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Does Japan have the constitutional and legal right to have its own army or navy?

Does Japan have the constitutional and legal right to have its own army or navy?

After WW2 Japan capitulated and was disarmed. And as I know Japan was not able to have its own army, and its boundary would be protected by the United States. So, does Japan have the legal right to have its own army or navy? I was not able to find any worthy information in Google or Bing.


There are basically two answers to your question. The first comes from the legal precedents in the Japanese constitution, peace treaties, etc. The second is the de facto version of what actually happened after the war, and up to now.

Legally speaking, Japan was forbidden from having any kind of standing army, though they were permitted to have forces for their own self defense. Japan has never relied on the United States or any other country or governing body for its own protection in a strictly legal sense. In other words, the United States or United Nations never signed anything saying they would protect Japan.

However, in reality Japan does have a standing army in the form of its Self Defense Forces. Their military expenditures are in the top 10, and it is one of the most advanced armies in the world technologically, but still very small in terms of the number of people. The main difference after WWII is that Japan pledged never to deploy their forces abroad for any reason, though in the past 10-15 years they have been involved in some overseas peacekeeping, and contributed a destroyer and a refueling ship as a support asset to the war in Afghanistan. At this point, if Japan decided to increase the size of its military it wouldn't really be forbidden from doing so, but Japan has kept its military small by choice because, frankly, it's much cheaper.

Finally, while the United States never formally agreed to protect Japan the number of US military bases in the country means that, in a practical sense, it does. This has also allowed Japan to get away with keeping its military small, since the US Navy and other assets are spread all around Japan and S Korea. As far as the future goes, it's harder to say because the US has been rolling back military expenditures. It wouldn't be surprising to see the US encouraging Japan to increase the size of its military in order to decrease reliance on the US for protection, but it could easily go either way.


Security Challanges: Japan's Defence Dilemma is an interesting document. It sheds some light on this history of balancing constitution (and anti-militaristic sentiment associated), Japan's strategic objectives and its alliance with the United States. It takes the view that Japan has been subverting Article 9 to "normalise" the state. It also points out that a major problem with extending the role of the JSDF (or "Normalising" its role) would be to "normalise" the relationship with the US and perhaps risk losing the US's large protective presence. However it also questions how much Japan's refusal to take a normal military role may already be jeopardizing its relationship with the US. It's an interesting view and seems to echo what the other answers are saying.

Here's an extract:

Normalisation by Stealth

The entire course of Japan's post-war defence policy has been a slow march towards normalcy. In practice, Japan's so-called 'peace constitution' has only delayed but not prevented progress towards normal statehood. Initially, successive Japanese governments engaged in a process of 'revision by reinterpretation' as a way of circumventing constitutional prohibitions. More recently 'revision by legislation' has been the preferred method of change. Both the Iraq deployment and the dispatch of naval forces to the Indian Ocean in support of the coalition in Afghanistan have been authorised by specific items of legislation in 2001 and 2003. These capped a series of laws enacted over the past decade, which have expanded and diversified the roles and capabilities of Japan's Self-Defence Forces (SDF). Successive Japanese governments have accumulated a series of faits accomplis, creating the necessary precedents for the acquisition of new functions by the SDF.

2 Article 9 of the Japanese Constitution - the so-called 'Peace Clause' - has been consistently interpreted by the Japanese government as prohibiting Japan's exercise of its right to collective self-defence (meaning military action to defend the United States or its forces) as well as Japanese participation in collective security operations under UN auspices. However, Japan's inherent right to collective self-defence as a sovereign state has never been abrogated, and indeed is recognised under the UN charter. The prevailing interpretation of Article 9 on collective self-defence was made in 1981 by the Cabinet Legislation Bureau. It stated: 'It is recognized under international law that a state has the right of collective self-defense, which is the right to use actual force to stop an armed attack on a foreign country with which it has close relations, even when the state itself is not under direct attack. It is therefore self-evident that since it is a sovereign state, Japan has the right of collective self-defense under international law. The Japanese government nevertheless takes the view that the exercise of the right of self-defense as authorized under Article NINE of the Constitution is confined to the minimum necessary level for the defense of the country. The government believes that the exercise of the right of collective self-defense exceeds that limit and is not, therefore, permissible under the Constitution'. Quoted in R J Samuels, 'Constitution al Revision in Japan: The Future of Article 9', The Brookings Institution, Center for Northeast Asian Policy, 15 December 2004, www.brookings.edu/fp/cnaps/events/20041215.pdf.


Formally, Japan has no right: http://en.wikipedia.org/wiki/Article_9_of_the_Japanese_Constitution#Debate

Substantively, the Japanese state has taken such a right: http://en.wikipedia.org/wiki/Japan_Self-Defense_Forces#History

Politically, as the Chinese state has a great interest in Japan's capacity for aggressive war, Japan's interpretation of Article 9 both formally and substantively is closely watched by a large heavily armed state.


The emergence of imperial Japan

Achieving equality with the West was one of the primary goals of the Meiji leaders. Treaty reform, designed to end the foreigners’ judicial and economic privileges provided by extraterritoriality and fixed customs duties was sought as early as 1871 when the Iwakura mission went to the United States and Europe. The Western powers insisted, however, that they could not revise the treaties until Japanese legal institutions were reformed along European and American lines. Efforts to reach a compromise settlement in the 1880s were rejected by the press and opposition groups in Japan. It was not until 1894, therefore, that treaty provisions for extraterritoriality were formally changed.

During the first half of the Meiji period, Asian relations were seen as less important than domestic development. In 1874 a punitive expedition was launched against Formosa ( Taiwan) to chastise the aborigines for murdering Ryukyuan fishermen. This lent support to Japanese claims to the Ryukyu Islands, which had been under Satsuma influence in Tokugawa times. Despite Chinese protests, the Ryukyus were incorporated into Japan in 1879. Meanwhile, calls for an aggressive foreign policy in Korea, aired by Japanese nationalists and some liberals, were steadily rejected by the Meiji leaders. At the same time, China became increasingly concerned about expanding Japanese influence in Korea, which China still viewed as a tributary state. Incidents on the peninsula in 1882 and 1884 that might have involved China and Japan in war were settled by compromise, and in 1885 China and Japan agreed that neither would send troops to Korea without first informing the other.


Origins Under Occupation

World War II left Japanese cities physically devastated and over two and a half million Japanese people dead. Those who lived through the war faced immense hardship.

Demilitarization and Democratization

In Potsdam, Germany, on July 26, 1945, the leaders of the United States, China, and the United Kingdom set forth the terms for Japan’s surrender. On September 2, Japan surrendered unconditionally to the Allied powers, and in doing so accepted the premise of democratic reforms.

Allied Occupation of Japan Begins

The Allied powers shared responsibility for post-surrender Japan, but it was U.S. General Douglas MacArthur who shaped the rewriting of Japan’s constitution. On September 2 the Allied occupation of Japan began, after surrender documents were signed on the USS Missouri in Tokyo Bay. MacArthur became supreme commander of the Allied powers and established headquarters in the Daiichi Insurance building, just across from the Imperial Palace.

The Allied Occupation and the Japanese Emperor

Post-surrender planning for Japan focused on the future role of Japan’s emperor. Some allies saw Emperor Hirohito as responsible for Japan’s military expansion across Asia and the Pacific. U.S. diplomat and Japan expert Hugh Borton, who helped draft planning documents for the Allied occupation of Japan, argued that retaining the emperor was the best means of gaining the cooperation of the Japanese people in the reform of their country.

Competing Interests

After the war, Japanese authorities sought simply to amend the 1889 Meiji Constitution. But the Allies wanted a far more ambitious change. In Washington, the U.S. State Department was finalizing its occupation plans, as outlined in the State-War-Navy Coordinating Committee’s document SWNCC 228. In Tokyo, Supreme Commander of the Allied Powers Douglas MacArthur was setting up his headquarters. Meanwhile, the Far Eastern Commission—comprising thirteen countries, with veto powers given to the United States, China, the Soviet Union, and the United Kingdom—was established to oversee Japan’s occupation. MacArthur and his staff felt the need to move quickly, as the members of the Far Eastern Commission were beginning to assert their interests in shaping postwar Japan.

MacArthur’s Three Principles

General MacArthur created three principles to guide the drafting of the new constitution and set the Supreme Commander of the Allied Powers staff (SCAP) to work. MacArthur wanted to make the emperor accountable to the Japanese people, eliminate Japan’s ability to wage war, and create a parliamentary system akin to the British system, abolishing the inherited power of Japan’s aristocracy.

SCAP Introduces Sweeping Reforms

The Supreme Commander of the Allied Powers’ Government Section, headed by General Courtney Whitney, was tasked with drafting the new constitution in one week. Colonel Charles Kades oversaw the drafting process, and his staff, many of whom were influenced by the New Deal, tackled the issues of women’s rights, land reform, and the breakup of the zaibatsu, Japan’s industrial and financial conglomerates. They also sought to establish democratic freedoms: those of assembly, speech, and religion.

Disagreement Between SCAP and the Japanese Cabinet

On February 8, 1946, Joji Matsumoto, chairman of the Constitutional Problems Investigative Committee in Prime Minister Kijuro Shidehara’s cabinet, presented SCAP with the Japanese government’s proposed constitution. General Whitney rejected it, as it barely amended the Meiji Constitution. On February 13, Whitney presented SCAP’s draft constitution in its place. The Shidehara cabinet accepted the draft a week later. Charles Kades and Tatsuo Sato, from the cabinet’s Bureau of Legislation, then negotiated a new draft based on the SCAP document, and the cabinet released it to the public on March 6.

A Hard Recovery

In the year after the war ended, economic conditions worsened in Japan. Food shortages were severe, many people had no home, and few had jobs.

The First Postwar General Election

Competitive elections had tapered off in the 1930s, as the military consolidated its political power. The general election of April 1, 1946, brought many former politicians and other leaders back into politics. It also brought Japanese women to the ballot box for the first time. The Liberal Party, led by prewar diplomat Shigeru Yoshida, won a plurality of seats in the lower house. Yoshida then formed a coalition government with the Japan Progressive Party, which included many politicians associated with the statist Imperial Rule Association prior to the war. The Yoshida cabinet turned its attention to the constitution.

Pressure From the Far Eastern Commission

The Soviet Union wanted a larger voice over the reforms imposed on Japan through the Far Eastern Commission. To limit its influence, MacArthur urged the Yoshida cabinet to hasten its approval of the new constitution.

Legislative Edits to Government Draft

On June 20, 1946, the Yoshida cabinet submitted the Bill for Revision of the Imperial Constitution to the Diet for its review. Hitoshi Ashida of the Liberal Party chaired the review committee in which ruling and opposition party legislators put forward their ideas, incorporating expert opinions from civil society advocates. Two ideas were incorporated into the draft: a commitment to ensuring an adequate standard of living for the Japanese people (Article 25) and an extension of free compulsory education through middle school (Article 26).

Debate on Article 9

A sustained debate on Article 9 unfolded. SCAP had included language from the Kellogg-Briand Pact of 1928 to ensure that Japan would "abandon force as a means of settling international disputes." Some legislators wanted to embrace this idea assertively to reflect Japan’s commitment to peace and maintaining a stable world order. Others were less enthusiastic about limiting Japan’s hand. In the end, Ashida presented a compromise, amending the article’s second paragraph to read that Japan would not maintain armed forces for the purposes of aggression, thereby carving out Japan’s right to self-defense, as stipulated in the UN Charter.

Diet Approves Revised Draft

Ashida put the new draft forward for a vote on the floor of the Diet. It was approved on October 7 with only five votes opposing.

The Emperor Announces the Constitution

The Meiji Constitution had stipulated that only the emperor had the authority to revise Japan’s constitution. On November 3, 1946, Emperor Hirohito announced the new constitution, so that the Japanese people would see it as legitimate.

Explaining Citizen Rights to the Public

After the new constitution was promulgated, government officials presented it to the Japanese people, traveling across the country to disseminate publications explaining what the document meant for Japanese citizens.


Election Central

In July 1945, shortly after Germany had surrendered, the Allied leaders met at Potsdam near Berlin to discuss postwar policies. Among these was the decision to occupy the Japanese homeland once victory had been achieved in the Pacific. The Allies also agreed that the occupation should bring about the complete disarmament of Japanese forces and the trial of Japanese war criminals. The Potsdam Agreement further called for democratic reforms in Japan's government. Finally, the Allies declared that the occupation would end only when all these conditions had been achieved and "a peacefully inclined and responsible government" had been established in Japan.

Immediately after the Japanese announced their decision to surrender, Gen. Douglas MacArthur was appointed the Supreme Commander for the Allied Powers to oversee the occupation of Japan. Although he was technically under the authority of an Allied Powers commission, MacArthur took his orders from Washington. Rather than establish an American military government to rule Japan during the occupation, MacArthur decided to employ the existing Japanese government. To do so, he would issue various direct orders to Japanese government officials but allow them to manage the country as long as they followed the occupation goals developed in Potsdam and Washington.

MacArthur realized that imposing a new order on the island nation would be a difficult task even with Japanese cooperation. It would be impossible, MacArthur believed, for foreigners to dictate radical changes to 80 million resentful people.

Having decided to keep the Japanese national legislature (the Diet), the cabinet and the bureaucracy in place, MacArthur next faced the question of Emperor Hirohito. The Russians and British wanted Hirohito tried and hanged as a war criminal. MacArthur advised Washington against needlessly angering the Japanese by destroying the sacred symbol of their emperor. MacArthur later wrote in his autobiography: ". I would need at least one million reinforcements should such an action be taken . Military government would have to be instituted throughout all Japan, and guerrilla warfare would probably break out."

At his first meeting with MacArthur, Hirohito assumed full responsibility for the wartime actions of Japan knowing that this admission could mean his execution. Eventually the U.S. and other Allied powers agreed with MacArthur not to treat Hirohito as a war criminal, but one condition was mandated.

On New Year's Day 1946, four months after the occupation had begun, Emperor Hirohito renounced the belief that he was a divine or godlike being:

The ties between us and our people have always stood upon mutual trust and affection. They do not depend upon mere legends and myths. They are not predicated on the false conception that the Emperor is divine and that the Japanese people are superior to other races and fated to rule the world.

These words, while shocking to most Japanese, smoothed the way for the more than six years of occupation that were to come.

Certain aspects of the U.S. occupation policy carried out by MacArthur were very harsh. Wartime Prime Minister Tojo and six other leaders were tried and hanged for war crimes. The policies dismantled and abolished the Japanese military establishment and banned 200,000 military and civilian leaders from holding any public office, including the majority of existing Diet members. The large industrial monopolies that had fueled the war effort were broken up. Even government support for the official Japanese religion, Shinto, was eliminated.

At the same time, MacArthur promoted the development of democracy in Japan. He suspended Japanese laws restricting political, civil and religious liberties. He ordered the release' of political prisoners and abolished the secret police. He announced a general election to be held in April 1946, only seven months following the surrender. He also called for the Japanese Diet to pass a new election law to provide for free democratic elections, including, for the first time in the history of Japan, the right of women to vote. In addition, under MacArthur's direction, the growth of labor unions was encouraged, large landholdings were broken up and the education system was reformed.

Surprisingly, all of these developments were accepted and in some cases even welcomed by the Japanese. Of course, Japan was under the control of armed U.S. troops. Still, the ordinary Japanese, seeing death and destruction all around, seemed to conclude that the old way of doing things had failed. War and a humiliating defeat had made Japan ripe for revolutionary change.

A New Constitution

The Meiji Constitution of 1889 concentrated actual political power in the hands of a small group of government leaders responsible to the emperor, not the people. From 1930 to the end of the war this governing group was dominated by the military.

Before 1945, democracy as we know it had little chance to develop in Japan. No free elections or real political parties existed. Women were denied equal rights. From an American viewpoint, although the Meiji Constitution listed a number of individual liberties, few were meaningful. For example, even though free speech was protected by the constitution, the government prohibited what it considered "dangerous thoughts."

Early in the occupation MacArthur saw the need to drastically change the Meiji Constitution. In his autobiography, MacArthur argued:

We could not simply encourage the growth of democracy. We had to make sure that it grew. Under the old constitution, government flowed downward from the emperor, who held the supreme authority, to those to whom he had delegated power. It was a dictatorship to begin with, a hereditary one, and the people existed to serve it.

MacArthur communicated his views to the leaders of the Japanese government who formed a committee to rewrite the Meiji Constitution. After four months' work, by February 1, 1947, the committee had produced a revision with only minor word changes. For instance, in the rewrite the emperor became "supreme" rather than "sacred" as in the old constitution.

MacArthur refused to accept the Japanese revision. He gave his own people the task of writing a "model constitution" which would then be used by the Japanese in preparing another revision, which he wanted completed before the Japanese general. election scheduled just two months away. He saw the election as a test of whether the Japanese people would accept democratic changes in their political system.

The job of writing MacArthur's "model constitution" fell to the Government Section of his General Headquarters. A team, of about a dozen Army and Navy officers (all with special training in government) plus a few civilian experts met secretly to discuss, debate and write their model for a new Japanese constitution. The team members used a 1939 edition of a book on world constitutions as their main reference. Most of the final wording was drafted by three Army officers, all lawyers. This "constitutional convention" lasted a total of six days.

The resulting constitution borrowed from the British system in establishing a cabinet and prime minister who were responsible to the elected Diet. The guarantees of individual rights included wording similar to that found in the American Bill of Rights. One part, guaranteeing equal rights, even went beyond the legal protections Americans enjoyed at that time. Other provisions sounded like they had come from the progressive policies of Franklin D. Roosevelt's New Deal. For example, workers received the right "to organize and to bargain and act collectively. "

Perhaps the most unique part of the "model constitution" was the "no-war clause." According to Article 9: ". The Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes." Article 9 went on to abolish all land, sea and air military forces. This article was included as the result of a suggestion made by Prime Minister Shidehara to MacArthur. Shidehara believed that this provision would show the rest of the world that Japan never again intended to wage aggressive war.

To the Japanese people, however, the most radical change from the Meiji Constitution was the removal of the emperor as the source of all government authority. In the "model constitution" the people, acting through the elected Diet, were supreme. MacArthur decided to preserve the position of emperor, but merely as "the symbol of the State and of the unity of the people."

The Japanese government leaders were shocked by the radical changes proposed in the "model constitution." In particular, they found it hard to accept the idea of "rule by the people" which conflicted with the Japanese tradition of absolute obedience to the emperor. After disagreeing among themselves, the Japanese cabinet went to the emperor. On February 22, Hirohito ended the deadlock by commanding that the "model" become the basis for the new constitution of Japan. "Upon these principles," Emperor Hirohito said, "will truly rest the welfare of our people and the rebuilding of Japan."

On March 6, the Japanese cabinet accepted the new constitution. This was followed by statements of approval by Emperor Hirohito and Gen. MacArthur who later called the document "the most liberal constitution in history."

The constitution was widely publicized and enthusiastically discussed by the Japanese people, especially during the days leading up to the April general election. When the Dietmet during the summer of 1946, the newly elected legislators debated and then voted final approval. Japan's new democratic constitution went into effect on May 3, 1947.

Has Japan's democratic constitution been a success? MacArthur himself called it "probably the single most important accomplishment of the occupation." Others have since criticized MacArthur for unnecessarily forcing the Japanese to renounce their political traditions and accept democracy too rapidly.

In 1952, the American occupation of Japan ended. The Japanese were again an independent people free to run their country as they wished. Since then, the Japanese have changed or done away with a number of the reforms instituted by MacArthur. One reform remains firmly in place: the "MacArthur Constitution." For 40 years it has never been revised or amended. In the words of Japanese scholar Sodei Rinjiro: "Clearly the constitution has sunk its roots among the people. "

For Discussion

  1. Why was General MacArthur reluctant to impose radical changes on post-World War II Japan and its government?
  2. List several policies General MacArthur used to promote the development of democracy in Japan.
  3. How did the previous Meiji Constitution stifle democracy in Japan?
  4. List several policies of the new Japanese constitution that helped make it democratic.
  5. How did the Japanese people respond to the new constitution?

This activity is designed to be done in class before they read the article in this section. The questions listed below had to be answered by the United States after the surrender of Japan on August 14, 1945.

Meeting in small groups, students should discuss and write down at least one reason for their own answers to both the following questions.

1. Once Japan is occupied, should the Japanese government be totally abolished and replaced by the direct rule of American military authorities?

In Germany the Nazi government had disintegrated as Allied troops closed in on Berlin. Following Germany's defeat, the Allies set up their own military governments to rule in their respective zones of occupation. In Japan, however, the emperor, national legislature (called the Diet), ruling cabinet and the entire government bureaucracy all remained in place at the time of the surrender.

2. Should the U.S. insist that Japan change its constitution in order to establish a democracy?

Japan had a written constitution, a "gift" of the Emperor Meiji in 1889. In many respects its wording made it similar to our own Constitution. However, the Japanese Constitution made the emperor, not the people, the sole source of political authority. Thus, the Meiji Constitution was a blend of western political thought and Japanese traditions that had developed over the centuries.

The two questions listed below had to be answered by the United States after the surrender of Japan on August 14, 1945. Meeting in small groups, students should discuss, answer, and record at least one reason for their answers.

FOLLOW-UP ACTIVITY

  1. Have students meet in the same groups they did earlier for the "Preliminary Activity."
  2. Ask each group to again answer the two questions from the "Preliminary Activity" and write down at least one reason for each of these decisions, this time referring to the information they got from the reading.
  3. Each group should next compare the answers it wrote in the "Preliminary Activity" with the information it found in the reading.
  4. Each group should report its findings to the class.
  5. Finally, the class as a whole should discuss the following questions:
  • What differences did you find between your own answers to the questions in the "Preliminary Activity" and the actual decisions made by the U.S. and MacArthur? Did you change your mind on any of these questions?
  • Do you think that the experience in occupied Japan proves that the U.S. Constitution can be transplanted to any other land? Why or why not?

("Bringing Democracy to Japan" was adapted from Bill of Rights in Action, Vol. 3:4 © Constitutional Rights Foundation)


The Power to Raise and Maintain Armed Forces

Clauses 11, 12, 13, and 14. The Congress shall have power * * * To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. To provide and maintain a Navy. To make Rules for the Government and Regulation of the land and naval Forces.

Annotations

Purpose of Specific Grants

The clauses of the Constitution, which give Congress authority to raise and support armies, and so forth, were not inserted to endow the national government rather than the States with the power to do these things but to designate the department of the Federal Government, which would exercise the powers. As we have noted above, the English king was endowed with the power not only to initiate war but the power to raise and maintain armies and navies. 1637 Aware historically that these powers had been used to the detriment of the liberties and well-being of Englishmen and aware that in the English Declaration of Rights of 1688 it was insisted that standing armies could not be maintained without the consent of Parliament, the Framers vested these basic powers in Congress. 1638

Time Limit on Appropriations for the Army

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that “no appropriation of money to that use shall be for a longer term than two years.” In 1904, the question arose whether this provision would be violated if the government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful that the appropriations limited by the Constitution “are those only which are to raise and support armies in the strict sense of the word ‘support,’ and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense. . . .” 1639 Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was “no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.” 1640

Conscription

The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service. 1641 Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted. 1642 In 1863, a compulsory draft law was adopted and put into operation without being challenged in the federal courts. 1643 Not so the Selective Service Act of 1917. 1644 This measure was attacked on the grounds that it tended to deprive the States of the right to “a well-regulated militia,” that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby. 1645

Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: “It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” 1646 Accordingly, in the Selective Draft Law Cases, 1647 it dismissed the objection under that amendment as a contention that was “refuted by its mere statement.” 1648

Although the Supreme Court has so far formally declined to pass on the question of the “peacetime” draft, 1649 its opinions leave no doubt of the constitutional validity of the act. In United States v. O’Brien, 1650 upholding a statute prohibiting the destruction of selective service registration certificates, the Court, speaking through Chief Justice Warren, thought “[t]he power of Congress to classify and conscript manpower for military service is ‘beyond question.’” 1651 In noting Congress’s “broad constitutional power” to raise and regulate armies and navies, 1652 the Court has specifically observed that the conscription act was passed “pursuant to” the grant of authority to Congress in clauses 12–14. 1653

Care of the Armed Forces

Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].” 1654 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area, 1655 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” about military affairs, 1656 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.” 1657

In reliance upon this deference to congressional judgment about the roles of the sexes in combat and the necessities of military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional the legislative judgment to provide for registration of males only for possible future conscription. 1658 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger the loyalty, discipline, or morale of troops on the base. 1659 On the same basis, the Court rejected challenges on constitutional and statutory grounds to military regulations requiring servicemen to obtain approval from their commanders before circulating petitions on base, in the context of circulations of petitions for presentation to Congress. 1660 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that would have been of questionable validity in a civilian context. 1661 Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set aside military decisions and actions. 1662

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall serve, the compensation he shall be allowed, and the service to which he shall be assigned. This power may be exerted to supersede parents’ control of minor sons who are needed for military service. Where the statute requiring the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the government. 1663 Because the possession of government insurance payable to the person of his choice is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors. 1664 Likewise, Congress may bar a state from taxing the tangible, personal property of a soldier, assigned for duty in the state, but domiciled elsewhere. 1665 To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of bordellos in the vicinity of the places where forces are stationed. 1666

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal law binding on all servicemen, with its own substantive laws, its own courts and procedures, and its own appeals procedure. 1667 The drafters of these congressional enactments conceived of a military justice system with application to all servicemen wherever they are, to reservists while on inactive duty training, and to certain civilians in special relationships to the military. In recent years, all these conceptions have been restricted.

Servicemen.—Although there had been extensive disagreement about the practice of court-martial trial of servicemen for nonmilitary offenses, 1668 the matter never was raised in substantial degree until the Cold War period when the United States found it essential to maintain both at home and abroad a large standing army in which great numbers of servicemen were draftees. In O’Callahan v. Parker, 1669 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that was not “service connected.” The Court did not define “service connection,” but among the factors it found relevant were that the crime in question was committed against a civilian in peacetime in the United States off-base while the serviceman was lawfully off duty. 1670 O’Callahan was overruled in Solorio v. United States, 1671 the Court holding that “the requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.” 1672 Chief Justice Rehnquist’s opinion for the Court insisted that O’Callahan had been based on erroneous readings of English and American history, and that “the service connection approach . . . has proved confusing and difficult for military courts to apply.” 1673

It is not clear what provisions of the Bill of Rights and other constitutional guarantees apply to court-martial trials. The Fifth Amendment expressly excepts “[c]ases arising in the land and naval forces” from its grand jury provision, and there is an implication that these cases are also excepted from the Sixth Amendment. 1674 The double jeopardy provision of the Fifth Amendment appears to apply. 1675 The Court of Military Appeals now holds that servicemen are entitled to all constitutional rights except those expressly or by implication inapplicable to the military. 1676 The Uniform Code of Military Justice, supplemented by the Manual for Courts-Martial, affirmatively grants due process rights roughly comparable to civilian procedures, so it is unlikely that many issues necessitating constitutional will arise. 1677 However, the Code leaves intact much of the criticized traditional structure of courts-martial, including the pervasive possibilities of command influence, 1678 and the Court of Military Appeals is limited on the scope of its review, 1679 thus creating areas in which constitutional challenges are likely.

Upholding Articles 133 and 134 of the Uniform Code of Military Justice, the Court stressed the special status of military society. 1680 This difference has resulted in a military Code regulating aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold of that possible in civilian life. Because of these factors, the Court, while agreeing that constitutional limitations applied to military justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian life. Thus, the vagueness challenge to the Articles was held to be governed by the standard applied to criminal statutes regulating economic affairs, the most lenient of vagueness standards. 1681 Nor did application of the Articles to conduct essentially composed of speech necessitate a voiding of the conviction, as the speech was unprotected, and, even though it might reach protected speech, the officer here was unable to raise that issue. 1682

Military courts are not Article III courts, but are agencies established pursuant to Article I. 1683 In the 19th century, the Court established that the civil courts have no power to interfere with courts-martial and that court-martial decisions are not subject to civil court review. 1684 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military commission, but as of that date Congress conferred appellate jurisdiction of decisions of the Court of Military Appeals. 1685 Prior to that time, civil court review of court-martial decisions was possible through habeas corpus jurisdiction, 1686 an avenue that continues to exist, but the Court severely limited the scope of such review, restricting it to the issue whether the court-martial has jurisdiction over the person tried and the offense charged. 1687 In Burns v. Wilson, 1688 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which the military had not given full and fair consideration. Since Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation 1689 and the lower federal courts have divided several possible ways. 1690

Civilians and Dependents.—In recent years, the Court rejected the view of the drafters of the Code of Military Justice with regard to the persons Congress may constitutionally reach under its clause 14 powers. Thus, it held that an honorably discharged former soldier, charged with having committed murder during military service in Korea, could not be tried by court-martial but must be charged in federal court, if at all. 1691 After first leaning the other way, 1692 the Court on rehearing found court-martial jurisdiction lacking, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States. 1693 Subsequently, the Court extended its ruling to civilian dependents overseas charged with noncapital crimes 1694 and to civilian employees of the military charged with either capital or noncapital crimes. 1695

1637 W. Blackstone, Commentaries 263 (St. G. Tucker ed., 1803).

1638 3 J. Story, Commentaries On The Constitution Of The United States 1187 (1833).

1639 25 Ops. Atty. Gen. 105, 108 (1904).

1641 Selective Draft Law Cases, 245 U.S. 366, 380 (1918) Cox v. Wood, 247 U.S. 3 (1918).

1643 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v. Lane, 45 Pa. St. 238 (1863).

1644 Act of May 18, 1917, 40 Stat. 76.

1645 Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).

1646 Butler v. Perry, 240 U.S. 328, 333 (1916) (upholding state law requiring able-bodied men to work on the roads).

1649 Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. §§ 451–473. Actual conscription was precluded as of July 1, 1973, Pub. L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration was discontinued on March 29, 1975. Pres. Proc. No. 4360, 3 C.F.R. 462 (1971–1975 Compilation), 50 U.S.C. App. § 453 note. Registration, but not conscription, was reactivated in the wake of the invasion of Afghanistan. Pub. L. 96–282, 94 Stat. 552 (1980).

1651 391 U.S. at 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).

1652 Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).

1653 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id. at 64–65. See also Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (upholding denial of federal financial assistance under Title IV of the Higher Education Act to young men who fail to register for the draft).

1654 Parker v. Levy, 417 U.S. 733, 743–52 (1974). See also Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953) Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975) Greer v. Spock, 424 U.S. 828, 837–38 (1976) Middendorf v. Henry, 425 U.S. 25, 45–46 (1976) Brown v. Glines, 444 U.S. 348, 353–58 (1980) Rostker v. Goldberg, 453 U.S. 57, 64–68 (1981).

1655 Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

1656 453 U.S. at 66. “[P]erhaps in no other area has the Court accorded Congress greater deference.” Id. at 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

1657 Parker v. Levy, 417 U.S. 733, 758 (1974). “[T]he tests and limitations [of the Constitution] to be applied may differ because of the military context.” Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

1658 Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).

1659 Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 U.S. 197 (1972).

1660 Brown v. Glines, 444 U.S. 348 (1980) Secretary of the Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which protects the right of members of the armed forces to communicate with a Member of Congress, but which the Court interpreted narrowly.

1661 Parker v. Levy, 417 U.S. 733 (1974).

1662 Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations could not bring constitutional tort suits) United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional tort action for damages). These considerations are also the basis of the Court’s construction of the Federal Tort Claims Act as not reaching injuries arising incident to military service. Feres v. United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration of Feres, but that has not occurred.

1663 United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890) In re Morrissey, 137 U.S. 157 (1890).

1664 Wissner v. Wissner, 338 U.S. 655 (1950) Ridgway v. Ridgway, 454 U.S. 46 (1981). In the absence of express congressional language, like that found in Wissner, the Court nonetheless held that a state court division under its community property system of an officer’s military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors’ claims of disability benefits deposited by a veteran’s guardian in a savings and loan association).

1665 Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 382 U.S. 386 (1966) Sullivan v. United States, 395 U.S. 169 (1969).

1666 McKinley v. United States, 249 U.S. 397 (1919).

1667 The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. §§ 801 et seq. For prior acts, see 12 Stat. 736 (1863) 39 Stat. 650 (1916). See Loving v. United States, 517 U.S. 748 (1996) (in context of the death penalty under the UCMJ).

1668 Compare Solorio v. United States, 483 U.S. 435, 441–47 (1987) (majority opinion), with id. at 456–61 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 258, 268–72 (1969) (majority opinion), with id. at 276–80 (Justice Harlan dissenting). See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435 (1960).

1670 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971) Gosa v. Mayden, 413 U.S. 665 (1973).

1673 483 U.S. at 448. Although the Court of Military Appeals had affirmed Solorio’s military-court conviction on the basis that the service-connection test had been met, the Court elected to reconsider and overrule O’Callahan altogether.

1674 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–39 (1866) Ex parte Quirin, 317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v. Henry, 425 U.S. 25 (1976).

1675 See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).

1676 United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960) United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). This conclusion by the Court of Military Appeals is at least questioned and perhaps disapproved in Middendorf v. Henry, 425 U.S. 25, 43–48 (1976), in the course of overturning a CMA rule that counsel was required in summary court-martial. For the CMA’s response to the holding, see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev’d in part on reh., 5 M. J. 246 (C.M.A. 1978).

1677 The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.


Does Japan have the constitutional and legal right to have its own army or navy? - History

Promulgated on November 3, 1946
Came into effect on May 3, 1947

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith.

We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.

We believe that no nation is responsible to itself alone, but that laws of political morality are universal and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.

We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.

Article 1. The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power.

Article 2. The Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet.

Article 3. The advice and approval of the Cabinet shall be required for all acts of the Emperor in matters of state, and the Cabinet shall be responsible therefor.

Article 4. The Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government.
The Emperor may delegate the performance of his acts in matters of state as may be provided by law.

Article 5. When, in accordance with the Imperial House Law, a Regency is established, the Regent shall perform his acts in matters of state in the Emperor's name. In this case, paragraph one of the preceding article will be applicable.

Article 6. The Emperor shall appoint the Prime Minister as designated by the Diet.
The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the Cabinet.

Article 7. The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state on behalf of the people:

Article 8. No property can be given to, or received by, the Imperial House, nor can any gifts be made therefrom, without the authorization of the Diet.

Article 9. 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 means of settling international disputes.
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.

RIGHTS AND DUTIES OF THE PEOPLE

Article 10. The conditions necessary for being a Japanese national shall be determined by law.

Article 11. The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.

Article 12. The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.

Article 13. All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
Peers and peerage shall not be recognized.
No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it.

Article 15. The people have the inalienable right to choose their public officials and to dismiss them.
All public officials are servants of the whole community and not of any group thereof.
Universal adult suffrage is guaranteed with regard to the election of public officials.
In all elections, secrecy of the ballot shall not be violated. A voter shall not be answerable, publicly or privately, for the choice he has made.

Article 16. Every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of laws, ordinances or regulations and for other matters nor shall any person be in any way discriminated against for sponsoring such a petition.

Article 17. Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official.

Article 18. No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.

Article 19. Freedom of thought and conscience shall not be violated.

Article 20. Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.
No person shall be compelled to take part in any religious act, celebration, rite or practice.
The State and its organs shall refrain from religious education or any other religious activity.

Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 22. Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.
Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.

Article 23. Academic freedom is guaranteed.

Article 24. Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

Article 25. All people shall have the right to maintain the minimum standards of wholesome and cultured living.
In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.

Article 26. All people shall have the right to receive an equal education correspondent to their ability, as provided by law.
All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided for by law. Such compulsory education shall be free.

Article 27. All people shall have the right and the obligation to work.
Standards for wages, hours, rest and other working conditions shall be fixed by law.
Children shall not be exploited.

Article 28. The right of workers to organize and to bargain and act collectively is guaranteed.

Article 29. The right to own or to hold property is inviolable.
Property rights shall be defined by law, in conformity with the public welfare.
Private property may be taken for public use upon just compensation therefor.

Article 30. The people shall be liable to taxation as provided by law.

Article 31. No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Article 32. No person shall be denied the right of access to the courts.

Article 33. No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed.

Article 34. No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel nor shall he be detained without adequate cause and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.

Article 35. The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33.
Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.

Article 36. The infliction of torture by any public officer and cruel punishments are absolutely forbidden.

Article 37. In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.
At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.

Article 38. No person shall be compelled to testify against himself.
Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.
No person shall be convicted or punished in cases where the only proof against him is his own confession.

Article 39. No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.

Article 40. Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law.

Article 41. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.

Article 42. The Diet shall consist of two Houses, namely the House of Representatives and the House of Councillors.

Article 43. Both Houses shall consist of elected members, representative of all the people.
The number of the members of each House shall be fixed by law.

Article 44. The qualifications of members of both Houses and their electors shall be fixed by law. However, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income.

Article 45. The term of office of members of the House of Representatives shall be four years. However, the term shall be terminated before the full term is up in case the House of Representatives is dissolved.

Article 46. The term of office of members of the House of Councillors shall be six years, and election for half the members shall take place every three years.

Article 47. Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law.

Article 48. No person shall be permitted to be a member of both Houses simultaneously.

Article 49. Members of both Houses shall receive appropriate annual payment from the national treasury in accordance with law.

Article 50. Except in cases provided by law, members of both Houses shall be exempt from apprehension while the Diet is in session, and any members apprehended before the opening of the session shall be freed during the term of the session upon demand of the House.

Article 51. Members of both Houses shall not be held liable outside the House for speeches, debates or votes cast inside the House.

Article 52. An ordinary session of the Diet shall be convoked once per year.

Article 53. The Cabinet may determine to convoke extraordinary sessions of the Diet. When a quarter or more of the total members of either House makes the demand, the Cabinet must determine on such convocation.

Article 54. When the House of Representatives is dissolved, there must be a general election of members of the House of Representatives within forty (40) days from the date of dissolution, and the Diet must be convoked within thirty (30) days from the date of the election.
When the House of Representatives is dissolved, the House of Councillors is closed at the same time. However, the Cabinet may in time of national emergency convoke the House of Councillors in emergency session.
Measures taken at such session as mentioned in the proviso of the preceding paragraph shall be provisional and shall become null and void unless agreed to by the House of Representatives within a period of ten (10) days after the opening of the next session of the Diet.

Article 55. Each House shall judge disputes related to qualifications of its members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present.

Article 56. Business cannot be transacted in either House unless one-third or more of total membership is present.
All matters shall be decided, in each House, by a majority of those present, except as elsewhere provided in the Constitution, and in case of a tie, the presiding officer shall decide the issue.

Article 57. Deliberation in each House shall be public. However, a secret meeting may be held where a majority of two-thirds or more of those members present passes a resolution therefor.
Each House shall keep a record of proceedings. This record shall be published and given general circulation, excepting such parts of proceedings of secret session as may be deemed to require secrecy.
Upon demand of one-fifth or more of the members present, votes of the members on any matter shall be recorded in the minutes.

Article 58. Each House shall select its own president and other officials.
Each House shall establish its rules pertaining to meetings, proceedings and internal discipline, and may punish members for disorderly conduct. However, in order to expel a member, a majority of two-thirds or more of those members present must pass a resolution thereon.

Article 59. A bill becomes a law on passage by both Houses, except as otherwise provided by the Constitution.
A bill which is passed by the House of Representatives, and upon which the House of Councillors makes a decision different from that of the House of Representatives, becomes a law when passed a second time by the House of Representatives by a majority of two-thirds or more of the members present.
The provision of the preceding paragraph does not preclude the House of Representatives from calling for the meeting of a joint committee of both Houses, provided for by law.
Failure by the House of Councillors to take final action within sixty (60) days after receipt of a bill passed by the House of Representatives, time in recess excepted, may be determined by the House of Representatives to constitute a rejection of the said bill by the House of Councillors.

Article 60. The budget must first be submitted to the House of Representatives.
Upon consideration of the budget, when the House of Councillors makes a decision different from that of the House of Representatives, and when no agreement can be reached even through a joint committee of both Houses, provided for by law, or in the case of failure by the House of Councillors to take final action within thirty (30) days, the period of recess excluded, after the receipt of the budget passed by the House of Representatives, the decision of the House of Representatives shall be the decision of the Diet.

Article 61. The second paragraph of the preceding article applies also to the Diet approval required for the conclusion of treaties.

Article 62. Each House may conduct investigations in relation to government, and may demand the presence and testimony of witnesses, and the production of records.

Article 63. The Prime Minister and other Ministers of State may, at any time, appear in either House for the purpose of speaking on bills, regardless of whether they are members of the House or not. They must appear when their presence is required in order to give answers or explanations.

Article 64. The Diet shall set up an impeachment court from among the members of both Houses for the purpose of trying those judges against whom removal proceedings have been instituted.
Matters relating to impeachment shall be provided by law.

Article 65. Executive power shall be vested in the Cabinet.

Article 66. The Cabinet shall consist of the Prime Minister, who shall be its head, and other Ministers of State, as provided for by law.
The Prime Minister and other Ministers of State must be civilians.
The Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet.

Article 67. The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet. This designation shall precede all other business.
If the House of Representatives and the House of Councillors disagree and if no agreement can be reached even through a joint committee of both Houses, provided for by law, or the House of Councillors fails to make designation within ten (10) days, exclusive of the period of recess, after the House of Representatives has made designation, the decision of the House of Representatives shall be the decision of the Diet.

Article 68. The Prime Minister shall appoint the Ministers of State. However, a majority of their number must be chosen from among the members of the Diet.
The Prime Minister may remove the Ministers of State as he chooses.

Article 69. If the House of Representatives passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the House of Representatives is dissolved within ten (10) days.

Article 70. When there is a vacancy in the post of Prime Minister, or upon the first convocation of the Diet after a general election of members of the House of Representatives, the Cabinet shall resign en masse.

Article 71. In the cases mentioned in the two preceding articles, the Cabinet shall continue its functions until the time when a new Prime Minister is appointed.

Article 72. The Prime Minister, representing the Cabinet, submits bills, reports on general national affairs and foreign relations to the Diet and exercises control and supervision over various administrative branches.

Article 73. The Cabinet, in addition to other general administrative functions, shall perform the following functions:
Administer the law faithfully conduct affairs of state.
Manage foreign affairs.
Conclude treaties. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet.
Administer the civil service, in accordance with standards established by law.
Prepare the budget, and present it to the Diet.
Enact cabinet orders in order to execute the provisions of this Constitution and of the law. However, it cannot include penal provisions in such cabinet orders unless authorized by such law.
Decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights.

Article 74. All laws and cabinet orders shall be signed by the competent Minister of State and countersigned by the Prime Minister.

Article 75. The Ministers of State, during their tenure of office, shall not be subject to legal action without the consent of the Prime Minister. However, the right to take that action is not impaired hereby.

Article 76. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.
No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.
All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.

Article 77. The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.
Public procurators shall be subject to the rule-making power of the Supreme Court.
The Supreme Court may delegate the power to make rules for inferior courts to such courts.

Article 78. Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties. No disciplinary action against judges shall be administered by any executive organ or agency.

Article 79. The Supreme Court shall consist of a Chief Judge and such number of judges as may be determined by law all such judges excepting the Chief Judge shall be appointed by the Cabinet.
The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten (10) years, and in the same manner thereafter.
In cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed.
Matters pertaining to review shall be prescribed by law.
The judges of the Supreme Court shall be retired upon the attainment of the age as fixed by law.
All such judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office.

Article 80. The judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court. All such judges shall hold office for a term of ten (10) years with privilege of reappointment, provided that they shall be retired upon the attainment of the age as fixed by law.
The judges of the inferior courts shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office.

Article 81. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.

Article 82. Trials shall be conducted and judgment declared publicly.
Where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in Chapter III of this Constitution are in question shall always be conducted publicly.

Article 83. The power to administer national finances shall be exercised as the Diet shall determine.

Article 84. No new taxes shall be imposed or existing ones modified except by law or under such conditions as law may prescribe.

Article 85. No money shall be expended, nor shall the State obligate itself, except as authorized by the Diet.

Article 86. The Cabinet shall prepare and submit to the Diet for its consideration and decision a budget for each fiscal year.

Article 87. In order to provide for unforeseen deficiencies in the budget, a reserve fund may be authorized by the Diet to be expended upon the responsibility of the Cabinet.
The Cabinet must get subsequent approval of the Diet for all payments from the reserve fund.

Article 88. All property of the Imperial Household shall belong to the State. All expenses of the Imperial Household shall be appropriated by the Diet in the budget.

Article 89. No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.

Article 90. Final accounts of the expenditures and revenues of the State shall be audited annually by a Board of Audit and submitted by the Cabinet to the Diet, together with the statement of audit, during the fiscal year immediately following the period covered.
The organization and competency of the Board of Audit shall be determined by law.

Article 91. At regular intervals and at least annually the Cabinet shall report to the Diet and the people on the state of national finances.

Article 92. Regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy.

Article 93. The local public entities shall establish assemblies as their deliberative organs, in accordance with law.
The chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities.

Article 94. Local public entities shall have the right to manage their property, affairs and administration and to enact their own regulations within law.

Article 95. A special law, applicable only to one local public entity, cannot be enacted by the Diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law.

Article 96. Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify.
Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.

Article 97. The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.

Article 98. This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.
The treaties concluded by Japan and established laws of nations shall be faithfully observed.

Article 99. The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution.

Article 100. This Constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation.
The enactment of laws necessary for the enforcement of this Constitution, the election of members of the House of Councillors and the procedure for the convocation of the Diet and other preparatory procedures necessary for the enforcement of this Constitution may be executed before the day prescribed in the preceding paragraph.

Article 101. If the House of Councillors is not constituted before the effective date of this Constitution, the House of Representatives shall function as the Diet until such time as the House of Councillors shall be constituted.

Article 102. The term of office for half the members of the House of Councillors serving in the first term under this Constitution shall be three years. Members falling under this category shall be determined in accordance with law.

Article 103. The Ministers of State, members of the House of Representatives and judges in office on the effective date of this Constitution, and all other public officials who occupy positions corresponding to such positions as are recognized by this Constitution shall not forfeit their positions automatically on account of the enforcement of this Constitution unless otherwise specified by law. When, however, successors are elected or appointed under the provisions of this Constitution, they shall forfeit their positions as a matter of course.


Taisho Democracy in Japan: 1912-1926

With the death of Emperor Meiji in 1912 a great deal of uncertainty about Japan’s future followed. Many believed that Meiji Japan had flourished under the steadfast rule of the emperor who reigned for more than 40 years. Now his first son, Yoshihito, ascended to the throne and took the name Taisho, ushering in the next era. Those deeply loyal to Emperor Meiji and resistant to modernization efforts were particularly vulnerable. Some would hold fast to the centuries of Japanese tradition, rejecting any shifts in gender roles or education and military reforms, while other reformers embraced change.

The young Taisho emperor was born in 1879 and at an early age contracted cerebral meningitis. The ill effects of the disease, including physical weakness and episodes of mental instability, plagued him throughout his reign. Because of his sickness there was a shift in the structure of political power from the old oligarchic advisors under Meiji to the members of the Diet of Japan—the elected representative officials increasingly gaining influence and power. By 1919 Emperor Taisho’s illness prevented him from performing any official duties altogether. By 1921 Hirohito, his first son, was named ses-ho, or prince regent of Japan. From this point forward, Emperor Taisho no longer appeared in public.

Despite the lack of political stability, modernization efforts during Taisho continued. A greater openness and desire for representative democracy took hold. Literary societies, mass-audience magazines, and new publications flourished. University cities like Tokyo witnessed a burgeoning culture of European-style cafés, with young people donning Western clothing. A thriving music, film, and theater culture grew, with some calling this period “Japan’s roaring '20s.”

For these reasons the Taisho era has also been called Taisho democracy as Japan enjoyed a climate of political liberalism unforeseen after decades of Meiji authoritarianism. 1 One of the leading political figures, and the man who coined the term Taisho democracy, was professor of law and political theory Dr. Yoshino Sakuzo. After observing and traveling extensively in the West, he returned to Japan and wrote a series of articles promoting the development of a liberal and social democratic tradition in Japan. In the preface to his 1916 essay “On the Meaning of Constitutional Government,” Yoshino wrote:

[T]he fundamental prerequisite for perfecting constitutional government, especially in politically backwards nations, is the cultivation of knowledge and virtue among the general population. This is not the task that can be accomplished in a day. Think of the situation in our own country [Japan]. We instituted constitutional government before the people were prepared for it. As a result there have been many failures. . . . Still, it is impossible to reverse course and return to the old absolutism, so there is nothing for us to do but cheerfully take the road of reform and progress. Consequently, it is extremely important not to rely on politicians alone but to use the cooperative efforts of educators, religious leaders, and thinkers in all areas of society. 2

With such ideas openly circulating, Japan also saw the rise of mass movements advocating political change. Labor unions started large-scale strikes to protest labor inequities, political injustices, treaty negotiations, and Japanese involvement in World War I. The number of strikes rose from 108 in 1914 to 417 strikes in 1918. At the outset of World War I, there were 49 labor organizations and 187 at the end, with a membership total of 100,000. 3 A movement for women’s suffrage soon followed. While the right of women to vote was not recognized until 1946, these early feminists were instrumental in overturning Article 5 of the Police Security Act, which had prevented women from joining political groups and actively participating in politics. They also challenged cultural and family traditions by entering the work- force in greater numbers and asserting their financial independence.

One of the most widespread political protests occurred in 1918 with Japan’s rice riots. Like the rest of the world, Japan was experiencing wartime inflation and low wages. The dramatic increase in the price of rice, a staple of the Japanese diet, had an impact on the entire country. In August 1918 in the fishing village of Uotsu, fishermen’s wives attempted to stop the export of grain from their village in protest against high prices. By October more than 30 separate riots were documented, the vast majority organized by women workers. They refused to load grain, attacked rice merchants, and protested the continued high prices. They inspired other protests, such as the demand by coal miners for higher wages and humane work conditions.

Much of this social unrest, political uprising, and cultural experimentation came to a halt on September 1, 1923. On this day a powerful earthquake struck Japan measuring 7.8 on the Richter scale. This natural disaster is referred to today as the Great Kanto Earthquake. The force of the quake was so strong that a 93-ton Buddha statue 37 miles from the epicenter moved almost two feet. The disaster devastated the entire city of Tokyo, the third largest city in the world at that time, destroyed the port city of Yokohama, and caused large-scale destruction in the surrounding area. The earthquake and subsequent fires killed more than 150,000 people and left over 600,000 homeless. Martial law was immediately instituted, but it couldn’t prevent mob violence and the targeting of ethnic minorities. Koreans living in Tokyo were targeted, as rumors spread that they were poisoning the water and sabotaging businesses. Newspapers reported these rumors as fact. According to standard accounts over 2,600 Koreans and 160–170 Chinese were killed, with about 24,000 detained by police. The numbers include political opponents such as the anarchist Osugi Sakai, his wife, and their six-year-old nephew, who were tortured to death in military police custody. The officer responsible for this crime later became a high-ranking official in Manchuria. 4

Using the social unrest as an excuse, the Japanese Imperial Army moved in to detain and arrest political activists they believed were radicals. After events surrounding the earthquake, the relationship between the military and the emperor began to shift. According to the Meiji Constitution, the emperor led the army and navy. However, all military decisions were actually made by the prime minister or high-level cabinet ministers. As political activists became more vocal, many were abducted and were never seen again. Local police and army officials who were responsible claimed these so-called radicals used the earthquake crisis as an excuse to overthrow the government. More repression and violence soon followed. Prime Minister Hara (1918–1921) was assassinated, and a Japanese anarchist attempted to assassinate Taisho’s first son, Hirohito.

Order was firmly restored when a more conservative arm of the government gained influence and passed the Peace Preservation Law of 1925. Besides threatening up to 10 years imprisonment for anyone attempting to alter the kokutai (rule by the emperor and imperial government, as opposed to popular sovereignty), this law severely curtailed individual freedom in Japan and attempted to eliminate any public dissent. 5 The transition in the emperor’s role to one of greater power began with the death of Emperor Taisho on December 18, 1926. Following tradition, his son Hirohito ascended to the throne and chose the name Showa, mean- ing “peace and enlightenment.” Hirohito neither suffered from physical or mental ailments like his father nor held the commanding presence of his grandfather. Rather, Hirohito began his reign by per- forming all the ceremonial duties flawlessly but appearing in public only for highly orchestrated formal state occasions. Over time as the political climate within Japan shifted to a more militaristic stance, so did the role of the emperor. One specific gesture is emblematic of the changes occurring in the role and power of the emperor. When Hirohito first appeared in public in the early years of his reign, commoners would always remain dutifully seated to avoid appearing above the emperor, but they were permitted to look at him. By 1936 it was illegal for any ordinary Japanese citizen to even look at the emperor.

Citations

  • 1 : Professor Kevin M. Doak also argues that it is important to recognize that “nationalism, especially the popular ethnic version, were the central ingredient in what has come to be known as Taisho democracy.” Doak, “Culture, Ethnicity, and the State in Early Twentieth-Century Japan,” 19.
  • 2 : Wm. Theodore de Bary, Carol Gluck, and Arthur E. Tiedemann, eds., Sources of Japanese Tradition, 2nd edition, vol. 2, (New York: Columbia University Press, 2005), 838.
  • 3 : In 1914 over 5,700 workers were involved in strikes and by 1918 over 66,000 were involved.
  • 4 : Bob Tadashi Wakabayashi (professor, York University), private correspondence with the author, January 22, 2014.
  • 5 : Ironically, this conservative faction passed the 1925 Universal Manhood suffrage Act, increasing the number of males eligible to vote from 3.3 million to 12.5 million. It also transformed the most devastated areas of earthquake-ravaged cities by building parks and erecting modern concrete buildings that would withstand future quakes with funds that came from cutting military spending in half. Nevertheless, the early stages of repression and militarism during the final years of the Taisho era foreshadowed the extreme rise in nationalism and militarism that followed in the coming decades.

Connection Questions

By the Taisho period, Japan had already officially become a constitutional monarchy. What observations did Yoshino Sakuzo make about the transition to democracy in Japan? What does he suggest is necessary for real change to take root?

What changes did reformers in the Taisho era bring about? What were the greatest challenges reformers faced as they attempted to bring about democratic change?

Considering what you have learned so far, why do you think some people felt a need for more authoritarian rule after the Taisho period? What gains had Japan made earlier in the century? What happened during emperor Taisho’s rule?


"Self-defence means self-defence, not invasion."

I agree with the necessity to review current Japanese constitution as there is a contradiction between Article 9 and the Self Defence Force. The currently debated approach to the interpretation of Article 9 is a first step forward to resolving the contradiction, and I’m appreciative of it.

I think the key point of this topic is the definition of “self-defence”. There are two conceivable definitions of it*. One is that the use of force only as a response to imminent threat or invasion, such as North Korea launching a missile to Tokyo or a country declaring war on Japan. The other one adds the use of pre-emptive action, such as dispatching the army to prevent a supposed attack, to the above definition. The current interpretation of Article 9 permits the use of the SDF in the first definition of “self-defence”, but not in the second one.

The right to collective self-defence, which prime minister Abe tries to include in the mandate of SDF, seems to be based on the second definition of “self-defence”. The use of the right to collective self-defence was notorious during the cold war. It was used as a justification for interfering with the internal political affairs of other countries, as the examples of the US dispatching its army to North Vietnam and the former USSR to Czechoslovakia both showed. To put this action more crudely, it is invasion in the disguise of help. This kind of arbitrary interpretation of self-defence should not be accepted.

The introduction of the right to collective self-defence will likely increase the chance of Japan dispatching its army abroad. So the current Liberal Democratic Party's approach towards self-defence has to be corrected. It is a direct contradiction to the Japanese constitution and also not something to be accepted from the point of national sovereignty. Self-defence means self-defence, not invasion.

* I drew the two definitions from the successive debate on the interpretation of Article 9 and its relation to the right of collective self-defence. You can check it on the LDP website, though unfortunately it is only provided in Japanese.


Mexico

Just south of the US border, the Mexican government has a strict hold over civilian gun ownership. Although Mexicans have a right to buy a gun, bureaucratic hurdles, long delays, and narrow restrictions make it extremely difficult to do so.

Article 10 of the 1857 Mexican Constitution guaranteed that "every man has the right to keep and to carry arms for his security and legitimate defense." But 60 years later in 1917, lawmakers amended it following Mexico's bloody revolution.

During the rewriting of the constitution, the government placed more severe restrictions on the right to buy guns. The law precluded citizens from buying firearms "reserved for use by the military" and forbid them from carrying "arms within inhabited places without complying with police regulations."

Today, Mexicans still have a right to buy guns, but they must contend with a vague federal law that determines "the cases, conditions, requirements, and places in which the carrying of arms will be authorized."

In 2012, The New York Times reported that only members of the police or military can buy the largest weapons in Mexico, such as semiautomatic rifles.

"Handgun permits for home protection allow only for the purchase of calibers no greater than .38," the Times wrote. One man who wanted to buy a pistol had to pay $803.05 for a Smith & Wesson revolver.

Perhaps the biggest hurdle of all is that there is only one shop in the entire country where Mexicans can go to buy guns, and it's located on a heavily guarded army base in Mexico City. While the store sells 38 guns a day on average, it's estimated 580 guns are smuggled into the country from the US every day.


The Second Amendment and the Inalienable Right to Self-Defense

Modern debates about the meaning of the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms or a right that can be exercised only through militia organizations like the National Guard. This question, however, was apparently never even raised until long after the Bill of Rights was adopted. Early discussions took the basic meaning of the amendment for granted and focused instead on whether it added anything significant to the original Constitution. The debate later shifted because of changes in the Constitution and in constitutional law and because legislatures began to regulate firearms in ways undreamed of in our early history.

The Founding generation mistrusted standing armies. Many Americans believed, on the basis of English history and their colonial experience, that governments of large nations are prone to use soldiers to oppress the people. One way to reduce that danger would be to permit the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or similar emergencies, the government might be restricted to using a militia that consisted of ordinary civilians who supplied their own weapons and received a bit of part-time, unpaid military training.

Using a militia as an alternative to standing armies had deep roots in English history and possessed considerable appeal, but it also presented some serious problems. Alexander Hamilton, for example, thought the militia system could never provide a satisfactory substitute for a national army. Even those who treasured the militia recognized that it was fragile, and the cause of this fragility was just what made Hamilton disparage it: Citizens were always going to resist undergoing unpaid military training, and governments were always going to want more professional—and therefore more efficient and tractable—forces.

This led to a dilemma at the Constitutional Convention. Experience during the Revolutionary War had demonstrated convincingly that militia forces could not be relied on for national defense, and the onset of war is not always followed by a pause during which an army can be raised and trained. The convention therefore decided to give the federal government almost unfettered authority to establish armies, including peacetime standing armies. But that decision created a threat to liberty, especially in light of the fact that the proposed Constitution also forbade the states from keeping troops without the consent of Congress.

One solution might have been to require Congress to establish and maintain a well-disciplined militia. Such a militia would have had to comprise a large percentage of the population in order to prevent it from becoming a federal army under another name, like our modern National Guard. This might have deprived the federal government of the excuse that it needed peacetime standing armies and might have established a meaningful counterweight to any rogue army that the federal government might create. That possibility was never taken seriously, and for good reason. How could a constitution define a well-regulated or well-disciplined militia with the requisite precision and detail and with the necessary regard for unforeseeable changes in the nation’s circumstances? It would almost certainly have been impossible.

Another approach might have been to forbid Congress from interfering with the states’ control of their militias. This might have been possible, but it would have been self-defeating. Fragmented control of the militias would inevitably have resulted in an absence of uniformity in training, equipment, and command, and no really effective national fighting force could have been created.

Thus, the convention faced a choice between entrenching a multiplicity of militias controlled by the individual states, which would likely have been too weak and divided to protect the nation, or authorizing a unified militia under federal control, which almost by definition could not have been expected to prevent federal tyranny. The conundrum could not be solved, and the convention did not purport to solve it. Instead, the Constitution presumes that a militia will exist, but it gives Congress almost unfettered authority to regulate that militia, just as it gives the federal government almost unfettered authority to maintain an army.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that federal control of the militia would take away from the states their principal means of defense against federal oppression and usurpation and that European history demonstrated how serious the danger was.

James Madison, for one, responded that such fears of federal oppression were overblown, in part because the new federal government was to be structured differently from European governments. But he also pointed out another decisive difference between Europe’s situation and ours: The American people were armed and would therefore be almost impossible to subdue through military force, even if one assumed that the federal government would try to use an army to do so. In Federalist No. 46, he wrote:

Implicit in the debate between the Federalists and Anti-Federalists were two shared assumptions: first, that the proposed new constitution gave the federal government almost total legal authority over the army and the militia and, second, that the federal government should not have any authority at all to disarm the citizenry. The disagreement between Federalists and Anti-Federalists was only over the narrower question of whether an armed populace could adequately assure the preservation of liberty.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power that the Constitution gave the federal government, but that very fact prevented the Second Amendment from generating any opposition. Attempting to satisfy the Anti-Federalists would have been hugely controversial and would have required substantial changes in the original Constitution. Nobody suggested that the Second Amendment could have any such effect, but neither did anyone suggest that the federal government needed or rightfully possessed the power to disarm American citizens.

As a political gesture to the Anti-Federalists—a gesture highlighted by the Second Amendment’s prefatory reference to the value of a well-regulated militia—express recognition of the people’s right to arms was something of a sop. The provision was easily accepted, however, because everyone agreed that the federal government should not have the power to infringe the right of the people to keep and bear arms any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

A great deal has changed since the Second Amendment was adopted. The traditional militia fell fairly quickly into desuetude, and the state-based militia organizations were eventually incorporated into the federal military structure. For its part, the federal military establishment has become enormously more powerful than 18th-century armies, and Americans have largely lost their fear that the federal government will use that power to oppress them politically. Furthermore, 18th-century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those that are commonly thought to be appropriate for civilian uses. These changes have raised new questions about the value of an armed citizenry, and many people today reject the assumptions that almost everyone accepted when the Second Amendment was adopted.

The law has also changed. At the time of the Framing, gun control laws were virtually nonexistent, and there was no reason for anyone to discuss what kinds of regulations would be permitted by the Second Amendment. The animating concern behind the amendment was fear that the new federal government might try to disarm the citizenry in order to prevent armed resistance to political usurpations. That has never occurred, but a great many new legal restrictions on the right to arms have since been adopted. Nearly all of these laws are aimed at preventing the misuse of firearms by irresponsible civilians, but many of them also interfere with the ability of law-abiding citizens to defend themselves against violent criminals.

Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. During the 20th century, the Supreme Court invoked the Fourteenth Amendment’s Due Process Clause to apply most provisions of the Bill of Rights to the states and their political subdivisions. The vast majority of gun control laws have been adopted at the state and local levels, and the potential applicability of the Second Amendment at these levels raised serious issues that the Founding generation had no occasion to consider. It is one thing to decide that authority over the regulation of weapons will be reserved largely to the states. It is quite another to decide that all regulations will be subjected to judicial review under a vaguely worded constitutional provision like the Second Amendment.

Until recently, the judiciary treated the Second Amendment almost as a dead letter. Many courts concluded that citizens have no constitutionally protected right to arms at all, and the federal courts never invalidated a single gun control law. In the late 20th century, however, the judicial consensus was challenged by a large body of new scholarship. Through analysis of the text and history of the Second Amendment, commentators sought to establish that the Constitution does protect an individual right to have weapons for self-defense, including defense against criminal violence that the government cannot or will not prevent.

In District of Columbia v. Heller (2008), the Supreme Court finally did strike down a gun control regulation, in this case a federal law that forbade nearly all civilians from possessing a handgun in the District of Columbia. A narrow 5–4 majority adopted the main conclusions and many of the arguments advanced by the revisionist commentators, ruling that the original meaning of the Second Amendment protects a private right of individuals to keep and bear arms for the purpose of self-defense.

The dissenters interpreted the original meaning differently. In an opinion that all four of them joined, Justice John Paul Stevens concluded that the Second Amendment’s nominally individual right actually protects only “the right of the people of each of the several States to maintain a well-regulated militia.” In a separate opinion, also joined by all four dissenters, Justice Stephen Breyer argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago, the Court struck down a similar law at the state level, again by a 5–4 vote. The four-Justice McDonald plurality relied largely on substantive due process precedents that had applied other provisions of the Bill of Rights to the states. Justice Clarence Thomas concurred in the judgment but rejected the Court’s long-standing doctrine of substantive due process, which he concluded is inconsistent with the original meaning of the Constitution. Instead, he set forth a detailed analysis of the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause and concluded that it protects the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, their holdings are narrowly confined to invalidating bans on the possession of handguns by civilians in their own homes. Neither case provides clear guidance on the constitutionality of less restrictive forms of gun control, although Heller does set forth a non-exclusive list of “presumptively lawful” regulations that include bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places such as schools and government buildings,” laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”

In the short period of time since Heller was decided, the lower courts have struggled to divine how it applies to regulations that the Court did not address, such as bans on carrying weapons in public and bans on the possession of firearms by violent misdemeanants. At the moment, the dominant approach in the federal courts of appeals can be summarized roughly as follows:

  • Some regulations, primarily those that are “long-standing,” are presumed not to infringe the right protected by the Second Amendment. Thus, for example, the D.C. Circuit upheld a regulation requiring gun owners to register each of their weapons with the government. Heller v. District of Columbia (“Heller II”) (2011).
  • Regulations that substantially restrict the core right of self-defense are scrutinized under a demanding test that generally permits only regulations that are narrowly tailored to accomplish a compelling government purpose. Applying a test of this kind, the Seventh Circuit found that a city had failed to provide an adequate justification for its ban on firing ranges. Ezell v. City of Chicago (2011).
  • Regulations that do not severely restrict the core right are subject to a more deferential form of scrutiny, which generally requires that the regulation be substantially related to an important government objective. The Third Circuit, for example, held that a ban on possessing a handgun with an obliterated serial number was valid under this standard. United States v. Marzzarella (2010).

The application of this framework has varied somewhat among the courts, and Heller left room for other approaches to develop. One important outstanding issue is the scope of the right to carry firearms in public. Heller laid great stress on the text of the Second Amendment, which protects the right to keep and bear arms, while also giving provisional approval to bans on the concealed carry of firearms.

A ban (or severe restrictions) on both concealed and open carry would seem to conflict with the constitutional text. It would also seem hard to reconcile with the Court’s emphasis on the importance of the right to self-defense against violent criminals, who are at least as likely to be encountered outside the home as within it. Heller, however, did not unambiguously recognize any right to carry weapons in public. Some lower courts have concluded that no such right exists, while others have disagreed. The Supreme Court may eventually have to address the issue.

A more general question concerns the scope of the government’s power to inhibit the possession and use of firearms through regulations that impose onerous conditions and qualifications on gun owners. In the analogous area of free speech, courts have struggled endlessly to draw lines that allow governments to serve what they see as the public interest without allowing undue suppression of individual liberties. If the Supreme Court is serious about treating the right to arms as an important part of the constitutional fabric, we should expect the Justices to encounter similar challenges in its emerging gun control jurisprudence.

—Nelson Lund is University Professor at George Mason University School of Law.


Watch the video: Οι Γερμανοί ξανάρχονται.. (December 2021).