[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.''

                          ____________________