Constitutional Change and Identity

1. 2013 JSAC University of Saskatchewan October 4-6, 2013 Constitutional Change and Identity Norio Ota York University

2. The Upper House Election • Abe's triumph breaks a deadlock in the Diet and may end the leadership shuffle that has given the country a rotating cast of prime ministers for much of the past seven years. It also threatens to usher in a more militaristic Japan, as well as a revitalized manufacturing base — buoyed by hyper-cheap government money — that has some of its critics and trading partners more than a little worried. • "Abe himself, but also his entourage, have stayed on message so far not in order to just do economics, but also to push their nationalistic agenda," says political science professor Koichi Nakano of Sophia University. "He's a hardcore nationalist with a very jarring, revisionist view of history." • Abe learned a tough lesson from the 2007 campaign when voters panned his plans to beef up patriotic education and revise the pacifist constitution so that Japan's Self-Defense Forces could be made into a military. The day he was sworn in for the second time, he admitted he had once been "on fire with ideals," and so he dressed up his vision with a fiscal framework. • "The restoration of a robust economy is a truly urgent issue," he said. "A robust economy is a source of national strength for Japan." • Abe and his supporters say the current constitution doesn't reflect the will of the Japanese people because it was created while the country was under occupation (it went into effect in 1947). They also say the security situation in Asia has evolved, and the document should evolve with it. • "Many people ask me why Japan is now trying to change the constitution," political scientist Shinichi Kitaoka told NHK. "But the right question should be, why has Japan never changed the constitution until now?" • Any revisions would require approval by two-thirds or more of the lawmakers in both chambers of the Diet, then majority support in a public referendum. Prime Minister Abe has the power in the lower house. His convincing victory Sunday now means the upper house could be within reach as well. (Dale, 2013)

3. Freedom and People’s Rights Movement（自由民権運動） • Japan’s liberal democratic tradition • Freedom and People’s Rights Movement • Taisho Democracy • Post-war period

4. Ueki Emori植木枝盛 • ToyoDai-Nippon National Constitution Proposal (1881) Right of exiting, no death penalty Protection of freedom and privacy Foreigner’s naturalization Protection of privacy, rights for resistance No torture, basic human rights

5. Itsukaichi constitution proposal 五日市憲法草案 • Chiba Takusaburou千葉宅三郎 (1881) • 第二篇 公法 • 第一章 国民ノ権利 • 四五 日本国民ハ各自ノ権利自由ヲ達ス可シ他ヨリ妨害ス可ラス且国法之ヲ保護ス可シ (freedom) • 四六 日本国民ハ国憲許ス所ノ財産智識アル者ハ国事政務ニ参与シ之レカ可否ノ発言ヲシ之ヲ議スルノ権ヲ有ス • 四七 凡ソ日本国民ハ族籍位階ノ別ヲ問ハス法律上ノ前ニ対シテハ平等ノ権利タル可シ (equality) • 四八 凡ソ日本国民ハ日本全国ニ於テ同一ノ法典ヲ準用シ同一ノ保護ヲ受ク可シ地方及門閥若クハ一人一族ニ与フルノ時権〔特権〕アルコトナシ (no special privilege) • 四九 凡ソ日本国ニ在居スル人民ハ内外国人ヲ論セス其身体生命財産名誉ヲ保固ス • 五一 凡ソ日本国民ハ法律ヲ遵守スルニ於テハ万事ニ就キメ検閲ヲ受クルコトナク自由ニ其思想意見論説図絵ヲ著述シ之ヲ出板シ或ハ公衆ニ対シ講談討論演説シ以テ之ヲ公ニスルコトヲ得ヘシ (no censorship) • 五二 凡ソ思想自由〔ノ〕権ヲ受用スルニ因リ犯ス所ノ罪アルトキハ法律ニ定メタル時機ニ程式ニシテ其責ヲ受ク可シ著刻犯ノ軽重ヲ定ムルハ法律ニ定メタル特例ヲ除クノ外ハ陪審官之ヲ行フ (freedom of thought)

6. Itsukaichi constitution proposal 五日市憲法草案 (cont.) • 五三 凡ソ日本国民ハ法律ニ拠ルノ外ニ或ハテ之ヲ為サシメ〔ラレ〕或ハ疆テ之ヲ止メシメラルヽ等ノコトアル可ラス • 五四 凡ソ日本国民ハ集会ノ性質数人連署或ハ一個人ノ資格ヲ以テスルモ法律ニ定メタル程式ニ循拠シ皇帝国会及何レノニ向テモ直接ニ奏呈請願又上書建白スルヲ得ルノ権ヲ有ス • 五六 凡ソ日本国民ハ何宗教タルヲ論セス之ヲ信仰スルハ各人ノ自由ニ任ス然レトモ政府ハ何時ニテモ国安ヲ保シ及各宗派ノ間ニ平和ヲ保存スルニ応当ナル処分ヲ〔為〕スコトヲ得 (religion) • 五八 凡ソ日本国民ハ結社集会ノ目的若クハ其会社ノ使用スル方法ニ於テ国禁ヲ犯シ若クハ国難ヲ醸スヘキノ状ナク又ヲ携フルニ非ズシテ平穏ニ結社集会スルノ権ヲ有ス (meeting) • 五九 凡ソ日本国民ノ信書ノ秘密ヲ侵スコトヲ得ス其信書ヲ勾収スルハ現在ノ法律ニ依リ法ニ適シタル又ハ探索ノ場合ヲ除クノ外戦時若クハ法〔衙〕ノ断案ニニ非レバ之〔ヲ〕行フコトヲ得ス • 七一 国事犯ノ為ニ死刑ヲ宣告サルヽコトナカル可シ (privacy) • 七七 府県令ハ特別ノ国法ヲ以テ其綱領ヲ制定セラル可シ府県ノ自治ハ各地ノ風俗習例ニ因ル者ナルカ故ニ必ラス之ニ干渉妨害ス可ラス其権域ハ国会ト雖トモ之ヲ〔侵〕ス可ラサル者トス • (autonomy of local governments) • (Akiru no City digital archive: http://archives.library.akiruno.tokyo.jp/about/hyouka.html)

7. Who inserted Article 9? • The Constitution of Japan (1947) Article 9 • Their work resulted in a thoroughly progressive document. Although the emperor was acknowledged as the head of state, he was stripped of any real power and essentially became a constitutional monarch. A bi-cameral legislature with a weak upper chamber was established, and with the exception of the Imperial family, all rights of peerage were abolished. Thirty-nine articles dealt with what MacArthur called "basic human liberties," including not only most of the American bill of rights, but such things as universal adult sufferage, labor's right to organize, and a host of marriage and property rights for women. But the most unique and one of the most important provisions came in Article 9, which outlawed the creation of armed forces and the right to make war. It's not clear whether or not the "No-war clause" originated with MacArthur, but it certainly would not have been included without him, and its presence in the constitution has had an enormous impact on Japan's postwar history. • General MacArthur was the first person to write down the idea that the Japanese constitution would renounce war. Researchers agree that the idea was first introduced between General MacArthur and Prime Minister Shidehara. However, there has been a debate as to which one conceived the idea. Both claimed the other told them first, a debate now impossible to settle because both have passed away. • The final draft was further amended during the Diet session, as the Constitutional Amendment Committee chaired by Dr. Hitoshi Ashida proposed. The Committee introduced the phrases “aspiring sincerely to an international peace based on justice and order” to the top of paragraph 1 and “in order to accomplish the aim of the preceding paragraph” to the top of paragraph 2, among other changes of wordings. Dr. Ashida reported to the Diet that the proposed changes aimed to express motives of renunciation of war and disarmament and that the meaning of article 9 was not changed because of the proposed change. However, he claimed that the change made it possible for Japan to rearm for its self-defense later. This proposal was accepted by the Diet. The final article 9 reads: 1. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. 2. In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

8. Was Post-war Constitution imposed? • Secondly, Koseki believes there are as many lines of continuity as discontinuity because conservative Japanese officials were successful at "Japanizing" the American draft of the postwar constitution by revising it in ways that connected it to Japan's imperial past and to the Meiji Constitution.[6] Contrary to popular belief, the postwar Constitution was not simply imposed upon a war-weakened Japan and rammed down the throats of conservative Japanese political leaders by an omnipotent General MacArthur. Koseki demonstrates that Japanese officials revised and translated the American-written draft in ways that made the finished product more palatable to their conservative, traditional view of the relationship between the Japanese government and the Japanese people. (Van Santo, 1999) • Democracy by ‘imposition’ cannot thrive if it doesn’t derive from past historical experiences and if it is imposed by sheer force. Japan’s democratic experiences from the Meiji Restoration and the Taisho democracy as well as the consensual and negotiated ‘imposition’ by the SCAP prove this. The past experience of reforming the feudal system, of enabling elections and of having democracy as one of the Restoration’s goals, among others, were the seeds that the Americans reaped in the aftermath of WWII; “This almost wholesale adoption of a ‘foreign’ model owed much of its success, however, to Japan’s own democratic tradition”(Banno, 2001:i). At the same time these seeds would have been worthless if they would have been ignored or stumbled upon; actually “much that lies at the heart of contemporary Japanese society (…) derives from the complexity of the interplay between the victors and the vanquished” (Dower, 1999:28) A mix of history and future, change and continuity was the recipe for Japan’s redemocratization. • During the last years of pre-war Japan, its democratic system and constitutional government “dissolved in a moment. However, they resurfaced in post-war politics, exerting a definite influence on today’s constitutional regime” (Banno, 2001:84). This is the proof that there was no real imposition but a negotiation between the interests of the winners and the historical background, ideas and values of the losers. … the lesson from this particular experience is that democracy cannot be imposed undemocratically; it has to have connections with the ast and has to be negotiated and derived somehow from the consensus of people. (Palabra, 2008?)

9. LDP 2012 Draft • LDP 2012 Draft of Constitutional Revision • On 27 April 2012, the LDP drafted a new version of amendment with an accompanying bookletdescribing an explanation for general readers. The booklet states that the spirit of the amendment is to "make the Constitution more suitable for Japan" by "drastically revising the translationese wording and the provisions based on the theory of natural human rights currently adopted in the Constitution".The proposed changes includes: • Preamble: In the LDP draft, the Preamble declares that Japan is reigned by the Emperor and adopts the popular sovereignty and triaspolitica principles. The current Preamble refers to the government as a trust of the people (implying the "natural rights codified into the Constitution by the social contract" model) and ensures people "the right to live in peace, free from fear and want", but both mentions are deleted in the LDP draft. • Emperor: Overall, the LDP draft adopts a wording that sounds as though the Emperor has greater power than under the current Constitution.The draft defines him as "the head of the State" (Article 1).Compared to the current Constitution, he is exempted from "the obligation to respect and uphold this Constitution" (Article 102). The draft defines Nisshōki and Kimigayoas the national flag and national anthem, respectively (Article 3).

10. LDP 2012 Draft (cont.) • Human Rights: The LDP draft, as the accompanying booklet states, revises many of the human right provisions currently adopted in the Constitution. The booklet describes the reason of these changes as: "Human rights should have ground on the State's history, culture and tradition" and "Several of the current constitutional provisions are based on the Western-European theory of natural human rights; such provisions therefore require to be changed.“ The draft lists every instance of the basic rights as something that is entitled by the State — as opposed to something that human beings inherently possess — as seen in the draft provisions of "new human rights" (see below). • The current Constitution has the phrase "public welfare" in four articles (Articles 12, 13, 22 and 29) and states that any human right is subject to restriction when it "interferes with the public welfare". The majority of legal professionals argue that the spirit of such restriction against rights based on "public welfare" is to protect other people's rights from infringement.In the LDP draft, every instance of the phrase "public welfare" is replaced with a new phrase: "public interest and public order". The booklet describes the reason for this change as "to enable the State to restrict human rights for the sake of purposes other than protecting people's rights from infringement",but it remains unclear under what conditions the State can restrict human rights. It also explains that what "public order" means is "order of society" and its intention is not to prohibit the people from making an objection to the government,but it explains nothing about "public interest". Provisions regarding the people's rights modified and/or added in the LDP draft include: Individualism: The LDP draft replaces the word "individuals" with "persons" (Article 13). This change reflects the draft authors' view that "excessive individualism" is an ethically unacceptable thought.

11. LDP 2012 Draft (cont.) • Human rights and the supremacy of the Constitution: The current Constitution has Article 97 at the beginning of the "Supreme Law" chapter, which stipulates that the Constitution guarantees the basic human rights to the people. The current, prevalent interpretation of Article 97 is that this article describes the essential reason why this Constitution is the supreme law, which is the fact that the Constitution's spirit is to guarantee human rights. In the LDP draft, this article is deleted and the booklet does not explain any reason for the deletion. • Freedom of assembly, association, speech and all other forms of expression: The LDP draft adds a new paragraph on Article 21, which enables the State to prohibit the people from performing expressions "for the purpose of interfering public interest and public order". The LDP explain that this change makes it easy for the State to take countermeasures against criminal organizations like AumShinrikyo. • Right to property: The LDP draft adds a new paragraph stating that the State shall define intellectual property rights "for the sake of promotion of the people's intellectual creativity" (Article 29). • Workers' rights: Workers have the right to participate in a labor union, but currently there is a dispute on whether public officials should be entitled to this right. The LDP draft add a new paragraph to make it clear that public officials shall not enjoy this right or part thereof (Article 28). • Freedom from torture and cruel punishments: Under the current Constitution, torture and cruel punishments are "absolutely forbidden", but the LDP draft deletes the word "absolutely" (Article 36). The reason for this change is not presented in the booklet. • "New human rights": The LDP draft adds four provisions regarding the concept collectively called "newhuman rights": protection of privacy (Article 19-2), accountability of the State (Article 21-2), environmental protection (Article 25-2), and rights of crime victims (Article 25-4). However, the draft only requires the State to make a good faith effort to meet the stated goals and does not entitle the people these "rights", as the booklet points out.

12. LDP 2012 Draft (cont.) • Obligations of the People: The LDP draft can be characterized by its obligation clauses imposed on the people. The current Constitution lists three obligations: to work (Article 27), to pay taxes as provided for by law (Article 30), and to have all boys and girls under their protection receive ordinary education as provided for by law (Article 26). The LDP draft adds six more: • The people must respect the national anthem and flag (Article 3). • The people must be conscious of the fact that there are responsibilities and obligations in compensation for freedom and rights (Article 12). • The people must comply with the public interest and public order (Article 12). • The people must help one another among the members of a household (Article 24). • The people must obey commands from the State or the subordinate offices thereof in a state of emergency (Article 99). • The people must uphold the Constitution (Article 102). • Additionally, although defense of the national territory (Article 9-3) and environmental protection (Article 25-2) are literally listed under the LDP draft as obligations of the State, these provisions let the State call for the "cooperation with the people" to meet the goals provided, effectively functioning as obligation clauses on the people's side.

13. LDP 2012 Draft (cont.) • Equality: The current Constitution guarantees equality, prohibiting any discrimination based on "race, creed, sex, social status or family origin". The LDP draft adds "handicaps" (Articles 14 and 44) between "sex" and "social status", improving the equality under the law. On the other hand, the sentence "No privilege shall accompany any award of honor, decoration or any distinction" in the current paragraph (2) of Article 14 is deleted in the LDP draft, which means that the State shall be allowed to grant "privilege" as part of national awards. The reason for this change is not presented in the booklet. • National Security: The LDP draft deletes the current provision declaring that armed forces and other war potential shall never be maintained, and adds new Articles 9-2 and 9-3 stating that the "National Defense Force" shall be set up and the Prime Minister shall be its commander-in-chief. According to the paragraph (3) of the new Article 9-2, the National Defense Force not only can defend the territory from a foreign attack and can participate in international peacekeeping operations, but also can operate in order to either maintain domestic public order or to protect individual rights. • State of emergency: The LDP draft grants the Prime Minister the authority to declare a "state of emergency" in a national emergency including foreign invasions, domestic rebellions and natural disasters (Article 98). When in a state of emergency, the Cabinet can enact orders that have the effect equivalent to that of the laws passed by the National Diet (Article 99). • Relaxation of Separation of Religion and the State: The LDP draft deletes the current clause that prohibits the State from granting "political authority" to a religious organization, and enables the State to perform religious acts itself within the scope of "social protocol or ethno-cultural practices" (Article 20).

14. LDP 2012 Draft (cont.) • Political Control over the Courts: Unlike the current Constitution, which guarantees that the Supreme Court judges shall not be dismissed unless the "review" procedure stipulated by the Constitution, the LDP draft enables the Diet to define this review procedure through a Diet-enacted law, not the Constitution (Article 79). The draft also states that salary of a judge —　of both the Supreme Court and inferior courts　— could be decreased in the same manner as any other kinds of public officials (Articles 79 and 80) by the subordinate offices of the State (namely, the National Personnel Authority). • Further Amendments: The LDP draft states that a simple majority in the two Houses shall be adequate for a motion for constitutional amendment (Article 96). An actual amendment shall still require a national referendum, but a simple majority in "the number of valid votes actually cast", as opposed to "the number of a qualified voter" or "the number of votes", shall enact the amendment (Article 96). (Source: Constitution of Japan: http://en.wikipedia.org/wiki/Constitution_of_Japan)

15. The LDP’s Ten Most Dangerous Proposals for Constitutional Change • 1.  Rejecting the universality of human rights • 2. Elevating maintenance of “public order” over all individual rights • 3.   Eliminating free speech protection for activities “with the purpose of damaging the public interest or public order, or associating with others for such purposes” • 4.   Deleting the comprehensive guarantee of all constitutional rights • 5.   Attack on the “individual” as the focus of human rights • 6. New Duties for the People • 7. Hindering freedom of the press and critics of government by prohibiting the “wrongful acquisition, possession and use of information relating to a person” • 8. Granting the prime minister new power to declare “states of emergency” when the government can suspend ordinary constitutional processes • 9.   Changes to Article Nine • 10. Lowering the Bar for Constitutional Amendments (Repeta 2013)

16. U.S.-Japan alliance • Things are different today, and the treaty that used to encourage Japan to grow unfortunately now does the opposite. The treaty caps Japan's political maturation by separating Japan's responsibilities from its interests. A modern state is responsible for all aspects of its own defense, including defense of its allies and interests abroad. When Japan cedes overseas defense responsibilities to the United States, it reduces the scope of Japan's foreign policy accordingly. • This has far-reaching implications. A government disengaged from Japan's foreign interests creates a people uninterested in engaging the outside world. The Japanese outlook is narrowed to a world in which threats are rare and national interests abroad are taken care of by someone else. As a nation reliant on the global system (99.6 percent of Japan's petroleum is imported) to ensure survival, let alone prosperity, an inward-turning Japan is unacceptable. • Japan's reliance on the United States for protection undermines Japanese credibility in the world. It projects the image of an economically strong country that is unable to defend itself. It doesn't matter that Japan finances many of the U.S. forces based in its country, or that it supplies the land. What matters is the fact that Vietnam is fully responsible for its own defense, and yet somehow Japan is not. A country not responsible for its own defense is not the equal of a country that is. • It's not that Japan doesn't have a reason to defend itself. Japan does live in a dangerous neighborhood: three neighbors possess nuclear weapons, with one openly hostile (North Korea) and the other two having long-standing territorial disputes with Japan. As the third largest economy in the world, Japan no longer needs another country to protect it and its interests. Japan has the ability to build a force capable of defending itself, but it chooses not to. • The alliance also compromises Japanese sovereignty in a way that is no longer justifiable. Under the terms of the 1960 treaty Japan has no veto rights over American deployments of troops and equipment to Japanese territory. There are good reasons for this: American forces and personnel rotate in and out of Japan so often that it would be inefficient to negotiate the transfer of every ship and squadron. But theoretically the United States could deploy its entire armed forces to Japan, so long as it "contributes to the security of Japan and the maintenance of international peace and security in the Far East." • Such a provision was a good idea when Japan was politically, economically, and militarily weak, but it was justified by Japan's weakness. Today, Japan is not weak. Japanese citizens must live with the reality that a foreign power can send military forces to Japan at will, without their having a say in the matter. If we want the Japanese to assume the role of an equal partner, they must have greater input on what happens on their own soil. • (Mizokami, 2012)

17. U.S. view • The inevitability of reforms in the long term is without question. Reform is inevitable in that it is driven by nationalism and Japan’s desire to take a more prominent role in global affairs, which necessitate Article 9’s revision. Flexible interpretation of Article 9 has stretched the SDF’s activities beyond any semblance of the original meaning, and as it now stands, the SDF’s activities undermine the legitimacy of Japan’s constitution and undermine the establishment of a credible adherence to a rule of law. • As Japan slowly moves closer to revising its constitution, it must balance its desire to be a “normal” state while at the same time reassuring its closest neighbors that it is not shedding its pacifist ideals. Any discussion involving the possible revision of Article 9 is met with concern from China and North Korea, with each country considering Article 9 to be an impressive document which has prevented a return to militarism. While there is sound evidence that supports their claim, both countries fail to acknowledge that their provocation has encouraged Japan’s accelerated military buildup and has encouraged deeper security alliances with the United States. Japan – having clearly felt the destructive misery of war – has no desire to engage in combat, preferring to wage its wars in the global marketplace. Japan acts in response to China, which is consistently outspoken in its readiness to use force to settle international disputes. With Beijing engaged in territorial disputes with a number of nations, occupied with suppressing bids for independence in others, and controlling and shaping the flow of information to its people, China’s actions greatly contrast the peaceful rise mantra so often heard in the tightly controlled Chinese media. There can be little doubt that China’s activities are done in light of considering themselves, at minimum, the regional hegemon and Japan as a rival which is about to be overtaken. There can be no surprise that Japan has steadily increased its military capabilities. North Korea offers a somewhat more “intimate” geo-political scenario in that a focused strike could devastate Tokyo within moments. Unlikely, but it is difficult to not understand Japan’s concern and its subsequent military buildup and alliances with the United States. While this argument justifying a military buildup may be sustained based on the above examples, the possibility of initiating Article 9 revisions, when there are abundant issues of contention between Japan and its Asian neighbors that need to be addressed, adds considerably to the rise of regional tensions. • (Panton 2011)

18. U.S. view (cont.) • After the fall of the Communist Bloc and the advent of a post-9/11 security environment, the treaty has not evolved to meet rising threats in the region. Specifically, due to Japan’s continuing constitutional ban of collective self-defense (CSD) with any foreign power including the United States, the security arrangement between the U.S. and Japan has stagnated while threats in the region increase. This ban limits military options to Japan’s decision makers and hinders effective responses to an array of defense problems. U.S. operational commanders in the Pacific theater are also concerned about the inadequacies of the treaty as they plan to combat the same regional threats. (Sultenfuss 2011) • The Japanese move toward constitutional amendments has been hailed by Washington, if not officially, as clear evidence that Tokyo is going in the right direction to become a more reliable and responsible security partner regionally and globally. • The Abe government has also expressed a strong desire to further expand the boundaries of Japan’s military activities, even under the current constitution. Successive Japanese governments have interpreted the constitution as prohibiting the nation from exercising its right to collective defense, or the right to come to the military aid of an ally under attack. • But the Abe government wants to allow the nation to help the U.S. in certain emergencies, including striking down ballistic missiles headed their way. The government has set up a panel of experts, chaired by former Ambassador to Washington ShunjiYanai, to launch detailed discussions on a limited number of contingencies in which Japan could mobilize its forces if the U.S. were to come under attack. (Masaki 2007)

19. Foreign supporter • The objective of the revisionists—most importantly Abe’s LDP and allies in the Japan Restoration Party and Your Party—is to change the two-thirds of both Diet houses requirement to one-half.  Lowering the Diet vote bar would open wide the door to future revisions. Indeed, it would allow—possibly ensure—eventual scrapping of the foreign-imposed constitution and its replacement by something indigenous and truly reflecting the will of the Japanese people. • Are we talking about radical change?  More to the point and probable concerns of Japan’s Asian neighbors, are we talking about a possible return to emperor worship and militarism?  Here there should be no doubt.  Absolutely not.  Japan today is a wholly different polity and changed society from that which prevailed in the 1930s.  Japan, more than many countries, has learned from its history.  It has embraced pacifism as national policy. • (Harner, 2013)

20. U.S. official policy • Now there is, and has been at various times including recently, discussion within the Japanese community about the possibility of constitutional reform or reinterpretation of policies. That is the issue that only the Japanese people can decide on, and in Japan as in every country, the people and their elected representatives have a sovereign right to hold that debate and to make those kinds of decisions. • The term “collective security” is often heard and often used. The answer to the question “What should countries like the United States or other of Japan’s neighbors think about collective security?” is dependent on the answer to the question “What exactly does it mean? What is Japan trying to do?” • For the United States, the bottom line is this: Japan is a valued and trustworthy security partner. Finding ways within the context of the alliance to enhance Japan’s ability to defend itself and to enhance Japan’s ability to contribute to the stability and security of the region is a good thing. We believe that what Japan is doing regionally to promote partner capacity, what Japan is doing in support of humanitarian assistance and disaster relief efforts and what Japan is doing in international peacekeeping operations are also all to the good. So there are debates that need to occur within Japan. There are decisions that need to be made by the Japanese government, but throughout the level of communication and cooperation between our defense institutions and between our political and diplomatic leadership is excellent, and I have every confidence that in the period ahead, the alliance will be strengthened by the decisions that Japan and the United States take. • (Russel, 2013)

21. What constitutional revisionists are saying • Why Should the Current Japanese Constitution be Amended?Is there any other constitution as abnormal as this?The current Japanese constitution was written with malice and vengeance by the occupying force in the aftermath of World War II in a way that denied the Japanese history, cultures and traditions almost completely so that Japan could never rise again from the ashes of the war.Nobody at the GHQ (General Headquarters) of the occupying force would have imagined that the constitution based on a shoddy draft written in a mere week would last without any amendment for so long.Japan, which is slipping along the path of “a country of sunset,” has no time to waste to amend the constitution if it is to regain its pride and win back the respect of the international community. --- Editor • As a solution, by far the best thing to do is amending the existing constitution or creating an entirely new one. We should start by revising the preamble, which is too nondescript and matter-of-fact. In the Meiji Era (that began with the radical reform of the three-centuries-old political system of the Tokugawa Shogunate), Japan actively absorbed European cultures, and thereafter, it continued to introduce foreign cultures, mainly from Europe and the United States. Japan’s identity is represented by what is known as kokutai. Kokutai, a word with which younger generations are not familiar, refers to national heritage. Japan’s national heritage is encapsulated in the dynasty of the Imperial Household. European kings and Chinese emperors reigned as conquerors. However, the Japanese Imperial Household has lasted until now on the basis of authority rather than power (the era of Emperor Godaigo is an exception). In the Meiji Era, the Emperor was invested with power, but this arrangement was necessary for Japan to become a modern country, so Emperor Meiji should not be seen in the same light as Emperor Godaigo. With two millennia of history behind it, the Imperial Household is something that we can uphold proudly to the world. Thanks to this heritage, Japan has maintained unity based on the fine balance between authority, power and people. The Japanese people have pursued peace and loved nature based on the national heritage centering on the Imperial Household. The network of human connections underpinned by bonds between various people, including blood relations, friends and co-workers has fostered Japan’s national heritage. A constitutional preamble that includes references to these things would be something that we can proudly uphold to the world.　To that end, we should first revise the provision of Article 96 of the constitution that requires a two-thirds majority in both the House of Representatives and the House of Councillors for the initiation of constitutional amendment so that amendment can be put to a referendum according to the standard rule of democracy, namely if a one-half majority support is obtained in the Diet (the Japanese parliament). This should be the ground rule for debate between pro- and anti-amendment forces. (Japan Institute for National Fundamentals 2012)

22. Revisionist (cont.) • Kitagami: To my mind, the current preamble lacks references to the national heritage. In this respect, it is important that a national consensus be formed through a nationwide debate. Let me offer some personal thoughts. First, regarding the conduct of political affairs in Japan, the oldest existing imperial edict, which was issued by Emperor Monmu, states that political affairs should be conducted with “a clear, pure, and straightforward and conscientious mind.” The values treasured by Japan like these should be included in the preamble.　Second, it should naturally be mentioned that the Imperial Household as represented by the Emperor is at the heart of Japan as a nation, as is indicated in the LDP’s draft that was cited earlier.　The third element is the Charter Oath that Ms.Sakurai mentioned earlier. (Former Prime Minister) Shigeru Yoshida said at a plenary session of the House of Representatives in the aftermath of the war that the Charter Oath represents Japan’s national policy. I quite agree with that view. The Charter Oath was established on the occasion of the Meiji Restoration. In his radio broadcast announcing the defeat of Japan, Emperor Showa took the trouble of quoting this oath. • Sakurai: As you can see from the panelists’ comments, the Japanese ways of making decisions and conducting political affairs used to be really democratic. The principle “Deliberative assemblies shall be established on an extensive scale, and all governmental matters shall be determined by public discussion” represents the essence of democracy. The Charter Oath was announced in March of the year that the Meiji Restoration started. This made clear what kind of country Japan should be. The oath was announced by Emperor Meiji himself immediately after the decision was taken to make Japan a modern nation at the beginning of the Meiji Restoration. The origin of the Charter Oath can be traced back to the Seventeen-Article constitution that was established by Prince Shotoku. Since the establishment of the Seventeen-Article constitution in the seventh century, Japan has consistently preserved the same values.　We must realize that this was a democratic constitution that gave consideration to the welfare of the people to an amazing degree by international standards. • Sakurai: The Japanese people have nowhere to go other than Japan. There are many English-speaking countries and Christian civilization-based countries. But Japan is the only country centering on the Japanese civilization. We have no other country to flee to in a national crisis. If we are to defend our fatherland with its unique civilization, I would say we need to have a much stronger resolve and work much harder to do so than people in Christian civilization-based countries and Islamic civilization-based countries.　If we are to defend our beautiful country with its long history, we must start by tackling constitutional issues. • Sakurai: …… • It is important to let the world see that Japan is trying to do something with its horrible constitution. After many decades of torpor, the Japanese people are waking up and striving to regain themselves. I believe letting the world recognize that effort will help to gradually reduce the threat posed to Japan and will provide the most effective deterrence. I know of no other country as wonderful as Japan. To defend and preserve our country for future generations, let us work together to achieve constitutional amendment as early as possible. (JINF 2012)

23. Essence of Kokutai国体 ‘national polity’ • 惟ふに西洋の思想・学問について、一般に極端なるもの、例へば共産主義・無政府主義の如きは、何人も容易に我が国体と相容れぬものであることに気づくので あるが、極端ならざるもの、例へば民主主義・自由主義等については、果してそれが我が国体と合致するや否やについては多くの注意を払はない。抑々如何にし て近代西洋思想が民主主義・社会主義・共産主義・無政府主義等を生んだかを考察するに、先に述べた如く、そこにはすべての思想の基礎となつてゐる歴史的背 景があり、而もその根柢には個人主義的人生観があることを知るのである。西洋近代文化の根本性格は、個人を以て絶対独立自存の存在とし、一切の文化はこの 個人の充実に存し、個人が一切価値の創造者・決定者であるとするところにある。従つて個人の主観的思考を重んじ、個人の脳裡に描くところの観念によつての み国家を考へ、諸般の制度を企画し、理論を構成せんとする。かくして作られた西洋の国家学説・政治思想は、多くは、国家を以て、個人を生み、個人を超えた 主体的な存在とせず、個人の利益保護、幸福増進の手段と考へ、自由・平等・独立の個人を中心とする生活原理の表現となつた。従つて、恣な自由解放のみを求 め、奉仕といふ道徳的自由を忘れた謬れる自由主義や民主主義が発生した。而してこの個人主義とこれに伴ふ抽象的思想の発展するところ、必然に具体的・歴史 的な国家生活は抽象的論理の蔭に見失はれ、いづれの国家も国民も一様に国家一般乃至人間一般として考へられ、具体的な各国家及びその特性よりも、寧ろ世界 一体の国際社会、世界全体に通ずる普遍的理論の如きものが重んぜられ、遂には国際法が国法よりも高次の規範であり、高き価値をもち、国法は寧ろこれに従属 するものとするが如き誤つた考すら発生するに至るのである。　個人の自由なる営利活動の結果に対して、国家の繁栄を期待するところに、西洋に於ける近代自由主義経済の濫觴がある。西洋に発達した近代の産業組織が我 が国に輸入せられた場合も、国利民福といふ精神が強く人心を支配してゐた間は、個人の溌剌たる自由活動は著しく国富の増進に寄与し得たのであるけれども、 その後、個人主義・自由主義思想の普及と共に、漸く経済運営に於て利己主義が公然正当化せられるが如き傾向を馴致するに至つた。この傾向は貧富の懸隔の問 題を発生せしめ、遂に階級的対立闘争の思想を生ぜしめる原因となつたが、更に共産主義の侵入するや、経済を以て政治・道徳その他百般の文化の根本と見ると 共に、階級闘争を通じてのみ理想的社会を実現し得ると考ふるが如き妄想を生ぜしめた。利己主義や階級闘争が我が国体に反することは説くまでもない。皇運扶 翼の精神の下に、国民各々が進んで生業に競ひ励み、各人の活動が統一せられ、秩序づけられるところに於てこそ、国利と民福とは一如となつて、健全なる国民 経済が進展し得るのである。　教育についても亦同様である。明治維新以後、我が国は進歩した欧米諸国の教育を参酌して、教育制度・教授内容等の整備に努め、又自然科学はもとより精神 諸科学の方面に於ても大いに西洋の学術を輸入し、以て我が国学問の進歩と国民教育の普及とを図つて来た。五箇条の御誓文を奉体して旧来の陋習を破り、智識 を世界に求めた進取の精神は、この方面にも亦長足の進歩を促し、その成果は極めて大なるものがあつた。併しそれと同時に個人主義思想の浸潤によつて、学問 も教育も動もすれば普遍的真理といふが如き、抽象的なもののみを目標として、理智のみの世界、歴史と具体的生活とを離れた世界に趨らんとし、智育も徳育も 知らず識らず抽象化せられた人間の自由、個人の完成を目的とする傾向を生ずるに至つた。それと同時に又それらの学問・教育が、分化し専門化して漸く綜合統 一を欠き、具体性を失ふに至つた。この傾向を是正するには、我が国教育の淵源たる国体の真義を明らかにし、個人主義思想と抽象的思考との清算に努力するの 外はない。　かくの如く、教育・学問・政治・経済等の諸分野に亙つて浸潤してゐる西洋近代思想の帰するところは、結局個人主義である。而して個人主義文化が個人の価 値を自覚せしめ、個人能力の発揚を促したことは、その功績といはねばならぬ。併しながら西洋の現実が示す如く、個人主義は、畢竟個人と個人、乃至は階級間 の対立を惹起せしめ、国家生活・社会生活の中に幾多の問題と動揺とを醸成せしめる。今や西洋に於ても、個人主義を是正するため幾多の運動が現れてゐる。所 謂市民的個人主義に対する階級的個人主義たる社会主義・共産主義もこれであり、又国家主養・民族主義たる最近の所謂ファッショ・ナチス等の思想・運動もこ れである。　併し我が国に於て真に個人主義の齎した欠陥を是正し、その行詰りを打開するには、西洋の社会主義乃至抽象的全体主義等をそのまゝ輸入して、その思想・企画等を模倣せんとしたり、或は機械的に西洋文化を排除することを以てしては全く不可能である。　今や我が国民の使命は、国体を基として西洋文化を摂取醇化し、以て新しき日本文化を創造し、進んで世界文化の進展に貢献するにある。我が国は夙に支那・ 印度の文化を輸入し、而もよく独自な創造と発展とをなし遂げた。これ正に我が国体の深遠宏大の致すところであつて、これを承け継ぐ国民の歴史的使命はまこ とに重大である。現下国体明徴の声は極めて高いのであるが、それは必ず西洋の思想・文化の醇化を契機としてなさるべきであつて、これなくしては国体の明徴 は現実と遊離する抽象的のものとなり易い。即ち西洋思想の摂取醇化と国体の明徴とは相離るべからざる関係にある。　世界文化に対する過去の日本人の態度は、自主的にして而も包容的であつた。我等が世界に貢献することは、たゞ日本人たるの道を弥々発揮することによつて のみなされる。国民は、国家の大本としての不易な国体と、古今に一貫し中外に施して悖らざる皇国の道とによつて、維れ新たなる日本を益々生成発展せしめ、 以て弥々天壌無窮の皇運を扶翼し奉らねばならぬ。これ、我等国民の使命である。(Ministry of Education, 1927)

24. The Charter of the United Nations, Chapter 7, article 51 • Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

25. Critical views • However, sweeping changes proposed by Abe's Liberal Democratic Party (LDP) in a draft constitution would strike at the heart of the charter with an assault on basic civil rights that could muzzle the media, undermine gender equality and generally open the door to an authoritarian state, activists and scholars say. • Many Japanese conservatives see the constitution, unchanged since its adoption in 1947 during the U.S.-led Allied Occupation, as an embodiment of Western-style, individualistic mores they believe eroded Japan's group-oriented traditions. • "The real concern is that a couple of years later, we move to a redefinition of a 'new Japan' as an authoritarian, nationalist order," said Yale University law professor Bruce Ackerman. • The LDP draft, approved by the party last year, would negate the basic concept of universal human rights, which Japanese conservatives argue is a Western notion ill-suited to Japan's traditional culture and values, constitutional scholars say. • "The current constitution ... provides protection for a long list of fundamental rights - freedom of expression, freedom of religion," said Meiji University professor Lawrence Repeta. "It's clear the leaders of the LDP and certain other politicians in Japan ... are passionately against a system that protects individual rights to that degree." • The draft deletes a guarantee of basic human rights and prescribes duties, such as submission to an undefined "public interest and public order". The military would be empowered to maintain that "public order." • One proposal would ban anyone from "improperly" acquiring or using information about individuals - a clause experts say could limit freedom of speech. A reference to respect for the "family" as the basic social unit hints, say critics, at a revival of a patriarchal system that gave women few rights. • "The constitution is there to tie the hands of government, not put duties on the people," said Taro Kono, an LDP lawmaker often at odds with his party on policies. "There are some in both houses (of parliament) who don't really understand the role of a modern constitution." (Sieg, 2013)

26. Optimism • But perhaps the biggest hurdle faced by the Abe administration stems from its own population. Depending on the poll consulted, Japanese people range from tepid to ambivalent on the issue of constitutional reform, with those in support numbering between 39-56%. Even the upper limit of 56% is hardly the kind of popular mandate that could grease the wheels of the LDP charm offensive to garner enough votes to amend Article 96. In fact, these poll numbers seem to indicate a national referendum that would be hard fought and far from assured should the LDP somehow manage to pull together a two-thirds majority in both houses.Thus, even though the recent LDP electoral success indicates a continuation of Abenomics and some of Abe’s security policies such as a deepening of Indo-Japanese relations and a boost in military spending, the oft-discussed project of amending Japan’s pacifist constitution is set to remain as just that: discussed, not realized. (Fillingham 2013) 

27. Defending Article 9 • In the midst of all this, calls for rewriting the Constitution, long a cause of the right, are getting louder. Both Shinzo Abe and Shintaro Ishihara, leaders of the two main opposition parties, have declared constitutional revision a priority. Many of my friends in Hiroshima fear that this will be used to discard Japan’s peace clause, opening the possibility of militarization and even nuclear arms. • The “American-written” Constitution — recently labeled by Ishihara as “ugly” — is a convenient scapegoat for and distraction from the country’s pressing challenges. But avoiding debate about it might be counterproductive. A Constitution, in the words of the scholar Takii Kazuhiro, is not just a legal document, but the very “shape of the nation.” • Article 9 of the Japanese Constitution forever renounces war “as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” This has not hindered the creation of the powerful Self-Defense Forces, so it is fair to ask what more Japan could have accomplished with a military carte blanche. Could thousands of Japanese youth have perished in the Korean War, or in Vietnam, or more recently in Iraq and Afghanistan? • That is not all. ShoichiKoseki, in his book “Birth of Japan’s Postwar Constitution,” wrote that the Constitution contained some of the most advanced civil rights clauses of the time — including Article 24, drafted by Sirota, which for the first time in Japanese history articulated equal rights for half of the country’s population — the women. • Scholars also note that from inception, the drafters were deeply influenced by the Japanese themselves. Twelve groups, including reformist political parties and a constitutional research association set up by some of Japan’s leading intellectuals, submitted proposals.

28. Defending Article 9 (cont.) • The final draft was negotiated fiercely by the Japanese government in a marathon 32-hour translation session, and the text was debated for months by the legislature. The new Constitution clearly responded to the longings of the Japanese themselves. Otherwise it could hardly have survived unchanged for 65 years. • Sirota is now the last living member of the drafting team. After the MacArthur years she served as director of performing arts of the Japan Society and of Asia Society. Her love for Japan remains intact, and it is returned by Japanese women. Imbued with the idealism of a generation that actually experienced war, Sirota wrote in her memoirs, “Only the article renouncing militarism really touched the hearts of people who had suffered such devastating losses.” • Despite the fact that the Constitution has enabled Japan to live for more than six decades in peace and prosperity, so long as there are politicians who disdain it as the work of foreigners there will be pressure to rewrite it. • When that happens, it is my hope that millions of Japanese, rightly proud of its uniqueness, will rise to its defense. A national debate could well stir deeper sentiments and reflections, especially among young people, reminding them never to take their peace and their democracy for granted, rallying them to fight for the future shape of their nation. (AZIMI, 2012)

29. Consitutionalism（立憲主義） • 自民党は前々から現行九条一項は残す、と言明して来ていた。そして改正草案九条一項は大体においてその言明どおりになっている。こうすることによって、かれらは現行憲法の平和主義はちゃんと保持している証拠として利用しようと目論んでいるらしい（改正草案の九条一項には、臆面もなく「平和主義」というネイミングをつけている）。 • しかしながら現行憲法九条は、その一項だけでは一九二九年に発効したいわゆるパリ不戦条約レベルの「“戦争”違法化」を意味するに過ぎないのである。九条が現在の日本国憲法体系に占める決定的意味、あるいは平和主義憲法の中核として位置づけられている所以は、一項に続いて二項があり、さらにまた九条を理念的に支える憲法前文があることを指摘しておきたい。 • 現行憲法九条体系にあっては、「前項の目的を達するため、陸海空軍その他の戦力は、これを保持しない。国の交戦権は、これを認めない」という現憲法九条二項は　－　当に論争の火種であることにおいて　ー　もっとも重要であり、これあってはじめて平和主義を語り、これあればこそ日本国憲法は平和憲法と呼ばれる資格があるのである。　(奥平　２０１３：１２４）　 • 長谷部恭男は、２００５年の自民党「新憲法草案」が「穏やかな内容」だったのは、かいけん発議に衆参両院の総議員の三分の二の賛成を必要とする憲法九十六条の存在がその理由であると述べた上で、「この要件が二分の一に緩和されたとき、同じように穏やかな改憲案が提案されるとは期待しない方が賢明であろう」と述べている。．．．全く同感である。政府・与党がどんな改憲案を準備しているのかを十分に検討しないまま、「現代日本の閉塞状況を打破するためには、国家の基本構造を変える必要がある。保守的・復古的改憲には反対だが、戦後初の明文改憲を実現するため、改憲発議要件の緩和には賛成する」などと考えるのは、決して賢明な態度とはいえないであろう。　(愛敬　２０１３：１３６） • 日本国憲法は、国家権力が守るべき価値を人権尊重主義、平和主義、国民主権主義とし、それを具体化した条項を憲法に書き留めた。この「日本国憲法の三大原則」は学校教育でも覚えさせられるが、その憲法の元になったとも言うべき一番肝心な立憲主義思想は、残念ながら学校で教わらない。立憲主義こそ、憲法改正の是非を含めた憲法問題を考える際に是非とも理解しておかなければならないにもかかわらずである。立憲主義とは、すべての人々が個人として尊重されるために、憲法を最高法規として国家権力を制限し、人権保障をはかる思想である。 • （１）憲法改正が行われなかったのは発議要件が厳格なためではない。 • （２）改正手続き要件を緩和する真の意図は憲法九条改正のための下準備である。 • （３）改正手続き要件の緩和は直接民主制の弊害を助長する危険がある。 • （４）改正手続き要件の緩和は立憲主義の趣旨を没却する。 • （５）改正手続き要件の緩和は憲法の安定性を阻害する。 • （６）憲法違反の国会は改憲を論じる資格がない。 (伊藤　２０１３）

30. Consitutionalism（立憲主義）(cont.) • 憲法は、私たちの自由や人権が保障されるために、権力分立をともなう統治の仕組み(国家の統治機構)を定めている。このように憲法で政治(権力)を縛るという「ものの考え方」を立憲主義という。我が国の憲法学の泰斗であった故・芦部信喜　．．．の言葉を引用すれば、こうである。　 • 「立憲的憲法は、権力の法的制限という立憲主義の目的を、人間の権利・自由の保障とそのための国家組織の基本(権力分立)の制度化によって具体化したものである」．．．。 • このような、立憲憲法の意味についての正しい理解が、かまびすしい改正論議の渦中にあって、蔑ろにされているのではないか。憲法を真面目に考えていない事態は、特に極めて由々しきことだ。 　　（青井　２０１３：８４）

31. The core problem • しかし、こうした本質的な議論や、改憲・「懐憲」への批判的言説は、まだ多くは現れていない。 「懐憲」論のような暴論への批判が弱くなっている背景には、「制定から時間が経ったので憲法を変えてもいいのではないか」といった没論理的な主張にみられるような知的世界の荒廃がある。 • 知的中間層の減少にともなう批判的言説の衰退は、メディアにおいてとりわけ顕著である。自民党の劣化と同じく、戦争体験や社会運動の契機を持っていた世代が現役でなくなり、メディアにおいても暗黙知が継承されず、アメリカの影響を強く受けたエリート層が、日本の「国益」なためにはアメリカを怒らせないことだと半ば公然とメディア内部で主張するような状況にある。あらためて歴史を振り返るべきであろう。かつての戦争は軍部のみが強力に推進していったわけではない。戦意高揚を煽ったのはメディアと「帝国的市民」自身であった。 • 戦争への反省が共有されていた知的中間層が減少し、憲法を頂点とする規範的なるものへの軽視、蔑視、嘲笑が民衆レベルで拡がりを見せはじめている。戦後民主主義の「貯金」が失われてきた段階で、小泉純一郎という特異なキャラクターを持つ政治家が登場し、イラク派遣や靖国参拝をはじめ、戦後の価値を破壊し、経済的には格差を拡大していった。そして今、安倍政権が再び登場し、台頭する「懐憲」論者との共同歩調を取ろうとしている。それは、政治レベルでの憲法の軽視、蔑視、嘲笑が進行していく過程でもあった。 • そうした傾向が民衆レベルで拡がりを見せていることは、社会的に「懐憲」への免疫力が失われていく過程であると表現できるかもしれない。だが、権力者の側にとって、権力者自らを制限し拘束する憲法を民衆が嘲笑しはじめることは、実に愉快なことであろう。自分たちの権利を蔑視し嘲笑する民衆の存在は、生活保護制度をめぐる議論で象徴的に見られた。憲法上の権利である生存権を削減するように求めることは、自らの首を絞める行為であるはずであるが、そうした知的荒野において憲法の崩壊が進んでいる。 (水島　２０１３）

32. Identity issues • Kitagami: I would like to talk about four points. First, it is quite natural to amend the current constitution. This is obviously an occupation-era constitution, as it was established while Japan was under the U.S. occupation, an extraordinary situation. Now that the occupation has long been ended and Japan has become an independent country, it is quite natural that the Japanese people amend the constitution for themselves. The constitution is the supreme law that supersedes all other laws and regulations, so it is extremely important that a new constitution be established based on a national debate.　Second, while constitutional amendment is important, the most important thing is that the Japanese people share the sense of identity as a nation. It is important to hold national debate on ideals as to what kind of country Japan should be and what role Japan should play on the global stage.　After World War II, Japan pursued economic growth and succeeded in achieving it. However, while economic growth brought affluence, we Japanese failed to give due consideration to such matters as the constitution, nationhood, national values, history and tradition.　Since the era of Prince Shotoku (who played the leading role in establishing a united government in Japan around the beginning of the seventh century), Japan has made it a national policy to deal with any great foreign power on an equal footing. Japan should maintain its position as a great nation, but I have the impression that our country is slipping from that position.　When we live abroad, we have strong awareness about nationhood. From my own experience, I feel that Japan is a very divided country when it comes to national identity although there is a consensus on some points. It is difficult to answer the question “What kind of country is Japan?” Put another way, if someone offers his or her own idea of Japan’s identity, an objection is certain to be raised. It is not scientifically or logically possible to strictly define Japan’s identity as a nation. However, we are talking about ideals, which do not necessarily match the reality. Such is the nature of ideals. Even if ideals are disconnected with the reality, we do not necessarily have to deny them.　For example, most Americans speak of “the American dream.” But the reality is that America faces problems such as racial and religious discrimination, economic inequality and elitism. Although the “American dream” is upheld as an ideal, it is doubtful whether everyone can fulfill his or her dream. Nevertheless, for Americans, it is important to share the “American dream,” upholding the ideal of making America a country where all people can fulfill their dream. • Sakurai: In the postwar period, Japan has become economically affluent, but there is a sense that the affluence is causing our decline as a nation. I think that constitutional amendment is attracting attention now because the people have recognized that. Of course, the March 11 disaster (the Great East Japan Earthquake, tsunami and the Fukushima nuclear accident) is also a factor. I would say the greatest reason why the constitution should be amended is that it does not reflect the soul of the Japanese people. In that sense, amendment of the preamble is very important. The preamble should include references to the Emperor’s position as the head of state as well as the Japanese culture, civilization and history starting from the era of myth. All these should constitute the pillar of the preamble. (JINF 2012)

33. Constitutional Patriotism • JügenHabermas • Review: Constitutional Patriotism by Jan Werner Müller • In the mid-1980s, the German political philosopher Jürgen Habermas popularized the concept of "constitutional patriotism," the idea, as Müller explains it, that political attachment "ought to center on the norms, the values and, more indirectly, the procedures of a liberal democratic constitution." The notion struck a chord in Germany, where even two generations after the Nazi era, many were still uncomfortable with traditional nationalism yet wanted to belong to a political community that was more narrowly defined than humanity as a whole. Müller carefully and fairly examines the history, the advantages, and the drawbacks of the concept and concludes that there is merit in the notion that political attachment can be based on liberal norms rather than blood or faith. Müller's constitutional patriotism does not mean ignoring history or ethnicity in the definition of a political community (as critics of the concept imply it does) but rather means complementing them with the thought that people can be brought together by loyalty to a constitution. The discussion is particularly relevant to the case of the European Union, which, in the absence of a shared history or culture, might find value in alternative concepts of political belonging. (Gordon 2008)

34. Constitutional Paotrism (cont.) • In general, the concept of constitutional patriotism designates the idea that political attachment ought to center on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution. Thus, political allegiance is owed, primarily neither to a national culture, as proponents of liberal nationalism have claimed, nor to “the worldwide community of human beings,” as, for instance, Martha Nussbaum’s conception of cosmopolitanism has it. Constitutional patriotism promises a form of solidarity distinct from both nationalism and cosmopolitanism. • (The Authors 2008, Oxford University Press and New York University School of Law: http://icon.oxfordjournals.org/content/6/1/67.extract)

35. Fossum’s two types of CP

36. Canadian context • Bilingualism • Multiculturalism in Canada • THE CHARTER OF RIGHTS AND FREEDOMSThe Charter transformed us from a PARLIAMENTARY DEMOCRACY (parliamentary law reigned supreme except for federalism review) to a CONSTITUTIONAL DEMOCRACY where certain rights and freedoms are guaranteed against parliament (except as per limitations in ss. 1- Oaks test application and 33- is outstanding clause. This sec. show ability of Government to override the court decision.) (Constitutional Law Summary: Spring 2006) • It cannot be denied that in the 1990s issues of immigration and refugees have become problematic in the public mind. One also cannot know how divisive ethnic and racial questions may become or what impact any divisiveness might have on the government’s ongoing commitment to multiculturalism. Some regard the election of a strong Reform Party bloc in the 1993 federal election as a tangible sign of this unease, and although the government has not turned its back on its multiculturalism policy, in 1993 it closed the multiculturalism department created under the 1988 act and shifted the programs into a new, broadly based Department of Canadian Heritage. Recognizing that so long as ethnic identification or race remains a barrier to full participation in Canadian society, those adversely affected will look to the multicultural policy to offer more than symbolic recognition of cultural continuity, Canadian Heritage has increasingly emphasized the core values inherent in multiculturalism policy – participation, equal citizenship, and institutional access. As a result, the blend of idealism, pride in cultural pluralism, and Canadian uniqueness that gave rise to multiculturalism in the 1970s is being repositioned to respond to the needs of the 1990s and beyond. (Multicultural Canada, Recent developments: http://www.multiculturalcanada.ca/Encyclopedia/A-Z/m9/6)

37. Conclusion • Both in Japan and Canada the peace constitution and multiculturalism and Charters of rights and freedoms respectively have been altered gradually to the extent that those who have adopted them as their identity feel that their constitutional patriotism has been threatened. • Constitutional patriotism or identity is the only solution not only in a multicultural and multi-racial society, but also in a rather homogenous society in order to maintain individual freedom and human rights. I sincerely wish Japanese people would wake up, re-examine the history, see through what the revisionists are trying to do, and maintain the peaceful Japan through the current constitution.

38. References • Aikyou, Kouji (2013) What are the problems in the LDP’s “Draft of the Revision of the Japanese Constitution”?, ”, Sekai, March no.840, Iwanami, pp 128-136. • Aoi, Miho (2013) ‘What does the Constitution exist for?’, Sekai, June no.844, p.p. 83-91. • Azimi, Nassrine (2012) Constitutionally sound, The New York Times: http://www.nytimes.com/2012/12/15/opinion/global/the-Japanese-constitution.html?_r=0 • Beth (2013) Director Criticises Abe’s Proposed Constitutional Reforms, japanCRUSH: http://www.japancrush.com/2013/stories/director-criticises-abes-proposed-constitutional-reforms.html • Bibby, Reginald (2001) Canada’s Teens: Today. Yesterday, and tomorrow, Stoddart. • Dale, Craig , CBC News Posted: Jul 22, 2013 5:02 AM E Analysis A more militaristic Japan? Shinzo Abe's party now controls both houses: http://www.cbc.ca/news/world/a-more-militaristic-japan-shinzo-abe-s-party-now-controls-both-houses-1.1343779 • Editorial Committee for the Detailed Illustrated Hisotry of Japan (2008) Detailed Illustrated History of Japan, 3rd edition, YamakawaShuppan. • Fillingham, Zachary - Jul 31, 13, Is Abe’s Win a Loss for Japan’s Pacifist Constitution?, Geopolitical Monitor: http://www.geopoliticalmonitor.com/is-abes-win-a-loss-for-japans-pacifist-constitution-4842/ • Fossum , John Erik (2007) On the Prospects for a Viable Constitutional Patriotism in Complex Multinational Entities: Canada and the European Union Compared, Annual Conference of the Canadian Political Science Association, Saskatoon, May 31, 2007: http://www.cpsa-acsp.ca/papers-2007/Fossum.pdf • Gomi, Fumihiko & Yasushi Torimi (eds.)(2009) Read Once More Yamakawa Japanese History, YamakawaShuppan. • Harner, Stephan (2013) Japan Could Begin Real Constitutional Change after July, Forbes: http://www.forbes.com/sites/stephenharner/2013/03/06/japan-could-begin-real-constitutional-change-after-july/

39. Reference (cont.) • Hayward, Clarissa Rile (2007) Democracy’s Identity Problem: Is “Constitutional Patriotism” the Answer?: http://polisci.wustl.edu/files/polisci/imce/democracys_identity_problem_compact.pdf • Higuchi, Youichi (2013) ‘Deciding’ politics vs. ‘citizens’ not allowing to decide: the meaning of ‘maintaining’ the Constitution now, Sekai, no840, pp.113-116. • Ito, Makoto (2013) ‘Why the Constitution should not be changed?’, Sekai, June no.844, p.p. 72-82. • JINF (2012) Why Should the Current Japanese Constitution be Amended?: http://en.jinf.jp/news/archives/1623 • Kawasaki, Akira and Céline Nahory (2013) Revision of Japan’s Peace Constitution – A Matter of Global Concern, Common Dreams: https://www.commondreams.org/view/2013/07/21-2 • Kinoshita, Hideomi (2013) ‘US would not allow “revision” of the WW2’, Sekai, August no846, p.p. 152-158. • Kouno, Youhei (2013) ‘LDP, be humble!’, Sekai, August no.846, p.p. 37-43. • Lawrence Repeta (2013) Japan’s Democracy at Risk – The LDP’s Ten Most Dangerous Proposals for Constitutional Change 危機に瀕する日本の民主主義　自民党憲法改正案、最も危険な10項目, The Asia-Pacific Journal: Japan Focus: http://www.japanfocus.org/-Lawrence-Repeta/3969 • Masaki, Hisane (2007) Japan’s historic step toward the first revision of its postwar pacifist constitution, World Security Network: http://www.worldsecuritynetwork.com/Japan/hisane-masaki/Japan%E2%80%99s-historic-step-toward-the-first-revision-of-its-postwar-pacifist-constitution • Mizokami , Kyle Sep 27 2012 Japan and the U.S.: It's Time to Rethink Your Relationship, The Atlantic: http://www.theatlantic.com/international/archive/2012/09/japan-and-the-us-its-time-to-rethink-your-relationship/262916/ • Mizushima, Asaho (2013) How to counter “Kaiken ‘destroying the Constitution’”, Sekai, March no.840, Iwanami, pp. 94-102. • Müller, Jan-Werner (2006) A general theory of constitutional patriotism: http://www.princeton.edu/~jmueller/ICON-CP-JWMueller-Oct2007.pdf

40. Reference (cont.) • Nakano, Jun (2013) ‘Koumei Party Blues’, Sekai, August no 846, p.p. 98-108. • Oliver, Donald H. (2006) Canadian Multiculturalism in Theory and Practice: Individual and Group Rights, An Address By The Honourable Donald H. Oliver, Q.C., Senator, Senate of Canada, October 13, 2006, 11:15 a. m., University of Aarhus. • Okudaira, Yasuhiro (2013) Criticism of Argument for “Enactment of Autonomous Constitution – Total Revision”, Sekai, March no.840, Iwanami, pp 117-127. • Ota, Norio (2011) ‘Wakon-Yosai (Japanese spirit, Western learning) and Globalization’ (revised version), in Holroyd C. and K. Coates (eds.) Japan in the Age of Globalization, Routledge. • Otaola, Miguel Angela Lara (2008?) The imposition of democracy: Japan after WWII, Razón y Palabra, PrimeraRevistaElectóronica en América Latina Especializada en Comunicación: http://www.razonypalabra.org.mx/democracia_sustentable/02_DemocraciaSustentable_marzo.pdf • Panton, Michael A. (2011) Politics, Practice and Pacifism: Revising Article 9 of the Japanese Constitution: http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_11.2_panton.pdf • Russel, Daniel R.(09 Sep 2013) Assistant Secretary Russel in Tokyo on U.S.-Japan Relationship: http://www.uspolicy.be/headline/assistant-secretary-russel-tokyo-us-japan-relationship • Sieg, Linda (2013) Japan PM's 'stealth' constitution plan raises civil rights fears, Reuters :http://www.reuters.com/article/2013/05/02/us-japan-politics-constitution-idUSBRE94101D20130502 • Souda, Kazuhiro (2013) ‘Do Japanese people want to abandon democracy?’, Sekai, June no.844, p.p. 118-128. • Sultenfuss, James T. (2011) Japan’s Constitutional Reform Debate and the Potential for Collective Self-Defense • Takahashi, Tetsuya (2013) ‘Self-destructing historical perception: Japan’s isolation accelerated by the Abe Rigime’, Sekai, August no.846, p.p. 140-151. • Troper, Harold Multiculturalism and Canadian Identity, The Encyclopedia of Canada's Peoples/Multiculturalism: http://www.multiculturalcanada.ca/Encyclopedia/A-Z/m9/3 • Uchihashi, Katsuto & Yoshiko Tatsumi (2013) Dialog: Food and life lives in peace as a stream, ”, Sekai, March no.840, Iwanami, pp. 101-112. • Van Sant, John E. (1999)Constitution-Making In Occupied Japan, Review of KosekiShoichi.The Birth of Japan's Postwar Constitution. Boulder, Colo: Westview Press, 1998

41. Reference (cont.) • Canadian Constitution Summary: http://canadacriminallaw.blogspot.ca/2009/08/canadian-constitution-summary.html • Constitution of Japan: http://en.wikipedia.org/wiki/Constitution_of_Japan • Creation of the Japanese Constitution (1945-1946), American Experience: http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX102.html • Japan and the U.S.: It's Time to Rethink Your Relationship • Japan: Article 9 of the Constitution, Executive Summary, 2004, LAW LIBRARY OF CONGRESS: http://www.loc.gov/law/help/JapanArticle9.pdf • Ministry of Education (1937) Essence of Kokutai: http://www.j-texts.com/showa/kokutaiah.html