The Asia-Pacific Journal | Japan Focus Volume 11 | Issue 39 | Number 2 | Article ID 4001 | Sep 29, 2013

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It Would Make No Sense for Article 9 to Mean What it Says,Therefore It Doesn’t. The Transformation of Japan'sConstitution 日本国憲法の変容　9条の文面は意味不明。しかるに文字通り受け止めるべからず

C. Douglas Lummis

Nihonkoku Kenpo Kaisei Soan (Proposal forAmendment of the Constitution of Japan)

Centra l Of f ice for the Promot ion o fConstitutional Reform: Drafting Committee

The Liberal Democratic Party of Japan

27 April, 2012

Nihonkoku Kenpo Kaisei Soan: Q&A (Proposalfor Amendment of the Constitution of Japan:Q&A)

Centra l Of f ice for the Promot ion o fConstitutional Reform

The Liberal Democratic Party of Japan

October, 2012

There is a rumor in Japan that Aso Taro, formerPrime Minister and present Deputy PrimeMinister, never reads real books but onlycartoon books: manga. It is said that when hewas PM he kept a stash of these in the back ofhis official car so he could read them going toand from meetings and other duties. If theserumors are true, they would go a long waytoward explaining his recent gaffe. On 29 Julythis year, speaking before an ultra-rightistaudience on the subject of Constitutionalamendment, he said, according to the AsahiShinbun’s summary,

It should be done quietly. One dayeverybody woke up and found thatthe Weimar Constitution had beenchanged, replaced by the NaziConstitution. It changed withoutanyone noticing. Maybe we couldlearn from that. No hullabaloo.

Aso was bombarded with criticism from withinJapan and from around the world, from peopleshocked to learn that there is a political leaderin a major democratic country who couldconfess to believing that something usefulabout how to dea l w i th democra t i cconstitutions can be learned from the Naziexample. After a couple of days, he “retracted”the statement. Trouble is, you can’t talk the catback into the bag once you’ve let it out. Andalso, if you make a statement that reveals yourdreadful ignorance (The Weimar Constitutionwas never amended by the Nazis; the Nazis didnot take over the government “quietly”)retracting it will not persuade people that youweren’t so ignorant after all.

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Aso Taro

Aso’s Liberal Democratic Party (LDP) has longwanted to get rid of Japan’s highly democraticand war-renouncing Constitution. In fact,revising the Constitution is included in theParty’s founding principles, adopted in 1955and pursued thereafter. Partly, and mostfamously, they want to restore to thegovernment the right to make war, which thepresent Constitution took away from it. Butalso, they believe that the present Constitutiondestroyed public discipline by granting thepeople too many rights. They have an intensenostalgia for the pre-war days when the peoplewere subjects and not citizens, and pretty muchdid what they were told. So logically itshouldn’ t be so surpr is ing that th isromanticization of the good old Axis days wouldgenerate warm feelings toward their old Nazipartner.

In order to sustain this nostalgia for the olddays, the LDP finds it necessary to rewrite thestory of the old days, to make it appear as anappropriate object for nostalgia. In addition tochanging the Constitution, one of their passionshas been to rewrite the history books – inparticular the history books used in theschools. In this they have made some headway.In Japan school textbooks must be approved bythe Education and Science Ministry, whichmeans the government can put terrific pressureon the publishing companies. Textbooks have

appeared that say Japan didn’t “invade” butrather “advanced” into China in the 1930s, thatthe Rape of Nanking has been exaggerated,that the Japanese military didn’t really orderOkinawan civilians to commit suicide at the endof the Battle of Okinawa (they committedsuicide out of loyalty to the Emperor), and thaton the whole, as the Pacific war was motivatedby the desire to drive Western Imperialism outof Asia, it wasn’t such a bad enterprise. Theirhistorical methodology seems to be that acountry’s history should not be written in sucha way as to make students feel bad. It isremarkable that a political party that thinksthis way is also fiercely, even abjectly, loyal tothe U.S. alliance, and believes it has aparticular affinity to American conservatives.True, they agree on a lot of things (mostimportantly, the virtue of the AmericanEmpire), but as social critic Muto Ichiyo haspointed out, their alliance has a deep structuralcontradiction. If the LDP believes that Japan’sPacific War actions in China, in the Philippines,in Indonesia and elsewhere were not so bad,logically they ought to say that the attack onPearl Harbor was also not so bad. But on thatpoint silence reigns.

While the LDP has made some gains in revisingthe textbooks, so far they have been unable topersuade a sufficient number of the Japanesepeople that changing the Constitution is a goodidea, nor have they been able to muster the 2/3majority needed to get a Constitutionalamendment through the National Diet. Thisyear’s overwhelming election victories placedAbe Shinzo, one of the strongest advocates ofconstitutional amendment, in the seat of power.The Party is now in a position to make a seriousattempt.

This does not mean that the LDP is aiming for aNazi-type regime. They have their own, local,model for authoritarian government: theJapanese government as it was before 1945. Italso doesn’t mean that they expect toreestablish that system just as it was. They are

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politicians who claim to be realists, and havesome sense of the limits that reality can put onthe Art of the Possible. But if they can’t go allthe way back to 1940, that is the direction inwhich they mean to move.

On April 27 2012,, the LDP published a newProposal for Amendment of the JapaneseConstitution. Both Aso and Prime Minister AbeShinzo were Sen ior Adv isors to theconstitutional drafting committee. So far as Iknow, this document has not been translatedinto English. As many critics have pointed out,the word “amendment” in the t i t le isinappropriate, as the constitution depicted in itis utterly different, in letter and in spirit, fromthe present Constitution. As is well known, boththe Ital ian and the German post -warConstitutions contain clauses prohibitingamendments that would move the i rgovernments back in the direction of Fascismor Nazism. The post-war Japanese Constitutioncontains no such specific provisions, thoughthere are general clauses that some peopleinterpret as meaning that. In any case, if eitherthe Italian or the German government adopteda policy of returning to its pre-war politicalsystem, that would hardly be considered apurely internal affair. Similarly, the worldought to know that Japan’s LDP, as Aso’s slipillustrates and the LDP’s Proposal spells out indetail, is planning just such a transformation.But before discussing that Proposal, I need tosay a few words about the nature of theConstitution Japan has now.

The Forced Constitution

The LDP argues that as the Constitution ofJapan was forced on the country by the USOccupation after World War II, Japan has everyright to amend or replace it. Its political idealsare those of American Democracy, itsvocabulary is not derived from the vernacular,its writing is (often awkward) translation.Moreover, its war-renouncing clause (Article9), far from representing a pacifist ideal,

amounts to no more than the victor disarmingthe defeated.

Japanese supporters of the Constitution try torefute this by showing that the Constitution,both at the time of its adoption and in thedecades since then, has had overwhelmingsupport from the people. This is important, butif you conclude, “Therefore the Constitutionwas not forced”, you miss something. The factthat the Constitution has been supported by thepeople does not mean that it was not forced;rather it changes the picture of who forcedwhat on whom.

Just about allgood constitutions are acts offorce. A good constitution is designed to placelimits on the powers of government, to replaceabsolutism with rule of law, and in manyinstances, with democratic processes. It is veryrare for rulers, be they kings or oligarchs,voluntarily to place such limits on themselves,or to accept such limits, unless they are forcedto. This has been true since King John,presumably with trembling hand, signed theMagna Charta.

The U.S. Occupation troops and the Japanesepublic disagreed on many things in 1945, butthey agreed – though for different reasons – onone: the government and the military ofImperial Japan had way too much power. TheConstitution was designed to reduce thatpower. In this it is a remarkable document: thefirst 40 clauses are almost entirely aimed atreducing government power – a long list ofthings the government may not do. TheConstitution placed the Emperor within theframework of the law; it replaced Imperialsovereignty with popular sovereignty; itchanged human rights clauses from favorsgranted conditionally by the Emperor toinalienable rights; it transformed a people whohad constitutionally been defined as “subjects”(臣民）into rights-bearing citizens, laying thegroundwork for the very active grass-rootspolitical action of the post-war period; it took

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away from the government the right ofbelligerency – the right to make war.

Of course, the people who were holding powerunder the existing system on the whole (withsome notable exceptions) hated all this, andtried to resist and sabotage it in every way theycould. So when they say it was forced on them,that accurately describes their experience. Butit was not forced on “Japan” by “America”;rather it was forced on the Japanese rulingclass by an alliance that existed very briefly in1945, between the Occupation and theJapanese public. Moreover, aside from whetherMacArthur and his advisors’ motivations weregood, bad or indifferent – whether they wereacting as New Dealers, conquerors or (as ismore likely) a mishmash of the two – the powerthat was taken from the Japanese political classwas not carried back to Washington DC, buttransferred to the Japanese people.

MacArthur and the Emperor

The historical period in which this was possiblewas brief: by the end of 1946 the Cold War wasbeginning, and the Occupation had launchedwhat is widely known as the Reverse Course,which in genera l meant a sh i f t f romdemocratization of a former enemy tomobilization of an anti-Soviet ally. By this time

many in the Occupation and in the U.S.government regretted the JapaneseConstitution, especially its Article 9, but it wastoo late. The instrument by which the U.S.Government did succeed in transferring a pieceof Japanese sovereignty to the U.S. was not theConstitution, but the Japan-U.S. MutualSecurity Treaty, forced on Japan as a conditionfor signing the Peace Treaty in 1952, which ineffect gives the U.S. Government control overthe main lines of Japanese foreign policy. As forthe Constitution, its enforcer, from 1946 to thepresent, the power that has stymied the effortsof the conservative political class to amend it,has been the Japanese people (though theGovernment has succeeded in greatlyweakening i t through what is ca l led“amendment by interpretation”. I shall returnto that point below).1

The LDP Proposal: The Preamble

Preambles to constitutions are typically writtenin a particular form. They are not assertions offact, nor are they predictions of things to come.Rather, they bring facts into being. They takethe form that language philosopher John Austincalled “performative utterances”.2 Examples ofperformative utterances are, when your bosssays “You’re fired” (at which point you are outof a job); when the priest says “I nowpronounce you man and wife” (from whichpoint you and the other are married); when theadministrator of the driver’s examination says“You pass” (from which point you may, if youalso pay the fee, legally drive an automobile);or when the jury says “guilty” (at which pointyou are officially a criminal). In each case thedeclaration needs to be made by a person orpersons with the authority to make it.

Constitutional preambles are written in thisform, as declarations. The one making thedeclaration is not the person or committee whoactually wrote the draft; rather it is the personor persons understood to have the authority tomake such a declaration: the sovereign.

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The Preamble to The Constitution of theEmpire of Greater Japan (aka The MeijiConstitution, 1889) follows this form. The firstword in it is Chin (朕), a Japanese word for “I”,which only the Emperor can use, and which istranslated into English as the royal “We”. TheMeiji Emperor, of course, did not write thisConstitution, but it was he who enacted it; ineffect, it was his command to the people. In theEnglish translation the operative words are“We . . . hereby promulgate . . . .”

Promulgation of the Meiji Constitution

The present Constitution follows the sameformat, stood on its head. The first words in itsPreamble are “The Japanese people”; theoperative verbs are “proclaim” and “establish”.Thus popular sovereignty is not simplyannounced as a principle; “the people” areplaced in the role of the enactor of theConstitution, replacing the Emperor. And mostsignif icantly, just as under the Meij iConstitution the Emperor was understood to beoutside the law (the commander does notcommand himself), so the present Constitutioncontains no clause stipulating that the peoplehave an obligation to obey it.3

Whereas both the Meiji and the presentConstitutions are clear in their theory ofsovereignty, the LDP Proposal reduces it to amuddle. The first word in its Preamble is “The

Japanese State”:

The Japanese State, having a longhistory and a unique culture,privileged to be headed by theEmperor who symbolizes the unityof the people, is ruled under theprinciple of the sovereignty of thepeople, with division of powers intolegislative, executive and judicial.

In this odd collection of allegations, theimportant things are, 1) either the drafters ofthis Proposal don’t know much about writingconstitutions, or else they are deliberatelytrying to muddle the question of sovereignty; 2)“The Japanese State”, while not qualified toplay the role of sovereign, is announced as themain character in this constitutional Proposal;3) the Emperor, not mentioned in the Preambleto the present Constitution, is brought in as alarge, though vague, presence; 4) the assertionof popular sovereignty, coming directly afterthis, is unpersuasive.

The vagary lies in the expression that Irendered as “privileged to be headed by”,which is the single untranslatable Japaneseword itadaku （using not the ordinary頂くbutrather戴く）. A simpler rendering might be just“headed by”, but in Japanese the word carries aheavy burden of respect, and would only beused when whatever is “headed by” this beingis extraordinarily honored thereby. And it hints,though it does not say, that the Emperor is tohave restored to him political power andauthority, which by the present Constitutionhave been (largely) taken away.

In trying to determine whether itadaku isrelated to power, the Kojien Japanesedictionary’s definition is not much help, givingonly a few synonyms – respect words meaning“to receive”.. One of the synonyms however ishoutai (奉戴). If you look x this up in the Kojienit gives you itadakimatsuru （戴き奉る）、that

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is, the same two characters in reverse order,meaning, again, “to respectfully receive”; thistoo is not much help. Sometimes when I amsearching for the nuance of an obscure word inJapanese, I find that the Japanese-Englishdictionary is helpful. When the word doesn’texist in English, the lexicographer works hardto get it across by giving multiple examples ofusage. Thus, in the Kenkyusha Japanese-English Dictionary, for houtai an example givenis “to have (a prince as a president)”.Interestingly, the same example appears in theNelson Japanese-English Character Dictionary.If “prince” means here a royal head of state,and “president” means chief executive of agovernment, and if itadaku is its synonym, thenthe use of that word in the Preamble wouldstrongly imply that political power andauthority are to be returned to the emperor.But we must be careful: an example of usage isnot a definition, and the part in parentheseswas made up by the lexicographer. All we cansay is that were a royal head of state to takeover as chief executive of the government, insuch a case itatadaku or houtai would be theproper word in Japanese to use.

In order to emphasize its character as aperformative utterance, I quoted only thesubject and verbs in the first sentence of thepresent Constitution, but it contains muchmore.

We, the Japanese people, actingt h r o u g h o u r d u l y e l e c t e drepresentatives in the NationalDiet, determined that we shallsecure for ourselves and ourposterity the fruits of peacefulcooperation with all nations andthe blessings of liberty throughoutthis land, and resolved that neveragain shall we be visited with thehorrors of war through the actionof government, do proclaim thatsovereign power resides with the

people and do firmly establish thisConstitution.

In the Proposal, this is replaced, in its secondsentence, by,

Our country, despite the desolationand multiple catastrophes of theSecond World War, has survivedand developed, and now plays animportant role in internationalsociety and, under the principle ofpacifism, promotes friendlyrelations with all countries,contributing to the peace andprosperity of the world.

Once again, instead of the Japanese peopleacting, determining, resolving, proclaiming andestablishing, we have a set of (highlydebatable) assertions about the Japanese state,this time identified as “our country” (我が国).But as the words “the Japanese people” do notappear in this sentence, it isn’t clear who the“our” refers to. As the LDP often behaves asthough Japan were its private property, onewonders whether by “our country” they meantheir country.

Another big change is that, while the presentPreamble sees the government as to blame forthe war, the Proposal depicts “our country” asthe victim and heroic survivor of that war. Asfor “the principle of pacifism”, what is meantby that will become clearer when we get toArticle 9.

The third sentence in the Proposal’s Preamblereads,

The Japanese people will defendtheir state and homeland withpride and self-respect, and whilerespecting basic human rights,revere harmony [wa（和）], and in

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the spirit of mutual aid both withinthe family and in society as awhole, build up the state.

Finally “the Japanese people” are given thestatus of the subject of a sentence, but notnecessarily that of its narrator. The sentence isnot performative but a set of allegations about“the Japanese people”, not as “we” but as“they”. And as the allegations are largelycounterfactual (depending on the person youare looking at), what the sentence reallyamounts to is a list of duties – in effect, a set ofcommands to the people. Who, then, is thiscommander?

Moreover, the sentence (and for that matterthe Proposal as a whole) reverses the presentConstitution’s understanding of means andends. Instead of government being the meansto achieve a free, peaceful, orderly andprosperous life for the people, the people areseen as a means to build up the government –more accurately, the state. The fourth sentencecontinues in this vein.

We, respecting both freedom anddiscipline, while protecting ourbeaut i fu l land and natura lenvironment, wi l l promotee d u c a t i o n a n d s c i e n t i f i ctechnology, and through energeticeconomic activity, develop thecountry.

Again, a list of duties. For the first time “We”becomes the subject of a sentence, but still itgives an image of the Japanese public as theLDP would wish them to be. One suspects the“We” is there to put it in a form that can easilybe recited in chorus in the schools. The finalsentence in the Preface reads,

The Japanese people, in order to

pass on our wonderful traditionsand our state in perpetuity to ourdescendents, do hereby establishthis Constitution.

Finally we come to a proper performativesentence, allegedly spoken by “the people” andending with “establish” (制定). But what camebefore that (and what comes after) does not fitthat form and violates constitutional logic. ThePreamble is made up of words of praise for thestate and lists of duties for the people, but itmakes no sense for the sovereign to prescribeduties and deliver commands to itself. Behindthis puppet “the people” there has to besomeone else. But who that is, is not madeclear.

The Emperor

Article 1 of the present Constitution reducesthe Emperor from Sovereign to “the symbol ofthe State and of the unity of the people”. Thisby no means abolishes the Emperor System,either in the government structure or in theminds of the people, but it radically reduces itfrom what it was. In the Proposal’s Article 1,the Emperor is declared to be head of state（元首）.

As a political term, “head of state” is a widebasket holding a variety of types ranging fromabsolute dictators to royal figures who areallowed no political power or authority, butserve only in ceremonial roles. Under thepresent Constitution, the Emperor of Japan issupposed to be in the latter category. Thus inthe LDP-published pamphlet Proposal forAmendment of the Japanese Constitution – Q&Ait is explained that in calling the Emperor“head of state” nothing is changed; only theactual situation is properly named. This mightbe persuasive if there were no other changes inthe articles pertaining to the Emperor. Troubleis, there are. In the present Constitution,Article 3 reads,

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The advice and approval of theCabinet shall be required for allacts of the Emperor in matters ofstate . . . .

In the Proposal, the word “approval” has beendeleted.

In the present Constitution, Article4 states,

The Emperor shall perform onlysuch acts in matters of state as areprovided for in this Constitutionand he shall not have powersrelated to government.

In the Proposal, the word “only” has beendeleted.

In the present Constitution, Article 7 gives alist of the ceremonial duties the Emperor mayperform, prefaced with the following words:

The Emperor, with the advice andapproval of the Cabinet, shallperform the following acts inmatters of state on behalf of thepeople.

In the Proposal’s revised version, both “advice”and “approval” have been deleted.

The text of the present Constitution’s Article 3is relocated to come at the end of this listthough, as I mentioned above, with the word“consent” deleted from it. Then following this isnew material.

In addition to what is stipulated in[the list] above, the Emperor shallengage in public activities such asceremonies sponsored by the state,

loca l governments , publ icorganizations or the l ike.

This clause contains two subtle escape phrases,which I have rendered “such as” and “or thelike”（In Japanese both are その他）. One mustread carefully to avoid missing them. But theyopen two doors to the Emperor which arelocked down in the present Constitution. Howlarge those doors are, and what might gothrough them, are impossible to know at thisstage.

There are several more additions to the chapteron the Emperor. One gives constitutionalauthority to the Emperor-based calendarsystem, which at present is not much usedouts ide government and r ight -wingorganizations (according to it we are presentlyin the year Heisei 24). Another is to make thesun flag（日章旗） and the song kimi ga yo（君が代）into the constitutionally authorizednational flag and national anthem. Both ofthese are controversial, carrying as they domemories of the era of militarism and abjectEmperor worship. There are still people whorefuse to sing the song or bow to the flag. Thusthe Proposal adds another clause:

The Japanese people must respectthe national flag and the nationalanthem.

Yet another command to the people, tellingthem what emotion it is their duty to feel.Today, at some public schools in Japan, duringmatriculation and graduation ceremonies theschool Principal or members of the Board ofEducation will walk among the faculty and lookat their mouths to confirm whether they areactually singing the anthem. If this provisionbecomes law, will we be seeing them walkingalso among the attending parents to checktheir loyalty to the State?

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Article 9: The Peace Clause

In the present Constitution, Article 9 stipulates,

A s p i r i n g s i n c e r e l y t o a ninternational peace based onjustice and order, the Japanesepeople forever renounce war as asovereign right of the nation andthe threat or use of force as ameans of settling internationaldisputes.

In order to accomplish the aim ofthe preceding paragraph, land,sea, and air forces, as well as otherwar potential, wil l never bem a i n t a i n e d . T h e r i g h t o fbelligerency of the state will not berecognized.

Some pacifists get quite romantic about this, afew even campaigning to have the Articleawarded the Nobel Peace Prize or given WorldHeritage status. The reality, however, is notquite that splendid. E. M. Forster famouslywrote that democracy may be worthy of twocheers but certainly not three; I would say thatat this point in history, Article 9 deservesmaybe one.

Regarding the text of the Article itself, as ateacher of political theory, I find it quitewonderful. On the one hand, it is written inlanguage as clear as clear gets. On the otherhand, many people find it incomprehensible. Itflies in the face of the common sense ofinternational relations, and it violates the verydefinition of the state as given us by MaxWeber: the social organization that claims amonopoly of legitimate violence. Well, no, theJapanese Constitution does not renounce theviolence of police power or judicial power (thedeath penalty is still in effect), but still manypeople will ask, If the state doesn’t have thepower to make war, then what on Earth is it?

Article 9 is so radically in violation of political“common sense” that there are people,including (perhaps especially) scholars ofconstitutional law, who can read it over andover and fail to make out what it says. Thereare actually people drawing salaries and statusfrom major universities who seriously claimthat its true meaning is that the Japanesegovernment ought not to spend more than 1%of its budget on military defense (searchthrough Article 9 to your heart’s content, youwill not find “1％” mentioned anywhere). Thereare people who argue that the condition “as ameans of settling international disputes” meansthat war may be used for purposes other thanthat. And there are people who argue that nomatter what is written in it, the state possessesthe right of belligerency as a natural right. Thisreasoning perfectly violates the centralprinciple of the Constitution, which is that thegovernment/state possesses the powers thatthe sovereign people give it, and no other. (It isalso strange to argue that an artificialorganization could have a natural right.) All ofthese interpretations share what might becalled the method of deductive reading: itwould make no sense for this Article to meanwhat it says; therefore it doesn’t. And they areexamples of the “amendment by interpretation”process that I mentioned above.

But while the language of Article 9 is clear, therole it has played in Japanese politics isambiguous. As it – together with the Preamble –was written, it depicts a policy of nationaldefense founded on peace diplomacy. Just asSwitzerland has been spared invasion notbecause of the fearsomeness of its military(with all due respect) but because of itsusefulness to all sides as a place where cease-fires and peace treaties can be negotiated, soJapan, on the basis of this Constitution, couldhave become respected as a different sort ofpeace force. Unfortunately, neither thegovernment nor the public ever quite got upthe gumption to attempt this experiment, withthe result that Japan, as a party to the Japan-

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US Security Treaty, is under the US “nuclearumbrella”, hosts a large number of U.S.Military bases (mostly in the colony ofOkinawa) and has built up a highly trained andelaborately equipped Self-Defense Force (SDF).The Japanese Self-Defense Force is surely oneof the most bizarre uniformed organizationsever there was. They have tanks, artillery,fighter airplanes, warships, rockets, and thetraining to use them all, but they do not havethe right of belligerency. The right ofbelligerency, put bluntly, is the right of states,invested in their soldiers, that enables thosesoldiers to kill people in war without beingprosecuted for murder.

In each of the various laws that have beenpassed by the Diet to permit the SDF to operateabroad (whether supporting peacekeepingoperations or backing up US mil itaryadventures) there appears a clause titled, “Useof Weapons”. And in these there alwaysappears the stipulation that weapons may beused against people only in cases that wouldfall under the purview of Articles 36 or 37 ofJapan’s Criminal Code. These are the articlesthat permit the use of force in the case ofpersonal self-defense or emergency rescue;rights, in other words, that every civilian inJapan has. With no legal basis but the right ofindividual self-defense, you cannot carry outmilitary action. Article 36 allows you to useforce if your life is in immediate danger andyou can save yourself in no other way; in waryou may shoot an enemy who, far fromthreatening you, is unaware of your presence(if you are a sniper, for example, or if you arepart of an ambush, or in an artillery unit), andif you have attacked and broken an enemy line,you can shoot an enemy who is running away.Thus nothing is more dangerous than to sendthe SDF, who do not have that right, into awarzone, as they look like soldiers, act likesoldiers, dress like soldiers and are equippedlike soldiers, and perhaps even imagine theyare soldiers, but have no more right underJapanese law to carry out a military action than

a party of duck hunters.

The first time the SDF were dispatched abroadwas in support of the U.N. PeacekeepingOperation in Cambodia, in 1992. In 1995 theCommander of that operation, an Australiangeneral, participated in a symposium in Tokyo,which I attended. During a coffee break I askedhim how it was to have under his command aparty of uniformed men (I think they were allmen) who didn’t have the right of belligerency.He looked around to see who was listening,lowered his voice, moved a little closer andsaid, “I had to wrap them in cotton wool!” Aperson standing nearby asked, “Weren’t theysent home early?” “No,” he said, “They weresent home according to plan.” Then a smileflitted across his face, and he lowered his voiceagain, saying, “Of course, you have tounderstand that when I was deciding the orderin which to send back the units, the Japaneseunit was not one of the ones I wanted to keepto the end.” The SDF were in Cambodia forpolitical reasons, made no contribution toactual peacekeeping, which sometimes requiresmilitary action, and were in fact a majorheadache for the commanders (they were usedfor road construction, but we hear that theroads they built washed out fairly soon).

SDF in Cambodia

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There is more than one way to look at this. Onthe one hand, from the standpoint of common-sense international relations, the solutionwould be to get rid of Article 9 and makeJapan’s SDF into a regular military organizationwith the right of belligerency. On the otherhand there is a small but articulate movementin Japan (small now, but big in 1960 and formany years after) that campaigns for the fullimplementation of Article 9 as written, whichwould include reorganizing the SDF as a rescuecorps (I have been participating in thismovement in various ways since 1969). Pollsindicate, however, that a slight majority of theJapanese public wants to keep Article 9 as is.“As is” means, with all its contradictions andself-deceptions: Article 9 + US Bases + SDF.Before dismissing this as dishonest, rememberthat while Article 9 has never been put intopractice as written, Japan’s Peace Constitutionhas served an important function in the realworld of politics: in the almost 70 years since itwas enacted, no human being has been killedunder the right of belligerency of the Japanesestate. Considering Japan’s activities before1945, that is an achievement.

In the Proposal’s revised Article 9 the firstparagraph is, somewhat amazingly, almostunchanged. They have changed a couple ofwords and fiddled with the order of the clauses,but basically it says the same thing. Given thatthe following paragraphs are intended to founda full-fledged military, one wonders what thisfirst paragraph is doing here (It is immediatelyfollowed by the newly added qualifier, “Nothingin the above paragraph should be construed asinterfering with the right of self-defense”.) Theargument given in the Q&A is a marvel ofsophistry. The activity called “war”, they say,has from long ago been prohibited all over theworld by international law.

Nineteenth Century style war,beginning with declarations of war,had already been general ly

understood to be illegal underinternational law . . . .[presumablythe “already” means before 1945when Article 9 was written.]

It’s true that since the UN Charter was adoptedcountries don’t declare war any more; theyfight them without declaring them, a procedurefor which Japan provided an important model.Does the LDP mean to say that military actionis not war unless you call it that? That war isillegal only if you declare it? Their argumentcontinues, using one of the lines of reasoning Iintroduced above.

. . . what Article 9 paragraph 1actually prohibits is limited to theuse of military action “as a meansof settling international disputes”. .. Therefore, what Art ic le 9paragraph 1 prohibits are “war”and military action for the purposeof aggression only . . . whilemilitary action for self-defense orfor international sanctions . . . arenot prohibited.

It would be one thing to look at Article 9 anddeclare that this is what it ought to say; it isquite another to look at it and declare that thisis what it does say. As to how they manage theleap from “a means of settling internationaldisputes” to “aggression” I have not a clue. Itseems to me that the people fighting thedefensive war are also trying to settle aninternational dispute by kicking the aggressorout. But I suppose that’s old-fashioned: sincethe adoption of the UN Charter all sides in allwars have claimed to be fighting defensively, soaccording to this LDP logic, since 1945 therehaven’t been any wars at all. It is in the contextof this way of thinking that the LDP is able, inthe Preamble, to call its Constitutional Proposal“pacifist”.

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Of course, not everyone who believes in thenecessity of military force uses logic as nutty asthis. There are plenty of perfectly reasonableand level-headed people who agree that thecondition of peace is far preferable to thecondition of war, but believe that having astrong military is the best way to achieve it. Inthis view, the great purpose of the military is toprotect the peace and safety of ordinary people.Trouble is, you search Japanese history (andnot only Japanese history) in vain for an erawhen something like that actually happened.The period when Japan’s military was thestrongest in all its history corresponds exactlyto the period when by far the largest number ofordinary people died violent deaths. Or if youmove to the pre-modern period, you will still behard-pressed to find an era when the armedclass protected (rather than exploited) thefarmers, fishers, and craft workers. So there isa kind of romantic wishful thinking at workhere: while neither the armed classes nor thestate ever behaved that way in the past, surelythey will in the future. Well, good luck.

Those who believe the LDP means to establisha new kind of military aimed at protecting thelives of the people might begin by looking atthe name the Party has chosen for it. What isnow called by the rather vague title, Self-Defense Force (vague because it isn’t clear whothe “self” is) are to be called Kokubougun（国防軍）, which can be translated NationalDefense Force or Country Defense Force. One’smemory runs back to the 1930s and early ‘40swhen millions of Japanese died (and killed) “forthe country” (お国のため). Given that history,the new name is ominous. And in the clause bywhich the new military is to be established, thepriority is made clear.

In order to protect the peace andindependence of the country, aswell as the safety of the countryand the people, a National DefenseForce shall be established, with the

Prime Minister as its supremecommander.

In this translation I have followed the structureof the original. “Country” and “people” areclearly separated, and then placed in order ofpriority: “country” is mentioned twice before“people”.

Defense of the country and the people are not,however, the only tasks to be assigned to theNational Defense Force. They will also engagein

international cooperation toprotect the peace and security ofinternational society.

The term “international society”, when used bythe LDP, generally means “the United States,its allies and its empire” （The JapaneseGovernment has supported every U.S. warsince Korea.）If this amendment goes through,we can expect to see National Defense Forcetroops fighting alongside the US military inwhatever its next overseas adventure turns outto be.

The Proposal assigns to the National DefenseForce one further field of action. They may

act to protect public order, or toprotect the lives and freedom ofthe people.

Protection of the people, while low on thepriority list, has already been mentioned; whyshould it be mentioned again? The Q&A givesan answer. This clause, it says, refers to

preservation of law and order,protection and rescue of citizens,and action in case of natural

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disaster.

Responding to natural disaster is welcome ofcourse (though one suspects that the firedepartment would be better at it); what istroubling is “preservation of law and order”.

This phrase means that the National DefenseForce will be constitutionally authorized tocarry out military operations not only outsidethe country, but also within it. Actually thisshould not come as a great surprise: while wetend to think of national militaries as aimedabroad, in fact they are also – in some casesprimarily - aimed within. (Think of Mexico forexample, or the Philippines, or Indonesia.) Atraditional definition of national territory, notso much used any more, is “the territory agovernment has succeeded in pacifying”.Probably most of the wars going on in theworld today are not cross-border, but betweengovernments and their people, or a part of theirpeople. In Japan in the militaristic period,military police (憲兵) were a major actor in theauthoritarian regime, and greatly feared. Thatthe National Defense Force is to be given a law-and-order function is, again, ominous.

The last sentence in the present Article 9 reads,

The right of belligerency of thestate will not be recognized.

Of course, this has been deleted. Deletedwithout comment. One might have wished thatthe LDP had replaced it with, “The right ofbelligerency of the state shall be recognized”,but no, it has disappeared without a trace. Inthe Q&A there is no Q regarding its demise, sothere is no A. This despite the fact that thereassertion of the right of belligerency is thekey to the difference between the present andthe proposed Article 9. That is, the right ofbelligerency is the key to war itself. Whatdistinguishes war from other kinds of large-

scale killing does not depend on whether therehas been a declaration of war or whether thekillers are wearing uniforms and insignia, itdepends on whether they have persuaded theworld that they are fighting under the right ofbelligerency, and that therefore they are notmurderers. The Q&A tries to befog this point byrepeating that for countries to have militaries is“common sense” and “a natural right”. But tosay it is a natural right is to deny the principleof sovereignty of the people; that is, it is to saythat the state has that right even if thesovereign people stipulate in the Constitutionthat it does not. And if they really believe that,then why do they think they need to change theConstitution, when they could have made theSDF into a killing organization without doingso?

Human Rights

Following Article 9 in the present Constitutionis a long list of human rights. The MeijiConstitution also had human rights clauses, butthey were conditional. For example,

Article 28: Japanese subjects shall,within limits not prejudicial top e a c e a n d o r d e r , a n d n o tantagonistic to their duties assubjects , enjoy freedom ofreligious belief.

Article 29: Japanese subjects shall,within the limits of law, enjoy thel iberty of speech, wr i t ing,publication, public meetings andassociations.

You put in the Constitution the provision thatfreedom of expression is allowed “within thelimits of law”, then all you have to do is make alaw prohibiting it, and that’s the end of it.

The present Constitution removes theseconditions; human rights are referred to as

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“eternal and inviolate”. Article 12 reads,

T h e f r e e d o m s a n d r i g h t sguaranteed to the people by thisConstitution shall be maintained bythe constant endeavor of thepeople, who shall refrain from anyabuse of these freedoms and rightsand shall always be responsible forutilizing them for the publicwelfare.

The references to “abuse” and to “publicwelfare” may sound like conditions, but I thinkthat rather than commands from above theyshould be understood as promises (a promise isanother form of performative utterance). And“public welfare” is a common sense provision,different in tone from expressions like “dutiesof subjects”. The public welfare, after all, is thewelfare of the people. In the human rightsclauses themselves, such qualifications do notappear:

Article 19: Freedom of thought andconscience shall not be violated.

Article 21: Freedom of assemblyand association as well as speech,press and all others forms ofexpression are guaranteed.

The LDP Proposal restores some of the MeijiConstitution’s conditions. To Article 12 is addedthe phrase,

. . . the people . . . must realize thatf r e e d o m a n d r i g h t s a r eaccompanied by responsibilitiesand duties, and must never violatepublic welfare or public order.

And to Article 21, the freedom of expression

article, is added the sentence,

Notwithstanding what is written inthe above clause, activity aimed atdisturbing the public welfare orthe public order, or the forming oforganizations for that purpose,shall not be permitted.

To add qualifications such as these to thehuman rights clauses is to transform them fromrights possessed by the people into privilegesgranted provisionally by the state, at the state’sconvenience. The Q&A explains as follows.

The stipulation of “public order”was not included for the purpose ofsuppressing anti-governmentactivities. … It is common sensethat when a person asserts humanrights, this must not cause aninconvenience to others.

Well, yes, but when Gandhi and the IndianNat iona l Congress campa igned forindependence, they caused a terribleinconvenience to the British colonists. WhenMartin Luther King and others carried out non-violent actions to rid the American South ofsegregation, they greatly upset the lives ofmany white racists. When women all over theworld campaigned – and campaign – for equalrights, for the men who depend on theirsubservience, “inconvenience” is hardly theword for it. Japan’s great anti-AMPO (SecurityTreaty) struggle of 1960 blocked a lot of traffic,and was a great inconvenience to the thenPrime Minister Kishi Nobusuke (the presentPrime Minister’s grandfather) as it cost him hisjob. Campaigns for human rights alwaysdisrupt the social order and inconvenience thepeople who depend on the absence of thoserights. To say that human rights campaignsmust be carried out without inconveniencing

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anyone is to prohibit them altogether.

Very important in the dismantling of the semi-mystical Meiji system was the separation of thestate from religion. Article 20 guaranteesfreedom of religion and prohibits the state fromengaging in “religious education or any otherreligious activity.” The Proposal rephrases thissection somewhat, and then adds the following:

However, activities that do notexceed the bounds of socialceremonies or customary activitiesare no t proh ib i ted by th i sprovision.

One of the most emotional issues between theLDP and Japanese supporters o f theConstitution – as well as between the JapaneseGovernment and China, and between Japan andthe two Koreas – is whether it is proper andconstitutional for government officials to prayat the highly militaristic Yasukuni Shrine,which memorializes Japanese war deadincluding some convicted war criminals.Everyone knew that the LDP Proposal to amendthe Constitution would include a clauseintended to make visits to that shrine (amongother things) constitutional. It seems that thisis the clause that they expect to do the trick.

State of Emergency

The fragility of the human rights clauses underthe Constitutional Proposal is made evenclearer in the provisions for a State ofEmergency. Articles 98 and 99 stipulate that inthe case of a crisis or a natural disaster, thePrime Minister can declare a State ofEmergency, which will put the country on adifferent legal basis. Article 99 stipulates thatwhen a State of Emergency is declared,

The Cabinet will be empowered toenact regulations that have the

power of law, and the Primeminister will be empowered toauthorize funds and take othernecessary actions, as well as toissue orders to the heads of localgovernments.

Following political theorist Karl Schmitt’s well-known maxim, “Sovereign is he who

decides the exception,” does this mean that theState of Emergency provisions have

identified the Prime Minister as the newsovereign? But no, Schmitt was careful to

point out that “exception” means, not coveredby the law, so that if provisions for a state

of emergency are written into the law, shiftinginto that state is no longer an

“exception”.(4) It would also be a mistake tocall this martial law. Martial law refers

to a situation in which the military has takenover the government, and is ruling the

country as though it were a conqueredterritory. What this amounts to is a civilian

dictatorship by the Prime Minister. It is alsostipulated that the State of Emergency can

be ended by a majority vote of the NationalDiet – though in the context of Japanese

politics, it is difficult to imagine a National Dietmustering the will to do that. What is

especially interesting in these clauses is whatthey say about human rights:

Article 99, 3: In this case theprovisions pertaining to basichuman rights such as Article 14[equality under the law], Article 18

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[prohibit ion of involuntaryservitude], Article 19 ［freedom ofthought and conscience］, andArticle 21 [freedom of expressionand association] must be respectedinsofar as possible.

“Insofar as possible” (最大限) may sound not sobad, but it depends on the case.

“Insofar as possible” moves an action from therealm of the forbidden to the realm of “it

depends”. “I will avoid torture insofar aspossible.” “I will maintain the rule of habeas

corpus insofar as possible.” “I will instruct thepolice not to fire into crowds of people

insofar as possible.” “Insofar as possible”transforms actions such as these from

“impossible” to “possible”. In the presentConstitution, both Article 11 and

Article 97 describe the human rightsguaranteed in it as “inviolate”. In

the LDP Proposal, they become violable.

Supreme Law

It is in its final paragraphs that the Proposal’svagaries are – I wouldn’t say made clear

exactly; rather we are enabled to understandwhat their function is. In the present

Constitution, Article 98 declares theConstitution to be the supreme law of thenation.

Article 99 reads,

The Emperor or the Regent as wellas Ministers of State, members ofthe Diet, judges, and all other

public officials have the obligationto respect and uphold th isConstitution.

In the LDP Proposal, the Emperor and theRegent have been taken off this list. As I wroteabove, under the Meiji Constitution theEmperor, as the sovereign who issued thatConstitution as a command, was prior to it andnot obl igated to obey i t . The presentConstitution placed the Emperor under the ruleof law (not entirely successfully: it is said forexample that the Emperor Hirohito even underthe new Constitution was not persuaded thatthe automobile he was riding in was required tostop for red lights). The LDP Proposal, ineliminating the Emperor’s name from Article99, clearly places the Emperor outside the law.Nothing in the proposed Constitution can beseen as a restriction on his behavior. Does thismean that, under this Constitution, he would bethe sovereign? That is still not clear. He isnowhere identified as the narrator, the oneissuing the Constitution as his command. It isdifficult to imagine the Emperor becoming theactual day-to-day ruler, making politicaldecisions and issuing directives. It is easier toimagine him serving as the semi-mystical figurewhose aura lends a vague sense of sacrednessto the state/government as a whole. This is theway the Emperor actually functioned under theMeiji Constitution; it was not he himself, butthe political class who served under him, whogained real power from the Imperial Mystery.

One more change in these last paragraphs isimportant. In the present Constitution, “theJapanese people” are not included in the list ofthose who are obligated to “respect anduphold” the Constitution. To that clause,renumbered Article 102, the Proposal adds thesentence,

All Japanese people must respectthis Constitution.

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The Emperor is removed from the list, and thepeople are added to it. To repeat the

point made above, if the people are indeed thesovereign as claimed in the Preamble,

then the Constitution is their command. Havingmade this command, it would be

absurd for them to end by commandingthemselves to obey it. In this sentence, the

people are commanded to respect the new roleof the Emperor (whatever that turns out

to be), to respect the national flag and anthem,to respect the new role of the military, to

respect their newly truncated human rights,and to respect the new Constitution which

deprives them of their sovereignty. Thequestion is, who is doing this commanding?

That remains a mystery.

Notes

1 For a more detailed version of this argument,see my “Japan’s Radical Constitution”, inTsuneoka [Norimoto] Setsuko, C. DouglasLummis, Tsurumi Shunsuke, Nihonkoku Kenpowo Yomu, Kashiwa Shobo, 2013 (Original1993).

2 John L. Austin, How To Do Things with Words,Harvard U. Press, 1962.

3 For Example see Johannes Siemes, HermanRoesler and the Making of the Meiji State,Sophia University and Charles E. Tuttle, 1968.

4 Carl Schmitt, Political Theology, GeorgeSchwab tr., MIT Press, 1985. See also GiorgioAgamben, State of Exception, Kevin Attell, tr.,U. of Chicago, 2005.

C. Douglas Lummis is a Lecturer at Okinawa

International University. He had promisedhimself to write no more about the JapaneseConstitution, but when he read the newest LDPamendment proposal, broke that promise. Thisessay is abbreviated and somewhat rewrittenfrom the new afterword to his Kenpo wa Seifuni taisuru Meirei de Aru (Heibonsha) which wasreissued this year (original 2006).

Recommended citation: C. Douglas Lummis,"ItWould Make No Sense for Article 9 to MeanWhat it Says, Therefore It Doesn't. TheTransformation of Japan's Constitution," TheAsia-Pacific Journal, Vol. 11, Issue 39, No. 2,September 30, 2013.

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