Tracing the making of the Meiji Constitution, this essay examines the constitutional ideas Hirobumi Ito learned in Vienna and Berlin, the advice given by Bismarck, the influence of the Prussian Constitution, and how the Imperial House Law was altered under the postwar Occupation.
It is an important reflection that reexamines, from the ground up, what a constitution is and what Japan’s national polity truly means.

2019-06-02
After listening to Ito, Bismarck said that the Constitution of the German Empire would probably not serve as a useful model for Japan.
The German Empire was a state comprising many kingdoms, so its circumstances were different from those of Japan.

The following is a continuation of the previous chapter.
The Meiji Constitution and the New Constitution.
The first country to create a written constitution was the United States.
It was made by people who had come from Europe seeking freedom, but once they actually made it, they realized they had forgotten to write in “freedom of speech” and “freedom of religion.”
Because it was such a constitution full of defects, it has continued to be amended constantly.
The postwar German constitution is the same, and it too has constantly changed.
In other words, nothing is perfect, and if a constitution does not change, it is the same as being dead.
The word “constitution,” if translated literally, means “the body’s nature.”
In other words, a constitution is the nature of a nation, and in the old days it was correctly translated as “kokutai” (national polity).
If the nature of the nation changes, then the constitution may also change in accordance with the times.
Britain has no properly written constitution, no such thing as a “written constitution.”
Although it is a constitutional monarchy, the ideal choice there was not to create a constitution.
However, there are laws that are called “constitutional.”
In Britain, when an important bill is passed, people say, “That law is constitutional.”
That means it is a law important enough to affect the nature of the nation.
And when a new law is made, if it contradicts an old one, the old one naturally becomes invalid.
That is how simple the system is.
If one consults a prewar English-Japanese dictionary, under the entry for “constitution” it says “written constitution” and “unwritten constitution.”
In other words, there is a “written constitution = a codified constitution” and an “unwritten constitution = a non-codified constitution.”
Britain chose the unwritten constitution.
The United States wrote a constitution, that is, codified it, because it had to show the world that it had become independent.
France, too, having carried out a revolution, put it into writing.
Then a constitutional movement arose because writing it down made things easy to understand and convenient, and that movement also entered Japan.
When Japan created the Meiji Constitution, it too fully understood that a constitution concerned the very nature of the nation.
Hirobumi Ito, who would later become the first prime minister, went abroad to study constitutions, but the Britain he had visited when he was young had no constitution.
France, on which the shogunate had relied, was a republic, so it could not serve as a model.
America was also a republic, so that too would not do.
So Hirobumi Ito headed for Vienna.
Vienna, being in the age of the Habsburgs, had a constitution with a traditional monarch at its head.
Ito studied constitutional law under Professor Stein of the University of Vienna, and, with his heart uplifted, wrote a joyful letter.
After that, Hirobumi Ito went to Berlin and met Bismarck, the Iron Chancellor who had built the German Empire.
After listening to Ito, Bismarck said that the Constitution of the German Empire would probably not serve as a useful model for Japan.
The German Empire was a state comprising many kingdoms, so its circumstances were different from those of Japan.
And he advised that if Japan was a country with an Emperor in every generation, then the constitution of Prussia (Note 1), which also had kings in every generation, would probably be the proper reference.
And so Hirobumi Ito came to receive a clause-by-clause lecture on the Prussian Constitution from the great scholar Gneist, a professor at the University of Berlin.
Gneist was an interesting man.
He studied Roman law and was also involved in the German bureaucratic system, but he was also the first person in the world to write a constitutional history of Britain.
It was still an age when even Britain itself had no such general history.
This became the foundation on which Hirobumi Ito created the Meiji Constitution, but Gneist’s name had been kept concealed.
Then, when Ito Miyoji, who had been Hirobumi Ito’s secretary, died in Showa 9 (1934), his study was organized, and the lecture notes of Gneist’s lectures that Hirobumi Ito had received were found.
Although these were published, publication was banned because the China Incident had already begun.
I possess one copy of that book, and I once stated that the basis for clauses in the Meiji Constitution such as “The Emperor has supreme command of the Army and Navy” was the Prussian Constitution, and Mr. Kobori Keiichiro kindly said that, after the war, I was the first to touch upon this matter.
What Hirobumi Ito struggled with most when creating the Meiji Constitution was how to reconcile the nature of Japan as a nation, namely its kokutai (constitution), with the common sense of the world.
However, with regard to the Imperial House, he simply could not make it conform to the common sense of the world, so he did not put it into the constitution and instead created the Imperial House Law.
He treated it as the house law of the Imperial House and as something unrelated to the constitution.
With truly tightrope-like brilliance, Ito opened the way.
That is why, when the Constitution of Japan was being created, even Professor Miyazawa Toshiyoshi of the University of Tokyo at first said that a revision of the Meiji Constitution would be enough.
But MacArthur lost patience with that.
As for the exchanges around this matter, they are written about in detail and in an easy-to-read form in Jiro Shirasu: The Man Who Bore the Occupation by Yasutoshi Kita, published by Kodansha.
And after that, as I have explained up to this point, this country became one in which the basic law of occupation policy still struts about openly, thanks to constitutional scholars who profited from defeat.
Incidentally, I should point out that the status of the Emperor did not change between the Meiji Imperial Constitution and the new constitution under the Occupation.
When accepting the Potsdam Declaration, the Suzuki Kantaro Cabinet stated that it understood it “on the condition that it does not include any demand for alteration of the Emperor’s status under the national law,” and this was realized.
For even under the Imperial Constitution, it was not the Emperor but the Diet that made the laws.
The Emperor’s name and seal were used for the promulgation of the laws made by the Diet.
This remains the same even now.
The Diet makes the laws, and the Emperor’s authority is involved in the opening of the Diet and the promulgation of the laws.
To think of the Emperor as the “symbol” of the Japanese people, that is, the symbol of Japan’s unity, was common even from the Meiji era, and it is an expression used in Inazo Nitobe’s Bushido as well.
Japan never had anything like the French Revolution, in which the people rebelled against the Emperor.
The confrontation was never “Emperor vs. the people,” but always “the government (the shogunate) vs. the people.”
On this point, Mr. Takeda Tsuneyasu has argued very clearly.
Mr. Takeda is of imperial lineage, and I think there must have been taboo-like restraints on members of the imperial family or those related to it writing about the Emperor, but I would like to commend him for daring to state the truth.
With regard to the Emperor and the Imperial House, what the Occupation forces fundamentally changed was not the “Constitution” but the “Imperial House Law.”
As mentioned earlier, it was Hirobumi Ito, the person responsible for codifying the Imperial House Law, who clearly stated that the Imperial House Law was “the house law of the Imperial House” and had nothing to do with the constitution.
However, the Occupation forces turned the Imperial House Law into a subordinate law under the “Constitution.”
(Note 1) Prussia occupied northeastern Germany, and in 1701 the Kingdom of Prussia was established with Elector Friedrich III of Brandenburg, that is, King Frederick I of Prussia, as its king.
It grew into the most powerful kingdom in Germany, and as a result of the Franco-Prussian War, it brought about the German Empire and became its core.
After the First World War it became a state of the German Republic, and after the Second World War it was dismantled even as a state as the “vanguard of German militarism and reaction.”
Its English name is Prussia.