Through the thought of Shōichi Watanabe, this essay questions the essential nature of the Constitution of Japan, arguing that it was not a constitution born from sovereign will, but rather a “basic law of occupation policy” designed to facilitate Allied rule over Japan.
It also sharply points to the structural limits of postwar constitutional scholarship, especially that centered on the University of Tokyo, which has been unable to question its own premises, and calls for a reexamination of the foundations of postwar Japan.

2019-05-30
If one has inherited a chair in constitutional law from one’s mentor, there is no way one can then say, “The Constitution of Japan is not truly a constitution.”
That is why the views of today’s constitutional scholars, especially those descending from the University of Tokyo, cannot possibly be of real value as reference.

The book below is required reading not only for every Japanese citizen, but for people all over the world as well.
It is filled with facts that those who merely subscribed to Asahi Shimbun and watched NHK never knew…。
Facts they were never told.
It is one of the finest books in postwar Japan.

Shōichi Watanabe was from Yamagata Prefecture, neighboring Miyagi, the prefecture of my birth.
The people of Yamagata must continue to proclaim to Japan and to the world, with pride, that they are fellow countrymen of a man who was among the greatest intellectuals of postwar Japan and one of Japan’s true treasures.
The people of Iwate should forever be proud of having produced Shohei Ohtani and Yusei Kikuchi, and of having produced Kenji Miyazawa.
But they must forever be ashamed of having produced Ichirō Ozawa.
Miyagi should forever be proud of the tradition of First Higher School, the University of Tokyo, Second Higher School, and Tohoku University, and of the fact that it rightly inherited the splendid governance of Date Masamune, that rare great ruler, and built up Sendai as a city of learning and a city of trees.
Only the other day, in the restroom of Takashimaya in Kyoto, I heard two salaried men talking…。
“Sendai was the best….”
“I am even thinking of living there after retirement….”
And Miyagi must also forever be proud of having given birth to The Turntable of Civilization.

Chapter 5…。
The New Constitution as a “Basic Law of Occupation Policy”

“A constitution cannot possibly come into being in an age without sovereignty”

If the greatest negative factor characterizing the postwar period was occupation policy, especially the purge order in occupied Japan, then what is generally treated as the positive factor would be the new constitution, the Constitution of Japan.
The new constitution has been treated as the symbol of Japan’s new beginning and of peace.
Article 9 in particular has been sanctified, and in the present situation it has been elevated almost to the level of a religion.

The occupation of Japan by the Allied forces began with Japan’s acceptance of the Potsdam Declaration.
In accepting the Potsdam Declaration, Japan asked the Allies whether the national polity would be preserved.
In other words, what would become of the Emperor?
At that time, the Allied side answered that the Emperor would be “subject to” the Supreme Commander of the Allied Powers.
Translated literally, that means, “The Emperor will be subordinate.”
Hearing this, Japan interpreted it to mean that “if he is subordinate, that does not mean he will be abolished,” and thus accepted the Potsdam Declaration.

The decision to accept the Potsdam Declaration was made under Article 13 of the Meiji Constitution, the “diplomatic prerogative of the Emperor,” which states: “The Emperor declares war, makes peace, and concludes treaties of all kinds.”
But once Japan was occupied, the Emperor became “subject to,” and thus was placed under the occupation forces.
Therefore, naturally, Japan under occupation had no sovereignty.

To cite the clearest example, we are told that a constitution is the expression of sovereignty, yet even after the new constitution had been promulgated, the death penalty was carried out within Japan not according to Japan’s own penal code.
This was the Tokyo Trial.
Nothing could show more clearly than this that Japan’s new constitution was not an exercise of sovereignty.
It is impossible that above a constitution there should exist yet another constitution.
In other words, one must begin by understanding that the new constitution was not a normal constitution at all.

Japan’s constitutional scholars say all sorts of things, but I believe that the most sound way of thinking about a constitution is simply this: “In an age without sovereignty, how could a constitution, which is the exercise of sovereignty, possibly come into existence?”
Then what, exactly, is the Constitution of Japan?

The occupation forces had originally intended to govern Japan through direct military occupation, but thanks to the efforts of Foreign Minister Mamoru Shigemitsu, it became indirect rule instead.
That is, the occupation forces stood above the Japanese government, and ruled Japan through the Japanese government.
The Constitution of Japan, within that framework, was the “basic law of occupation policy” by which the occupation forces could conveniently carry out their rule over Japan.

Against this, today’s defenders of the constitution say that the Constitution of Japan bears the Emperor’s preface, the imperial rescript, and that it was deliberated in the Diet and carefully examined by the Privy Council as well.
But one would do better not to lend an ear to what constitutional scholars who teach constitutional law at universities have to say.
Because a constitution is something that already exists, and to teach constitutional studies means to make one’s living by interpreting the constitution that presently exists.
If they were to say that this constitution “is not a constitution,” they would no longer be able to make a living.

To begin with, the ringleaders who declared that the Constitution of Japan, which was no constitution at all, was indeed a constitution, were Toshiyoshi Miyazawa and Kisaburō Yokota, professors in the Faculty of Law at the University of Tokyo during the occupation.
Seen from today, one could call them traitorous constitutional scholars.
Their disciples, having inherited their mentors’ chairs in constitutional law, could hardly be expected to say, “The Constitution of Japan is not truly a constitution.”
That is why the opinions of today’s constitutional scholars, especially those descending from the University of Tokyo, cannot possibly be of real value as reference.
To be continued.