Q: How did the Meiji Constitution (1889-1947) lay the groundwork for modern Japan, and what were its key differences from the current Constitution?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The Constitution of the Empire of Japan, commonly known as the Meiji Constitution, promulgated in 1889 and in effect until 1947, represents a pivotal moment in Japanese history. It was not only Japan's first modern written constitution but also a landmark document in a global context, being one of the earliest modern constitutions adopted by a non-Western nation. Understanding the Meiji Constitution is crucial for appreciating the trajectory of Japan's modernization, the foundations of its pre-war state structure, and the profound transformations that led to the enactment of the current Constitution of Japan. This article will explore how the Meiji Constitution shaped modern Japan and highlight its fundamental differences from the post-war constitutional framework.

The Genesis and Historical Significance of the Meiji Constitution

The latter half of the 19th century was a period of dramatic upheaval for Japan. The arrival of Western powers, notably Commodore Perry's fleet in 1853, forcibly ended centuries of self-imposed isolation (sakoku). The subsequent signing of "unequal treaties" with Western nations, which infringed upon Japan's tariff autonomy and granted extraterritoriality to foreign nationals, fueled domestic turmoil and ultimately led to the Meiji Restoration in 1868.

The new Meiji government embarked on an ambitious program of modernization, aiming to build a strong, centralized nation-state capable of standing on an equal footing with Western powers and, crucially, revising the unequal treaties. The establishment of a modern legal and political framework, including a constitution, was seen as an indispensable step in this endeavor.

The path to constitutionalism was not straightforward. Early Meiji government pronouncements, such as the Charter Oath of 1868 which promised the establishment of deliberative assemblies and that "all matters [be] decided by public discussion," and the Seitaisho (Outline of Government) of the same year, which alluded to a separation of powers, reflected an early awareness of Western political thought. However, the actual governance was initially dominated by a small oligarchy from the domains that had led the Restoration.

The call for a constitution and a national assembly grew louder with the Freedom and People's Rights Movement (Jiyū Minken Undō) in the 1870s and 1880s. In response, the government promised the establishment of a national assembly by 1890. Itō Hirobumi, a leading figure in the Meiji government, was tasked with studying various constitutional models. His extensive mission to Europe (1882-1883), particularly his studies of the Prussian (German) constitution and legal theories under scholars like Lorenz von Stein and Rudolf von Gneist, heavily influenced the shape of Japan's future constitution. The Prussian model, with its emphasis on a strong monarch balanced by a parliament, was deemed more suitable for Japan's circumstances than more liberal models like the British one.

The Meiji Constitution was promulgated on February 11, 1889, as a gift from the Emperor to his people (kintei kenpō, or emperor-granted constitution). It came into effect on November 29, 1890, coinciding with the opening of the Imperial Diet. Its enactment was a significant achievement, signaling Japan's entry into the community of modern constitutional states and providing the legal architecture for its rapid industrialization and international emergence.

Key Features of the Meiji Constitution

The Meiji Constitution was a complex document, attempting to blend traditional Japanese concepts of imperial rule with Western constitutional principles.

  1. The Emperor (天皇 - Tennō):
    The Emperor was the centerpiece of the Meiji constitutional order. He was declared "sacred and inviolable" (Article 3) and held sovereignty, combining in himself all powers of governance (Article 4: "The Emperor is the head of the Empire, combining in himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution."). Legislative power was exercised with the "consent of the Imperial Diet" (Article 5), but the Emperor retained vast prerogatives, including the power to issue emergency ordinances when the Diet was not in session (Article 8), to determine the organization of the administrative branches, and to appoint and dismiss officials (Article 10). This was underpinned by a Shinto-derived ideology emphasizing the divine descent of the Emperor and the unique national polity (kokutai).
  2. The Imperial Diet (帝国議会 - Teikoku Gikai):
    The Diet was a bicameral legislature, consisting of a House of Peers (貴族院 - Kizokuin), composed of nobility, imperial appointees, and high taxpayers, and a House of Representatives (衆議院 - Shūgiin), elected by a limited male suffrage based on property qualifications. While the Diet's consent was necessary for laws, its powers were significantly circumscribed. For instance, the budget required Diet approval, but if the Diet failed to pass the budget, the government could implement the previous year's budget (Article 71). The Diet also had limited power over expenditures mandated by the Emperor's prerogatives or by existing law (Article 67).
  3. The Cabinet and Ministers of State (内閣 - Naikaku, 国務大臣 - Kokumu Daijin):
    The Constitution itself did not explicitly provide for a Cabinet system in the way modern parliamentary systems do. Article 55 stated that "The respective Ministers of State shall give their advice to the Emperor, and be responsible for it". Ministers were individually responsible to the Emperor, not collectively to the Diet. This meant that the Meiji system was not a parliamentary cabinet system where the executive is formed from and accountable to the legislature. The Prime Minister was considered first among equals, rather than a dominant leader of the government, under the Cabinet Organization Order enacted separately from the Constitution.
  4. Independence of the Supreme Command (統帥権の独立 - Tōsuiken no Dokuritsu):
    The Emperor was the supreme commander of the Army and Navy (Article 11). Matters related to military command (gunrei) were considered distinct from general affairs of state (kokumu) and were directly reported to the Emperor by the military chiefs, bypassing the Cabinet and the Diet (a practice known as iaku jōsō). This "independence of the supreme command" severely weakened civilian control over the military and proved to be a critical flaw that contributed to the rise of militarism in the 1930s.
  5. Rights and Duties of Subjects (臣民の権利義務 - Shinmin no Kenri Gimu):
    Chapter II of the Meiji Constitution listed various rights and duties of "subjects" (shinmin), rather than "citizens" or "people." These included freedoms of speech, publication, assembly, and association (Article 29), and freedom of religion (Article 28), as well as property rights (Article 27). However, these rights were generally granted "within the limits of law," meaning they could be restricted by ordinary statutes passed by the Diet. They were conceived not as inherent natural rights but as grants from the Emperor. Furthermore, the state promoted State Shinto, treating shrines not as religious institutions but as public entities for national rites, which often conflicted with genuine religious freedom for some groups.
  6. The Judiciary (裁判所 - Saibansho):
    Judicial power was exercised by the courts in the name of the Emperor (Article 57). However, a separate system of administrative courts existed to handle disputes involving administrative actions (Article 61), limiting the scope of the ordinary judiciary. Crucially, the courts under the Meiji Constitution did not possess the power of judicial review to declare laws unconstitutional; their role was to apply the laws as enacted.
  7. Constitutional Amendment and the Imperial House Law (憲法改正と皇室典範 - Kenpō Kaisei to Kōshitsu Tenpan):
    Amendment of the Meiji Constitution required an imperial initiative, followed by a two-thirds vote in both houses of the Diet (Article 73). In practice, the Constitution was never amended. Matters concerning the Imperial Household, such as succession and the status of imperial family members, were governed by the Imperial House Law, which was considered co-equal with the Constitution and could be amended without Diet approval (Article 74). This created a dualistic constitutional structure (tenken nigen taisei). The Privy Council (枢密院 - Sūmitsuin), an advisory body to the Emperor, also played a role in interpreting the Constitution and appurtenant laws.

Operation and Eventual Demise of the Meiji Constitutional Order

The operation of the Meiji Constitution saw a gradual evolution, and eventual breakdown, of its立憲的 (constitutionalist) elements.

  • Early Years and the Rise of Party Politics: Initially, the government operated under the principle of "transcendentalism" (chōzen shugi), asserting its independence from political parties in the Diet. However, the Diet used its budgetary powers to challenge the government, leading to frequent dissolutions and government interference in elections. Over time, particularly after the Sino-Japanese (1894-95) and Russo-Japanese (1904-05) wars, pragmatic cooperation between the oligarchic government and political parties became more common. This period saw the emergence of party cabinets, culminating in the "Taishō Democracy" era (roughly 1912-1926), where it became customary for the leader of the majority party in the House of Representatives to become Prime Minister, a practice referred to as "normal constitutional government" (kensei no jōdō).
  • Constitutional Debates: The Emperor Organ Theory: A significant intellectual debate during this period centered on the nature of the Emperor's sovereignty. The "Emperor Organ Theory" (Tennō kikan-setsu), championed by scholars like Tatsukichi Minobe, argued that the Emperor was an organ of the state, which itself was a legal person, and exercised sovereignty as the highest organ within the constitutional framework. This view, which emphasized the立憲的 aspects of the Constitution, became the dominant academic theory. It was opposed by the "theocratic school" (shinken gakuha), including scholars like Yatsuka Hozumi and Shinkichi Uesugi, who stressed the Emperor's divine and absolute sovereignty.
  • The Crisis of Constitutionalism: The relatively liberal period of Taishō Democracy was short-lived. The 1930s witnessed a severe crisis. The rise of militarism, exacerbated by the independence of the supreme command, increasingly undermined civilian government. Political assassinations, the Manchurian Incident (1931), and Japan's withdrawal from the League of Nations (1933) marked this decline. A critical turning point was the "Emperor Organ Theory Incident" in 1935, where Minobe's theory was fiercely attacked by military and right-wing groups as being contrary to the kokutai (national polity). The government was forced to issue "Clarifications of the National Polity" (Kokutai Meichō Seimei), effectively repudiating the Emperor Organ Theory, and Minobe's works were banned. This event stifled liberal constitutional interpretation. The enactment of the National Mobilization Law in 1938 effectively gave the government sweeping powers, further eroding parliamentary government and paving the way for the Pacific War.

Key Differences from the Current Constitution of Japan

The Meiji Constitution and the current Constitution of Japan (1947) represent fundamentally different constitutional orders. The shift from one to the other was not merely an amendment but a revolutionary change in basic principles, often referred to as the "August Revolution" in legal scholarship, marking a break in legal continuity despite the formal amendment procedure of the Meiji Constitution being used for its enactment.

  1. Sovereignty: The Meiji Constitution was based on Emperor's sovereignty. The current Constitution unequivocally establishes popular sovereignty, with the Emperor being the "symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power" (Preamble, Article 1).
  2. Status of the Emperor: Under the Meiji system, the Emperor was the sovereign and head of state, possessing extensive political powers. Under the current system, the Emperor is a symbol with no powers related to government, performing only "acts in matters of state" as provided for in the Constitution, with the advice and approval of the Cabinet (Articles 3, 4, 7).
  3. Fundamental Human Rights: The Meiji Constitution granted rights to subjects "within the limits of law." The current Constitution guarantees fundamental human rights as "eternal and inviolate" (Article 11, 97), placing much stricter limits on legislative restrictions and emphasizing their inherent nature.
  4. Pacifism: The Meiji Constitution contained no provisions for the renunciation of war. The current Constitution's Article 9 renounces war as a sovereign right and prohibits the maintenance of war potential, a unique and defining feature reflecting the post-war desire for peace.
  5. Parliamentary Cabinet System: The Meiji system was not a true parliamentary cabinet system. The current Constitution clearly establishes a parliamentary cabinet system where the Cabinet is collectively responsible to the Diet, and the Prime Minister must be a member of the Diet and is designated by it (Articles 66, 67, 69).
  6. Judicial Power and Judicial Review: The Meiji judiciary lacked the power of judicial review. The current Constitution grants the Supreme Court the power to determine the constitutionality of any law, order, regulation, or official act (Article 81), significantly strengthening the role of the judiciary.
  7. Local Autonomy: The Meiji Constitution had no provisions for local self-government. The current Constitution dedicates a chapter (Chapter VIII) to local autonomy, guaranteeing its principles.

The Meiji Constitution was a product of its time, an attempt by Japan to rapidly modernize and secure its place in a Western-dominated world. It successfully provided a framework for industrialization, the development of a modern bureaucracy and military, and the initial stages of parliamentary politics. However, its inherent ambiguities, the concentration of power in the Emperor (which in practice was often wielded by unelected oligarchs or the military), the limited nature of popular rights, and the critical flaw of the independent supreme command ultimately proved insufficient to sustain a stable立憲的 order in the face of growing militarism and international crises.

Its legacy is complex. While it laid some institutional groundwork for modern Japan, its collapse under the weight of war and its internal contradictions paved the way for a radically different constitutional order under the current Constitution of Japan, one based on popular sovereignty, extensive human rights guarantees, and a commitment to peace. Comparing these two fundamental laws reveals the profound transformation of Japan's political and legal landscape over the past century and a half.