[Congressional Record Volume 142, Number 7 (Monday, January 22, 1996)]
[Senate]
[Pages S186-S188]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHARLES L. KADES--A FOUNDING FATHER OF MODERN JAPAN
Mr. KENNEDY. Mr. President, 50 years ago next month, Col. Charles L.
Kades, an aide on the staff of Gen. Douglas MacArthur, was placed in
charge of an historic project to monitor and assist in the drafting of
a new constitution for Japan. Colonel Kades worked in obscurity at the
time, but he did his work brilliantly, and the resulting constitution
he helped draft laid the groundwork for Japan to recover from the ashes
of World War II and become one of the world's strongest democracies and
one of the world's strongest economies. In no small measure, that
historic success is the result of the vision, talent, and commitment of
Charles Kades.
After his landmark service in Japan, Colonel Kades returned to the
United States and practiced law with great distinction for many years
in New York City. He retired in 1976, and moved to Heath, MA, where he
now lives at the age of 89.
Over the years, the true magnitude of his historic contribution to
Japanese democracy has become better known. As the golden anniversary
of his golden achievement approaches, it is a privilege for me to take
this opportunity to commend the extraordinary leadership he
demonstrated 50 years ago. The dramatic story of his work was told in
detail in an excellent article last year in the Springfield Sunday
Republican, and I ask unanimous consent that the article may be printed
in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Sunday Republican, Springfield, MA, Feb. 19, 1995]
Heath Retiree an Unlikely Founding Father of Japan--Laws Written 49
Years Ago
(By Eric Goldscheider)
Heath.--In recent years scores of Japanese journalists and
constitutional scholars have made the trek up to this Western
Massachusetts hill town to see an 89-year-old retiree named
Charles L. Kades.
[[Page S187]]
Not only did he write the Japanese constitution but the
owns one of the only readily accessible transcripts of the
proceedings that led to its ratification 49 years ago.
Kades (pronounced KAY-dees) is an unlikely founding father
of the country that today boasts the world's second biggest
economy. Before arriving there as a colonel in Gen. Douglas
A. MacArthur's occupation force two weeks after VJ Day in
August 1945 he had never even read anything about Japan.
``I wasn't in Japan because I knew anything about Japan, I
didn't know a damn thing about Japan,'' he said during a
recent interview in his unassuming house a couple of miles
from the Vermont border.
Nor did he have any special expertise in constitutional
law. He had studied law and practiced in New York City before
the war. He had some knowledge of the New York State
constitution because he had to learn it for some of the
corporate cases he handled. He had also served as the
assistant general counsel under two cabinet secretaries in
the Roosevelt administration.
None of this adequately prepared him, he said, for a day he
remembers well--Febrary 3, 1946. That was the day Major
General Courtney Whitney put him in charge of a 16-member
task force assigned to write a draft constitution for the
country they were occupying.
``I said, `When do you want it?' '' Kades recalls. ``He
said you better give it to me by the end of the week.'' That
was six or seven days. ``I was completely flabbergasted
because I though he was going to say `a few months or June or
something like that,' '' said Kades.
The story of how he came to be in this position is more
involved than simply being called into his boss's office and
being given a task to perform. Kades is glad to tell it but
he imposes one rule on himself. He absolutely will not
comment on current Japanese political debates even though he
is often called upon to do so.
``They're none of my business,'' he tells all comers.
When Kades arrived in Japan as a member of the Government
Section of the General Headquarter of the Supreme Commander
of the Allied Powers (SCAP) there was no talk of his office
being involved in the business of constitution writing. That
was to be a job for the Japanese to do themselves in a
commission headed by Joji Matsumoto, a corporate lawyer and a
professor of law at the Tokyo Imperial University.
Progress was nil
The problem was that they weren't making very much
progress. Then an even bigger problem emerged. A reporter
from a leading Japanese newspaper swiped a copy of the draft
they were working on and published it.
``That is what you would call a `scoop,' '' Kades recounts
as a grin spreads across his face. ``The commissioners left a
draft on the table and went to lunch.''
The Americans had this purloined document translated and
found that it was short on democratic reforms and that it
didn't substantially revise the Meiji constitution of 1889
under which militarism flourished that led to the war. For
example, in the Meiji constitution the emperor's rule was
``sacred and inviolable,'' and in the revised version the
emperor's rule was to be ``supreme and inviolable.''
The government protested and said that the published draft
didn't accurately reflect the work of the commission. ``When
the government denied that was the correct version we asked
them to hand over the correct version--it wasn't very
different,'' says Kades.
As it happens, just before the Japanese government was
caught with its pants down by an alert reporter, Kades was in
the process of preparing a memo arguing that Gen. MacArthur
had the legal authority to revise the constitution. This
argument rested on the text of the Potsdam Declaration in
which the leaders of the United States, England and China
proclaimed that among the terms under which hostilities would
cease the Japanese government had to ``remove all obstacles
to the revival and strengthening of democratic tendencies
among the Japanese people. (And that) freedom of speech, of
religion, and of thought, as well as respect for the
fundamental human rights, shall be established.''
standards lacking
The document the Japanese were working on didn't live up to
this standard. At first Whitney wanted Kades to prepare a
memo outlining the American objections to the draft. Then
word came down from MacArthur that this would only be a waste
of time ``ending up with a lot of exchanged memos.'' The
decision was made that the Americans would prepare their own
draft.
This is the point at which a mystery about the Japanese
constitution ensued that remains unsolved to this day.
When Whitney charged Kades and his group with the task of
writing the constitution within the week, he handed him some
hand-written notes for him to use as a starting point.
Scholars are still curious whether these notes reflected the
thoughts of Whitney or MacArthur.
There are three possibilities, said Kades: the notes were
written by MacArthur, they were written by Whitney or they
were dictated to Whitney by MacArthur. Kades said he kept
those notes in his field safe until the end of his 3\1/2\-
year tour of duty. When he left Japan he returned them to
Whitney and they have since disappeared. His hunch is that
the notes reflected MacArthur's thinking.
constitution team
When Kades and his group set to work on the constitution,
the first thing they did was to divide up the task according
to their various talents and areas of expertise. Five of the
16 officers had been lawyers in civilian life. There was a
former congressman, the editor and publisher of a chain of
weekly newspapers in North Dakota who had also served as the
public relations officer for the Norwegian embassy in
Washington. A few university professors, a foreign service
officer and a partner in a Wall Street investment firm were
also part of the team.
Committees comprised of one to three people were formed to
draft articles on such things as the roles of the executive,
the legislature and the judiciary. An academic who had at one
time edited a journal on the Far East headed the committee on
the executive. The foreign service officer was told to deal
with questions surrounding treaties. A social science
professor dealt with civil rights, the banker was the sole
member of the finance committee and so it went.
Between them they collected constitutions of a dozen other
countries from libraries around Tokyo. Some of them were
familiar with various state constitutions from the United
States. Kades emphasizes, though, that the primary sources
they drew on for their work was the existing Japanese
constitution of 1889 as well as drafts prepared by some of
the political parties in existence at the time.
Kades isn't sure why MacArthur was in such a hurry for his
group to finish the draft. His best guess is that elections
had been set for the middle of March 1946 and that it was
anticipated that the constitution would become a campaign
issue. Also, if they delayed, MacArthur feared that their
work would be hampered because, with the passage of time,
China and the Soviet Union would get into the position of
being able to veto any new constitution.
finished on schedule
Kades' group finished their work on schedule. On Feb. 13
Whitney met with the Japanese group telling Matsumoto that
their revision was ``wholly unacceptable to the supreme
commander as a document of freedom and democracy'' before
handing him a copy of the document drafted by the Americans.
The next weeks were devoted to meetings with the Japanese
constitutional commission to hammer out the final wording of
the document that would be submitted to the Japanese Diet
(the equivalent of the U.S. Congress) for ratification.
The last negotiation session went 34 hours without a break.
They finished on March 4. Two days later the cabinet and
the Emperor accepted it and it was approved by MacArthur that
night.
oversaw ratification
But this isn't the end of the story.
In the following months and through the summer, Kades was
responsible for overseeing the ratification process of new
constitution. His instructions were to let the newly elected
legislature amend his document in any way as long as they
didn't violate the basic principles laid out in the Potsdam
Declaration.
Kades recalls that he would be asked what kinds of changes
would violate these principles. His response was along the
lines of Justice Stewart Potter's observations on
pornography, ``I can't define it but I know it when I see
it.''
A number of things were changed, such as the striking of a
clause under which aliens would be accorded equal protection
under the law. Kades was sorry to see that go but he didn't
think he had the mandate to intervene on such questions.
The deliberations of the Diet were transcribed and sent to
Kades every day. He kept those documents and has since had
them bound. Unlike in the U.S. where the Congressional Record
publishes the proceedings of Congress, under Japanese law
only members of the Diet have access to transcripts of
legislative deliberations and they are not allowed to remove
or copy those transcripts. That is how Kades came to be in
possession of one of the only sources scholars interested in
the proceedings can go to. There are other copies but they
are in disarray.
Once the draft constitution was debated, revised and
ultimately ratified by the Diet it was promulgated by the
Emperor on November 3, 1946, nine months to the day after it
was conceived by MacArthur, Kades wrote in an account of the
process published in an American academic journal six years
ago. The process by which it was introduced by the emperor to
take effect six months later was in accordance with the
process for amending the constitution laid out by the Meiji
constitution of 1889. ``We wanted as much legal continuity as
possible,'' said Kades, in order to give the new document
``more force.''
laws needed rewrite
Still Kades' work wasn't finished. After the constitution
was in place, many of the laws had to be rewritten in order
to bring them into line with the new order. Kades had a hand
in this process and was sent a team of legal experts from the
U.S. to help him. Among them was Alfred Oppler, a judge in
prewar Germany who had been purged by Hitler. He went to the
United States and worked as a gardener while teaching himself
English. His help was invaluable, Kades says, because of his
knowledge of German law. The Meiji constitution Kades had
taken as a template was based on the Prussian constitution
[[Page S188]]
of its time and was grounded in statutory law rather than the common
law traditions of England and the United States.
durable document
The Kades constitution has been remarkably durable, a point
Kades offers to support his contention that had it reflected
substantive input from those who would later live under it.
``I don't think it could have lasted 50 years'' had it been
forced on the Japanese, he says. Another reason for its
durability, he says, is that there are enough groups such as
women, labor unions, and local government entities who could
stand to lose protection if the constitution were tampered
with.
``Women have more rights under the Japanese constitution
than in the U.S.,'' Kades says.
Whenever the idea of revision is raised, all these groups
band together to forestall it.
The strongest push to revise the constitution came out of
the Gulf War in 1990.
One of the most unusual aspects of the Kades document is
Article 9 which prevents Japan from having an army other than
a minimal self-defense force. This is the basis on which the
Japanese say they are precluded from participating in multi-
national military operations like Desert Storm.
revisions pushed
A leading Tokyo newspaper, Yomiuri Shimbun, (not the same
paper that published the unauthorized copy of the draft
constitution 49 years ago) is pushing to revise the Kades
constitution so as to allow the Japanese to increase the
strength and scope of its armed forces. A think tank
associated with that newspaper has even drafted a revised
constitution.
Partly as a result of this controversy, Kades has become a
much sought after interview subject in recent years.
Television crews from England, Australia and the U.S. in
addition to several from Japan have come to his home. He
estimates that he has given 60 interviews in the last several
years.
He was invited to Japan where he was interviewed by a
documentary film crew. He also appeared on the equivalent of
one of our Sunday morning political talk shows on which two
leading politicians debated the issue. He has also been
sought out by journalists and scholars seeking comments on
aspects of the post-war occupation about which he has no
particular expertise such as educational reform and civil
liberties. Study of the occupation ``is a whole industry in
Japan,'' Kades says.
Out of these experiences, Kades has learned that anything
he says about current debates can be distorted. Statements he
has made in his home in Heath, he says, have resulted in
``indignant'' phone calls from half way around the globe.
Even if his statements aren't distorted, he says, he feels he
simply isn't competent to be involved in current
controversies.
To make it easier for him to stick to his self-imposed rule
not to talk about potential revisions of his constitution, he
keeps next to his phone a typed message that he took from a
speech by former Secretary of State Cyrus Vance saying that
``outsiders should keep their hands off'' Japan's internal
affairs.
One of the people most interested in Kades' comments was
Kikuro Takagi, a senior editor of Yomiuri Shimbun--the
largest circulating newspaper in the world. Takagi lives in
New York City and he is among those who trekked to Heath to
seek a comment of the new draft constitution his newspaper is
promoting. Kades refused to even read it in his presence.
model for peace
Reached in New York, Takagi says he thinks Kades opposes
the revisions and that he shares the view of one of his
former assistants, Beate Sirota-Gordon. She maintains that
the Japanese have undergone remarkable political and economic
development for 49 years under the old document that
precludes all but a minimal defense force. ``Article 9 is
really a model for peace that should not be amended, rather
it should be copied by other countries . . . changing Article
9 would be a very sad thing,'' says Sirota-Gordon who, at the
age of 22, drafted the women's rights section of the Kades
constitution.
Sirota-Gordon gives Kades a lot of credit for what she
considers to be a shining moment in world history. ``It is an
unusual situation when an occupation force is inclined to do
something beneficent rather than vengeful,'' she said in an
interview from her home in New York.
When pressed on Kades' reactions to attempts to update the
constitution Takagi said, ``he gave us a very delicate
reply.'' Tagaki said his paper didn't publish Kades' thoughts
because ``we are trying to push up our revision to our
leaders . . . this is a very delicate political and
psychological issue so we are holding on to Mr. Kades' reply
for now.''
After the war, Kades returned to the relative obscurity of
a New York City lawyer. He bought the house in Heath in 1967
as a summer residence and moved there full time when he
retired in 1978. He lives there now with his wife Phyllis.
Asked what he likes to do when he isn't fielding questions
about the Japanese constitution Kades smiles and says,
``drink beer.'' Then he adds, ``in the summer time I have to
take care of some of the grass around here.'' He also likes
to read about current events and he keeps up on the books
that come out about Japan. He has been to the Far East
sometimes visiting the children of people he knew when he was
there during the occupation. One of them took him to the
office where he and his team wrote the constitution. It now
houses the Dai Ichi Insurance Co.
Reflecting on the heady days 49 years ago, Kades looks
briefly into the fireplace warming his living room and says
matter of factly, ``it certainly has changed my retirement.''
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