Download To make “We the People”: Constitutional founding in postwar Japan

© The Author 2010. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
..........................................................................................
To make “We the People”:
Constitutional founding in
postwar Japan and South
Korea
Chaihark Hahm* and Sung Ho Kim**
This article is a theoretically-informed comparative analysis of the constitution-making processes in Japan and South Korea after the end of the Second World War. Written under the
hegemonic influence of the United States and against the backdrop of the dawning Cold War,
both constitutions demonstrate the inadequacies of the conventional theoretical account of
“We the People” as “constituent power.” We argue that the “constituent people” was forged
in the course of a deep constitutional politics—rather than vice versa—in which the role of
“externalities” and the resuscitation of “useable pasts” were intrinsically tied to the formation of new constitutional peoplehood in postwar Japan and postcolonial Korea. Going beyond
the common presupposition that a well-defined constituent people exists prior to the constitutional moment with a unified political will and robust agency, we suggest that the Japanese
and Korean “exception” may actually prove to be the rule for theorizing about constitutional
democracy in the age of globalization.
1. Introduction
By many accounts, the entire legitimacy and practice of constitutional founding hinge
on “We the People.” Virtually all modern constitutions claim some mandate from the
people who gave birth to it at some discrete point in time. The constitution is also seen
as always subject to amendment and even abrogation by the same people. In a sort of
* Associate Professor of Law, Yonsei University. Email: [email protected].
** Associate Professor of Political Science, Yonsei University. Email: [email protected]. The
authors would like to thank Carter Eckert, Andrew Gordon, Gary Jacobsohn, Barak Medina, and Joseph
Weiler for their thoughtful comments on an earlier draft. We are grateful to the Hague Institute for
the Internationalization of Law, Netherlands Institute for Advanced Study, and Harvard-Yenching
Institute for providing the ideal environment for writing this article. Kim acknowledges financial support from the Daelim Institute for Social Advancement. Authors are listed in alphabetical order.
I•CON (2010), Vol. 8 No. 4, 800–848
doi: 10.1093/icon/mor007
To make “We the People”: Constitutional founding in postwar Japan and South Korea 801
“he that giveth, may also taketh away” logic, modern democratic constitutions are
destined to have life so long as the people find it pleasing. And a constitution will be
pleasing to the people insofar as it is perceived to be faithfully implementing their will.
This is the case despite disagreements at the retail level as to how best to implement
the people’s will.1 As regards the constitution, “We the people” is its author and font of
legitimacy as well as its master and chief beneficiary.
This way of thinking, so intuitively commonsensical, may be encountered in a variety of different contexts. It is detectible, for example, in the ongoing controversy regarding the desirability of creating a “constitution” for Europe. There, the debate is in large
measure fueled by an anxiety that such a construct might threaten people’s agency and
mastery over their own fate. It is often argued that, since there is no single European
“people” or demos yet, there can be no constitutional edifice for Europe.2 A similar
apprehension seems to underlie the negative assessments of constitutions that have
allegedly been “imposed” from the outside. The argument is that constitutional
imposition is improper, impractical, and unsustainable because the local people were
not given an active role in drafting the fundamental law of their own land. In order to
feel ownership over it, the people must have a say in its making.3 Another context where
this view plays a crucial role is the recent discourse in the United States on “popular constitutionalism” and the purported evils of judicial supremacy. Here, the Supreme Court’s
claim to be the final arbiter of constitutional meaning is challenged and criticized as a
usurpation of power that rightfully belongs to the people. As the author of the constitution, “We the People” should be the ultimate authority in its interpretation as well.4
As this admittedly haphazard sampling of arguments from different parts of the
world shows, it is frequently posited that the relationship between the people and the
constitution is, and should be, one of creation and mastery. This seeming commonsense view of the people’s authorship of the constitution tends to endow the people
with a certain timeless quality as constituent agent. They are simply assumed to exist
at the moment of constitutional founding in a readily identifiable form and shape,
with readily identifiable interests and values. Questions such as “Where do they come
from in time?” or “Who were they before they made the constitution?” seldom figure
prominently in theoretical discussions. The identity of the people, as such, is assumed
to remain constant over time despite the deeply transformative politics entailed in the
1
2
3
4
Even for liberal theorists, who often cast the people’s will as a potential threat to individual rights, it is
axiomatic that the “people” must be seen as the ultimate source of constitutional legitimacy.
For a recent round of discussion surrounding this issue, see the special section, Comments on the German
Constitutional Court’s Decision on the Lisbon Treaty, 5 Eur. Const. L. Rev. 353–420 (2009). For a critical
analysis of the “no demos thesis,” see J. H. H. Weiler, Does Europe Need a Constitution? Demos, Telos and the
German Maastricht Decision, 1 Eur. L.J. 219 (1995).
See, e.g., Noah Feldman, Imposed Constitutionalism, 37 Conn. L. Rev. 857 (2005); Simon Chesterman,
Imposed Constitution, Imposed Constitutionalism, and Ownership, 37 Conn. L. Rev. 947 (2005); Zachary Elkins
et al., Baghdad, Tokyo, Kabul . . . : Constitution Making in Occupied States, 49 Wm. & Mary L. Rev. 1139 (2008);
J. Alexander Thier, The Making of a Constitution in Afghanistan, 51 N.Y.L. Sch. L. Rev. 557 (2006–2007).
See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004);
Mark V. Tushnet, Taking the Constitution Away from the Court (2000); Richard D. Parker, Here, the People
Rule: A Constitutional Populist Manifesto (1999).
802 I•CON 8 (2010), 800–848
historic act of constitutional founding. The people are also assumed to have an agency
that is nearly omnipotent vis-à-vis the political and constitutional universe they create. If they so choose, “We the People” are always free to make a new world, a novus
ordo saeclorum, through another constitutional founding. On this view, the priority
of the people over the constitution is not only natural (as a matter of logic) but also
necessary (as a matter of normative reasoning).
In this essay, we propose to reexamine these assumptions in a fresh light. Our suspicion
is that the actual relationship between the people and the constitution is much more complex and multifaceted. If so, then a more thorough and historically informed investigation
is required into the nature and status of the people as constituent agent. We intend to take
the first step in this direction by examining a couple of historical cases of constitution
making, namely, those of Japan in 1946 (effective 1947) and South Korea in 1948.
These two instances are particularly well suited to our purposes for several reasons.
First, both countries are examples of older states that had to go through what amounts
to a rebirth after World War II by adopting a democratic constitution in the name of “We
the People.” Unlike, say, the United States, where political union was largely the product
of constitutional founding, both Japan and Korea had existed as identifiable political
units long before the advent of modern constitutionalism. Such contexts pose the issue of
accounting for “We the People” in more acute terms. While the emergence of the people
as a constitutional agent is undoubtedly a recent phenomenon, it is also undeniable that
both countries have long traditions of relatively well-defined and established peoplehood.
This raises the theoretical question of how to relate the new “people” of a constitutional
order with the older “people” as a historical, political unit. At the least, it calls into question the assumption that the identity of the people has remained unchanged from time
immemorial. The two examples thus focus our attention on the changes brought about
in the status and identity of the “people” by the adoption of democratic constitutions.
Second, Japan and Korea merit a comparative examination because the identities of
the two peoples become clearer when we consider the extent to which one people figured in the other’s process of redefining itself constitutionally. “We the People” in both
instances emerged through a process of extricating itself from the other because, as of
August 1945, the two peoples had been legally incorporated into one polity called the
Japanese Empire since 1910. Postwar constitution making in the name of the “people” meant that the people of one country had to be defined in contradistinction to that
of the other. To be sure, there were other references and resources that informed the
process of constructing the people as constitutional agent. Yet, the significance of the
constitution-making process for each people cannot be fully appreciated without considering the fact that this entailed both undoing Japan’s 1910 annexation of Korea
and demarcating the two peoples again in political and legal terms.
Third, investigating these two instances of constitution making side-by-side will be
fruitful because both were done under the same foreign tutelage. It is common knowledge that the U.S. military occupation, led by General Douglas MacArthur as the Supreme Commander for the Allied Powers (SCAP), played a pivotal role in the making
of Japan’s postwar constitution. Less well known is the fact that the constitution of
South Korea was also drafted while under the same U.S. occupation authority whose
To make “We the People”: Constitutional founding in postwar Japan and South Korea 803
military chain of command went back ultimately to MacArthur in his capacity as the
Commander-in-Chief of the United States Armed Forces in the Pacific. More interesting,
perhaps, are the different approaches adopted by the U.S. military authorities in the two
occupied territories. Defeated Japan was ruled indirectly via the Japanese government left
intact after the surrender. By contrast, United States Army Military Government in Korea
(USAMGIK) took direct control of Korea that was liberated from Japan, declaring itself to
be the sole lawful authority in Korea and outlawing all local political groups claiming to
represent the Korean people. Ironically, though, the Japanese constitution was largely a
product of direct intervention by SCAP, whereas the Korean constitution was written by
Koreans themselves with less coercive involvement on the part of USAMGIK. This
notable difference, which came about despite the same foreign presence, also makes the
two constitution-making experiences a particularly suitable subject for comparison.
For these reasons, we believe that a comparative study of constitution making in
Japan and Korea will not only be meaningful in its own right but also supply us with
an excellent opportunity and vehicle for rethinking the relationship between the people
and the constitution. Our hope is to show, through critical reflections on both theory
and historical events, that “We the People” is, in an important sense, “constituted” by
the very constitution that is being drafted in the people’s name. Before turning to these
historical constitutional foundings, however, we will start by briefly reviewing the conventional views on constitution making and the status of the people in that process.
2. Theoretical reflections
2.1. People vs. imposition
Our theoretical reflection begins with the suspicion that “imposition” may be an
inescapable part of constitution making. Historically, the great democratic constitutional moments of the eighteenth century, which have become paradigmatic in all
subsequent theorizing, were, in actuality, quite the exception. The more common
mode of constitution making was one in which “We the People” played little role.
The notable constitutional foundings of the nineteenth century hardly conformed
to the example set by the American and French precedents. The Bonapartist constitutions that Poland (1791), Spain (1812), and Norway (1814) adopted in the wake and
aftermath of the French Revolution were often dictated at the tip of the conqueror’s
bayonets. Following the Congress of Vienna, the legitimist charters of Holland (1815),
Bavaria (1818), and Portugal (1826) sought to restore the absolutist monarchies of
l’ancien régime. So-called bourgeois constitutions, pioneered by the Belgian Charter
(1831), were based on a “dualism” in which the monarch promulgated a constitution
at the behest of the (bourgeois) people.5 The constitutions of Wilhelmine Germany
5
R. von Mohl, Das Repräsentativsystem, seine Mängel und Heilmittel, politische Briefe geschrieben 1850,
in Monographien Zum Staatsrecht, Völkerrecht, und Politik 34ff. (1860) (as explicated in Carl Schmitt,
Constitutional Theory 336–337 (Jeffrey Seitzer trans., 2008) (1928)). For a general account of European
constitutional developments during the nineteenth century, see George A. Billias, American Constitutionalism
Heard Round the World, 1776–1989: A Global Perspective 142–200 (2009).
804 I•CON 8 (2010), 800–848
(1871) and Meiji Japan (1889) are merely the best-known examples of this type of
constitution making. Aside from the possible exception of the Latin American republican
experiments during the same period, constitutional foundings in history were more acts
of imposition—either by an outside conqueror or by an inside monarch—than that of
an autonomous people’s self-determination. “You the People” seems to be closer to the
historical reality of the nineteenth century than was any notion of “We the People.”
Of course, the idea of autonomy, or self-determination, eventually came to the fore
with the rising tide of nationalist sentiments and class consciousness on a grander,
worldwide scale. The interwar period in Europe witnessed an effervescence of constitution-making activities in new nation-states carved out of the imperial ruins after
World War I. More established countries, whether defeated (as in Weimar Germany)
or otherwise (as in New Deal America), also underwent a profound constitutional
overhauling in the direction of more robust socioeconomic justice. At the conclusion
of World War II, these two progressive causes merged into a powerful call for national
and class liberation among many postcolonial people who demanded a constitutional
edifice befitting their dual liberation.6 Self-determination for the people became the
sine qua non for successful constitution making in the postwar, postcolonial world. At
long last, it appears that “You the People” of the nineteenth century has given way to
“We the People” in the twentieth century.
From a more conceptual standpoint, however, it is still worth asking whether
constitutions truly are no longer “imposed,” now that national self-determination
has entered the new zeitgeist. Constitution making involves designing the institutions of a body politic, especially the government apparatuses, while carefully
engineering a built-in system for their self-restraint. Structures provisions may
do the work alone (as the Federalists at the Philadelphia Convention believed);
alternatively, such restraint may be reinforced by enumerating extensive rights
provisions (as claimed by the Anti-Federalist proponents of the American Bill of
Rights). Either way, a democratic constitutional founding is often conceptualized as
a political demos seeking to erect an institutional edifice for collective self-rule, while
spawning a web of sticky encumbrances meant to hamper the unmitigated exercise
of their own power.
Loosely building on the classic Aristotelian account of akrasia, the conventional
answer to this dilemma postulates a democratic constitutional founding in terms of a
collective “self-binding.” A common analogy is “Peter sober” hedging himself against
the ill-advised decisions of “Peter drunk” at some future point.7 Putting cumbersome
constraints on the people’s will can be justified on democratic grounds only insofar as
the constraints can be explained away as “self-imposed.” In other words, the element
of “imposition” has not been completely effaced from the process of constitution making
6
7
See, e.g., Said Amir Arjomand, Constitutional Development and Political Reconstruction from Nation-Building
to New Constitutionalism, in Constitutionalism and Political Reconstruction 3 (Said Amir Arjomand
ed., 2007) (stating that the main goal of twentieth-century constitutions was to declare the national
sovereign independence and to program rapid socioeconomic transformations).
Stephen Holmes, Precommitment and the Paradox of Democracy, in Constitutionalism and Democracy 195 (Jon
Elster & Rune Slagstad eds., 1988); Cass Sunstein, Designing Democracy: What Constitutions Do 241 (2001).
To make “We the People”: Constitutional founding in postwar Japan and South Korea 805
even in the era of popular sovereignty. It has been only rethought as “self-imposition,”
or self-binding. It may even be that imposition is an unavoidable feature of all forms of
lawgiving. If that is so, then most disputations surrounding “imposed constitutions,”
which seem predicated on an ideal type of nonimposed constitutions, may have been
misguided all along.8
To be sure, the difference between self-imposed constitutions and those imposed at
the hands of an alien power remains compelling. By most accounts, one is done autonomously and, therefore, is legitimate, while the other heteronomously and, thus,
illegitimate. The deficiency that foreign imposition represents cannot be cured no
matter how well intentioned it may be or how eagerly it is accepted by the locals. This
belief is deeply rooted in the modern doctrine of popular sovereignty in which constitution making is an exercise of people’s originary and unfathomable “constituent
power,” or pouvoir constituant à la Sieyès. As divine will creates the universe ex nihilo,
so the general will gives birth to a political cosmos, writing a constitution on a tabula
rasa; just as God intervenes in history occasionally to make a fresh start, so the people
rise up periodically to suspend normal politics and rewrite constitutions.9 According
to this view, popular sovereignty means that the “people” are the ultimate source of
legitimacy whose “foundational decision” about political existence “requires no justification via an ethical or juristic norm” for it is beyond good and evil.10 In this latterday “political theology,” a common theoretical solution to the problem of imposition is
to regard constitution making as an autonomous self-imposition by the “people” who
can never err in the final analysis. Ironically, in our modern secular age, vox populi vox
dei, once used in a metaphorical sense, has come to take on a literal meaning.11
2.2. The “unbearable lightness” of the “people”
It should be evident, however, that the value and legitimacy of a constitution does not
depend solely on its authorship. A binary framework of “auto-good/hetero-bad” may
Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907 (2005) (“[T]he model of the indigenous constitution is even rarer than the model of the borrowed or imposed one, and
understanding the non-indigeneity of even the most seemingly indigenously created constitutions is an
important facet of contemporary constitution-making and contemporary constitutionalism”).
9
With apparent approval, Carl Schmitt describes de Tocqueville’s observation on American democracy
“that ... the people hover above the entire political life of the state, just as God does above the world, as
the cause and the end of all things, as the point from which everything emanates and to which everything returns.” Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 49 (George
Schwab trans., 1985) (1922). Bruce Ackerman also belongs in this category insofar as his theory of “dualist”
constitutionalism juxtaposes “normal politics” with “higher-lawmaking” by “We the People.” Bruce
Ackerman, We the People I: Foundations (1991).
10
Schmitt, Constitutional Theory, supra note 5, at 136, 166.
11
Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood, in The
Paradox of Constitutionalism 9, 17 (Martin Loughlin & Neil Walker eds., 2007) (In Schmitt’ view, “the
passage to modern democracy secularizes the transcendence of God vis-à-vis the world, such that . . . the
people, in its relation to the legal order, takes over the position God had formerly occupied in relation to
the world”). Edmund S. Morgan, The Fiction of “The People,” N.Y. Rev. Books, Apr. 23, 1992, at 46, 48
(reviewing Bruce Ackerman, We the People I: Foundations (1991)) (“The people are the brooding omnipresence
of modern government, but their existence and their actions, like God’s, must be taken on faith . . .”).
8
806 I•CON 8 (2010), 800–848
end up giving a blank check to tyrants who claim for themselves some mandate of the
“people.” Historically, too, injustice and sufferings are often committed in the name
of the “people” when its ultimate decision was not allowed to be opposed or scrutinized. This suggests that “self-imposition by a people” might not be fully adequate as a
framework for understanding what it means to make a constitution.
For one, there is the problem of identity over time. The “people,” presumably the subject
of constitutional self-imposition, do not consist of one individual whose identity remains
immutable. The “people” is a composite being whose component parts are constantly
undergoing changes. With every new birth and latest death, the “people” who imposed
a constitution on themselves cannot be the same as those who are expected to abide by it.
For, from the perspective of later generations, the constitution is being imposed on them
not by themselves, but by their ancestors.12 The founding generation’s autonomy may
well turn out to be “the dead hand of the past” that holds their posterity in a state of heteronomy.13 This, of course, is the very problem that Thomas Jefferson tried to address with
his proposition that each generation be entitled to draw up a new constitution.14
As this intertemporal problem shows, the presupposition of an “auto,” that is, a self,
giving a “nomos” to itself is, at best, problematic. An autonomous “people”—taken as
a whole—are assumed to be a well-defined subject, exercising an originary constituent
power, whose identity remains constant before and after authoring the constitution.
Yet, it is worth asking who exactly are the “people” who supposedly author the constitution. More precisely, do the “people” exist as a pregiven, clearly bounded, and
self-sufficient agent prior to the drafting of the constitution? Even within the founding
generation itself, there usually is a small group of learned individuals and political
entrepreneurs who come together to draft a constitution, which, subsequently, is
attributed to the “people.”15 Often the drafters are not even convened in the name of
the people, for there is no idea, as yet, of “people” to be invoked as such before the constitution.16 It seems, then, more accurate to say that the people are given a definition,
an identity, in the act of attribution itself.
This intergenerational issue is especially problematic for liberals for whom individual autonomy is the
overriding desideratum. From a liberal-constitutionalist perspective, therefore, defending obedience to
the constitution (now) solely on account of the people’s authorship (of yesteryear) is highly unpersuasive. Frank Michelman, Constitutional Authorship, in Constitutionalism: Philosophical Foundations 64, 67
(Larry Alexander ed., 1998) (describing such argument as a “sitting duck for critique”).
13
Jeremy Waldron, Precommitment and Disagreement, in Constitutionalism, supra note 12, at 271, 276–281.
On the limited applicability of the image of an individual’s self-binding for understanding political communities, see generally Jon Elster, Ulysses Unbound 92–96 (2000).
14
See, e.g., Thomas Jefferson, Letter to James Madison (Sept. 6, 1789), in Jefferson: Political Writings 593
(Joyce Appleby & Terence Ball eds., 1999) (“[T]he earth belongs in usufruct to the living; . . . the dead
have neither powers nor rights over it”).
15
Perhaps a “mobilized majority” may be all that can be expected to speak in the name of the “people.”
Ackerman, supra note 9, at 236, 260–262.
16
Events of Philadelphia and Paris from 1789 to 1791 show that the drafters were convoked by powers
other than the “people,” i.e., the Continental Congress and Louis XVI, and that once constituted, the
drafting conventions severed their ties to the convoking authority and proceeded to reconstitute or “bootstrap” themselves as the voice of the people. Jon Elster, Constitutional Bootstrapping in Philadelphia and
Paris, in Constitutionalism, Identity, Difference, and Legitimacy 57 (Michel Rosenfeld ed., 1994).
12
To make “We the People”: Constitutional founding in postwar Japan and South Korea 807
It may be that, as a historical matter, a certain preconstitutional community with
shared ethnic, cultural, religious, and/or linguistic heritages can more easily agree
to strive for political independence. Still, this community is not yet a “people” in the
sense of being a political demos defined by mutual freedom and equality. To a great
extent, that status comes about only as a result of constitution making.17 It might be
thought that the people acquire freedom and equality first, which is then codified and
reflected in the constitution. Yet, prior to the making of the constitution, such a civic
status is, at most, an ideal or a promise. It is, rather, at the moment when the constitution is promulgated in their name that a free and equal “people” becomes a political
reality.18
The implication is that the people may be constituted by the constitution as much
as they author it.19 The making of a constitution has the effect of calling a “people”
into existence, whose political and legal identity is grounded in that very constitution. Thus, the relationship between the people and the constitution is less one of creator and his handiwork than that of reflexivity in which they engender one another.20
While a constitution is properly interpreted as having been authored by the people,
the people are also better understood as having gained their identity from the constitution.21 If this is the case, it seems difficult to maintain the conventional “theological”
views on constitution making that is predicated on the idea of people as an “allpowerful and ever-living” author of the constitution. The “people” are not a pregiven
entity that remains constant throughout history, much less a demiurge that stands
outside history to re-create a constitution from time to time. Neither immanent nor
transcendent, a people’s identity is crystallized in history through the constitutional
founding itself.
The foregoing reflections inevitably invite further questions for theories of constitution making, which some might find troubling. If it is difficult to speak of a people,
or of a collective “self,” prior to the making of the constitution, then who is doing the
In relation to the American Declaration of Independence, Derrida has observed: “The ‘we’ of the declaration speaks ‘in the name of the people.’ But this people does not exist. . . . If it gives birth to itself, as free
and independent subject, as possible signer, this can hold only in the act of the signature. The signature
invents the signer.” Jacques Derrida, Declarations of Independence, 15 New Pol. Sci. 7, 10 (1986).
18
In this sense, constitution making is “performative” in that it causes something to come into being which
did not exist before. According to Derrida, it is impossible to decide “whether independence is stated or
produced by this utterance.” For him, this is not a bad thing. In fact, he claims that “this undecidability
between, let us say, a performative structure and a constative structure, is required in order to produce
the sought-after effect.” Id. at 9.
19
Sheldon Wolin, The Presence of the Past 9 (1989) (“A constitution not only constitutes a structure of power
and authority, it constitutes a people in a certain way. It proposes a distinctive identity and envisions a
form of politicalness for individuals in their new collective capacity”). Cf. Mark Tushnet, Constituting We
the People, 65 Fordham L. Rev. 1557, 1558 (1997).
20
Lindahl, supra note 11, at 22 (“[T]he paradox of constituent power indicates that self-constitution
begins as the constitution of a political unity through a legal order, not as the constitution of a legal order
by a political unity”).
21
Wolin, supra note 19, at 12–13 (“Thus, a constitution has a circular nature: it is constituted by the collectivity (“We the People . . . do ordain and establish this Constitution . . .”), and the actions performed
under it, in turn, constitute the collectivity”).
17
808 I•CON 8 (2010), 800–848
imposition on whom? Can we speak of “autonomous” self-imposition with any degree
of cogency? More importantly, if the legitimacy of constitution making cannot easily
be secured by reading it as an act of self-imposition, what alternative readings are
there?22 While a comprehensive answer to these questions will not be attempted here,
the first step, in our view, would be to recognize that constituting a people is itself a
complex process that needs to be unpacked and analyzed in greater detail. To be more
specific, the people’s purported “authorship” actually may be a culmination of several
external and/or preconstitutional factors that lie well beyond the people themselves.
This points to the need for an approach that can shed light on the complex process of
constitution making in which a people comes into being even as “it” authors a constitution. We are thus interested in the ways in which higher lawmaking and “people”
building entail each other.
Among those ways, we intend to focus on three dimensions. First is how the constitutional identity of the people is defined by means of the continuous interaction with the
international conditions in which a constitution-making process is embedded. It is
important to bear in mind that the constitution-making process, which calls a people
into being, necessarily takes place within parameters delineated, in great measure, by
external factors. Second is how the past inevitably exerts an influence over the identity of the newly constituted people. This involves not only identifying the concrete
evils of the past, which the constitution is intended to exorcise, but also summoning a
“useable past” that can sustain the identity of the people and the new constitutional
order. The third dimension is the way in which the discrete identity of the people
emerges through a process of negotiating the necessarily mutable boundaries of their
collective membership. This requires examining the legal and constitutional devices of
inclusion and exclusion that are inevitably brought to bear in making a constitution.
2.3. Overbearing externality
The first dimension has to do with the questions “What is the larger context in which
the people come into being?” and “What external forces are at work in that process?”
Often overlooked in conventional theorizing about constitution making is the positive and negative influence from the outside, which often leaves an enduring mark
22
Cf. Jon Elster’s proposal that the legitimacy of a constitution-making process be analyzed along three
different dimensions. “Upstream” legitimacy deals with the authority to convoke and select the drafters, i.e., the constituent assembly and its members; “procedural” legitimacy relates to issues regarding
the process and norms that should govern the drafting process within the constituent assembly; “downstream” legitimacy has to do with the degree of public participation in ratifying the draft constitution produced by the convention. Jon Elster, Constitution-making in Eastern Europe: Rebuilding the Boat
in the Open Sea, 71 Pub. Admin. 169, 178–86 (1993). We only note that in this schema, too, the people’s
authorship cannot fully ground the constitution’s legitimacy. Issues of “upstream” and “procedural” legitimacy arise when the “people” still remain an inchoate idea. Insofar as ratification entails a
role for all the members of the polity, “downstream” legitimacy might be said to involve the authorship
of the people. Arguably, though, ratification is a process in which the concrete identity of the “people” is
still being contested and negotiated.
To make “We the People”: Constitutional founding in postwar Japan and South Korea 809
on the new constitutional order and its identity. Given the presumption that constitution making is, or should be, about giving voice to the people themselves, any input
from the outside is viewed, naturally, with suspicion. Yet, aside from the theoretical
difficulty of positing a pregiven self that makes a constitution for itself, this view is
problematic because external influence has been present in many historical constitution-making processes, even those considered successful and legitimate.
External influence has taken various forms that run the gamut from “constitutional borrowing” and “inducement” to “intervention” and outright “imposition.” At
one extreme, for example, numerous newly independent nations liberally borrowed
from the constitutional templates of their former colonial rulers even in the absence
of overt political pressure. This may be because the postcolonial legislators knew no
better, due to their colonial training, or because those templates comported well with
the socioeconomic infrastructures put in place during the colonial era.23 At the other
extreme, bipolar geopolitics enabled the Cold War superpowers to exert pressure on
the constitution-making and -revision processes of Third World states within their
respective camps. Shady folklores still abound from that era regarding the superpowers’
covert operations to topple and replace renegade regimes with more pliant ones. In
addition to putting in place a new puppet regime, these often involved introducing
constitutional structures that would remain sticky even after democratization.24 Even
aside from such sinister routes, the “migration of constitutional ideas” is a fact that
has become more prevalent, especially after the fall of communism and the so-called
third wave of democratization.25
This is even more apparent in the era of globalization, where state boundaries are
growing more porous, and individuals are increasingly subject to legal norms set by
authorities other than their own local legislatures. Indeed, some argue that the international order based on the distinction between inside and outside is no longer viable.
Such developments, obviously, make it harder to distinguish between those who may
rightfully participate in the constitution-making process and those who should stay
outside. Nation-building projects and rule-of-law assistance are now considered
legitimate parts of the foreign aid industry led by a host of developed countries, international organizations, and even private groups. In response to this new global reality,
Urlich Preuss has cautiously proposed that we begin considering the legitimacy of
“international constitutional intervention” on humanitarian grounds.26 Constitution
making has rarely been a pristine domestic affair, at least since the mid–twentieth century. External influences are not only common; they are now seen as routine. The issue
seems more a question of extent or gradation, than of propriety or permissibility.
Sally M. A. Lloyd-Bostock, Explaining Compliance with Imposed Law, in The Imposition of Law 9 (Sandra
B. Burman and Barbara E. Harrell-Bond eds., 1979).
24
David Ekbladh, From Consensus to Crisis: The Postwar Career of Nation-Building in U.S. Foreign Relations, in Nation-building: Beyond Afghanistan and Iraq 19 (Francis Fukuyama ed., 2006).
25
Schauer, supra note 8; The Migration of Constitutional Ideas (Sujit Choudhry ed., 2006).
26
Ulrich K. Preuss, Perspectives on Post-Conflict Constitutionalism: Reflections on Regime Change through
External Constitutionalization 51 N. Y. L. Sch. L. Rev. 467, 491–493 (2006–2007).
23
810 I•CON 8 (2010), 800–848
Aside from these historical developments, it may be that, as a matter of theory, constitution making entails a built-in international dimension. If we recall that constitution making is frequently a seminal marker of political independence, “constituting”
a new people necessarily involves a keen awareness of “assum[ing] among the powers
of the earth, the separate and equal station”27 that is rightfully theirs. In terms of real-life
power politics, it must be accompanied by physical force strong enough to counter any
attempts on the part of erstwhile masters to suppress the insurgency. Also, assistance
and recognition from other “powers of the earth” are crucial in carrying through with
the promise made in initial declarations of independence. More abstractly, the constitution of a new people involves blurring the line between inside and outside, between the
domestic and the foreign. By consummating postcolonial independence with a constitution, in particular, the “people” need to recast what had been a domestic relationship into
a foreign one between two separate polities. As one international lawyer has observed:
“The ‘self’ does not emanate exclusively from a nation’s own history and revolutionary
project, but is being reproduced and re-framed in a sequence of communications among
a plurality of domestic and global actors.”28 In other words, a complex interaction with
international contexts and foreign “others” may be an intrinsic dimension in the identity
formation of the putative constituent people in the course of constitution making.
2.4. Unmasterable past
The second dimension raises the questions of “Where do the ‘people’ come from in
time?” and “How is historical imagination made and unmade in the process of constitution making?” A people engaged in constitution making must establish a proper
relationship with the past from which they are newly emerging. This might sound
paradoxical insofar as a newly emerging people might be thought to have no past at
all or to renounce the status quo ante in its entirety. According to Hannah Arendt,
for example, a constitution is borne of an act of revolution that successfully establishes a novus ordo saeclorum. On this view, constitutional founding perceives itself
as the final stage of a revolutionary act that sweeps away the burdens and evils of the
past in one fell swoop to “reboot history.” Even when not predicated on total revolution, the making of a new constitution is frequently motivated more strongly by the
collective psychology of aversion (to the past) than aspiration (to the future). Whether
rejected in toto or negated partially, the past is shown in an overwhelmingly negative
light in many a constitution-making process.29
The Declaration of Independence para. 1 (U.S. 1776).
Achilles Skordas, Self-determination of Peoples and Transnational Regimes: a Foundational Principle of
Global Governance, in Transnational Constitutionalism: International and European Perspectives 207, 218
(Nicholas Tsagourias ed., 2007).
29
Cf., Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional
Influence Through Negative Models, 1 Int’l J. Const. L. 296, 300 (2003) (“Aversive constitutionalism,
then, is backward looking, proceeding from a critique of where past [or other] institutions and principles
went badly wrong and taking such critiques as the negative building block of a new constitutional
order”).
27
28
To make “We the People”: Constitutional founding in postwar Japan and South Korea 811
Nevertheless, a constitutional order cannot be created ex nihilo, out of sheer chaos
or utter negation of the status quo ante. As a matter of sociology, a certain minimum
level of social capital needs to have been preserved in the preconstitutional state of
nature so as to sustain a quorum of mutual trust that can underwrite the negotiations
and compromises necessary for constitution making. Some sort of functioning administrative apparatus and police power is needed to facilitate the bargaining process by
enhancing the enforceability and predictability of the promises exchanged. This critical precondition, however, likely runs into difficulties in many postcolonial or postconflict situations due to the perceived lack of legitimacy of those preconstitutional
institutions, which often have colonial origins and/or checkered pasts. The all-toounderstandable demand for swift lustration and transitional justice creates a difficult
juncture in a constitution-making process. Past does not, and, some might say, should
not go away even after its revolutionary destruction.
Going beyond mere exorcism, moreover, constitution making requires summoning
a “useable past” for its future. Often, this is done in the hope of rallying support for
the new constitutional order, to promote solidarity and loyalty. Many constitutions
include proud statements of history and tradition aimed at bolstering the people’s station among civilized nations of the world as well as enhancing the people’s own bond
to the constitution. Beyond such functional needs, this may even be a logical requirement of any political community. According to Edmund Burke, “a nation is not an
idea only of local extent . . . but is an idea of continuity, which extends in time as well
as in numbers, and in space.”30 Whatever the reason for so doing, a “people,” as constituted by a constitution, regularly sets about constructing its history by reimagining
the past. Often times, it passes judgment on the immediate past while retrieving some
parts of a more distant past to be held up as a source of inspiration and legitimacy.
Of necessity, it engages in a selective reading of the past and may even construct a
new narrative out of whole cloth. As Michel Rosenfeld wrote, “to establish a viable
constitutional self-identity, the real must be supplemented by the ideal, or, to put it
in another way, facts must be enriched by counterfactual imagination.”31 To be sure,
reimagining the past is not explicit in all constitution making. Yet, in order for a new
constitutional order to endure, such efforts will eventually accompany it.
2.5. Shifting Boundaries
The third dimension addresses the questions “What are the exact boundaries of the
‘people’?” and “What role does constitution making play in determining membership in the new political demos?” A constitutional order may be grounded in a certain
degree of homogeneous identity, common inheritance, and a shared understanding
of who belongs and who does not. Such preconstitutional identities, however, may
Edmund Burke, Speech on a Committee to Inquire into the State of the Representation of the Commons in
Parliament, in The Portable Edmund Burke 174, 176 (Isaac Kramnick ed., 1999).
31
Michel Rosenfeld, The Identity of the Constitutional Subject, 16 Cardozo L. Rev. 1049, 1064 (1995) (italics in
original).
30
812 I•CON 8 (2010), 800–848
suffice in demarcating the boundaries of a sociocultural group; they are seldom sufficient to engender a “people” as a constitutional agent. For this to happen, disparate
individuals must forge a new kind of unity as equal citizens living under the common constitutional order that provides equal rights and duties. In other words,
they must participate in constitution making (and its subsequent operation) as
free and equal partners. As long as this unity can be secured, a “people” may be
forged even where there are deep differences of values and interests among the
individual members.32
It is commonplace nowadays to regard constitutionalism as a mechanism for
balancing this requirement of unity with the unavoidable diversity of interests, values, and cultures that pervade modern society.33 This implies that the unity presupposed by a constitutional order is never static. It is a product of a ceaseless dialogue
with various and varying preconstitutional identities. Put differently, the making of
a demos is an ongoing project, where the people’s identity is defined and redefined
through a constant engagement with the “fact of pluralism.” We noted above that
the identity of a people emerges vis-à-vis an external “other”; here, we might add that
a people acquires a concrete form and shape through a continuous interaction with
internal “others,” as well. Specifically, this means that the boundaries of membership
in the “people” are not fixed but mutable.34
This is why a founding moment presents an excellent lens through which to understand the process of forging the needed quorum for unity, even though negotiations
over the boundaries of membership may continue long afterward. For these are times
This is, in fact, what Sieyès referred to somewhat misleadingly as “nation”—a “body of associates living
under common laws and represented by the same legislative assembly, etc.” Emmanuel Joseph Sieyès, What
is the Third Estate? 58 (M. Blondel trans., 1963) (1789) (italics in original). His mistake, in our view, was
to suppose that this “nation” exists prior to, and independent of, a constitutional order. Such unity comes
about only through a sustained engagement with the constitutional order, most importantly, at the
moment of its founding. By the same token, Carl Schmitt seems to have things backward when he claims
that “the entire body of citizens is presupposed as the political unity,” or when he says, “a constitutional
contract or a constitutional agreement does not establish the political unity. It presupposes this unity.”
Schmitt, Constitutional Theory, supra note 5, at 113. For, the existence of a people implies that there is already a constitution, which makes another “contract” redundant. His mistake was to assume that people
are immutable and pregiven and, therefore, to neglect the active role of the constitution in engendering
a people.
33
Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity, in Constitutionalism,
Identity, Difference, and Legitimacy, supra note 16, at 3. According to Jürgen Habermas’s “co-originality thesis,”
a constitution is the point at which unity and diversity meet as it channels diversity into unity (thus realizing “public autonomy”) and unity into diversity (thus guarding “private autonomy”). Jürgen Habermas,
Between Facts and Norms 121–122 (W. Rehg trans., 1992).
34
For example, in antebellum America, persons of African descent were not part of the constitutionally
relevant “people.” Jack Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 Chi.-kent
L. Rev. 49 (2007). They became so only after a violent crisis which amounted to a virtual refounding
of the republic. Similarly, following the disintegration of Yugoslavia, the boundaries of the “people,”
there, shifted to exclude persons considered different according to a new set of criteria that emphasized
elements that had previously been deemed politically irrelevant. James Johnson, Inventing Constitutional
Traditions: The Poverty of Fatalism, in Constitutional Culture and Democratic Rule 71 (John Ferejohn et al.
eds., 2001).
32
To make “We the People”: Constitutional founding in postwar Japan and South Korea 813
when the need to impose a certain unity is felt most urgently.35 This also means that
in order to attain the minimum level of equality and homogeneity required to create
a demos, membership boundaries are often redrawn violently at such moments. While
who belongs and who does not may seem intuitively clear-cut, the actual process of
delineating the boundaries frequently entails a radical disruption of previous notions
of belonging. This was particularly pronounced in parts of Africa, Middle East, and the
Indian subcontinent, where many of the political borderlines were imposed by external
forces with little regard to the local constellation of ethnic and religious affiliations.
What Ulrich Preuss has described as the “ethnification of politics”36 in postcommunist Central and East European states also involved measures for redefining the
boundaries of the people, to the extent that ideology was replaced by ethnicity as the
criterion for membership. In such cases, where ethnicity is utilized to give identity to
the “people,” the move to define the boundaries of membership often features a sudden
contraction of the outer limits of the collective self, accompanied by a simultaneous
expulsion of the others from within. Frequently, such states even end up allowing preconstitutional identities to dominate the political process rather than engendering a
“people” defined as free and equal citizens.37 Whatever the cause, and whether or not
it is conducive to the long-term development of constitutional democracy, this process—by which the people’s boundaries are reshuffled and redefined in the course of
constitutional founding—deserves careful scrutiny.
3. Overbearing externality
Constitutional founding is rarely a pristine domestic affair. The demise of the status
quo ante, which necessitates a new founding, is often the result of a constellation
of international factors. The emergence of a new international order also has deep
repercussions for the constitution making of a state embedded within it. More directly,
a foreign power’s entanglement in the process of writing the document itself is not
uncommon. This involvement may be merely gentle suggestions or inducements to
adopt certain principles. It may amount to more forceful interventions or an outright
imposition of concrete provisions. In response, domestic constitutional actors may
take a variety of stances ranging from compliance and cooperation to objection and
opposition, to sabotage and subterfuge.
The problem is obviously more pronounced in cases where there are multiple “nations” within the state
boundary. See Sujit Choudhry, Old Imperial Dilemmas and the New Nation-Building: Constitutive Constitutional Politics in Multinational Polities, 37 Conn. L. Rev. 933 (2005). The nature of the problem, in our
view, is not different even in states commonly considered as mononational.
36
Ulrich K. Preuss, The Exercise of Constituent Power in Central and Eastern Europe, in The Paradox of Constitutionalism, supra note 11, at 211.
37
Id. at 223–228 (describing the numerous constitutional transitions in Central and Eastern Europe as a
process in which the “people” were conspicuously absent). See, also, Bernard Yack, Popular Sovereignty
and Nationalism, 29 Pol. Theory 529 (2001) (suggesting that this “nationalization” of politics may be due
to a logic inherent in the idea of popular sovereignty itself).
35
814 I•CON 8 (2010), 800–848
East Asia in the twentieth century was by and large forged in the midst of one international war after another. The constitutional moments of Japan and Korea were
betwixt and between World War II and the nascent Cold War. The United States was
the hegemonic player in both wars and, to that extent, Japan and Korea had to cope
with the Cold War and the U.S. in the course of constitution making and long afterward. For Japan, the “peace provision” (article 9) would be one of the focal points
of its constitutional negotiation with external factors. In that process, the switch in
American foreign policy (from bringing one war to a close to commencing another),
and Japan’s ironic reaction to it, would figure prominently. The Cold War took a more
heated form in the Korean peninsula, where the rivalry and the war between north
and south would shape, to a considerable extent, the constitutional identity of the
Republic of Korea. The influence of such external forces, refracted in the form of national division, is most visible in the changes to the evolving constitutional provisions
on socioeconomic principles. Having emerged against the background of the Cold
War’s onset, the constitutional identity of the people of Korea and Japan cannot be
understood properly without considering their reactions to these external factors.
3.1. “A farewell to arms”: Negotiating the imposition of Japan’s “peace
provision”
As seen in the popular shorthand “Peace Constitution,” article 9 is now regarded as
constitutive of the identity of Japan’s postwar Constitution.38 Arguably the most
innovative feature of the document, the article and its insertion was not a foregone
conclusion, however, and the meaning of “peace” as a goal was not always clear
when first introduced in 1946. Simply understood as a “no war” provision, its declaration to that effect in the first paragraph was neither novel nor expressive of the
article’s full significance. To renounce war “as an instrument of national policy” was
already an international legal convention by the time the Kellogg-Briand Pact (1928)
was signed by Japan along with sixty-five other nations.39 The constitutions of France,
Brazil, Costa Rica, and the Philippines, as well as the new United Nations Charter (article
II), had similar provisions. What distinguished article 9 of Japan’s constitution was,
rather, its second paragraph prohibiting the establishment and maintenance of armed
forces. To understand how it became emblematic of Japan’s constitutional identity
requires that we look at its drafting as well as the ironic twists and reversals of events
prompted by the onset of the Cold War and Japan’s reaction to it.
In full, article 9 reads: “(1) Aspiring sincerely to an international peace based on justice and order, the
Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as
means of settling international disputes. (2) In order to accomplish the aim of the preceding paragraph,
land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency
of the state will not be recognized.”
39
In point of fact, the Tokyo War Tribunal hinged, in part, on “the crime against peace,” which meant the
violation of the Pact by the Japanese war leaders. Theodore McNelly, The Origins of Japan’s Democratic
Constitution 148 (2000).
38
To make “We the People”: Constitutional founding in postwar Japan and South Korea 815
The immediate impetus for article 9 likely came from SCAP, Douglas MacArthur,
himself.40 Notwithstanding the demand for “permanent” disarmament in the
Potsdam Declaration (paragraphs 9 and 10), it was not a part of Washington’s
postwar directive for the political reconstruction of Japan (SWNCC-228, January
1946).41 The motive behind MacArthur’s initiative had to do with SCAP’s rivalry
with the Far Eastern Commission (FEC), nominally SCAP’s supervisory institution and newly created under the auspices of the State Department. The highest
policy-making authority representing all former Allied belligerents in the Pacific
theater (including the Soviet Union), FEC was more inclined to radical reform
measures (for example, abolition of the emperor polity) than SCAP was willing to
accept. MacArthur was already determined to protect the emperor and, in order to
preempt FEC initiatives, decided to erect a new constitutional edifice on the platform
of peace.42 Largely for this reason of expediency, disarmament made its way into the
so-called “MacArthur Note” (February 3, 1946) as one of the three cardinal principles for constitutional revision.43 SCAP’s Government Section staff dutifully rendered it into a constitutional provision (article 8 of the SCAP draft), which was then
adopted almost verbatim as article 9 of the so-called Japanese Government Draft of
March 6.
This had not been part of the original constitutional reform (Matsumoto draft) that
the conservative Japanese government had planned (and SCAP summarily rejected).
Despondent though they were at seeing the SCAP article 8, Prime Minister Shidehara and his cabinet accepted it in near resignation even before parsing its meaning
(that is, whether or not a war of self-defense was permitted), because the imperative
of the day was to save the emperor and the “national polity” (kokutai) at all cost.44 As
was the case in the SCAP decision, reasoning based on expediency determined the
cabinet’s concession to this most idealistic feature of the new Constitution. Insofar as
the Japanese government was concerned, article 9 (and other radical features in the
SCAP draft) amounted to a victor’s punitive justice imposed on a helpless, vanquished
nation over its feeble resistance. In their own words, it was “like swallowing boiling
water.”45
MacArthur himself later claimed that the idea came from Shidehara Kijuro, the Japanese prime minister at the time. Historians, however, attribute it to MacArthur (and his staff) who wished to paint it as a
Japanese initiative and/or to dodge responsibility for Japanese disarmament, which was soon perceived
as a policy blunder in the early days of Cold War. Id. at 105–128.
41
Dale M. Hellegers, We the Japanese People: World War II and the Origins of the Japanese Constitution
505–506 (2001).
42
McNelly, supra note 39, at 125–126; Takemae Eiji, The Allied Occupation of Japan 274–276, 281 (Robert
Ricketts and Sebastian Swann trans., 2003).
43
The other two principles were retention of a (symbolic) emperor system and purge of feudal remnants in
Japanese society. The full text may be found in Koseki Shoichi, The Birth of Japan’s Postwar Constitution 79
(Ray A. Moore ed. and trans., 1997).
44
Id. 107–109; Ray A. Moore & Donald L. Robinson, Partners For Democracy: Crafting the New Japanese State
Under Macarthur 111–123 (2002).
45
Hellegers, supra note 41, at 534.
40
816 I•CON 8 (2010), 800–848
What the government could not ask for vis-à-vis SCAP, however, was achieved
partially in the course of the subsequent parliamentary revision. The Imperial
Diet generally welcomed the war renunciation principle in article 9, while being
ambivalent toward its disarmament provision.46 Focusing on the section regarding disarmament, in particular, their revision was twofold. One was to insert “in
order to accomplish the aim of the preceding paragraph” as the opening line; the
other, to water down somewhat the expression that armed forces “will never be
maintained” by changing “never” to simply “not” in the Japanese translation
without altering the English original. The “aim” evidently referred to “settling
international disputes” as stipulated in the first paragraph, which, in effect,
opened the door to an interpretation that armament for self-defense purposes may
be sanctioned. Indeed, Ashida Hitoshi, who introduced the amendment as chair of
the House of Commons Committee on Constitutional Revision, would claim soon
thereafter with a founding father’s authority that only “aggressive war” was prohibited under the new constitution.47 Together with other stylistic changes in the
first paragraph, the so-called “Ashida Amendment” would prove to have a critical impact on postwar constitutional jurisprudence, especially regarding the legal
status of the Self-Defense Force (SDF) and U.S. military bases in Japan.48 All this
was yet to unfold, however, and the amendment as revised became the final article
9 with SCAP approval.
SCAP’s relatively easy concession to the amendment may be indicative of their original intension to permit Japanese rearmament in due course, a policy stance that was
more or less consistent with Washington’s. The ambiguous acquiescence in 1946, in
any event, soon escalated to an overt pressure. The arrival of the Cold War in East Asia
prompted Washington’s grand policy reversal in Japan from “democratization” to
“anticommunism.”49 This shift culminated in the SCAP’s order to create the National
Police Reserve (renamed SDF in 1954) immediately upon the outbreak of the Korean
War in 1950. As for constitutional matters, Washington’s prereversal stance—that
democratization was accomplished in Japan and constitutional amendment no longer
necessary (against the FEC demand for a revision based on popular referendum)—also
changed, as the pressure to rearm mounted incrementally. By the time the U.S.-Japan
Security Treaty was signed in 1951, the American pressure to revise article 9 began
to take a coercive tone; during his official visit in 1953, U.S. vice president Richard
Moore & Robinson, supra note 44, at 269–270.
Id. at 250 (referring to Ashida’s 1946 book, Interpretation of the Constitution).
48
The Japanese judiciary has declined, repeatedly, to rule on the constitutionality of the SDF by invoking
the “political question” doctrine. For the later politics surrounding article 9, see James E. Auer, Article
Nine: Renuncation of War, in Japanese Constitutional Law 69 (Percy R. Luney, Jr. & Kazuyuki Takahashi
eds., 1993). It remains unclear whether the Nagoya High Court ruling of April 17, 2008, which found
unconstitutional the SDF’s airlifting of multinational combat troops to Baghdad, signals a departure from
the traditional passivism of the Japanese courts.
49
On the continuity and discontinuity in the U.S. occupation policy before and after the “reversal,” see
Takemae, supra note 42, at 468–478.
46
47
To make “We the People”: Constitutional founding in postwar Japan and South Korea 817
Nixon openly advocated revision of article 9, saying that it had been a “mistake” from
the beginning.50
The conservative Japanese government now under Yoshida Shigeru’s leadership
found itself cornered in an ironic position. On the one hand, article 9, along with other
constitutional reform measures, was never entirely welcome in the first place. Even
before the Constitution went into effect in 1947, for example, the Yoshida cabinet
was secretly airing the idea of rebuilding a 100,000-strong army and air force to test
the Allied nations’ resolve.51 Hardliners within the new Liberal-Democratic Party
(1955) would not cease to campaign (to this day) to revise it on grounds that it had
been externally imposed. On the other hand, fearing the economic burden of a fullscale rearmament which an amendment would entail, the pragmatic center within
the government resisted the American pressure tactfully but firmly, largely basing
its arguments on fidelity to article 9. Prime Minister Yoshida’s statement in 1952
succinctly captures the prevailing mood within the government:
An immediate rearmament is beyond our ability now, nor is it presently supported by the
people. . . . For the time being, let the US defend Japan. It is a divine gift that armament is prohibited in the Constitution, which can make a good subterfuge for resisting the US demand. It
would be an utter political idiocy to amend such a constitution.52
Coerced by external forces to adopt article 9 in the first place (albeit with a crucial
amendment), the conservative Japanese government was now pushed, again by international contingencies, to embrace it as the core of postwar Japan’s constitutional
identity, even as it harbored only a duplicitous faith in it. The U.S. policy reversal was,
in short, greeted with ironic resistance on the Japanese side.
Of course, the government’s reluctant embrace of article 9 would not have been
possible without its popularity and the changes in postwar Japanese public discourse. In fact, Yoshida would also cultivate popular opposition to rearmament in
order to entrench his position against the U.S. Despite the absence of a constituent
convention or popular referendum, the Peace Constitution garnered stronger support from the war-weary citizens than from their political leaders.53 When it was first
made public in 1946, the approval rate hovered well over 70 percent, which did not
diminish to any considerable extent in the ensuing years. Although the government’s
Nixon said in Tokyo: “It . . . was at the insistence of the United States that Japan was disarmed. . . . I’m
going to admit right here that the United States made a mistake in 1946.” McNelly, supra note 39,
at 139.
51
Koseki, supra note 43, at 235–240. In line with this desire was the great enthusiasm with which the Yoshida cabinet accepted the SCAP order to create the National Police Reserve in 1950. See Miyazawa
Kiichi, Secret Talks Between Tokyo and Washington: The Memoirs of Miyazawa Kiichi, 1949–1954, at 31
(Robert D. Elridge trans., 2007).
52
Miyazawa, supra note 51, at 76 (translations modified by authors).
53
One scholar conjectures that this strong popular support was precisely the reason the Yoshida cabinet
chose not to resort to a popular referendum as FEC and SCAP were both encouraging them to do. For
“it would have rendered a substantial, conservative revision in the future more difficult by removing the
claim that the Constitution is an alien, imposed document.” Sylvia B. Hamano, Incomplete Revolution
and Not So Alien Transplants: The Japanese Constitution and Human Rights, 1 U. Pa. J. Const. L. 415 441
(1998–1999).
50
818 I•CON 8 (2010), 800–848
propaganda efforts to popularize the new Constitution waned after 1947, the sincerity
with which the majority of Japanese people adhered to article 9 seems unquestionable.54 More telling than the episodic opinion polls would be the fact that the conservative campaigns to revise the Constitution, peaking in 1956 with the official creation
of the Commission on the Constitution (Kenpo Chosakai), were all soundly defeated by
1964 in the tribunal of public opinion.55 In another twist of irony, the conservative
government’s ostensible fidelity to article 9 (at least in relation to the U.S.) had
boomeranged, coming home to frustrate its own constitutional initiative.
In view of the enduring popular support for article 9, it does not seem entirely
fortuitous that national self-identity had also undergone a sudden reversal in the
postwar public discourse. The imperial orthodoxy had maintained that Japan was
a multiethnic nation with a hybrid cultural heritage yet united under a divine imperial house, which, in turn, bred conqueror-warrior morals and innate drive toward
expansion into the Continent.56 After defeat, this bellicose self-image was replaced,
virtually overnight, with, for instance, a popular “theory of island nation” (shimakuniron), which postulated a traditionally monoethnic Japanese people who had lived
from time immemorial a peaceful life of farming and cultivation in near total isolation.57 In the immediate postwar public discourse, wartime militarism and the direct
rule by the emperor was castigated as an aberration in history. By the same token, the
symbolic emperor polity and antimilitarism, two main pillars of postwar democracy,
were touted as befitting this self-perception of the peace-loving Japanese people.
It seemed as if, in the space of a mere couple of years, Japan had made a giant stride
over what Benjamin Constant, a political philosopher of nineteenth-century France,
deemed the unbridgeable chasm between “ancient” and “modern liberty.”58 Peace,
industry, and culture under a symbolic emperor polity had suddenly come to form an
interlocking constellation of values that, together, defined a new Japanese self-identity.
The irony was that these postwar democratic values could be had only by positing
a monoethnic isolationism and exclusivity. For now, it suffices to conclude that
withstanding the U.S. pressure on article 9 revision would have been much more
difficult for the conservative Japanese government were it not for this popular
support and reconstruction of Japanese national identity in the postwar public
discourse.
John W. Dower, Empire and Aftermath: Yoshida Shigeru and The Japanese Experience, 1878–1954, at 434
(1979) (“In the final analysis, the force that ultimately restrained constitutional revision and remilitarization to the extent desired by Washington was not Yoshida, not the ruling conservatives, but the resistance of the Japanese people themselves”).
55
Moore & Robinson, supra note 44, at 320–324; John M. Maki, The Documents of Japan’s Commission on the
Constitution, in The Constitution of Japan: Its First Twenty Years, 1947–1967, at 279 (Dan Fenno Henderson ed., 1968).
56
For an overview of the Japanese discourse on national identity during the imperial era, see Oguma Eiji,
A Genealogy of ‘Japanese’ Self-Images 95–142 (David Askew trans. 2002).
57
On the prewar origins and postwar reinvention of shimakuniron see id. at 175–202, 260–84.
58
Benjamin Constant, The Liberty of the Ancients Compared with That of the Moderns, in Constant: Basic Political
Writings 307 (1988).
54
To make “We the People”: Constitutional founding in postwar Japan and South Korea 819
All in all, the postwar formation of Japanese constitutional identity was both
reactive and aversive in nature. At the level of government, it was largely a byproduct of reaction against the U.S. pressure for costly rearmament. Within the
public sphere, it was a part of mass aversion to the imperial national identity
forged before and during the war. Despite the undeniable element of imposition
in its inception, article 9 has come to be a potent symbol of the Peace Constitution
that persists in framing Japanese constitutional discourse—and its discontents—
to this day.
3.2. “A tale of two cities”: (Un)making the economic constitution in
South Korea
Conservative pundits’ blanket assertion in contemporary Korean society notwithstanding, South Korea’s constitutional identity can hardly be characterized as “liberal democracy and market capitalism,” at least if viewed from the vantage of 1948
when the so-called Founding Constitution was established. Especially in the area
of socioeconomic rights, an American political scientist’s observation, made at the
time, rings truer: “Chapter Six, entitled ‘Economy’, ostensibly makes the Korean Republic a socialistic state.”59 This was not without reason. Chapter VI included, for
example, the principle that the economic order shall strive to realize social justice,
meet every citizen’s basic demands, and develop an equitable economy (art. 84). It
also provided for state ownership of most natural resources (art. 85), and government management of most public utilities, including transportation, banking, and
even insurance (art. 87).60 Given this starting point, it was perhaps unsurprising
that a long and violent series of events had to transpire before a market economy
could become an integral part of South Korea’s constitutional identity. In this
constitutional development, too, the geopolitics of the early Cold War, refracted
onto the Korean scene in the form of rivalry between north and south, would play
a pivotal role.
These provisions of the Founding Constitution were quite striking, even compared
with the new Constitution of Japan which also featured a rich array of socioeconomic rights. In terms of ideas, the inspiration came directly from the constitutional
experiences of the Korean Provisional Government (KPG) established by leaders of
the independence movement in China. The KPG constitution, first drafted in 1919
and revised five times thereafter, had a strong dose of socialist tendencies in its
rights provisions, which were justified in terms of the “Principle of Three Equalities”
Paul S. Dull, South Korean Constitution, Far Eastern Survey, vol. 17, no. 7 (Sep. 1948), at 207.
According to Yu Chin-o, the main drafter of these articles, the free market could be allowed for smalland medium-size business and industry, while large-scale enterprises with a public character and
in danger of monopoly had to be state-owned. In his view, private enterprises could be made stateor public-owned by law when necessary for national security or welfare. Chehŏn Kukhoe Sokkirok
[Minutes of the Constituent National Assembly] No. 17 (23 June 1948), at 110 (hereinafter CNA
Minutes).
59
60
820 I•CON 8 (2010), 800–848
(Samkyunjuŭi).61 These tendencies were a reflection of both the uneasy truce between
the right- and left-wing segments within the independence movement and the influence of Chinese republican experiments. The KPG legacy left an indelible mark on
the constitutional rights regime introduced by the numerous official and private
draft constitutions between 1945 and 1948, including the Yu Chin-o draft that was
adopted as the base text by the Constituent National Assembly (CNA) in 1948.
In terms of economic realities, South Korean economy then had been shaped by
the practices and institutions left behind from the Japanese mobilization economy of
the late World War II period. These economic premises were taken up and preserved
by USAMGIK, which directly governed South Korea between 1945 and 1948.
During the colonial period, virtually all major industries, enterprises, and financial
institutions had been owned by the Japanese government or nationals. The “enemy
property” (chŏksan) was confiscated by the USAMGIK in 1946 and transferred to the
new South Korean government after 1948.62 In the immediate postcolonial Korea,
in short, there were few private enterprises and little room for free market ideas to be
reflected in the Founding Constitution.63 In a sense, chapter VI was a natural product
of this confluence of constitutional ideas and the economic realities of the time.
Yet, probably the most critical impetus toward a robust socioeconomic rights
regime came from the postcolonial political circumstances relating to both South
Korea’s domestic ideological conflicts and the U.S.-Soviet division of the Korean peninsula. In September 1945, as is well known, the United States military arrived in
southern part of the peninsula almost wholly uninformed of the local conditions and
with little long-term strategic vision, save a vague intention to secure the region as its
zone of influence. The seemingly haphazard division along the thirty-eighth parallel
was then followed by policy flip-flops stemming from disagreements between the U.S.
military government and the State Department. Eventually, the idea of multilateral
trusteeship and an incremental grant of independence,64 which was met with steep
opposition in the south, was abandoned in favor of the establishment of a separate
The “three equalities” meant equality in the areas of politics, economy, and education. They also referred
to equality in the relationship between individuals, between nations, and between states. The brainchild
of Cho So-ang, arguably the ablest theoretician of the core KPG leaders, this principle was adopted as the
official ideology of KPG and the future independent state of Korea. For example, “Essential Points of
National Founding” (Kŏn’guk Kangnyŏng), one of KPG’s constitutional documents also penned by Cho,
clearly showed the socialist tendencies of state ownership, planned economy, and limited property rights
(chapter III, part 6). Such robust egalitarianism, arguably, was influenced by Sun Yat-sen’s ideology of
Three Peoples. For the influence of the republican Chinese constitutional ideas on KPG in general, see
Shin Woo-Cheol, Pigyo Hŏnpŏpsa [Comparative Constitutional History] 287–394, 431–38 (2008).
62
USAMGIK Ordinance No. 33, “On the Property Acquisition Rights of the Japanese Residents in Korea”
(6 Dec. 1945).
63
Hwang Seung-heum, Chehŏn Hŏnpŏp Cheyukjang Kyŏngjepyŏn-ŭi Hyŏngsŏng Gwajŏng-gwa Gŭ Ŭimi [The
Formation Process of The Founding Constitution’s Chapter VI on Economy and Its Meaning], Pŏpsahak
Yŏn’gu [Study of Legal History] vol. 30 (2004), at 149.
64
The idea of placing Korea under a trusteeship was entertained even before the end of the war. It
received concrete formulation at the Moscow Conference of Foreign Ministers in December 1945. See
Interim Meeting of Foreign Ministers of US, UK, and USSR, Moscow, December 16–26, 1945, available at
http://avalon.law.yale.edu/20th_century/decade19.asp.
61
To make “We the People”: Constitutional founding in postwar Japan and South Korea 821
South Korean government under United Nations sponsorship, which the right-wing
segments in the south had long advocated. The final solution to the Korean problem
came with the May 10 general election in 1948 that would convene the CNA to draft
a constitution for the south. Despite violent opposition from the left and boycotts by
more than a few prominent leaders of the time, the election was a remarkable success
as the UN supervisors confirmed shortly afterward. However, with the establishment
of a separate government in the south in August 1948, a favor immediately returned
all too eagerly by a well-prepared north in September 1948, the Cold War officially
arrived in the Korean peninsula with the consolidation of the division between north
and south.65
From the beginning, the right-wing coalition that formed a hegemonic bloc within
CNA suffered from a legitimacy deficit vis-à-vis the domestic left-wing factions, which
had been purged recently from the South Korean political scene, and North Korea,
where communist reforms were already taking place under Soviet supervision. This
legitimacy problem was due in large part to the perception that the right-wing coalition, drawn mostly from those with landowning class background, had prevailed
in the election under USAMGIK patronage, despite suspicions of colonial collaboration. It was under these circumstances of contested “regime legitimacy” that the
constitutional provisions on socioeconomic principles turned out to be more progressive than the legislators’ narrow class interests or natural inclinations would have
preferred. The final outcome, as far as chapter VI was concerned, was a remarkable
degree of convergence with the corresponding articles in the North Korean constitution
of 1948.66 In short, the economic provisions of South Korea’s Founding Constitution
would be one of the most critical bases upon which to erect the entire legitimacy of the
regime vis-à-vis that of the North.
Land reform is a case in point, for it demonstrates the similarity in the ways that the
north and south dealt with the issue. At the same time, it highlights a critical difference
that would prove to have far-reaching consequences for the constitutional identity of
South Korea. Again, compared with the Japanese constitution of 1946, the Founding
Constitution was unique in that land reform was given a constitutional status.67 The
land issue was bound to be the epicenter of class struggle in a country where, according
to the 1949 census, 70.9 percent of the entire population was employed in agricultural sector, of which self-tilling, independent farmers constituted a meager 13.8 percent. The free and uncompensated abolition of tenancy in North Korea, carried out by
For the latest account of the postcolonial division, US and Soviet policies, and the onset of Cold War in the
peninsula, see Lee Wan-bŏm, Han’guk Haebang Samnyŏnsa, 1945–1948 [Post-liberation History of Korea,
1945–1948] 28–60 (2007).
66
In chapter I, “Fundamental Principles,” the North Korean charter provided for state ownership of major
enterprises and natural resources (art. 5), farmland redistribution (art. 6), enumerated private property
rights (art. 8), and state planned economy (art. 10).
67
Article 86 read: “Farmland [nongji] shall be distributed to the self-tilling tenants [nongmin]; the method
of distribution, the limits of ownership, and the contents and limitations of property rights shall be determined by law.”
65
822 I•CON 8 (2010), 800–848
the Soviet military authority as early as in February 1946, had only aggravated the
volatile political situation in the traditionally agricultural south.68All the major political factions, thus, included land redistribution in their campaign pledges for the May
10 general election. Commitment to the issue was only strengthened during CNA
deliberation on article 86, when the qualifier “in principle,” which had been part
of the original Yu draft, was dropped to allow for no exception to the rule.69 Giving
constitutional status to this transient, albeit urgent, policy issue would likely have
been inconceivable had it not been for the completion of land reform in the north and
its deep repercussions in the south.
South Korea’s land reform, however, had one critical difference from its northern
counterpart. As was not the case in North Korea, the South’s Founding Constitution
(art. 15, sec. 3) mandated “due compensation” for private property expropriated for
public purposes. This meant the lands expropriated for redistribution according to
article 86 had to be paid for; moreover, they would not be given freely to the tenant farmers. Clearly perceiving the urgency of this constitutional mandate, Syngman
Rhee’s new government immediately set about making a Farmland Reform Act and,
even before it was officially approved by the National Assembly in April 1949 (revised
in March 1950), the government began to implement it under the leadership of Cho
Bong-am, Rhee’s minister of agriculture with a prior communist background. This
remarkable haste turned out to be highly fortuitous because, by one estimate, up to
70 or 80 percent of the farmland would be redistributed by the time the Korean War
broke out in June 1950.70 Both the timeliness and the contents of the reform would
have a lasting impact on the subsequent development of South Korea’s constitutional
identity.
First, thanks in part to its timeliness, later land reforms implemented in those areas
of South Korea occupied by the North during the initial phase of the war were not
entirely successful despite the North’s claim to the contrary. The small landowners
newly created by the South’s land reform had little reason to welcome yet another
measure of redistribution by the communists who, unlike the South’s government,
imposed restrictions on ownership rights.71 Together with the heavy taxation in kind
and the violent purges witnessed under the North’s occupation, this wartime memory
would spread virulent anticommunism among the South Korean populace for a long
time to come. Even after the war, these small landowners would form a conservative
voting bloc that Rhee and his political machine could exploit for their authoritarian
On the North Korean land reform in 1946 and its immediate impact on the South Korean political scene,
see Kang Jung-gu, Nambukhan Nongjigaehyuk Pigyoyongu [A Comparative Study of Land Reform in North
and South Korea], Yoksa Bipyong [Critical Commentary on History], vol. 65 (2003).
69
CNA Minutes No. 26 (6 July 1948), at 479. Another illustration of this further drift toward socialist economy during the CNA deliberation was the controversial article 18 that provided for laborers’ “right to an
equal share of profits” (iik kyunjŏm kwŏn).
70
Kim Il-Young, Kŏn’guk gwa Puguk [State-Building and Wealth-Building] 117–121 (2004).
71
Jang Sang-Hwan, Land Reform and Capitalist Development in Korea, Spring Conference Paper, Institute
for Social Sciences, Gyeongsang National University (2005), 12–13 (available at www.iss.gsnu.ac.kr/
upfiles/haksuo/[02-2005]SangHwan%20Jang.pdf).
68
To make “We the People”: Constitutional founding in postwar Japan and South Korea 823
regime.72 In a sense, the deeply conservative, anticommunist template of South
Korean politics, which lasted until as late as the 1980s, was already set by the class
realignment that had been effected by land reform before the war.73
Second, although landlords were given monetary compensation, the method of
distribution hampered their successful transition into a modern industrial capitalist
class. The built-in policy bias against an immediate and adequate compensation was
reinforced by the government’s financial difficulties and the raging inflation triggered
by the war.74 As a result, by the time the postwar economic recovery began, hardly
any of the larger landowners had sufficient capital to take advantage of the government’s sale of “enemy property” intended as a form of economic stimulus. Instead, the
majority of the new industrial capitalists, whose operations became today’s chaebol,
would hail from among the new upstarts with crony political connections to the
government.75 The demise of the landowning class had a beneficial effect, too. South
Korean politics and economy would remain remarkably free of a reactionary hegemonic class entrenched in the traditional agricultural sector, which, in many other
Third World countries, would frustrate, time and again, the causes of both democracy
and development. In this sense, South Korea owes its dynamic democratization and
stunning economic growth in the later period, in no small measure, to the successful
land reform of this era.76
By the mid-1950s, the Founding Constitution’s chapter VI had largely accomplished its mission in land reform, while many parts of its allegedly socialist principles
had become outdated. The Korean War, which entrenched the Cold War on the peninsula, had strengthened the legitimacy of the South’s regime vis-à-vis the North.
The Constitution had created a nation of small property-owning farmers who would
soon be mobilized as an industrial army of laborers for the new capitalist class that
had replaced the traditional landlords. Economic rehabilitation and industrial growth
were the new mandate of the time, spurred in part by the government sales of large
enterprises in which the former landowning class could not partake. The consolidation of the Cold War order worldwide meant that chapter VI of the Founding Constitution would no longer be necessary vis-à-vis North Korea, nor would it be relevant
in the dawning developmental state. It was natural that the 1954 constitutional
revision, the main purpose of which was to enable President Rhee to run for another
term, would significantly tone down the socialist features of chapter VI.77 Constitutional provisions on socioeconomic principles would be streamlined to better reflect
This is reminiscent of the way Bonapartism of the Second Empire relied on the French self-tilling
peasantry. Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (1973).
73
Kim Il-Young, supra note 70, at 172–173.
74
Jang, supra note 71, at 15.
75
Kim Il-Young, supra note 70, at 163–168.
76
Gi-Wook Shin, Agrarian Conflict and the Origins of Korean Capitalism, 103 Am. J. Soc. 1309, 1313–1314
(1998).
77
Revisions were made in the direction of privatizing natural resources (art. 85), allowing more free trade
(art. 87), and restricting state-ownership of private enterprises (art. 88). This tendency would continue
to frame later revisions in 1960 and especially 1962.
72
824 I•CON 8 (2010), 800–848
and further promote South Korea’s steady incorporation into the global capitalist
order. These changes were not necessarily dictated by economic logic alone. The formation and transformation of chapter VI was in no small part a political reaction and
popular aversion to communist North Korea, which, in turn, was a reflection of the
Korean peninsula’s role in the Cold War. In other words, in its incipient years, South
Korea’s constitutional identity was made and unmade in interaction with global
geopolitical forces.
It may be surmised that the historic transition from one global war to another in
East Asia played the most crucial role in the formation and development of Japan’s article 9 and South Korea’s chapter VI. In the case of Japan, it took the rather direct form
of cooperation and contestation vis-à-vis the U.S. The reversal of positions occasioned
by the Cold War caused the “peace provision” to become, in effect, the ironic emblem
of Japan’s postwar constitutional identity. For South Korea, the external impact of
the Cold War between the U.S. and the Soviet Union was felt much more acutely in
the form of rivalry and war with North Korea. This context largely determined the
rise and demise of the socioeconomic provisions of the Constitution. In both cases, it
was in reaction to the international vicissitudes of the dawning Cold War that their
constitutional identities were forged.
4. Unmasterable past
Constitution making is often predicated on some kind of crisis by which the previous
political and legal regime becomes discredited beyond repair. Thus, whether prompted
by a revolution or a war, constitution making is normally sustained by a pervasive
sense of deep historical rupture. It seems only natural that a constitution made in the
aftermath of a major catastrophe will try to give expression to a hope for a better
future by emphasizing historical discontinuity and proclaiming a new beginning. For
a successful constitutional founding, however, merely exorcising the putative evils
and injustices of a past regime is not enough. A new constitution must go further and
try to summon a “useable past” that can lend it legitimacy. This task involves complex political and discursive negotiations among the participants, both domestic and
international, through which the past is reimagined and given a new useable form.
This complicated maneuver is no more clearly reflected than in the declaratory
parts of the constitutional text, most notably, in the preamble and the first section
that defines the fundamental regime type in the classic sense of that term. For Japan
reemerging after a total defeat in war, this meant that the emperor polity had to be
reconceptualized in a way that could reconnect the constitutional present-in-themaking to some kind of imagined past, while severing it from its most recent incarnation. Similarly, the postcolonial Korean constitution had to celebrate the new
democratic republic being established for the first time in history, while justifying it
as somehow embedded in a remote past beyond colonial rule and even the hereditary
monarchy that preceded it. To be exorcised and summoned at the same time, the past
would be one of the central foci of negotiation and contestation in the constitutionmaking process of Japan and Korea.
To make “We the People”: Constitutional founding in postwar Japan and South Korea 825
4.1. “Close encounters of the third kind”: Symbolic emperor polity in
postwar Japan
As with any constitutional founding, the adoption of Japan’s postwar constitution
involved—and represented in significant ways—the nation’s collective attempt to
cope with its past.78 The process was made more difficult because it was a process
done under foreign occupation. Yet, the complex negotiations that took place vis-à-vis
Japan’s past reveal that it was a process in which both the victors and the vanquished were very much complicit, no more so than in the making of the preamble
and article 1.
The new Constitution’s article 1 declares sovereign power to reside with the people
in line with the preamble’s first sentence that it is “We, the Japanese people” who
“proclaim” and “establish” the Constitution. Seldom noticed, however, is the fact that
the entire document is prefaced by a commendation from the emperor who “sanctions and promulgates” these “amendments” to the Meiji constitution. In this Imperial
edict of November 3, 1947, the day the new Constitution was proclaimed, it is even
stated that Hirohito was following the advice and decision of the Privy Council
and the Imperial Diet, both of which were being abolished by the very act of promulgation. Thus, according to this preface, the active agent ordaining the new national
charter may still be understood to be the emperor, contrary to the sovereignty statement in article 1. Similarly, confusion is evident in the first sentence of the preamble,
where the Japanese people are said to be “acting through our duly elected representatives in the National Diet [Kokkai].” In truth, it was the Imperial Diet (Teikoku Gikai)
that passed the new Constitution rather than the National Diet, which had not even
been created yet. It is also not entirely accurate to claim that the representatives were
“duly elected,” since only the members of the lower chamber of the Imperial Diet were
selected by the people. Popular sovereignty was thus enshrined for the first time in
Japanese constitutional history by following the old formalities and procedures that
the new Constitution was designed to displace.
This implicit tension between continuity and discontinuity should not be surprising.
The unapologetically democratic preamble in the original SCAP draft was a document
that could scarcely be swallowed by the Shidehara cabinet, which chose to remove it
in toto from the so-called government draft of March 4. In what might be construed
as an act of sheer imposition, the enraged SCAP responded by ordering that it be put
back into the draft immediately, to which the Japanese side had no alternative but to
comply. This seeming confrontation between an “ignorant” foreign victor pushing for
a radical departure and a “helpless” vanquished nation feebly attempting to salvage
a shred of continuity, however, conceals more than it reveals of the complicated positions the U.S. and Japan took over the issue of the past in the process of constructing a
new constitutional identity.
“In order for postwar Japan to begin anew, the first reckoning would be with history. . . . From Douglas
MacArthur to the Japan Communist Party, commentators attempted to identify the elements that had
been responsible for the events of Japan’s dark years.” Carol Gluck, Japan’s Modern Myths 4 (1987).
78
826 I•CON 8 (2010), 800–848
As for the U.S. side, there seemed to be a consensus early on as to the past that
needed to be purged. Often labeled “demilitarization and democratization,” the initial occupation policy goal was not only to dismantle the war-making powers of the
state and the institutional apparatuses that allowed militarism to take over,79 but also
to transform the political culture and the entire allegedly authoritarian mind-set of
the Japanese people.80 This spirit is captured in the language of the preamble originally penned by members of the General Headquarters (GHQ) of SCAP. The people of
the new Japan are resolved to be “never again . . . visited with the horrors of war
through the action of government” and to banish “tyranny and slavery, oppression
and intolerance” forever. Also targeted as evils to be repudiated were the mythical and
mystical notions of a chosen people ruled by a divine monarch descending from the
sun goddess. This wholesale mistrust would receive expression in the third item of the
famous MacArthur Note (February 3, 1946): “The feudal system of Japan will cease.”
Yet, even for the occupation, the past was not merely an object of repudiation and
renunciation. In order to establish a new democratic polity, the Constitution had to
be seen as somehow connected to, and drawing from, certain principles, if not precedents, in the nation’s history. One encouragement for this view may be seen, already,
in the Potsdam Declaration, article 10 of which states: “The Japanese government
shall remove all obstacles to the revival and strengthening of democratic tendencies
among the Japanese people.” The clear implication is that the creation of a new Japan
may involve a measure of returning to its past. Precisely what those “democratic tendencies” were and where they might be found, however, remained unexplained.81
Most notably, the desire to maintain continuity with the past was shared by
MacArthur himself. The first of his three cardinal principles stated: “Emperor is at the
head of the state.” It was his decision to maintain the imperial institution and to shield
Hirohito from demands for prosecution for war crimes and/or abdication. Even the
FEC, which had voiced far more critical views demanding some form of punishment
for the emperor, and which felt rather betrayed by MacArthur’s preemptive decision
to start the constitutional revision process, eventually issued a policy decision stipulating that “[c]omplete legal continuity from the Constitution of 1889 to the new
Constitution should be assured.” To be sure, such decisions stemmed more from the
political assessment that maintaining domestic security in Japan would be far too
costly without a cooperative emperor than from any concrete desire to look for a useable past in Japan’s history. Yet there is no denying that these decisions facilitated the
process of producing a revolution while maintaining continuity with the past.
The “dual government” of the imperial constitution which enabled the military to pursue tragic and
senseless goals without being accountable to the legislature had to be corrected. Moore & Robinson, supra
note 44, at 85–86.
80
Id. at 9–10 (noting “ideological conversion of society” as integral to occupation goals); John W. Dower,
Embracing Defeat 73–84 (1999) (describing the “messianic fervor” that accompanied the reforms undertaken by MacArthur and his cadre of reformers).
81
The reference is usually understood to be to the era of so-called Taisho Democracy of the 1920s, before
the rise of militarism. Yet, it was never spelled out in any of Washington’s initial policy directives for
political reconstruction of Japan.
79
To make “We the People”: Constitutional founding in postwar Japan and South Korea 827
The most visible presence of the past in Japan’s postwar Constitution is, of course,
the Meiji Constitution itself. The new Constitution was adopted by following the
amendment procedures of the Meiji Constitution. Following its article 73, it was the
emperor who initiated the process of revising the constitution, which was then ratified
by the Imperial Diet formed under the old constitution. It bears noting that the emperor was sanctioning, in 1946, a process that would reduce his status to a “symbol”
of the state rather than an all-powerful sovereign ruler. As for the House of Peers, the
upper chamber whose members had been appointed by the emperor, they were literally voting themselves out of existence by approving the constitutional revision.
Hence, the contradictory character of the preamble noted above. Despite the “revolutionary” nature of the new Constitution, SCAP’s choice to follow the Meiji amendment procedure, which may have been made more for reasons of expediency, had the
effect of allowing Japanese society, particularly its conservative segment, to maintain
a sense of continuity.82
Nevertheless, the novelty and, indeed, the radical departure required by the
new Constitution were not lost on the Japanese political actors of the time. In his
famous “August Revolution” theory, for example, Tokyo University law professor
Miyazawa Toshiyoshi asserted that, by accepting the Potsdam Declaration in
August 1945, Japan had adopted in effect the principle of popular sovereignty even
before the renunciation of the emperor’s divinity and the adoption of the new Constitution. Since “the ultimate form of government” would “be established by the
freely expressed will of the Japanese people” (article 12 of the declaration), which
was an impossibility under the Meiji Constitution, a “revolution” must be deemed
to have taken place. The new Constitution, according to this interpretation, represented a profound rupture in Japanese history.83 More interesting, for our purposes of understanding negotiations with the past, is a “private” draft constitution
prepared by the Constitutional Research Association (Kenpo Kenkyukai). Its leadership, Takano Iwasaburo and Suzuki Yasuzo, was heavily influenced by the ideas
of the People’s Rights Movement (Jiyu Minken Undo) of the late nineteenth century
that had advocated notions of popular government.84 For Takano, in particular, the
historic movement represented an unfulfilled vision of republicanism betrayed by
the reactionary Meiji constitution that had stifled the people’s zeal for democracy
by proclaiming the sovereignty of a “sacred and inviolate” emperor. The final outcome of this resuscitation of a useable past was the “symbolic emperor polity” that
According to some Japanese constitutional law scholars, given this semblance of continuity, even
fifty years after the adoption of the new Constitution, people still retain deep-seated respect for
the imperial institution, which is impeding the formation of an autonomous citizenry in Japan.
Katsutoshi Takami, From Divine Legitimacy to the Myth of Consensus: The Emperor System and
Popular Sovereignty, in Five Decades of Constitutionalism in Japanese Society 9, 22–24 (Yoichi Higuchi
ed., 2001).
83
Yasuo Hasebe, The August Revolution Thesis and the Making of the Constitution of Japan, 17 Rechtstheorie
335 (1997).
84
Koseki, supra note 43, at 26–35, 48.
82
828 I•CON 8 (2010), 800–848
received expression in articles 1 through 3 of the association’s draft published in
December 1945.85
For the conservative government, which had been put in the awkward position
of having to defend SCAP’s draft constitution as its own, these were troubling times.
Given that the draft had incorporated ideas of a “symbolic emperor,”86 many of the
old guard were concerned that the Japanese traditional understanding of “national
polity” (kokutai) had undergone a radical change. SCAP’s gestures toward preservation of the imperial institution notwithstanding, there was a suspicion that kokutai, as
they knew it, namely, a polity united under an omnipotent divine emperor, was no
more. In order to appease their fellow conservatives, therefore, the government had to
insist that kokutai had not changed. In order to placate to their liberal detractors like
Takano and SCAP, however, they also had to acknowledge that sovereignty now lay
with the people. Thus, they were forced to argue the impossible: revolutionary change
had taken place, and yet, the most basic feature of the national polity still remained
unchanged. Their way out of this bind was to redefine kokutai, while culling examples
from history which might be used to show that national polity, properly understood,
had always referred to their redefinition. In a classic case of “invented tradition,” they
engaged in a selective resuscitation of useable pasts.
Taking their cue from Hirohito’s so-called Humanity Declaration of January
1946,87 the government argued that kokutai did not mean an absolutist monarchy
based on mythical claims of divine origin or unbroken line of succession. For
Kanamori Tokujiro, for example, the minister of state in charge of constitutional revision, kokutai was a spiritual and emotional bond between the emperor and his subjects
who together constituted the “people” (kokumin).88 Although the Meiji constitution
may give the impression that kokutai had consisted in the emperor’s political and institutional authority to determine state policy and to command absolute obedience,
the true essence of the Japanese state was to be discerned in the more intangible and
ethereal realm of attitudes and attachments.89 Kanamori was convinced that a dispassionate view of history would confirm that his conception was closer to “traditional
Article 1 (“the sovereignty [sic] of Japan is in the hands of the Japanese people”); article 2 (“the Emperor
does not rule state affairs”); article 3 (“the Emperor chiefly takes charge of national ceremonies”). These
“progressive” interpretations of Japan’s postwar identity were significant also because they were carefully analyzed and well-received by SCAP as it prepared for its own draft. Some argue that the association’s draft was the true origin of the symbolic emperor polity adopted by the new Constitution. McNelly,
supra note 39, at 98–100.
86
The new constitution made him a mere “symbol of the state and of the unity of the people, deriving his
position from the will of the [sovereign] people” (art. 1). Moreover, it only accorded him powers that were
mainly ceremonial in nature, with real political power now being vested in the National Diet, which was
proclaimed the “highest organ of state power” (art. 41).
87
On January 1, 1946, the emperor himself had delivered a new year’s message to his subjects, in which he
characterized as a “false conception” notions of imperial divinity and Japan’s superiority over other races.
88
This was an imaginative move that could present “popular sovereignty” as a collaborative rule by the
emperor and his subjects. The notion of “people” as kokumin is discussed below.
89
Moore & Robinson, supra note 44, at 197–98.
85
To make “We the People”: Constitutional founding in postwar Japan and South Korea 829
practices than were the doctrines that prevailed during the 1930s.”90 The wartime
militarist ideology had been a deviation from the real meaning of kokutai, according to
this line of argument, and the Meiji constitution itself, a sufficiently democratic document, just as it was. This was why Yoshida Shigeru, prime minister at the time of Diet
interpellations on the government draft, was able to maintain that there had been no
rupture in the political life of Japan: “[O]ur political principle has always embodied the
democratic way of thinking, both before and after the new Constitution.”91
Further, the whole Meiji era was now recast as an inspiration for a new democratic
constitution. Immediately upon ascending the throne in 1868, the Meiji emperor
had issued the famous Charter Oath, which began with the directive, “Deliberative
councils shall be widely established and all matters decided by public discussion.” For
people like Ashida Hitoshi, this Meiji oath had inaugurated “the era of modern
democracy” in Japan.92 Yoshida, too, claimed that the Charter Oath was proof of a
democratic tradition in Japan. For his part, Hirohito also made use of this oath, issued
by his grandfather, in negotiating continuity and change. By opening his historic
Humanity Declaration with a verbatim recitation of the five-point oath, Hirohito
could now intimate that the new democratic Japan to be built from the devastation of
defeat would represent a continuation of the democratic ideals of the past. Building on
the oath and going back further into the Tokugawa era and beyond, the conservative
government even argued that the emperor had never ruled directly and always stayed
above day-to-day politics.93 Thus, Yoshida was able to proclaim with a straight face
that “from time immemorial,” democracy had always been a part of Japan’s kokutai
as newly defined. The inconsistency in invoking the Tokugawa history alongside the
Meiji Restoration, which had been inaugurated as a violent rejection thereof, was a
minor historical glitch that could be glossed over. The constitutional search for useable pasts is never an exercise in historical scholarship; it was only less so in postwar
Japan. The supposed “August Revolution” might as well have been a Restoration or
even a Glorious Revolution that had recovered Japan’s “ancient liberty,” so to speak,
at long last.
Id. at 205.
Id. at 299. Ironically, this was also the reason why Yoshida had been adamantly opposed to revising
the constitution. Before he became the head of a cabinet confronted with the task of passing the new
constitution, Yoshida had been in agreement with figures like Matsumoto Joji, the head of the government’s unofficial Committee to Study Constitutional Problems, and Shidehara Kijuro, prime minister
at the time GHQ presented its draft to the government. They were all convinced that the Meiji constitution was fundamentally democratic and flexible enough, so that a new democratic society could be
built without revising the constitution. Now in charge of the task of ensuring the adoption of a new
constitution, Yoshida invoked the same idea to argue that the Japanese state remained fundamentally
unaltered.
92
Id. at 276.
93
Id. at 202 (reporting Kanamori’s statement: “we have committed error in bringing down the emperor
from this ideal, transparent and colorless position and letting him take sides in actual politics . . .”). Dower,
Empire and Aftermath, supra note 54, at 326 (1988) (referring to Ashida’s assessment that the new constitution restored the emperor to the position of “being in the midst of the people, [while] stand[ing] outside
the pale of actual politics . . .”).
90
91
830 I•CON 8 (2010), 800–848
As mentioned above, one of the common rhetorical tools of repudiation was to
characterize one’s target as mystical obfuscation or as deriving from myths. People like
Yoshida and Kanamori also appropriated this rhetorical stance. Yet, they also appreciated that constitution making involved a certain degree of mythical dimension.94 In
defending the choice of “symbol” over the more traditional “head of state” (genshu)
as the emperor’s new title, Kanamori stated that the latter term was associated with
the image of a state as a human body and, therefore, could promote needless “mysticism.”95 For him, the emperor as a “symbolic” spiritual center of the Japanese people
was just the right degree of “myth” for the new constitution of Japan.
4.2. “The king and I”: A democratic republic beyond colonial and
dynastic subjugation
The making of the Constitution of the Republic of Korea in 1948 was a historic event,
for it restored political independence formally, while introducing a democratic form of
government for the first time in Korean history. From the beginning, it was a process
charged with two potentially conflicting meanings. It stood for the consummation of
the nation’s independence regained, which was conveyed by the term kwangbok (literally,
“restoration of light”); it also signified the founding of a new state, as expressed by the
word kŏn’guk (literally, “establishment of state”). Emphasis at the time was probably
on the latter, as no one took “restoration” to mean a return to the dynastic order prior
to the Japanese annexation in 1910. In actuality, most felt no tension between the
two, and all who participated in the drafting process were intensely aware of the historical significance of the event.
The best place to look for such historical awareness in the Founding Constitution
is probably the preamble. An examination of its language, however, reveals the Constitution’s ambiguous relationship with the pasts that are being summoned as well as
with those being exorcised. The relevant section reads as follows:
We the People of Korea [Taehan Kukmin], emboldened by a glorious tradition and history
from time immemorial, following the indomitable spirit of independence, as manifested in the
establishment of the Republic of Korea [Taehan Min’guk] in the course of the March First Independence Movement of 1919, in re-establishing [chaegŏn] this democratic independent state
presently, . . . do hereby ordain and establish [chejŏng] this Constitution.96
Grandiose and solemn at the same time, this 1948 text actually is infested with perplexities, even contradictions. It states that the goal of making this Constitution was
to “re-establish” (chaegŏn) the “democratic independent” Republic of Korea. Referring evidently to the Korean Provisional Government set up first in Shanghai and relocated, subsequently, to Zhongqing and Nanjing in wartime China, it makes clear that
Moore & Robinson, supra note 44 , at 186 (describing Yoshida as the perfect man to defend the new constitution “against rationalists who failed to understand the value of myths in fostering cohesion”).
95
Id. at 195, 297.
96
Official Korean government translation altered for a more literal rendition.
94
To make “We the People”: Constitutional founding in postwar Japan and South Korea 831
the republic was already founded in 1919, shortly after the “March First Independence Movement,” the famous mass uprising against Japanese colonial rule. In an instance of enriching facts with counterfactual imagination, the republic is proclaimed
to be already twenty-nine years old at the moment of its birth. In light of this historical
consciousness, then, it would seem only natural that the Constitution would also be
a continuation of the preexisting constitutions of the KPG. It would have been, then,
more logically consistent to describe it as a “revision” (kaejŏng), rather than as a
product of a novel founding, as is implied in the active verb (chejŏng). After all, KPG
constitutions had gone through a series of revisions, and those documents and experiences were well known to the framers of the Founding Constitution. Nevertheless, the
preamble proclaims that “We the People of Korea” are newly “establishing” a Constitution even as they are “re-establishing” the Republic.
During the drafting process, the idea of revising or amending the KPG constitution,
in fact, had been suggested but was summarily dismissed.97 It was only the “spirit”
that was being translated into a new form and not any particular provision or institution. Similarly, at least one member of the CNA pointed out that “re-establishment” of
the republic did not mesh with their activity of drafting a brand new constitution. Yet,
this too was rejected without much ado.98 The preamble was thus adopted with full
awareness of these tensions, if not outright contradictions, as an awkward statement
that attempted to embody a sense of both continuity and discontinuity.
The most immediate political reason for this confusion can be seen in the roles that
former KPG leadership played in the turbulent constitutional politics between 1945
and 1948. On the one hand, many of the prominent godfathers of the Founding
Constitution, such as Syngman Rhee, Shin Ick-hee, and Cho So-ang, had solid KPG
backgrounds in one form of another. Given the popular reverence for the KPG, it was
a good, useable past by which to bolster South Korea’s regime legitimacy vis-à-vis the
domestic left-wing factions and the communist North Korea. On the other, Kim Ku,
KPG’s most emblematic leader, had boycotted the May 10 general election because he
was opposed to the establishment of a separate South Korean government. Without
Kim Ku on its side, CNA could not claim a complete monopoly on the KPG legacy.99
Reflecting this ambivalent relation to the KPG, the original Yu Draft chose not
to include any preamble at all. Although a preamble would be included during CNA
deliberations and the KPG invocation further strengthened eventually,100 the final
text still reflected a measure of mixed feelings toward the KPG legacy.
CNA Minutes No. 18 (26 June 1948), at 229. Prior to the convocation of CNA, more than a few draft
constitutions did take the constitution of the KPG as their base text. The CNA also took this document
into consideration, though only as one of many models to be consulted.
98
CNA Minutes No. 27 (7 July 1948), at 512.
99
The American authorities, too, had never recognized the KPG as a legitimate political entity in Korea.
Even before their arrival in Korea, the U.S. military had made it clear through “Proclamation No. 1 by
General of the Army Douglas MacArthur” that all powers of government would be exercised under his
authority. This effectively outlawed all Korean proto- and quasi-government organizations that claimed
to represent the Korean people.
100
CNA Minutes No. 22 (1 July 1948), at 346–48.
97
832 I•CON 8 (2010), 800–848
In terms of the Constitution’s relationship with the past, however, what remained
strikingly muted in the preamble was of far greater importance than the status of KPG.
The much more concrete and palpable experience of the colonial occupation, hardly
mentioned in the text, was the past that had to be repudiated once and for all through
the act of constitution making. The colonial occupation embodied all the evils that
needed to be exorcised; it was the negative building-block, as it were, on which to erect
a new future. Constitution making, in this context, was an attempt to draw a line in
the nation’s history and depart from the shameful past. A logical extension of this was
the imperative that those Koreans who had collaborated with the colonial authorities
be brought to justice and punished for their deeds.
In fact, lustration was a central issue even before the CNA was convoked in May
1948. When USAMGIK established the South Korean Interim Legislative Assembly
(SKILA) in December 1946, it passed an election law in which those persons identified as collaborators were stripped of their right to participate in the election. The
law also provided an enumerated definition of this category of people.101 Building on
a similar categorization, SKILA soon afterward enacted a special ordinance for the
punishment of “traitors, collaborators, and profiteers.” This, however, failed to secure
the USAMGIK approval required for its effectuation. Still, similar limitations on the
political rights of such persons was embodied in a later law passed by SKILA in preparation for the May 10 general election.102 These efforts culminated in article 100 of the
Founding Constitution, which authorized CNA to enact special legislation for punishing
“malicious anti-national acts committed prior to 15 August 1945.”103
Yet, the colonial legacy was not the only past to be exorcised. The monarchical
tradition of old Korea was another object of repudiation. Rightly or wrongly, the loss
of independence in 1910 was attributed to the political corruption and moral bankruptcy of the decrepit “Great Han Empire” (Taehan Cheguk), which had been proclaimed
by the penultimate king of Chosŏn dynasty in a last-minute attempt to salvage his
kingdom. In fact, from very early on during the colonial period, a consensus emerged
among leaders of the independence movement that a restored sovereign nation of
Koreans would be a republic, and very few, if any, argued for a restoration of the
imperial house. For example, the 1917 Declaration of Harmonious Unity (Taedong
Tan’gyŏl ŭi Sŏnŏn) included a revealing passage regarding the status of the defunct
monarchy. It claimed that the ceding of sovereign authority by the last emperor of the
Great Han Empire to the emperor of Japan was null and void because, according to the
“unwritten fundamental law of the state” arising out of history, when a monarch forfeited his sovereignty, it was the people, and not some foreign monarch, who inherited
SKILA Law No. 5, Art. 2.
USAMGIK Ordinance No. 175, Arts. 2 & 3.
103
Accordingly, a law was enacted in 1949 to establish the Special Investigative Commission on Antinational Activities, which would identify, arrest, and prosecute the suspect collaborators. The commission,
however, never finished its investigations due to the sabotage and resistance of Rhee’s administration,
especially the police force staffed largely by former bureaucrats in the colonial government. Insufficient
lustration at this time would come back, time and again, to haunt the founding legitimacy of the South
Korean regime.
101
102
To make “We the People”: Constitutional founding in postwar Japan and South Korea 833
his power and authority. The day that the emperor’s power expired was, indeed, the
birthday of the people’s power.104
Similarly, the 1919 Declaration of Independence, which sparked the famous March
First Independence Movement, did not refer to the dynastic past at all. Admittedly,
the ten-point Provisional Charter of the Republic of Korea, proclaimed a month thereafter (April 11) to inaugurate KPG in Shanghai, did include a clause pledging respect
and support for the old imperial house. Yet, the very first article of the charter was
a proclamation that Korea shall be a democratic republic.105 Indeed, there was
near-universal consensus among the scores of “constitutional documents” produced
during the colonial period106 that the government of an independent Korea should
take a republican form. According to the “Essential Points for National Founding”
(Kŏn’guk Kangnyŏng), a document issued by KPG in 1941, the events of 1919 also
signified, in addition to their collective will for independence, the Korean people’s
“voluntary destruction of the five-thousand-year-old encrustation of monarchy.”
Upon liberation, consequently, no one seriously advocated reviving the old dynasty or
framing the new government as a constitutional monarchy. This firm determination
to reject the precolonial dynastic legacy would be given constitutional expression in
the Founding Constitution’s article 1 (“Republic of Korea is a democratic republic”)
and article 2 (“Sovereignty resides with the people from whom all power emanates”).
In comparison with the situation in Japan, constitution making in Korea was
heavily weighted toward making a clean break with the past.107 Yet, even in the
Korean context, as seen in the preamble’s invocation of the March First Independence
Movement and the KPG experiences, the past was not merely denounced or negated.
It was also summoned as the source of constitutional legitimacy. Even the 1917 Declaration of Unity, mentioned above, had proclaimed the advent of popular sovereignty
via the rhetoric of continuity. The people were described as “inheritors” of the “three
treasures,” namely, the “twenty million living souls, three thousand li of ancient
territory, and four thousand years of sovereign rule.” As such, the claim was that
there had not been one instant of lapse in the succession of sovereign authority.
Taedong Tan’gyŏl ŭi Sŏnŏn (1917). Drawn up as a means to urge unity among the various organizations
working for independence, this document is attributed to Cho So-Ang, who participated in the KGP and
formulated the doctrine of “Three Equalities,” mentioned above.
105
2 Sourcebook of Korean Civilization 435–436 (Peter H. Lee ed., 1996) (translated as “Provisional Constitution of the Korean Republic”).
106
Obviously, none of these was ever implemented in Korea. Some were written as the constitution of the
KPG, while others were preparatory documents for the eventual drafting of a constitution for postcolonial Korea.
107
From the international standpoint, too, the fact that a constitution had to be drafted to establish a “new”
state naturally accentuated the aspect of discontinuity. In the words of Ernst Fraenkel, a prominent
scholar and legal advisor to USAMGIK in 1948, “termination of hostilities did bring about neither the
revival of the pre-annexation Korean state nor the establishment of a new Korean state. . . . [As of 15
August 1945, Korea] from the point of view of the international law was a “no man’s land.” Structure of
the USAMGIK, 2 J. Mod. Korean. Stud. 69 (1985) (1948).
104
834 I•CON 8 (2010), 800–848
In the Founding Constitution, the first four articles actually include references
to reimagined pasts that often go unnoticed. Articles 1 and 2, which declare Korea
to be a democratic republic, are interesting as they constitute both a rejection
and a continuation of the dynastic past. This can be seen in the official term for
“Republic of Korea” in the Korean language, Taehan Min’guk, which literally
means “Republic of the Great Han.” During the drafting process, there were some
discussions as to what the official name of the newly independent state should be.
Everyone was agreed that it should be a republic (min’guk); however, different proposals were made regarding the proper name. The Constitution Drafting Committee
had chosen Taehan Min’guk, although other options included Koryŏ Konghwaguk
(Republic of Koryŏ), Chosŏn, and Han’guk. The choice made by the committee was
retained, ultimately, on the grounds that it was the name of the republic proclaimed
in the wake of the March First Movement. What did not bother the CNA members
particularly was that Taehan had been the name of the short-lived “empire” proclaimed just before Korea’s loss of sovereignty. In fact, one member did try to oppose
the choice of Taehan by calling it a “congenital deformity” that was doomed from inception since it had been a product of the 1895 Treaty of Shimonoseki.108 The reference is apparently to Japan’s victory in the Sino-Japanese War, which put Japan in
a position to urge Korea to proclaim itself the Taehan empire in 1897—and thus its
independence from Qing China—as a prelude to the eventual annexation of Korea
in 1910. For most members, however, the more important point of reference was
the first republic declared in 1919 in defiance of Japanese imperialism.109 Through
the adoption of Taehan as the official name of the new republic based on popular sovereignty, articles 1 and 2 thus enabled the newly constituted people to affirm and
repudiate the past at the same time. They could be connected to the past in which
Korea’s sovereignty remained uninterrupted while rejecting both the dynastic and
colonial legacies.
Deliberations on article 4, regarding the territory of Korea, presented another occasion for convoluted negotiations with the past. The article provides that the territory
shall be “the Korean Peninsula and the islands attached thereto.” The immediate
impetus for making a territorial provision came from the political desire to declare
the northern half of the peninsula a part of South Korea’s sovereign territory in line
with the official claim that the South was the only legitimate state on the Korean
CNA Minutes No. 20 (29 June 1948), at 284.
During the colonial period, Korea’s official name as a territory of the Japanese Empire had been Chosen
(Chosŏn in Korean pronunciation). Immediately after annexation in 1910, the Japanese government
passed legislation that provided: “Korea [Kankoku] shall henceforth be referred to as Chosen” (Imperial
Edict 318, 29 Sept. 1910). Also notable is the fact that, when leaders of independence movement met
in Shanghai to set up KPG in 1919, a similar debate on the name of the republic had taken place. The
idea of calling it Taehan was initially opposed on grounds that it had been the name briefly used by the
monarchy before it expired and, therefore, not worth reviving. Yet, it is reported that the argument,
“Since Korea had collapsed as Taehan, it should be resurrected as Taehan” carried the day. Despite its
association with the defunct monarchy, it was apparently preferable to the name given by the colonial
authorities.
108
109
To make “We the People”: Constitutional founding in postwar Japan and South Korea 835
Peninsula.110 The geographical designation “peninsula,” however, had another international and historical connotation. It had been used by the Japanese colonial authorities to designate their Korean colony (hanto) or subjects (hantojin), in contrast to their
home islands (naichi) proper, with a certain pejorative meaning accrued over time.
For largely this reason, a revision had been introduced in the CNA to read: “territory shall be the original Korean realm [p’ando].” Aside from merely avoiding the
colonial baggage, its proponents were implicitly staking a claim on the historically
disputed part of Manchurian territory in which a large number of Korean immigrants were resident for generations, at least since the late Chosŏn period. One of the
CNA members even stated that “our nation has legitimate claims on this territory by
virtue of long domicile and historical rights, which will have to be incorporated into
our territory one day.”111 In response, defenders of the original provision pointed
out that “the islands” clause alone could legitimate Korea’s future claims, this time,
on the Japanese island of Tsushima over which Korea also allegedly had historical
rights. In the end, it was precisely for reasons of potential territorial disputes that the
revision was dropped. Yet, a different proposal for altogether eliminating the territorial provision was similarly defeated. While the final version made no reference to
historical “territories,” it was clear that the identity of the newly constituted people
was informed, in part, by narratives of the ancient Korean kingdom of Koguryŏ ruling
Manchuria and the repeated subjugation of Tsushima during Koryŏ and Chosŏn
dynasties.
Perhaps the most dramatic instance of reimagining the past was occasioned in
December 1948, when a bill creating the Nationality Act was introduced in CNA.
This bill was mandated by article 3 of the Constitution (“The requirements for being a
national of the Republic of Korea shall be determined by law”). The bill’s primary
criterion was that a person shall be deemed a Korean national whose father is “a
national of Republic of Korea at the time of the person’s birth.”112 This caused
some members to inquire about the propriety of requiring that the father be a
Korean national. Applied strictly, that would make non-Korean nationals of all
who had been born prior to the establishment of the republic, only a few months
before, in August 1948. In reply, Yi In, the minister of justice who drafted the
bill, made a revealing statement that highlighted the need to supplement facts
with counterfactual imagination in launching a new constitutional order. His
view was that, while the government of Korea may have been inaugurated on
August 15, 1948, a state called “Republic of Korea” had been in continuous existence even prior to that date. For him, it is a postulate of all constitutional systems
CNA Minutes No. 18 (26 June 1948), at 229. This claim has customarily been thought to have received
the sanction of the United Nations. (UNGA Res. 195 [III], 12 Dec. 1948). Intact in the present Constitution of 1987, the provision is still regarded by some Korean constitutional scholars as a crucial legal
ground for future unification.
111
CNA Minutes No. 22 (1 July 1948), at 353.
112
In the context of 1948, the patrilineal system did not raise issues of equality between the sexes. This was
revised in 1997 to confer nationality on anyone whose father or mother is a Korean national.
110
836 I•CON 8 (2010), 800–848
that its members be thought to have had membership in that system even before
the constitutional founding. Both “legally and spiritually,” all Koreans now living
under the jurisdiction of the republic must be deemed to hold Korean nationality.113
Governments may come and go, and there may even be times when no government is in place, but the state never ceases to exist.114 As it were, the name “Republic of Korea” had to be projected onto the past in order to identify the current
members of that state. Put differently, continuous preexistence of an independent
state had to be presupposed in order to identity the people as citizens of the new
constitutional order.115
Conventional constitutional dogma has it that an independent state consists of
people, territory, and sovereignty, or, in the Korean idiom of 1917, “twenty million
living souls, three thousand li of ancient territory, and four thousand years of sovereign rule.” In giving constitutional expression to these three elements, the making of
the Founding Constitution reflected a difficult, perhaps irresolvable, negotiation with
the past. By engaging in a selective appropriation of useable pasts, it severed living
continuities while inventing imagined traditions. This was unavoidable, in a sense,
because the Founding Constitution of 1948 was given a dual mandate of restoration
of the past (national independence) and establishment of the future (a new democratic
state).
All in all, constitutional negotiation with the past is compelled to implement a
dual mandate of renunciation and reclamation. In postwar Japan, the emperor polity
had to be dislodged from a near and familiar past and reconnected to a different and
more elusive past. Through an ingenious (and perhaps disingenuous) refashioning
in the course of the constitutional ratification process in the Imperial Diet, which was
aided by an almost overnight reversal of Japanese national identity in the public discourse, the so-called symbolic emperor polity would become deeply entrenched in
Japan’s postwar constitutional identity. In the course of constitutionalizing a democratic republic in 1948, South Korea would also embark on exorcising its colonial past
while, at the same time, rejecting the dynastic, monarchical history that preceded it.
Various elements of the past thus reimagined would be invoked to lend historical
legitimacy to the constitutional provisions regarding the three cardinal elements of
the state: people, territory, and sovereignty. In both Japan and Korea, constitutional
identities emerged through a historical process of negotiating with the past, which
bordered making cases for the impossible.
CNA Minutes No. 118 (1 Dec. 1948), at 1144–1145, 1151–1152. It was, therefore, unnecessary and
confusing in his view to invent another term to describe those born before the establishment of the government.
114
Another CNA member supported the minister by drawing an analogy to family relations. If the father
changes his name, his sons and daughters have to be identified henceforth as the children of the father
under the new name, even if they had been born prior to the name change. CNA Minutes No. 119 (2 Dec.
1948), at 1158.
115
Efforts to set down nationality criteria and the attendant redrawing of membership boundaries will be
discussed below.
113
To make “We the People”: Constitutional founding in postwar Japan and South Korea 837
5. Shifting boundaries
The imperative to create a new democratic constitutional order was clearly felt in
both Japan and Korea. While there were efforts to reconnect to certain reimagined
conceptions of the past, it was beyond doubt that there would be a radical discontinuity in the way that people related to one another politically. Henceforth, they
would be members of a different political community. They would become “nationals [kokumin] of Japan” rather than members of a putative “family state” in which
everyone was imagined to be the progeny of the imperial family. Similarly, they would
be identified as “nationals [kukmin] of the Republic of Korea” rather than the colonial subjects of a foreign subjugator. These two terms under which the people of each
country were reconstituted as citizens are composed of the same Chinese characters,
in fact, which literally mean “state-person” or “state-member.” The story of how each
country’s citizens came to identify themselves under the same label, though with very
different understandings, is both interesting and important for understanding the
dynamics by which a new constitutional subjectivity emerged in the postwar context.
Equally important is the process by which a new boundary emerged between members and nonmembers of the new polity. A newly constituted “people” must determine
who belongs and who does not, as well as what sort of treatment to accord to nonmembers. For this reason, we will examine in this section the constitutional provisions and
other laws on nationality that emerged from the constitution-making process. It will be
noted that defining the new criteria of membership was done through a process of “contraction”—though more visibly so in Japan than in Korea—in which the boundaries of
the people shrank from the preconstitutional understandings of membership.
5.1. “Six degrees of separation”: From multiethnic empire to monoethnic
nation-state
Article 10 of Japan’s new Constitution states: “The conditions necessary for being a
Japanese national shall be determined by law.” Originally, no provision on nationality
had been included in either the SCAP draft or the government draft. It was inserted
during deliberations in the Imperial Diet. The proposal was first made by the conservative parties, although other legislators also agreed to the insertion without much
debate. Apparently, it was thought such a provision was necessary because the Meiji
constitution had a similar article. In fact they were identical except for one word—
“national” (kokumin) had taken the place of “subject” (shinmin). Instead of being the
subjects of the emperor, the members of the new Japan would simply be called Japanese nationals. In that regard, this article may be understood to signal an intention to
move away from the imperial past. On the other hand, the word kokumin itself was not
new; in fact, it, too, had an imperial past. Though not a legal term, kokumin had been
used widely during the Meiji period to integrate the people under the emperor.116 For
For an informative analysis of the various connotations of kokumin, both before and after the war, see
Kevin M. Doak, A History of Nationalism in Modern Japan 164–215 (2007).
116
838 I•CON 8 (2010), 800–848
the Japanese legislators, especially the conservatives whose paramount concern was
to preserve the imperial institution, the choice of kokumin was a reflection of their
wish to maintain a sense of continuity with the past.
That the word kokumin had a conservative connotation at the time is also borne
out by the fact the conservative government leaders deliberately chose it over a different word with unwanted progressive overtones. When the government was first
preparing a translation of the SCAP draft, the Foreign Ministry had initially chosen
jinmin as the Japanese rendering of the English word “people.” Yet, the final version
of the government draft replaced it with kokumin. Apparently, jinmin had a socialist
or communist flavor and conveyed a sense of the people resisting authority, whereas
kokumin had a less adversarial connotation of a people harmoniously merged with the
state.117 Thus, all references to the “people” were ultimately translated as kokumin.
With the people thus rendered as kokumin, the idea of “popular sovereignty,” the
foundation of the new Constitution, could be introduced as something less than
revolutionary. It did not mean stripping powers from the emperor, because “people,”
or kokumin, was an inclusive term, which included the emperor as well. At the same
time, it was perhaps not surprising that conservatives, inured to the more imperial
connotations of the word, had trouble grasping the idea of kokumin as a constitutional
agent.118 It probably smacked of a contradiction to say that those whose defining feature was to become merged into the state were now claiming to establish the state by
ordaining a new constitution. At any rate, choosing kokumin to refer to the members
of the new Japan provided the flexibility and ambiguity needed to accept the new way
of relating to one another politically, while preserving a sense of continuity.
Using kokumin as the translation for the “people” would also have far-reaching ramifications for the way in which the boundaries of membership were redrawn, as well as
for the members’ mode of relating to nonmembers. Article 14 of the new Constitution
proclaims the principle of equality. Its first sentence reads in full: “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.” The origins
of this provision reveal that there was a not-so-hidden struggle between SCAP and
the Japanese government regarding the scope of “equal protection.” Who would be
eligible to receive equal protection under law appears to have been a contested issue.
In the original SCAP draft, the article on equal protection read: “All natural persons are equal before the law,” making it clear that there shall be no discrimination
on account of “caste or national origin.”119 It even had a separate article proclaiming
that “Aliens shall be entitled to the equal protection of law.”120 During the process of
Dower, Embracing Defeat, supra note 80, at 381–382; Koseki, supra note 43, at 121–122.
Koseki, supra note 43, at 123 (quoting Miyazawa’s account of Matsumoto’s discontent with “the Japanese
people”).
119
Article 13 of SCAP draft.
120
Article 16 of SCAP draft. In this regard, the SCAP draft was innovative and progressive. Except for Portugal (1933), Czechoslovakia (1922), and Italy (1848), virtually all constitutions in Europe up to this time
reserved the equal protection of law to citizens or subjects only.
117
118
To make “We the People”: Constitutional founding in postwar Japan and South Korea 839
translation, the government had the first sentence changed to “All of the people are
equal under the law” and dropped “caste or national origin” as impermissible bases
of discrimination, replacing it with “family origin.” Needless to say, “people,” here,
was rendered kokumin. The separate article guaranteeing equal protection to aliens
was changed to “Foreign nationals shall possess the right of equal protection under
the law.” In the ensuing negotiation between the Japanese government and SCAP
(the famous all-night, thirty-hour marathon conference on March 4–5, 1946), this
separate article was struck for reasons of redundancy. Yet, for the main article on
equal protection, the original language, “all natural persons” and “caste or national
origin” were both restored. In fact, the article was even strengthened by providing
that all natural persons, “whether Japanese citizen or not,” shall be entitled to equal
protection.
After agreeing to this, however, the Japanese government made another last
minute effort to change it before presenting the draft constitution to the Diet. For
reasons not altogether fully explained, the Japanese proposal (conveyed through a
nighttime telephone call) was quickly accepted, and the final draft no longer started
with “All natural persons whether Japanese citizen or not” but rather with “All of the
people.” Similarly, it included no mention of “caste or national origin” but, instead,
spoke only of “family origin.” The result was a return to the Japanese government’s
initial translation in which equal protection was provided to the “people” only, with
no ban on discrimination based upon “national origin.” Moreover, since the separate
article on aliens’ equal rights was never put back in, all traces of the original, expansive notion of equal rights had been expunged from the final draft. This was affirmed
by the Diet. This last minute concession on the part of the Americans is inexcusable
as well as inexplicable. In light of their mission to democratize Japan, staff members of
the GHQ Government Section had originally been very insistent on guaranteeing the
equal rights of foreigners in Japan. Whatever prompted them that night to agree to the
shrinking of the scope of equal protection, it would prove to be a grave mistake when,
coupled with article 10 on nationality mentioned above, article 14 later became the
basis of constitutionally sanctioned discriminations against non-Japanese.
This was possible, in part, because the same word in the Japanese language—kokumin—
was used to translate both “people” and “national” in different parts of the Constitution. During the marathon negotiation of March 4–5, members of the Government
Section had probed about the propriety of translating “people” as kokumin. The Japanese repeatedly assured them that the word had exactly the same meaning as the
English term. When article 10 on nationality was later inserted by the Diet, however,
the Americans had no reason to suspect that what was being translated into English
as “national” would be the same word translated as “people” in the article on equal
rights. The result was that all the constitutional provisions designed to protect the
rights of the “people” (kokumin) could be interpreted, plausibly, in Japanese as applying only to Japanese “nationals” (kokumin). The constitutional prohibition against discrimination was only applicable to holders of Japanese nationality because, according
to the language of article 14, “all of the kokumin” were equal under the law. In other
words, non-Japanese were not the intended beneficiaries of equal rights protection.
840 I•CON 8 (2010), 800–848
The exclusion of non-Japanese from rights protection was a possibility not merely in
the context of equality but in relation to many other rights as well. For example, the
article proclaiming the principle of nonderogation of “fundamental human rights”
also describes those rights as belonging to Japanese “nationals.”121
It is unclear whether or not this was an intentional terminological legerdemain by
the drafters of the new Constitution. What is clear is that this became the basis on
which pervasive discrimination could be justified against longtime Korean residents
of Japan during the postwar period, many of whom had been brought to Japan, forcibly, during wartime with no home to return to in Korea after the war. While it might
seem obvious today that they are not Japanese “nationals,” it should be recalled that,
at the time, the nationality of all former subjects of the empire was, technically speaking, Japanese. Indeed, it would remain so until the signing of the 1952 San Francisco
Peace Treaty that ended the American occupation of Japan. Their loss of Japanese
nationality was technically the effect of the Justice Ministry’s Circular No. 438, which
unilaterally stripped them of their Japanese nationality, without providing the affected
persons any opportunity to make an affirmative choice.122 Yet, this was merely the
formalization of a process that had begun almost immediately after the Japanese
surrender.
Defeat in the war entailed, among other things, abandoning the idea of a multiethnic
empire and redrawing both the territorial and conceptual borders that marked Japan
and its “people.”123 Residents of Korea and Taiwan, for example, would no longer be
Japanese nationals. Taiwanese would regain their Chinese nationality, and Koreans
would become citizens of an as-yet-nonexistent independent state of Korea. The more
difficult question had to do with the status of former colonial subjects living in the Japanese home islands.124 The new Constitution’s article 10 concerning “requirements of
nationality” delegated the task of defining membership to the legislature, which duly
enacted the Nationality Law in 1950. Yet, the redrawing and contraction of the outer
boundaries of the new Japanese “people” had begun much earlier.
In December 1945, the Election Law for the House of Commons was changed
under SCAP supervision to introduce women’s suffrage for the first time. The same
law, however, mandated the suspension of suffrage for the former colonial subjects
in Japan. Although Taiwanese and Koreans in Japan were still technically considered “Japanese nationals,” they were effectively alienated from the Japanese polity.
Interestingly, the mechanism used to alienate them was the same system used during
Art. 11: “The people [kokumin] shall not be prevented from enjoying any of the fundamental human
rights.”
122
Circular No. 438 of the Director of the Criminal Affairs Bureau of the Ministry of Justice Concerning
Nationality and Family Registration of Koreans, Taiwanese and Other Alien Residents after the Peace
Treaty (19 Apr. 1952).
123
At its peak, the “Great Japanese Empire” included the Pacific Islanders, Burmese, Malays, Filipinos,
Indonesians, Vietnamese, Mongolians, Chinese, Taiwanese, Okinawans, and Koreans, in addition to the
Japanese people proper.
124
There were more than two million Koreans living in Japan, and they comprised more than 90 percent of
total non-Japanese persons in Japan at the time.
121
To make “We the People”: Constitutional founding in postwar Japan and South Korea 841
wartime to include colonial subjects in the empire while excluding them from the full
range of membership rights. The new election law had a supplemental provision stating that “those not subject to Family Registration Law” would be ineligible for voting
and election.125 First enacted in 1871, this Meiji period legislation required, for the
first time in Japanese history, that all persons be recorded as members of a “family” (ie)
in a nationwide registry. Similar family registration systems were established in the
colonies later, but this law was implemented only in the Japanese home islands and
would remain the linchpin of the imperial legal system for discriminating against
colonial subjects. While all colonial subjects were given Japanese nationality (sometimes without the option of exit), they were always kept rigorously separate from
those with “inner land” (naichi) family registry.
In the new democratic Japan, this system of segregation was given a new lease on
life and used to decide who the relevant people were for the purpose of establishing
a constitution based on popular sovereignty. The irony was all the more poignant
because during wartime even colonial subjects recorded in colonial registries could
vote if they resided in the Japanese home islands.126 Moreover, this rigid system of
segregation had begun to erode toward the end of the war. The ever-increasing need
for human and material resources had caused the desperate militarists to argue for
granting full franchise to the colonial subjects so that they could be conscripted for
labor and even combat duties. Thus, in April 1945, the election law was revised to
allow residents of Taiwan and Korea to send their own representatives to the Imperial
Diet in Tokyo. This system, however, was never implemented due to Japan’s surrender
in August 1945.127
It was in this context, then, that the first postwar reformation of elections effectively
alienated from the polity all Japanese nationals who were not listed in the inner land
family registry. In part, this was possible because SCAP also shared the Japanese government’s fear that the Korean ethnic group might form a communist voting bloc in
the upcoming general election.128 Still, the Japanese government’s official stance, at
this time, was to maintain the status quo until the future peace treaty, which meant,
in theory, that all former colonial subjects in Japan would retain Japanese nationality for the time being.
Election Law for the House of Commons (17 Dec. 1945). This was followed by Election Law for the House
of Peers (24 Feb. 1947) and Law on Local Government (17 Apr. 1947).
126
When the first election laws were made at the beginning of the Meiji period, before Japan acquired its “external territories,” there was no need to devise a scheme to discriminate against colonial subjects. Thus,
the franchise had been granted to residents of the home islands, irrespective of their family registry. This
system remained until the Japanese capitulation.
127
For an overview of the legal infrastructure of Japan’s colonial rule, especially in Korea, see Chulwoo Lee,
Modernity, Legality and Power in Korea under Japanese Colonial Rule, in Colonial Modernity in Korea 21
(Gi-wook Shin and Michael Robinson eds., 1999).
128
For the Japanese, this was a concern because the ethnic Koreans might then call openly for the abolition
of the emperor system. The Americans were probably more concerned about excluding the Soviet influence in postwar Japan.
125
842 I•CON 8 (2010), 800–848
That did not last long, however. The proclamation of the Ordinance on Alien Registration, on May 2, 1947, de facto deprived all former colonial subjects of their rights
as Japanese nationals. Using the same language as the election laws, this ordinance
stipulated that “those who are not subject to the Family Registration Law” shall be
“regarded as aliens for the time being.” It further provided that a new separate family
registry would be created for “third country nationals” (daisankokujin), who were
neither “allied nationals” nor “enemy nationals” according to SCAP categories, and
that violation of any part of the ordinance would be punishable by forced deportation,
even of those with de jure Japanese nationality.
This ensured that the scope of the “Japanese people,” in whose name the new Constitution would go into effect the very next day (May 3, 1947), would be identical
with those “Japanese nationals” listed under the registry created by the 1871 Family
Registration Law.129 The new Nationality Law of 1950 and the Circular No. 438 of
1952 were only confirmations that gave official form to the process of contracting the
boundaries of the people’s definition that had already taken place. Incidentally, using
the family registry as the basis of the identity of the new Japanese people also meant
that the imperial family, who had never been subject to the registration law, would
not be eligible to vote or hold electoral office. Despite the rhetoric that the people of
the new Japan included both the emperor and his subjects, the emperor evidently still
stands apart from the people.
5.2. “A room of one’s own”: Constituting a South Korean people
In Korea’s Founding Constitution of 1948, article 3 provides for membership in the
Korean polity. It reads: “The requirements for being a national of the Republic of
Korea shall be determined by law.” The word for “national” in Korean is kukmin, composed of the same Chinese characters as the Japanese kokumin. Interestingly, the same
term was used in both countries’ postwar constitutions to signify membership in the
newly constructed state. As noted, in Japan it had become popular during the Meiji
period and, thus, had a decidedly conservative, if not imperial, connotation. Members
of Korea’s CNA, who had reached maturity during the Japanese colonial period, were
aware, no doubt, of this nuance in the Japanese context. Thus, it may appear odd that,
in framing a constitution for a new and independent Korean state, the drafters chose
such a loaded term. To understand this, it is necessary to appreciate the historical,
ideological, and geopolitical context in which the Constitution was created.
First of all, whether or not it was due to the Japanese attempt during colonial period
to foster a harmonious relationship with the state, popular use of the term kukmin
already was a fact in the Korean context. Even before the establishment of a Korean
state, many Koreans referred to themselves as the kukmin of Korea without any sense
of evoking loyalty to the former colonial authorities. Indeed, the fact that the term
The issuance of this ordinance one day before the new constitution’s taking effect suggests that the terminological legerdemain involved in using kokumin for both “national” and “people” may not have been
wholly fortuitous or innocuous. Cf. Koseki, supra note 43, at 181.
129
To make “We the People”: Constitutional founding in postwar Japan and South Korea 843
presupposed a certain relationship with the state could be a positive element, since
it could be understood as implying the existence of a Korean state even before independence in 1945. For that matter, it comported well with the historical consciousness, noted above, that this Founding Constitution was reestablishing the Republic of
Korea established in 1919. Yet, even in 1919 when that notional republic was being
proclaimed, a formal pledge by the KPG members could claim that they had received
their mandate from the entire people (kukmin) of Korea. The state implied in the use of
kukmin, here, was not the Japanese empire but, rather, the independent state of Korea.
Nevertheless, during the drafting of the Constitution in 1948, there was a sustained
debate among members of the CNA over the choice of kukmin. Many thought that the
word should be replaced with inmin, which they believed conveyed more accurately
the sense of “people” underlying the doctrine of popular sovereignty. The argument
was that kukmin gave the impression of a person whose interests are always aligned
with the state’s, whereas the goal of providing for individual rights was to ensure that
the individual was not oppressed by state power.130 The original draft constitution
prepared by Yu Chin-o, which served as the basis for the Constitution Drafting Committee’s work, in fact, had employed inmin. The committee changed it to kukmin before
submitting the draft to the plenary session for deliberation. This occasioned an impassioned plea by one member that inmin was the proper subject of a democratic constitutional order. The argument was that most constitutions of the world also spoke of
the “people” rather than “state-person.”131 Moreover, the several versions of the KPG
constitutions had all declared that sovereignty resided in the inmin of Korea.
Ultimately, the experience of dealing with the Soviets and North Korea, which
blocked the May 10 general election in the northern half of the peninsula under
their control, would weigh in heavily in favor of kukmin. The term inmin—pronounced
jinmin in Japanese—was the word favored by communists. One conservative
member of the National Assembly made a rather emotional appeal in favor of using
kukmin by stating that he was sick and tired of hearing about the loathsome “people’s committees” set up in the north.132 What had a rather vague leftist connotation in Japan had become associated for Koreans with a hostile communist regime
to the north. As a result, the drafting committee’s choice of kukmin over inmin was
retained. The new people of Korea would be named kukmin. The anticommunist
layer of meaning proved to be all-important, especially in later years, when intense,
even violent, rivalry with the north became one of the dominant aspects of South
Korean people’s identity.
Aside from the historical and ideological dimensions of the label, the choice of
kukmin also occasioned a heated debate about the scope of rights protection. Perhaps
distressed by the Japanese use of the same term (kokumin) to exclude foreigners from
equal protection, drafters of the Korean Founding Constitution were concerned about
CNA Minutes No. 22 (1 July 1948), at 365–366 (statement of Chin Hŏn-shik).
CNA Minutes No. 21 (30 June 1948), at 332 (statement of Cho Bong-am).
132
CNA Minutes No. 22 (1 July 1948), at 370 (statement of Yun Ch’i-yŏng).
130
131
844 I•CON 8 (2010), 800–848
the implications of the word for the status of foreigners in Korea. Proponents of inmin
argued that constitutional provisions regarding the rights of the people should not
be limited in scope by designating the bearers of the rights as “Korean nationals.” Yu
Chin-o, who was serving as expert adviser to the drafting committee, stated during
CNA deliberations that rights should belong to the more general agent called “people”
(inmin) because they are basically “human rights” (inkwŏn). Responding to a suggestion that some rights be attributed to the “people,” while others (for example, right to
vote and hold public office) be attributed to “Korean nationals,” he pointed out that
not all rights can be so neatly classified. While foreigners do have the right to residence and movement, for example, they may not enjoy them to the same extent as
Korean nationals. His solution, therefore, would be to designate all rights as belonging
to the “people,” and let courts and other agencies sort out the details through interpretation.133
Another expert adviser claimed, however, that the use of kukmin does not necessarily mean that the rights provisions would be applicable to Korean nationals only.
Since a constitution was an agreement between the state and its members, it was, in
a way, proper that its provisions should refer to the rights of kukmin (literally “statepersons”).134 At any rate, concern for foreigners’ rights in Korea could be addressed by
the separate provision (art. 7, sec. 2) that stated: “Legal status of foreigners shall be
guaranteed within the scope of international law and international treaties.” Recalling that they were engaged in the historic task of creating an independent state, one
member of the CNA argued that kukmin, with its explicit reference to a state, in fact,
might be more responsive to the yearnings of the Korean people.135 In the end, a vote
was taken, and the proposal to replace kukmin with inmin was defeated. Such was the
process by which the newly constituted “people” of Korea gained its name.
Regarding the actual boundaries of the new Korean people, the new Constitution,
as noted above, left it to the legislature to define the “requirements for being a national
of the Republic of Korea.” In accordance with this provision, the CNA would enact
the first Nationality Law at the end of 1948, shortly following the promulgation of
the new Constitution. Nevertheless, the process of drawing the boundaries of
the Korean people started almost immediately after liberation from Japanese rule
in 1945, prompted by issues having little to do with constitution making. It might
be argued that the chaotic three-year period between liberation and constitutional
founding was actually the period during which a new definition of the Korean people
was formed.
As soon as the U.S. military arrived in southern part of Korea to receive the surrender of Japanese forces in the country, they were faced with a number of urgent
tasks, some of which entailed distinguishing between Japanese and Koreans among
the residents. For example, in order to repatriate the Japanese “refugees,” one needed
Id. at 367–368.
Id. at 369–370 (statement by Kwŏn Sŭng-nyŏl).
135
Id. at 369 (statement by Yi Nam-gyu).
133
134
To make “We the People”: Constitutional founding in postwar Japan and South Korea 845
to know who was Japanese and not Korean.136 Even more urgent was the administration of “enemy property” (chŏksan). USAMGIK had decreed that legal rights over “all
properties belonging to Japanese government, its agents and institutions and citizens
that exist within the jurisdictional territory of the USAMGIK” had been transferred to
the U.S. military government, effective September 25, 1945. In confiscating “enemy
property,” USAMGIK used various ways of identifying Japanese nationals as distinct
from Koreans.137
In one case, “citizens of Japan” were defined as those who had enjoyed full civil and
political rights as guaranteed in the Japanese domestic laws until August 1945, and
Koreans—by subtraction—were the discriminated others residing in the peninsula.
However, in most cases, the rule was simply to follow the colonial distinction between
those listed under inner land family registry and those under the colonial registry.
Ironically, even after liberation, the boundaries of the Korean people continued to
be defined by the family registry system set up by the colonial authorities. This
was possible because all laws and ordinances from the colonial era were declared by
USAMGIK to be valid unless otherwise excepted.138 Among the many colonial laws
remaining in force was the Household Registration Decree of 1922, which had formed
the legal basis for the Korean colonial family registry.139
Of course, these were administrative definitions of who was Korean, with no
constitutional significance. The United States still entertained hopes of negotiating
with the Soviet occupiers in the northern part of the peninsula to create a trusteeship
to be overseen by the Allied powers. Thus, the idea of a Korean “people” who would
establish a sovereign state never received much attention from the Americans (nor,
for that matter, from the Soviets). At most, residents of the Korean peninsula, basically, were objects of control to be kept in line through military rule. From the very
beginning, the policy of the USAMGIK was to regard Koreans as “liberated people,”
in principle; nonetheless, in case of necessity they could be treated as “enemy nationals.”140 After all, they had been the subjects of the Japanese emperor.
As negotiations in the US-USSR Joint Committee (set up to implement the trusteeship plan) continued to stall, USAMGIK eventually agreed to the idea of giving some
voice to the Korean people. The South Korean Interim Legislative Assembly (SKILA)
was set up in December 1946 within the U.S. military government as an advisory
USAMGIK Ordinance No. 10 “Registration of Japanese Residents” (8 Oct. 1945). This also led to a hasty
return to former names by those Koreans who had been forced to adopt Japanese-style names. Cf. Ordinance No. 122 “On Restoring Korean Names” (23 Oct. 1946).
137
Disputes over enemy property were so frequent that USAMGIK created, in September 1946, a special
review committee for whom one of the most pressing issues was to determine the boundary between
Koreans and Japanese. Ordinance No. 103 (31 Aug. 1946).
138
USAMGIK Ordinance No. 21 “On the Effect of Previous Laws” (2 Nov. 1945).
139
Government-General Decree No. 154 (Dec. 1922) (effective July 1923).
140
See To the People of Southern Korea (Statement by Gen. John R. Hodge, Commander of U.S. Forces in
Korea, 2 Sep. 1945) and Proclamation No. 1 (by Gen. Douglas MacArthur, Commander-in-Chief of the
United States Armed Forces in the Pacific).
136
846 I•CON 8 (2010), 800–848
organ “representative” of the Korean people in the south. A four-tiered indirect election was held to elect forty-five members. Criticized by many, especially on the left
side of the political spectrum, as not genuinely representing the views of Koreans, the
election is noteworthy for our purposes because it, too, utilized the colonial system
of identifying the Korean people. The same electoral system was used that had been
in place during the colonial period to choose members of the colonial “consultative”
bodies which had been created to lend a veneer of legitimacy to the colonial rule. Yet,
if the continued use of Japanese colonial institutions gave the impression of continuity
in the way Koreans were identified, there was also a critical difference.
During the colonial period, the “people” of Korea basically stood for all persons of
Korean ancestry residing on the Korean peninsula. Even with the division into north
and south at the end of the colonial period, most assumed that Koreans would establish a state encompassing the entire peninsula. Key members of SKILA cooperated
with the Americans with the understanding, or in the hope, that their efforts would
pave the way for genuine cooperation with the north in the project of establishing a
unified Korean state. “South Korea” was not an expression of separateness from the
north but was, rather, meant to convey the tentative and transitional nature of their
mandate.
By the time the first general election was scheduled for the purpose of forming
the CNA,141 however, there was no longer the sense that this new body would represent only the southern part of Korea. The Founding Constitution was meant to
be for the whole of Korea, not just “South Korea.” Although this new democratic
national charter was drafted by representatives of those residing in the south, they
did so in the name of the “people” of Korea in their entirety. In other words, by
authoring the Constitution, the CNA was, in effect, proclaiming that the southern
half was the only Korea that mattered.142 This can be seen most clearly in the laws
that were passed in preparing for the May 10 general election that created the
CNA in 1948.
The election law passed by SKILA adopted a universal franchise by which voting
rights were granted to all Korean nationals (kukmin), male or female, over twenty-one
years of age, with eligibility for elected offices set higher at twenty-five years. Perhaps
no one at the time noticed the irony of using kukmin, that is, state-person, even before
the creation of the state. What probably was noticed is that the law did not provide
a definition of a Korean “national,” despite the absence of any nationality law at the
time. The definition would be supplied, for the time being, by an administrative regulation, which stated that a Korean “national” shall be defined as those who have
By submitting the issue of Korea’s independence to the UN General Assembly on 17 Sept. 1947, the
U.S. formally abandoned all hope of establishing a unified Korean state through negotiations with
Soviet Union. In mid-November, the UN General Assembly passed a resolution authorizing a general
election in all of Korea to establish a government for a unified Korean state. UNGA Res. 112(II), 14
Nov. 1947.
142
Initially, seats were left vacant for CNA representatives from electoral districts in the northern part,
where elections could not be held due to Soviet opposition. This fiction, however, was soon abandoned.
141
To make “We the People”: Constitutional founding in postwar Japan and South Korea 847
“Korean family registry” status.143 Needless to say, this refers to the colonial institution
of identifying Koreans. Yet, in order to discern exactly who is meant by those having
“Korean family registry” status, yet another administrative ordinance had to be consulted.144 The purpose of this ordinance was to “determine, effective until the time of
reunification of South and North Koreas, the family registration status” of those
registered at an address in North Korea but were currently residing in the south.
Given the increasing influx of North Korean refugees fleeing the Soviet occupation,
this was a necessary measure to control them as well as to give them voting rights
for the upcoming election. In particular, the ordinance’s main goal was to permit the
North Korean refugees to move their family registry to the address of their current
residence in South Korea. This meant that, in order to participate in the election to
form the Constituent National Assembly of the Republic of Korea, one needed to be
registered at an address in the south. Only those with family registry at a South
Korean address would be recognized as Korean nationals. In short, the Korean people
had to be legally transformed into South Korean citizens before they could participate
in the constitution-making process that would produce a charter putatively for the
entire Korean people.
In conclusion, it might be said that an unspoken premise, which underlay the delineation of the new people’s boundaries in both Korea and Japan, was the assumption that ethnicity provided the most “natural” criterion for membership. Yet, it is
worth noting that the idea of Japan as a “homogeneous” ethnic community was, in
fact, more a product of postwar discourse than any pregiven primordial identity of
the nation. In Korea, too, despite the prevalent rhetoric of homogeneity, the actual
boundaries of its new people were defined only partially by considerations of ethnicity. Selection of the same word meaning “state-person” (kokumin and kukmin) in both
countries as the label for the new people was, perhaps, to be expected given the shared
knowledge of modern political terminologies as well as the older Confucian traditions.
Yet, Japan chose it with the awareness of preserving continuity with an established state,
whereas Korea’s choice was driven more by a desire to realize, for the first time, a state
that existed only in an imagined past. It was, nevertheless, clear that membership in the
“people” was neither pregiven nor immutable in postwar Japan or postcolonial Korea.
6. Conclusion
Constitution making in postwar Japan and postcolonial Korea represented crucial
turning points in both countries’ political history. For the first time, each polity was
reorganized according to the principle of popular sovereignty, as their new constitutions were drafted and promulgated in the name of “We the People.” The peoples of
Administrative Guidelines for Administering Election Law for National Assembly (22 Mar. 1948). It also
regarded as Korean kukmin those who were “born to Korean parents,” or “born under a Korean father,
who does not have a foreign nationality or citizenship.” Given that parentage was legally verifiable only
via the family registry, these also referred to the Korean family registry.
144
On the Temporary Arrangements for the Family Registry (1 April 1945).
143
848 I•CON 8 (2010), 800–848
Japan and Korea may now be regarded as the authors and masters of their respective
constitutions. We have seen, however, that the relationship between the people and the
constitution, in both Korea and Japan, was much more complex than meets the eye.
The “people” that authored the constitutions had to be “constituted” even as they
were establishing a new constitutional order. And although both countries had been
inhabited by people with discrete political and cultural identities for many centuries,
the “people,” as a constituent agent, was a new phenomenon. It emerged in the course
of a constitutional politics involving intense interactions with external forces, selective appropriations of the past, and redefinitions of the boundaries of membership.
We believe that both instances of constitution making demonstrate that—neither
timeless nor omnipotent—the “people” is a political and historical construct the identities and boundaries of which are continuously subject to constant redefinition in
negotiation with externalities. This point is perhaps self-evident for those attuned to
the historical intricacies and political contingencies of any constitution-making process. Aside from matters of historical accuracy, however, the point also has theoretical
and even normative implications. This is not the place to give a full exposition of such
implications; however, it should be clear that constitutional theory can no longer be
grounded in simplistic notions of the people. As suggested above, the controversy over
imposed constitutions may have been misdirected to the extent that it presupposed
an ideal type of autonomous constituent agent utterly free from external influences.
Moreover, if people are only relatively autonomous, it follows that constitutions
are only relatively autochthonous. This should be particularly relevant for theories
attempting to reconceptualize constitutionalism for an increasingly globalized world.
At a minimum, it calls for a reconsideration of any view that pits the “people” against
globalization in purely oppositional terms. If “people,” at the basis of a constitutional
order, is itself a mutable entity formed through a process of interaction with external
forces, it might be incoherent for a country to oppose or reject globalization on the
ground that the “people” will have less than full, exclusive control over their political
and legal affairs. In striving toward the peaceful harmonization of legal and constitutional norms across political borders, constitutional theory would do well to find a
new, alternative organizing principle, one that is not premised on an ahistorical,
primordial, and omnipotent constituent people demarcated by watertight, immutable boundaries. It is hoped that this essay will have provided the needed stimulus for
further research in that direction.