratic tendencies, eliminate authoritarian practices, and require Japan to develop a non-militaristic and democratic government. Only two limitations could restrict his authority: action to remove the emperor would require prior consultation with the JCS; and any directive to the Japanese government about constitutional change would, if the FEC had previously issued a policy decision on that matter, be subject to review by the ACJ and the FEC.

This legal opinion did not become generally known until 1949 when GS published it as part of a detailed and sometimes self-serving report of its activities, The Political Reorientation of Japan . As penetrating an analysis as it was, most members of the FEC would certainly have disputed its conclusion. MacArthur was careful, however, not to press his assertions of authority too far, and he soon avoided the whole issue by claiming that the draft constitution was a Japanese product, not a response to any "order" by him.

Having satisfied the supreme commander that he had the necessary. authority, Whitney probably went on to urge him to act quickly. The new FEC, which would soon hold its organizational meeting, would take up the constitutional issue and could quite possibly, under pressure

from the Soviets and the Australians, impose a constitution on Japan and on him.^[12] MacArthur had little confidence in the U.S. representatives on the commission and might have thought that the United States would not veto radical solutions, such as elimination of the imperial institution, that a majority of the commission might devise. Citing these dangers, Whitney might then have persuaded MacArthur that he should take steps to forestall undesirable action by the FEC.

Whitney's clinching argument was a scoop in the Japanese newspaper Mainichi , also on February 1, making public what it claimed was a revision plan prepared by the Matsumoto committee.^[13] Whitney immediately wrote a memorandum to the supreme commander describing the draft as "extremely conservative in character" because it left substantially unchanged the status of the emperor, with all rights of sovereignty vested in him.^[14] The press widely criticized the "Matsumoto draft" as reactionary, leading the government to issue a statement that the draft was merely the working paper of one committee member. In any case, MacArthur's earlier optimism that left to themselves the Japanese would produce a suitable revision seemed to have been unwarranted.

On February 3 MacArthur decided that GS should prepare a draft constitution. Whitney was optimistic that the Japanese would accept the principles of a SCAP draft and "get into the swing of this thing as they finally did in compliance with the 'purge' directive."^[15] At that point Whitney's intention was to give the Japanese a "model constitution" that would serve as a statement of basic principles but not as an order.

The next month—from February 4 to March 6, when the draft of a new constitution was made public—was one of the most extraordinary periods of the occupation. The U.S. military command wrote a basic national constitution for the defeated nation in utmost secrecy and then made sure it was approved by Japan's political leaders with only a few changes. The document was then made public, and other governments were told it was the joint product of the Japanese and SCAP.

On February 4 Whitney summoned members of the public administration division of GS and told them they would "sit as a constitutional convention."^[16] He said he planned to submit a draft to General MacArthur in a week and then give it to the Japanese. Twenty-seven persons—officers and civilians, professionals, and secretaries—prepared the draft. Some were lawyers; others were teachers, civil servants, or military professionals. There were no constitutional lawyers. Only

a few had any background in government or prewar experience in Japan. For reference material, they had the Meiji and U.S. constitutions, those of several European and American states, and a few charters drafted by Japanese scholars and political parties.^[17]

Whitney told the group the Japanese would be advised that the only way to retain "the Emperor and the remnants of their own power is by their acceptance and approval of a constitution that will force a decisive swing to the left." To do this, General MacArthur had "empowered him [Whitney] to use not merely the threat of force, but force itself."^[18] MacArthur would insist on only a few points, Whitney told his GS staff. He had a sheet of yellow paper on which three numbered paragraphs were written in longhand, either MacArthur's or Whitney's. The main points were:

I

The emperor is at the head of state….His duties and powers will be ... responsible to the basic will of the people....

II

War as a sovereign right of the nation is abolished.... Japan renounces it as an instrumentality for settling its disputes and even for preserving its security. It relies upon the higher ideals which are now stirring the world.... No Japanese army, navy or air force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese force.

III

The feudal system of Japan will cease. No rights of peerage except those of the imperial family.... Pattern budget after British system.

In his remarks to Whitney, MacArthur also said he preferred that Japan have a unicameral legislature rather than two houses.^[19]

GS was divided into seven committees to produce drafts of various parts of the proposed constitution. In addition, a steering committee of three lawyers headed by Kades supervised the drafting and resolved differences. Taking his cue from MacArthur, Whitney delegated all the drafting work to the staff and intervened on only a few matters. No one outside the section was to know what was being done, and the project was to be treated as top secret.

Whitney worried particularly that the State Department political adviser might get wind of the project and tell Washington what was going on. POLAD and Washington learned nothing about the operation until they saw the draft constitution in the press on March 6. Kades wrote a memorandum of record in early March asserting the supreme commander was not required to consult the JCS about constitutional

changes unless they involved the removal of the emperor and reasserting that MacArthur's powers were absolute so long as he acted within the scope of his basic directives. Kades added that SCAP actions were in "complete conformity with SWNCC 228." The secrecy of this operation demonstrated the confidence MacArthur and Whitney had in themselves and their lack of confidence in the rest of the U.S. government.^[20]

The draft, which was finished by February 10, took seven days, almost surely a record time for the drafting of any constitution. Writing the U.S. Constitution of 1787 had required 127 days' work for fifty-five persons, many of them experts with long experience in government.^[21] The three overriding principles of the SCAP draft were popular sovereignty, pacifism, and protection of individual human rights. The draft provided for retention of an emperor as the "symbol" of the state, a popularly elected and representative legislature, and a cabinet responsible to it.

In light of Japan's constitutional history, the group adopted the British system of parliamentary supremacy rather than the U.S. system of checks and balances among three branches of government. A prime minister would appoint and dismiss cabinet ministers. A supreme court would have the power to determine the constitutionality of laws and official acts. The draft included lengthy definitions of civil and human rights. Two provisions in the SCAP draft soon fell quietly by the wayside, however: one providing that the Diet could reverse Supreme Court decisions by a two-thirds vote in certain cases and the other prohibiting the Diet from voting appropriations in excess of anticipated income.

The preamble was notably eloquent in its borrowing from the Constitution of the United States: "We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim the sovereignty of the people's will."

Chapter One provided, "The Emperor shall be the symbol of the state and of the unity of the people." According to Kades, a number of Americans in Washington and Tokyo had come to the view that the emperor should have only a symbolic and ceremonial role and that if he were to have the role of "head of state," as MacArthur proposed, the

suspicion might arise that the emperor had retained some political power.^[22] Chapter Two, on renunciation of war, was drafted by Kades much as MacArthur had directed, although the stricture that Japan should not resort to war "even for preserving its own security" was dropped, a crucial change as it turned out later.

Chapter Three, on the rights and duties of the people, was a comprehensive recital of thirty-one civil and human rights. One provision stated that laws with regard to marriage and the family would be enacted "from the standpoint of individual dignity and the essential equality of the sexes." As a result, the civil code was later amended to break up the old family system, the ie , in which the oldest living male member inherited the family property and exercised certain legal rights over the extended family, which consisted of a number of his close kin.^[23] Under the new system the core family consisted of the husband, the wife, and their children. Although a logical consequence of the principle of individual equality, this radical change provoked stormy debate and considerable opposition.

The GS draft provided for a unicameral legislature, as MacArthur had proposed. No executive veto would limit the legislative power of the Diet. The Diet could be dissolved only by a vote of no confidence or by defeat of a resolution of confidence. The GS draft provided that the appointment of supreme court justices would be reviewed in a general election at ten-year intervals after their original appointment. Kades had at one point advocated popular election of judges but was persuaded to give up this idea.

Amendments would require a two-thirds approval of all members in each house of the Diet and a majority vote in a nationwide referendum. The amendment procedure was made particularly complex because SCAP wanted to be sure that the new constitution would not be quickly changed once the occupation ended.

When MacArthur approved the GS draft on February 12, he made only one change, deleting an article that would have prohibited future amendment of any of the provisions dealing with the rights and duties of the people. He approved a sonorous article that Whitney had personally drafted (Article 97) according to which "the fundamental human rights ... guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they ... are conferred upon this and future generations in trust, to be held for all time inviolate."^[24]

On February 13, in one of the tensest meetings of-the occupation,

Whitney, Kades, and several of their experts presented the GS draft to Japanese officials, including Yoshida; Matsumoto, who was in charge of constitutional reform; and Shirasu Jiro, Yoshida's confidant and a member of the CLO. Expecting to get comments on the authentic Matsumoto draft, which had been officially presented in summary form to Whitney on February 8, the Japanese were "aghast" to be presented with a brand-new draft of a constitution for their nation.^[25]

Whitney told them that their draft did not show that Japan had learned the lessons of the war and was ready to act as a responsible member of the international community. The supreme commander had therefore prepared, in the form of a draft constitution, a detailed statement of those principles he deemed basic. Whitney advised the Japanese to give the draft the fullest consideration in the preparation of a revised constitution. According to a record made by one of the American participants in the meeting, he also said, "MacArthur was firmly resisting pressure from other Allied nations to put the Emperor on trial as a war criminal, but if Japan would agree to this constitution, the Supreme Commander thought the Emperor would be safe."^[26]

Whitney told the Japanese that they were under no compulsion to take further action but that MacArthur was determined that the people should have the opportunity to consider and express their will on the issue of constitutional reform well in advance of the general election. If the cabinet did not act, MacArthur was prepared to put the issue before the people himself. MacArthur later told Whitney he would back this strong assertion. Finally, Whitney said that MacArthur "feels this is the last opportunity for the conservative groups, considered by many to be reactionary, to remain in power and that this can only be done by a sharp swing to the left."^[27]

According to the Japanese report of the meeting, Whitney also said that MacArthur was concerned about how to overcome U.S. domestic opposition to the retention of the emperor. According to Yoshida's memoirs, Whitney stated that if the SCAP draft was not accepted, "GHQ could not answer for whatever might happen to the Emperor."^[28] Whitney then gave copies of the draft to the Japanese and said he and his aides would step outside for a few minutes while the Japanese looked it over. When he reentered the room twenty minutes later, according to his memoirs, he said he had been enjoying Japan's "atomic sunshine." Just at that moment a B-29 flew overhead. Kades stated afterward that a B-29 did fly over but that Whitney was merely

joking and not making any kind of threat. Whitney was not ordinarily known for his sense of humor, but he did seem to appreciate "psychological shafts."^[29]

The Japanese did not comment at any length other than to question the provision for a unicameral legislature. Kades had previously suggested this might be a "throwaway" proposal useful for bargaining if the Japanese objected strongly. That MacArthur was the author of the idea did not seem compelling to his staff. Yoshida said little at the February 13 meeting because he thought it was up to Matsumoto to speak for the Japanese. Yoshida said later he thought the draft might have come from Washington; Shirasu thought it had been prepared months before in Australia. It was not until publication in 1949 of the GS opus on political reorientation that the Japanese learned that the draft was not an Allied policy document but rather the last-minute creation of MacArthur and his staff.

Shirasu, who had a good command of English and a mordant sense of humor, wrote Whitney on February 15 that the Japanese were more than a little shocked at the direct American way of dealing with the problem but that they, too, wanted a democratic constitution and felt they should proceed carefully. Whitney sent a firm reply the next day asserting that MacArthur wanted to place the emperor "in a position of dignity, honor and respect" while placing political power in the hands of the people. Whitney added that if Japan did not act forthrightly, a far more drastic charter might be forced on it "from the outside ... a constitution which well might sweep away even those structures and traditions which the Supreme Commander by his instrument makes it possible to preserve."^[30]

On February 18 Matsumoto gave Whitney a written "explanation" of his draft constitution, but Whitney dismissed it as frivolous and contentious. He told the Japanese they must state their position within forty-eight hours or MacArthur "will take the constitution to the people directly." Shirasu got a two-day extension from Whitney so that the English draft could be translated and explained to the cabinet.^[31]

On February 19 the cabinet began for the first time to discuss the SCAP draft and soon found itself sharply split, especially regarding the status of the emperor and the no-war clause (Article 9). The prime minister and several others thought the SCAP draft should be rejected. They decided Shidehara should see MacArthur to find out how strongly the Americans felt.^[32]

Whitney was accustomed to sending MacArthur memos with tidbits

of information. On February 19 he labeled Matsumoto and Yoshida "as the most reactionary element of the cabinet." On February 21, just before MacArthur was to see Shidehara, Whitney asserted that the cabinet was "playing its final card" and that MacArthur should ignore any threat to resign because he was giving the people the "essence of human freedom" as required by the Potsdam Declaration.^[33]

Shidehara's meeting with MacArthur was surely one of the most significant meetings the general held with any Japanese during the occupation. They had a full discussion of Article 9 and its relation to the emperor system. There was no confrontation or argument, but Shidehara clearly reflected the deep concern he and his cabinet felt about these two provisions. MacArthur said to the prime minister, "I think the emperor system should be kept for Japan's sake, but the Soviet Union and Australia are worried that Japan will carry out a war of revenge, and so they oppose Japan's having the emperor system and armaments .... What will foreign countries say if a provision is retained that Japan will keep armed forces? They will obviously think that Japan is planning to rebuild its armed forces. Therefore, if you think about what is the good thing to do, Japan should take moral leadership by stating dearly that it renounces war." Shidehara then broke in, "You talk about leadership, but other countries may not go along with Japan." MacArthur cut him off in a positive tone of voice: "Even if no other country goes along, Japan will lose nothing. Those who will not give their support are in the wrong."^[34]

In his report to the cabinet, Shidehara said he thought changes in the SCAP draft would be possible, except for the provision regarding the emperor and the no-war clause. Some members of the cabinet felt that if the constitutional issue were taken to the people, as Whitney had threatened, the conservatives might lose strength and even be voted out of office. Thereupon, the cabinet concluded, in the most far-reaching decision of any cabinet during the occupation, that there was no alternative to accepting the SCAP draft but that Japan should try to get the best deal possible. Some cabinet members even wept during this emotional meeting.^[35]

In the afternoon of February 22, Shidehara reported to the emperor that the cabinet felt it must accept the U.S. draft. Accounts vary as to what the emperor said, but they agree that he gave his approval. Yoshida did not attend Shidehara's meeting with the emperor but later said the emperor's temperament was such that he probably said something like, "It [the SCAP draft] is all right this way, isn't it?" In any case,

according to Yoshida, the Tenno’s endorsement was decisive in winning government support for the SCAP draft.^[36] The emperor's approval of the new constitution must rank with his influence in ensuring a smooth surrender in August 1945 and with his "declaration of humanity" in January 1946 as signal contributions to the occupation and the evolution of postwar Japan.

GS was able to get some inside information from Narahashi Wataru, a minister in the cabinet, when he invited several members of GS to a Sunday picnic at his country home soon after the meeting with the emperor. Narahashi described the "furious struggle" that took place in the cabinet and how several ministers were thinking of resigning even after the emperor had expressed "unqualified approval" of the GS draft. Narahashi categorized Yoshida as part of the group favoring acceptance of the new charter, thus contradicting unshakable GS suspicions.^[37]

On the day Shidehara met with the emperor, February 22, Yoshida, Matsumoto, and Shirasu saw Whitney, Kades, and other members of GS. Quoting what General MacArthur had said the day before to Shidehara, Whitney asserted that "it is the basic principles and structure that we are insistent upon," adding that the terms of the SCAP draft were basic, though modifications in form might be permitted to make the meaning clearer or to conform with Japanese procedure. Matsumoto commented that the opening words of the GS version, "We, the people of Japan," posed a problem because the Meiji Constitution required the emperor, not the people, to initiate amendments. Whitney and Kades saw no difficulty if the new draft was approved by the emperor and adopted through the procedure required by the Meiji Constitution.

Whitney offered one concession: "If the cabinet feels strongly about the desirability of a bicameral legislature, and both houses are elected by popular vote, General MacArthur will interpose no objection." In regard to the clause on renunciation of war, Whitney insisted that it be a separate article in the constitution, not a general principle in the preamble, because "this article affords Japan the opportunity to assume the moral leadership of the world in the movement towards lasting peace." Speaking as one lawyer to another, Whitney told Matsumoto, an authority on commercial law, "You have the satisfaction of knowing that your fee for this work will be the highest possible—the welfare of the Japanese people."^[38]

During the next week the Japanese reworked the SCAP draft to incorporate language they thought more appropriate for Japan. At 10 A.M. on March 4 the top experts of the two sides began discussions and met continuously until 4 P.M. on March 5. At this critical meeting in the drafting of the Showa Constitution, the Americans insisted that agreement on the draft be reached at once. The Japanese presented their revised draft but found the Americans unyielding on all but minor changes in the SCAP draft of February 13. The model had become absolute.^[39] Early in the meeting Matsumoto walked out after a quarrel with Kades over the translation of provisions defining the powers of the emperor. Matsumoto claimed Kades was attempting to alter not only the constitution but the Japanese language as well. Matsumoto's assistant, Sato Tatsuo, a skilled legal craftsman, carried on as the main Japanese representative, and the marathon meeting then proceeded without incident. The negotiators agreed, among other things, that the legislature would have two chambers. Shirasu, a participant throughout the negotiations, kept a somewhat cryptic record of the sessions. At the end he wrote, "This is the way the constitution that exposed our defeat was born. Now see what happens."^[40]

The cabinet reviewed successive drafts of articles as they emerged from the conference, as did senior SCAP officials. The final version received the emperor's approval late in the day on March 5, when he issued a rescript stating his "desire that the constitution of our empire be revised drastically upon the basis of the general will of the people and the principle of respect for fundamental human rights." General MacArthur issued his own statement of deep satisfaction with the "decision of the Emperor and government of Japan to submit ... a new and enlightened constitution which has my full approval." He noted that it had been "drafted after painstaking investigation and frequent conferences" between the government and his staff. A "gist of the revised draft of the Imperial constitution," which was in fact an extensive summary, was made public on March 6. The press reaction both in Japan and abroad reflected some surprise at these announcements but was generally favorable.^[41]

A week after the FEC's opening meeting on February 26, 1946, the members in Washington read about the new Japanese constitution in the newspapers. They were dismayed, to say the least, that a new charter drafted without their knowledge had received the approval of the emperor and the supreme commander. Nor were they enlightened

by the U.S. member, Major General Frank R. McCoy, the chairman of the commission and a retired officer with close ties to MacArthur. McCoy and the State Department knew no more than the FEC did.^[42]

The commission's first significant action was to pass a policy decision on March 20, with the U.S. member concurring, instructing MacArthur to inform the Japanese government that the commission must be given. an opportunity to pass on the final draft of the constitution and to permit the Japanese to consider drafts other than the government draft just made public. Secretary of State Byrnes had already stated on March 12 that the commission would review the constitution in some way before it went into effect.^[43]

MacArthur told the Pentagon he thought the FEC's action was based on "an invalid premise" and that the United States should have vetoed it. But he carried out the FEC's instructions by telling the newly organized ACJ on April 5 that changes might be made in the draft as a result of "ultimate consideration by the National Diet and the Allied powers," certainly an oblique way to refer to a direct instruction by the body set up to make policy for the occupation. The U.S. representative on the commission staunchly defended MacArthur's method of executing its first decision.^[44]

The commission's second step was a request on April 10 that MacArthur send a member of his staff to consult with the FEC on constitutional questions. Well over a month later, the State Department conveyed MacArthur's reply that close understanding was desirable but that no officer on his staff was in a position to express his views because he was personally dealing with constitutional matters. It turned out that MacArthur had replied on April 13, but "due to a misunderstanding" the reply had not been sent to the commission promptly. Washington had been negotiating with MacArthur to persuade him to make a more helpful reply, which was finally given to the commission on May 29.

On June 4 the commission received another exposition of the supreme commander's views. This message, drafted by Whitney, stated that MacArthur wanted to avoid "any implication ... that reform resulted from Allied pressure." His own "personal approval" was designed to give "moral support and encouragement to the liberal forces struggling in Japan for reform against tradition, prejudice and reaction." The SCAP message concluded disingenuously by remarking that the new charter "will probably have been the most freely discussed and considered constitution in history" and that the commission could ten-

der no better service than to permit the Japanese "as I propose to do, to proceed unshackled, unhindered, and in complete freedom to work out their constitutional reforms."^[45]

The FEC was understandably unhappy with this reply. Members disagreed with MacArthur as to what was policy and what was implementation; they felt they had a responsibility to ensure that the charter reflected the "freely expressed will of the Japanese people." They also wanted to avoid a "trial of strength" with the supreme commander,^[46] but they had just had a tilting match with him. He got his way and made no concessions.

Several points in this four-month period are noteworthy. First, changes in the SCAP draft were few and minor. Kades said later the Japanese could have made more changes, but they "chose the easy way."^[47] The record is clear, however, that SCAP opposed all but minor changes. Second, MacArthur's role was mostly that of an observer, except for his instructions at the outset regarding the status of the emperor and the no-war clause and his persuasion of a doubting Prime Minister Shidehara.

Third, Article 9, the no-war clause, was conceived in mystery and confusion. MacArthur later said he got the idea from Shidehara, who confirmed this statement some years later.^[48] MacArthur himself had been outspoken in the years after World War II that society should outlaw war. He said this to Time journalist Theodore White on August 8, 1945, to the emperor on September 27, and to president-elect Eisenhower in 1952 as a proposal to make to the Soviets in an effort to settle the Korean War. MacArthur made an eloquent antiwar speech in Los Angeles on his seventy-fifth birthday in 1955, dilating on how "war has become a Frankenstein to destroy both sides." The idea of a no-war clause in the Japanese constitution was almost certainly MacArthur's, and the responsibility for having it inserted was surely his. It was ironic, as Theodore McNelly, an authority on the origin and meaning of Article 9, has pointed out, that in later life MacArthur reverted to the view he held during most of his career that the profession of arms, wars, and sacrifice for the nation were still necessary and that "in war there is no substitute for victory."^[49]

For MacArthur to insist on the no-war clause without giving Washington the slightest hint of what he was doing was an arrogant act. Although the initial U.S. policy of September 1945 provided that Japan was not to have an army, a navy, or an air force, it was evident that this measure was to apply during the occupation. In fact, Secretary of State

Byrnes was at that time trying to win Soviet agreement to negotiation of a twenty-five-year treaty of disarmament and demilitarization with Germany and Japan, implying there had been no derogation of Japan's sovereign right to have armed forces. Nevertheless, Under Secretary. Acheson told an Australian diplomat in 1947 that "the United States does not approve of the idea of Japan's having armed forces," thus seeming to ratify the concept underlying Article 9.^[50]

In spite of this tangled background, the "peace constitution" is considered by many Japanese to be the legal basis and the symbol of their pacifism, and they associate it with the name of Douglas MacArthur. U.S. leaders have consistently pressed Japan since the late 1940s to take a larger role in collective security actions to counter threats to peace in East Asia. The Japanese have played only a modest part in these efforts, citing as one reason their constitutional barrier against offensive military forces.

Finally, the question of pressure arises. No doubt all military occupations are based on implied force and direct pressure. MacArthur and GS acted forcefully to win acceptance of their draft constitution. The emperor saw no reason to oppose it. The Japanese, according to Shirasu, understood and accepted U.S. pressure. Yoshida, a devoted patriot and conservative, had reservations about the draft when he first saw it, but he soon came around to accepting it and later vigorously supported it. Many Japanese wanted a new and democratic constitution. They were sympathetic then, and remained so later, despite the pressure applied by SCAP.

After the constitution went into effect in 1947, the imperial household sent all members of GS a memento in appreciation of their contribution to the new Japan. Initially, the gifts were to go only to the supreme commander and the chief of GS. Upon the suggestion of Whitney, however, all who took part in drafting the constitution were honored with a chalice bearing the imperial crest or with a certificate. MacArthur personally intervened to make silver available for the cups. The Tenno seemed to feel no resentment that he had become a "symbolic emperor."^[51]