Meeting of General Whitney, Colonel Kades, Commander Hussey, Lt. Col. Rowell with Dr. Matsumoto, Mr. Yoshida and Mr. Shirasu, 22 February 1946.

Ellerman report of Conference between General Whitney and Dr. Matsumoto of 22 February 1946
Present: Whitney, Kades Hussey, Rowell, Ellerman, Matsumoto, Yoshida & Shirasu.

Meeting of General Whitney, Colonel Kades, Commander Hussy, Lt. Col. Rowell, Miss R. Ellerman with Dr. Matsumoto, Mr. Yoshida and Mr. Shirasu, 22 February 1946.

Mechanics of Ratification
Mr. Matsumoto: We have accepted the ideas set forth in the draft of the new constitution, but we are not sure that it presents workable form.

General Whitney: We will be happy to work out that form with you. We have set forth principles, in this new constitution, and defined procedures that tie these basic principles together and will make them work. As far as matters of procedure are concerned we will discuss them with you. We have great respect for your experience and I know that you can draft an instrument more in tune with Japanese forms than I or my staff can. As General MacArthur told your Prime Minister yesterday, it is the basic principles and structure that we are insistent upon. I want a statement from you, Dr. Matsumoto, on how we are to approach this problem of workable form.

Dr. Matsumoro: To begin with we have no objections to the basic principles of your draft. But there are certain questions. Is it better to retain our present constitution and then revise it in terms of the basic principles you have set forth? Or, is it better to begin with a completely new document?

General Whitney: We have carefully considered that problem. We tried to use your present Constitution as a basis for revision. It was impossible. You must remember that this new Constitution is a document that will be presented to the world, and will demand the attention of the world. We consider that the meaning can be better expressed if an entirely new Constitution is written. A constitution that will revoke all laws and ordinances in conflict with the principles of the new Constitution.

Matsumoto: According to our present Constitution provision is made for acceptance (Dr. Matsumoto failed to make it clear whether he was referring to an amendment procedure or ratification of a new Constitution.)

Commander Hussey: Are you referring to a procedure for acceptance of this document? As an amendment to the present Constitution, for which your Constitution provides, or as a completely new Constitution? If the Emperor presents this new Constitution to the Diet, and then the Diet adopts it, there is no difficulty.

Col. Kades: What is the inconsistency between your procedure and the one set up in the new Constitution for acceptance?

Matsumoto: Under the present Constitution the initiative belongs to the Emperor. Your Constitution is presented in a form that would make this impossible, and the Emperor would have no initiative. The new Constitution starts out "We the Japanese People" and this makes the inconsistency. Also, the new Constitution states that ratification will be by 2/3 of the members of the Diet present. In the present Constitution it is required that 2/3 of all the members of the Diet must be present and then acceptance is by 2/3 vote of those present.
Further, we now have two Houses, and the new Constitution makes no provision for acceptance by the Upper House.

Commander Hussey: As to your first point, no real inconsistency is involved. In presenting the new Constitution the Emperor would act under the old Constitution. The Emperor would submit the Constitution to the Diet, the representatives of the people, and the Diet would adopt it. We have no objection in adding that the House of Peers will concur in the ratification.

Matsumoto: Then Article 92 in the new Constitution is superfluous, since we have already provided the procedure for acceptance.

Col. Kades: That is incorrect. Under your present Constitution, the new Constitution would not go through if sufficient members of the House of Peers stayed away. If 1/3 plus one of the members stayed quietly on their farms the new Constitution never would be ratified.
Commander Hussey: Amend Article 73 of your present Constitution to include our Article 92 and then the Constitution could go through.

General Whitney: This could be arranged. There is no doubt that the Constitution will be adopted if it is presented with the approval of the Supreme Commander, by the Emperor to the Diet. I don't anticipate any trouble in getting the concurrence of the Diet under your present provision. If there is, we can go through the back door. We will strike out our Article 92, if you like. Our only concern is getting this document before the people.

Col. Kades: Dr. Matsumoto, you say that acceptance demands a 2/3 vote of the whole membership. Does that mean 'present' members? What about the members of the Diet and the House of Peers who have been purged? Are they included?

Matsumoto: I am not sure. But I think it will mean 2/3 of the members of the House of Peers who remain and 2/3 of the total membership of the House of Representatives.

General Whitney: This is something that can be worked out later. The main issue is to find a workable compromise on ratification that can be approved by the Supreme Commander, the Emperor and the Diet.

The Preamble
Dr. Matsumoto: Is the Preamble a part of the Constitution?

General Whitney: Yes, definitely. Its purpose is to set forth the fundamental principles that guided the writing of the Constitution. It is important, too, because many people will read the Preamble who will not read the Articles. We want to present the Constitution to the World in as direct and favorable a fashion as possible.

Matsumoto: Then the Preamble will have to be so presented as to come from the Emperor.

Col. Kades: Won't that be taken care of by the Imperial Rescript that presents the Constitution to the Diet?
Matsumoto: Under the present Constitution the initial step for revision is taken by the Emperor himself. If the Constitution is presented with the Preamble, then the Preamble must be re-worded into the form that would be used by the Emperor in presenting a new Constitution to the people.

General Whitney: That puts the problem into a different complexion. Our concept of a Constitution is that it comes up from the people, not down to the people. The Emperor can precede the presentation of the Constitution by any step he likes. He can make a statement to the people that the new Constitution embodies principles for their guidance.

Shirasu: You mean that you have no objection to a preceding statement by the Emperor?

Col. Kades: No. Such a statement would be merely the cover sheet for the Preamble and the Constitution.

General Whitney: No, as long as the Emperor's statement does no violence to the principles embodied in the Constitution.

Commander Hussey: The procedure is quite clear. The Emperor speaks in presenting the Constitution to the Diet; when the Diet has and accepted the Constitution, it speaks as the people. The Emperor can state his position in the Imperial Rescript initiating the project.

General Whitney: In effect, the Emperor suggests to the people that they shall adopt the principles embodied in the Constitution. Then General MacArthur will proclaim to the world -- this is the Constitution now accepted by the Japanese people.

Matsumoto: I must study out all this procedure. But first, how many of the articles in the new Constitution do you consider basic and unalterable? I want to advise the Cabinet what and how many of the Articles are absolutely necessary.

General Whitney: We feel that the whole Constitution as written is basic. We accept the fact that in presentation our language will be subject to modification in order to make it better understood by the Japanese people, and the form will be subject to modification in those instances where the procedure set forth, is in your opinion, unworkable in terms of the Japanese situation. But in general, we regard this document as a unit.

Col. Rowell: The new Constitution was written as an interwoven unit, one section fitting into another, so there is no one section or chapter that can be cut out.

Unicameral Legislature
Matsumoto: Is the one legislature a basic necessity?
General Whitney: General MacArthur explained to the Prime Minister yesterday that he could see no situation in Japan that necessitated a two house system. However, 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. General MacArthur put in the unicameral system because he thought it the simplest and most workable arrangement.

Matsumoto: You have no objection if both houses are elected by popular vote. Could a system such as the one used in the election of the American President qualify as direct voting? The Electoral College?

Commander Hussey: Are you asking whether we would accept election of the Upper House by vote of the prefectural assemblies as direct election?

Matsumoto: Yes.

General Whitney: Election of the Upper House by the prefectural assemblies would be acceptable as long as these assemblies were themselves elected by popular vote.

Matsumoto: What if the Upper House contained a minority of members elected by the Cabinet or some such body?

General Whitney: General MacArthur will not accept that. He insists upon popular vote in every sense of that term. He will accept election by assemblies because they are themselves popularly elected. But, the Supreme Commander will not tolerate any procedure remotely resembling the Chamber of Corporations system of the Mussolini regime. That means a Corporate State and is not acceptable.

Renunciation of War
Matsumoto: Might the Renunciation of War be inserted someplace in the Preamble, rather than be given a chapter of its own.

General Whitney: The Renunciation of War was placed deliberately in a separate chapter in order to give all the emphasis possible to this important Article. As I stated to Mr. Yoshida, and the Supreme Commander stated to Mr. Shidehara yesterday, this Article affords Japan the opportunity to assume the moral leadership of the world in the movement towards lasting peace. The Renunciation of War should not be buried amongst the enunciation of other principles; rather, it must be stated boldly in order to serve its full purpose. General MacArthur feels that this principle will do more to attract the favorable attention of the world than anything else. And this is a time in which Japan needs the favorable attention of the world.

Matsumoto: It would be less unsuitable if it were written in the Preamble. It is unusual to have this principle stated in the body of the Constitution rather than in the Preamble.

Commander Hussey: You mean, Dr. Matsumoto, that you would prefer to have it stated merely as a principle.

Matsumoto: Yes, that is so.

Commander Hussey: While we appreciate that position, we feel that the renunciation should be incorporated in the basic law itself, that this would give it real force.

General Whitney: The enunciation of this principle should be unusual and dramatic. We made it Chapter II rather than Chapter I of the Constitution in deference to the Emperor and his place in the hearts of the Japanese people. For my own part, and in terms of its decisive importance, I should prefer the Renunciation of War to the Chapter I of the new Constitution.

New Imperial House Law

Matsumoto: Is it essential that the Imperial House Law be enacted by the Diet? Under the present Japanese Constitution the Imperial House Law is made up by members of the Imperial Household. The Imperial Household has autonomy.

General Whitney: Unless the Imperial House Law is made subject to approval by the representatives of the people, we pay only lip service to the supremacy of the people.

Col. Kades: We have placed the Emperor under the law, as in England.

Col Rowell: At present the Imperial House Law is above the Constitution.

General Whitney: Unless the Imperial House Law is enacted by the Diet the purpose of the Constitution is vitiated. This is an essential article.

Matsumoto: Is this, control of the Imperial House Law by the Diet, a basic principle?
General Whitney: Yes.

Similarity of Articles in the Present and New Bill of Rights
Matsumoto: Some of the Articles you have written in the new Constitution are merely repetitions of those already in the present Constitution.

General Whitney: Good. Those laws already embodied in your present Constitution will remain undisturbed in their functioning. Only those inconsistent with the fundamental rights enunciated in the new Constitution will be abrogated.

The Judiciary: Appointment of Supreme Court
Matsumoto: In article 71 it is stated that the justices of the Supreme Court are to be appointed by the Diet. That will make the Supreme Court an unstable institution.

Government Section in unison: That is a misreading of the text. Supreme Court justices are to be appointed by the Cabinet; it is only the number of associate justices that will be determined by the Diet.

Problems of Form and Translation
Matsumoto: If we base the new Constitution on your draft, we must have your draft rewritten in Japanese. It will take a great deal of time to put it into classical Japanese as used by the Emperor. It will be difficult, people are very particular about form in Japanese and will argue for weeks about one phrase. The beginning of the Preamble will be especially difficult to translate. The Diet argued for weeks about the phrase (the will of the people' used by the Foreign Minister some years ago in concluding an anti-war treaty.

General Whitney: As General MacArthur explained to the Prime Minister yesterday, we do not press you for time in order to orient your opinion in one way or another, but General MacArthur believes that in putting this Constitution through speed is essential. General MacArthur feels that since he is in complete charge of the situation he can put a document such as this through; he wishes this for the express purposes that he explained to your Prime Minister yesterday. We are now in agreement as to principles, and I and my Staff will assist you in every way possible. I cannot impress upon you too much how important the time element is.

Matsumoto: It is not a difficulty of spirit between us but a question of words and phraseology.

General Whitney: We are fortunate in having so able a man as you, Dr. Matsumoto, to carry this work through, but speed is essential. I know that you must carefully work over this document, section by section, and I can understand that this may take a day or two, but it must not be spread over a number of days.

Yoshida: We will not delay unnecessarily.

General Whitney: You propose, then, merely to put this new Constitution in proper language and phraseology acceptable to the Japanese people, but without working any essential change in the basic principles set forth? How long will this take?

Matsumoto: I cannot say. I will have to have the approval of the Cabinet before I can say definitely. I must explain this afternoon's conversation to the Cabinet, but I will begin the work of putting this document into the proper language at the same time.

General Whitney: This afternoon's conversation added nothing new to what the Prime Minister was told yesterday by General MacArthur. I understood that the Prime Minister gave the substance of that conversation to the Cabinet this morning.

Matsumoto: The Prime Minister explained merely the general principles to the Cabinet, but the basic form was not discussed. After this conversation with you I will give full details to the Cabinet.

General Whitney: If you wish some of my officers to sit beside you as you put this Constitution into the proper form in order to determine whether the basic principles are violated by the changes in form, I will be happy to make officers available to you.

Colonel Kades: Hasn't our draft been translated already?

Shirasu: Yes, but it has not been put into the form in which our Constitution could be presented to the people.

Yoshida: We will have a Cabinet meeting on Tuesday. After that meeting we will be able to tell you how many days the work of translation and form will take. We trust that you will preserve perfect secrecy on these discussions.

General Whitney: Complete security will be maintained, of course. I will report to General MacArthur that you, Dr. Matsumoto, will have this work of translation completed well before the end of next week. You have the satisfaction of knowing that your fee for this work will be the highest possible -- the welfare of the Japanese people.

Colonel Kades: Would you like us to go over the English with you again, so that you are sure that you understand the principles embodied in the articles?

Shirasu: That will not be necessary. We understand.

General Whitney: Good. Everything is now clear. The only problem remaining is to put this document into good form.
Copyright©2003-2004 National Diet Library All Rights Reserved.