part, “Japan renounces [war] as an instrumentality for settling its disputes and even for preserving its own security" (Auer: 71).

MacArthur's staff amended this draft and presented the Japanese government a revised version, similar to the present Article 9. This left some room in the wording of the document for interpretation. The ambiguity increased as the Constitution faced review in Japan's House of Representatives. An amendment committee, chaired by Hitoshi Ashida, examined the Constitution. The committee suggested that the phrase "aspiring sincerely to an international peace based on justice and order" be added to the start of the first paragraph, and that "in order to accomplish the aim of the preceding paragraph" begin the second section. Ashida explained that these changes made the Constitution more emphatic by explicitly stating Japan's sincerity. The final version of the Constitution went into effect on 3 May 1947 (Auer: 73).

Ashida later stated that the amendments made by his commission had the express purpose of allowing Japan to organize a military for selfdefense. MacArthur wrote in his memoirs that he had always intended Japan to have self-defense capability (Auer: 72). Regardless of their original intentions, both soon saw Japan develop a military capability.

What Changed: The Birth of the SDF

Following passage of the Constitution, Japan's government interpreted it to mean that Japan reserved the right of self-defense but that the maintenance of armed forces was illegal. Cold War realities and pressure from MacArthur soon forced Tokyo to rethink its position. In 1950, Japan organized a National Police Reserve (NPR) under the direction of MacArthur. The U.S. wanted Japan to provide a measure of rear area security for U.S. bases, and the Korean War's proximity to Japan necessitated some means to defend the country and to “supplement regional, national and municipal police forces: (Wada: 118). This organization drew officers and men from the old Japanese Army. The staffer in charge of NPR organization, Colonel Frank Kowalski, said that the sole purpose of the NPR was to pave the way for an overhauled Japanese army. Prime Minister Shigeru Yoshida, famous for the "Yoshida Doctrine" of placing economic growth as the first national priority, said that such development required Constitutional reform (Auer: 75).

The National Police Reserve evolved into the National Safety Forces (NSF) in 1952, with the addition of a maritime component and strengthening of the land forces. The NSF had its genesis in the peace treaty between the U.S. and Japan, signed in 1952. This treaty presupposed that Japan would begin to take some responsibility for its own defense (Wada: 123). As a transition organization, the NSF underwent another change in 1954, when Japan passed the Self-Defense Forces Law, and the National Safety Forces became the SDF.

The SDF gradually improved its capabilities under four successive defense plans between 1954 and 1976, and by that time comprised 180,000 soldiers, 770 aircraft, and a fleet totaling 214,000 tons (Wada: 118). Tokyo justified the continuing military expenditure by separating unconstitutional "war potential" from acceptable "self-defense potential." The official government interpretation of the Constitution expanded, from the immediate post-war's complete renunciation of any military capability, to the right to acquire power commensurate with the "minimum needed for self defense" (Yoshihiko: 21).

The SDF now has the second largest defense budget in the world, although it remains near one percent of Gross Domestic Product ("The Compass": 9). Japan has more military personnel than the U.S. in the Western Pacific (Auer: 83). Recent passage of the Law Concerning Cooperation for United Nations Peacekeeping Operations and Other Operations (the PKO law) enabled Japanese troops to deploy overseas and participate in UN operations. The seemingly inexorable march toward a modern military faced considerable opposition at home, however, both in the judiciary and the Diet, and the issue remains politically sensitive today.

How It Changed: Court Battles

This expansion of power was not effortless. Japanese courts heard four major cases between 1959 and 1977 that pushed the issue of SDF Constitutionality to the front page. Although these cases threatened to upset the basis for the SDF's existence, the Supreme Court in each case avoided the question while maintaining the status quo. In the 1976 issue of Law in Japan, Hideo Wada recounts the early struggle for SDF existence.

The Sunakawa Case

Wada begins by describing the Sunakawa decision. In the 1950s, Japanese activists began protesting the construction of U.S. military bases on Japanese soil. One group interfered with activity at the Tachikawa U.S. air base outside the city of Sunakawa, near Tokyo. At their trial, the defendants claimed that the U.S. military was constitutionally prohibited from being in Japan. The trial court's decision had four parts. First, and most basic, it said that although Article 9 does not prohibit self-defense, it does deny Japan's ability to produce war potential for this purpose. Second, the court held that Article 9's enactment was based on the decision of the government to seek security under the UN, and that any Japanese security measures must be undertaken by a UN agent. Third, because the U.S. troops in Japan are under American command, Japan, as a result of U.S. actions, may find itself part of a war it did not want to fight. Finally, the trial court ruled that the government's consent in allowing U.S. forces to be stationed in Japan violated the war potential clause of Article 9 (Wada: 121).

Wada goes on to say that Japan's Supreme Court overturned this decision. It decided that although war potential is forbidden under the Constitution, the right of self-defense allows Japan to "take such measures necessary for self-defense in order to maintain its peace and security and preserve its existence." The court felt that Japan could not rely on the UN for defense purposes. This reason validated the Japan-U.S. security arrangement and meant that foreign troops stationed on Japanese soil do not constitute war potential. The Supreme Court, however, avoided the issue of SDF and military constitutionality by ruling that since the SDF law was passed according to constitutional procedure, and the SDF had already come into being, the question was not subject to judicial review (Wada: 122).

The Eniwa Case

In 1967, a case involving two brothers who cut firing range telephone wires came to trial. The defendants were charged with damaging articles used in connection with military defense. Although the court ruled that the phone lines did not represent military equipment, and thereby avoided a ruling on SDF constitutionality, the prosecution's arguments outlined the government's position on this issue.

Wada describes this stance, saying the prosecution contended that self-defense was a basic right of the state, and, as such, the military capability to exercise this right is a necessary condition of sovereignty. Limits on the size of the SDF are a function of the spirit and intent of the Constitution, and the government had responsibility not to overstep these boundaries. Since the SDF law provided only for defensive armaments to be used in self-defense, it clearly fell within the realm of constitutionality. The prosecution restated the Sunakawa idea of constitutionality based on mere existence of the SDF (Wada: 124-125). Although the SDF remained justified as a fait accompli, it met a head-on challenge in 1973.

The Naganuma Case

Under the 1967-71 buildup plan, the SDF built a Nike air-defense missile site on Hokkaido. A suit against the government followed since the site was on a forest preserve. Auer succinctly describes the facts surrounding the case. Illegal construction of a military base damaged the environment, the plaintiffs contended, and the government would stand trial. In 1973, the local district court declared the SDF to be unconstitutional. The court agreed that Japan did maintain the right to self-defense, but that self-defense did not presuppose military capability. The court felt that diplomacy, police action, and various nonmilitary activities provided sufficient self-defense (Auer: 80). The court debunked the government's position of constitutionality based on SDF existence by saying "each country in the modern world maintains troops and military force as necessary for its defense, and under the position of the government, we are led to the rather odd conclusion that none of these countries possesses war potential" (Wada: 126).

On appeal, the Sapporo High Court reversed this decision, stating that the plaintiff had “lost interest of the suit," as the government had rectified the damage done to the forest preserve. The High Court said that the Constitution prohibited aggressive laws, but that since the SDF law was not in and of itself aggressive in tone, the court could not answer the constitutionality question. In 1982, the case reached Japan's Supreme Court, which affirmed the decision of the High Court while dodging the Article 9 controversy (Auer: 81).

The Hyakuri Base Case

The last significant Cold War case involving the SDF and the Constitution is described by Auer. As SDF expansion continued through the 1970s, the government began to purchase land for new bases. One farmer sold his plot not to the government, but to a private individual opposed to the military buildup. After the buyer did not pay, the farmer joined forces with the government, and sued to get his land back. The defendant claimed that the government's case was invalid because SDF unconstitutionality prohibited construction of the base. In 1977, the Mito District Court ruled that selfdefense was constitutional, that the SDF did not violate Article 9, and that the question of SDF existence should be left to the political apparatus, not to the courts (Auer: 81). The Hyakuri Base matter never appeared before Japan's Supreme Court.

The End of the Cold War

Japan's highest court never directly addressed the issue of SDF constitutionality. Although the initial Naganuma ruling attempted to do so, the highest courts consistently avoided a definitive ruling. Cold War politics forced much of this situation on Japan. The threat of Soviet aggression overshadowed internal problems, and Japan's relationship with the U.S. guaranteed that the SDF would remain a modern military machine.

Though Japan's courts avoided answering the question of Article 9 during the Cold War, the court system now confronts the issue almost daily. Recent bilateral discussions with the U.S. regarding regional contingency operations and the expansion of the PKO mission guarantee another Article 9 controversy. However, Japan is unlikely to make fundamental changes to its constitution, and will rely instead on further reinterpretation of Article 9, according to the political climate of the time (Takai b).

Left-wing opposition groups traditionally choose the strict interpretation of Article 9, which denies the SDF's constitutionality. This argument rings hollow because the SDF's court battles and its long history have gained it a niche, albeit a tiny one, in Japan. The Social Democratic Party (SDP) recently dropped this objection, to become a part of a coalition government. Understanding that they will not abolish the SDF, the SDP and other left-wing groups have other, more compelling arguments (Yamaguchi: 163).