This article analyzes how Japan’s postwar constitutional structure was shaped by GHQ’s one-week English draft, the influence of Beate Sirota and Charles Kades, and the fear-driven behavior of Tokyo University law dean Miyazawa Toshiyoshi, who justified GHQ’s unilateral constitutional revision through his “August Revolution Theory.” High courts now interpreting Article 24 to support same-sex marriage reveal how far Japanese constitutional jurisprudence has drifted from the text’s original meaning. Masayuki Takayama argues that Japan’s Constitution—anchored in U.S. values and even interpreted through the American Declaration of Independence—cannot be corrected by reinterpretation and must instead be abandoned altogether.

The Constitution Created by GHQ Should Not Be “Interpreted” but Abandoned —
Miyazawa Toshiyoshi, Afraid of Being Purged, Flattered GHQ with the “August Revolution Theory”

This is from Masayuki Takayama’s serialized column published in the May 1 issue of the monthly magazine Themis, to which I subscribe.
This essay again proves that he is the one and only journalist in the postwar world.
As readers know, I began subscribing to Themis solely to read his column.
It is essential reading not only for the Japanese people but for the entire world.
This month’s Themis is filled with sharply written essays by genuine journalists.

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The Constitution Created by GHQ Should Not Be Interpreted but Abandoned

Miyazawa Toshiyoshi, Afraid of Being Purged, Flattered GHQ with the “August Revolution Theory”

It is obvious that “both sexes” refers to man and woman.
In a lawsuit claiming that the Civil Code, which does not recognize marriage between two men or two women, is unconstitutional, the Sapporo High Court recently ruled, just as the plaintiffs argued, that the provision is unconstitutional.
That is, Chief Judge Kiyofumi Saitō is saying that the “both sexes” in “marriage based on the mutual consent of both sexes” in Article 24 of the Constitution includes female–female and male–male relationships.
Therefore, the Civil Code—which stipulates “man and woman”—is unconstitutional.

One feels like saying: “Can you not read Japanese?”
With this, six out of seven judgments involving same-sex marriage have said that the Constitution recognizes same-sex marriage and that the Civil Code blocking it is wrong.

On the same day, in fact, the Tokyo District Court issued a similar ruling.
Judge Tomoyuki Tobisawa invoked today’s fashionable notion of “gender identity,” saying calmly that “traditional values have changed.”
Therefore, he said, marriage between persons of the same sex should be recognized under the Civil Code.

However, courts are supposed to interpret existing laws according to their wording, and arbitrary interpretations have always been prohibited.
The same applies to the wording of the Constitution: “both sexes” obviously means man and woman.
If there is any deeper meaning to be interpreted, it should be based on the purpose of the provision and the legislative intent.

As is well known, the Constitution of Japan originated from an English-language draft written in one week by Charles Kades of the Government Section (GS) of GHQ and his subordinates.
What became the Japanese Constitution was a translation of that draft into vertical Japanese writing.

The relevant Article 24 was probably written by Beate Sirota, an inexperienced Jewish female college student of the time.
In her Jewish faith, homosexuality was detested as “sodomy.”
Kades, who revised her draft, was an average U.S. military officer, and homosexuality had always been something to be despised.
In the film From Here to Eternity, set on the eve of Pearl Harbor, homosexuals are depicted as so despised they are killed.

The U.S. Army and Navy began accepting homosexual recruits only half a century later, during the Clinton administration, after implementing the rule: “The military will not ask recruits whether they are homosexual, and recruits will not speak of it themselves.”
Therefore, the Constitution created by GHQ never contemplated marriage between persons of the same sex.

“Ah, but that is America—Japan’s Constitution has already taken root in Japan; it should be interpreted in a Japanese way,” some may say.
That is also incorrect.

GHQ claimed the Constitution of Japan was an “amendment” to the Meiji Constitution, and Miyazawa Toshiyoshi, Dean of the Faculty of Law at the University of Tokyo, said the same.
Yet, in the Meiji Constitution, the initiative to amend it rests solely with the Emperor, who holds sovereignty.
But the Constitution of Japan was initiated by MacArthur.
Furthermore, in the new Constitution, sovereignty somehow shifted from the Emperor to “the people,” and the representatives of the people—members of the Diet—were said to have deliberated and approved the Constitution.

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Becoming a Member of the House of Peers — a Postwar Benefit

MacArthur imposed all sorts of undemocratic measures—censorship, press bans, and even terror through the purge of public officials—to silence the Japanese people.
But if GHQ had so outrageously altered Japan’s Constitution, the Japanese people surely would not keep silent.

It was then that Miyazawa came forward, saying:
“By accepting the Potsdam Declaration, an invisible revolution occurred, and sovereignty shifted to the people.”
This is the so-called “August Revolution Theory.”

This theory appeared nine months after acceptance of the Potsdam Declaration—on May 6, 1946—right when the Japanese translation of the MacArthur Constitution draft had been made.

Why had Miyazawa been silent for nine months?
The hint lies in the purge list issued by MacArthur four months earlier, in January 1946.
It listed seven categories—from army and navy officers to advocates of ultranationalism and members of the Imperial Rule Assistance Association.
A total of 200,000 people were purged.
A Dean of the University of Tokyo Faculty of Law who had defended the Meiji Constitution, which upheld the Emperor as a sacred figure, should have been among the first to be removed.

Miyazawa thought:
The MacArthur Constitution was an outrageous act ignoring legal procedure and violating sovereignty.
But if I, as Dean of the University of Tokyo Faculty of Law, provide justification for it, perhaps I can avoid being purged.

So, after pondering for two months, he came up with this idea of a “revolution that occurred without anyone knowing.”
For an improvised theory, it was rather good.
When the August Revolution Theory appeared, MacArthur reportedly danced with joy.
He knew the Japanese disliked anything crooked but would be persuaded if a prestigious scholar of the University of Tokyo said something seemingly authoritative.

As a reward, MacArthur made Miyazawa Toshiyoshi a member of the House of Peers.
Thus Miyazawa not only escaped the terror of the purge but rose to become one of the postwar beneficiaries.

Since then, the Faculty of Law at the University of Tokyo—the core of Japan’s constitutional scholarship—has strictly adhered to the August Revolution Theory.
Particularly his direct disciple, Ashibe Nobuyoshi, who studied at Harvard, went so far as to say:
“The constitutional framework granted to us by MacArthur is found in the U.S. Declaration of Independence and the U.S. Constitution,”
and made that the pillar of Japanese constitutional scholarship.

This is no joke; there is proof.

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Hasebe Yasuo Also Denies Japan’s Right of Self-Defense

If you open the “Constitution of Japan” section in any Roppō Zensho (six-code legal compendium), starting with those published by Yūhikaku, you will find that the opening page always contains the “Declaration of Independence.”
The Declaration was already included in the Roppō Zensho published in 1948, when the Constitution of Japan was promulgated, and it was also in the Roppō Zensho I used at university.

I remember thinking it strange that such a peculiar introductory text was placed there.
The current year’s edition probably has the same thing.
It is telling Japanese readers:
“When interpreting the Constitution of Japan, you must go back to the Declaration of Independence and read with the sensibilities of an American.”

There is no way such a Constitution would permit same-sex marriage.

Hasebe Yasuo, who succeeded Ashibe, also flatly denies Japan’s right of self-defense—the very thing Americans dislike.
The Constitution of Japan exists for the benefit of Americans.
What we must do is not interpret the Constitution—but abandon it.

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