The New German Constitution

CHAPTER I. The Origins

THE ORIGINS

Up to the autumn of 1918 Germany was under the Empire of the Constitution of April 16, 1871. Then in November, 1918, the work of Bismarck was suddenly overthrown and military defeat and revolution plunged Germany into chaos. How she worked out of it, through what vicissitudes she passed and with what groping she finally achieved her new Constitution is the question to examine first.

SECTION 1. The Revolution

THE REVOLUTION

The revolution of November, 1918, was preceded by partial reforms embodied at a late hour in the Constitution of 1871; and when it broke out, in a few hours it completely threw over all the apparatus of the old régime. A new government sprang up which for several weeks held power in the name of a minority and without any right other than that of force.

1.--THE CONSTITUTION OF APRIL 16, 1871, AND THE REFORMS OF OCTOBER, 1918.

The principal characteristics of the Constitution of April 16, 1871, are well known.

Germany was a federal state, that is to say, above the member states, which renounced a part of their individual independence to strengthen their collective political and economic power, there existed a central state in whose favor they had given up that degree of independence--the German Empire.

In the Reich sovereign power belonged to an assembly of Princes and of governments represented by the Bundesrat or Federal Council. This council which consisted of representatives of all the member states shared with the Reichstag the power to initiate and vote legislation. It promulgated the general administrative measures necessary for the execution of the laws; and with the consent of the Emperor it could dissolve the Reichstag.

The nation was presided over by the German Emperor. He exercised generally the rights which modern nations reserve to the executive power. In particular he represented the Empire in its international relations; promulgated its laws; watched over their execution; appointed civil and military officials, etc.

Several remarkable details have to be pointed out. Although in principle the Emperor’s actions had to be countersigned by a minister he was free from that restriction in such matters as concerned military affairs, particularly in the nomination of the superior officers of the army and the navy. The German Emperor was the absolute chief of the forces of the Empire on sea and land. Furthermore, although he could not declare war without the consent of the Bundesrat he could act on his own authority in case of attack by a foreign power against the territory or the coasts of the German Confederation.

The Emperor nominated the Chancellor, who was after the Emperor himself, the sole chief of the political and administrative organization of the Empire. “The Chancellor,” says Article 15, “presides over the Bundesrat and directs its labours.” But as he clearly could not himself assume such an overwhelming task, he was authorized by the law of March 17, 1878, to call assistance and be supplemented at need by high functionaries placed at the head of Imperial departments--those of foreign affairs, of the interior, justice, treasury, railroads, marine, colonies, posts and telegraphs. These officials carried the title of State Secretaries, which seemed to give them something of the nature of ministers, though in reality they were completely subordinated to the Chancellor.

Just as the Bundesrat represented the federated Princes so the Reichstag represented the German people. Elected by direct and universal suffrage the Reichstag had the right to initiate legislation; and no law was operative unless it had obtained a majority both in the Bundesrat and in the Reichstag. Furthermore the Reichstag had the right to interpellate, not the Secretaries of State but the Chancellor himself and to ask questions; and discussions of a question could be closed by voting an expression of the confidence of the Assembly.

Under the Empire there were twenty-five states and the territory of Alsace-Lorraine.

These states were governed by constitutions of the greatest variety. There were three free cities, Hamburg, Bremen and Lübeck; twenty-two monarchies, which carried different titles; Kingdoms--Prussia, Bavaria, Saxony, Wurtemberg; Grand Duchies--Baden, Hesse; Duchies--Saxe-Coburg-Gotha, Saxe-Meiningen; and Principalities--Waldeck, Schaumburg-Lippe, etc.

Among these states some, a large majority but the least important, had adopted the system of the single legislative chamber, which, with one or two exceptions, comprised, beside the deputies elected by universal suffrage, members named by the princes of the state, or by special electoral colleges such as groups of the heaviest tax payers, chambers of commerce, industrial and agricultural organizations, the clergy, the professions, etc.

The other states, four kingdoms and the Grand Duchies of Baden and of Hesse, had two chambers each. The upper house was almost entirely composed of members of the reigning families or their kin and of personages charged with representing the nobility or the great landed proprietors. The lower house was elected sometimes by universal suffrage, sometimes by a system of plural voting; or by a system that divided the population in such a way that the voice of the people was nullified almost entirely in favor of the big taxpayers as in Prussia.

All this would present an erroneous and incomplete picture if one did not take the precaution to search beyond the letter of these constitutions and inquire how the government of Germany was actually conducted. The political institutions of Germany presented a certain number of aspects which it is important to bring out clearly:

1. These institutions were anti-democratic. It is true the Reichstag was elected by universal and direct suffrage. But, on the one hand the electoral legislation of the Reich contained certain provisions which were singularly behind the times, such as the denial to the poor of the right to vote, the fixing of the voting age at twenty-five, etc. On the other hand, the Bundesrat, which was not elected, possessed powers superior to those of the Reichstag; and the latter could do nothing without the Bundesrat. The same situation existed within the individual states, which either did not have a chamber elected by universal suffrage or else limited it in power by the check of an upper house, feudal and conservative in character.

2. These institutions were anti-parliamentary. The Reichstag could interpellate the Chancellor but could not depose him. To a question or to an interpellation the Chancellor was always free to respond that he did not wish to reply; or he could fix his own time for replying; and finally, if he was in the minority in the house he did not have to resign.

3. The Reich encroached more and more on the domain of the individual states. This encroachment, this evolution toward unitarism, manifested itself in most divers ways. In military matters it took the form of a fusion of fighting contingents which belonged more or less nominally to the various states, but which, with the exception perhaps of Bavaria, placed their whole force at the direct command of the Emperor. As for Bavaria, at the outbreak of the war its “reserved rights” had almost completely disappeared. The development of the legislation of the Empire had accentuated this evolution toward unitarism. In the measure that the Reich legislated in a large number of domains, it wiped out in these matters the different regulations that existed up to then in the individual states. It is true that the execution of the national legislation was entrusted to functionaries within these states; but these officials were under the control of the Bundesrat and subject to the supervision of the Reich. Even in financial matters the liberty of the individual states was more and more limited. While it is true that they conserved their autonomy in matters of duties and taxes, the more the Reich discovered new sources of revenue the more the legislation of the Empire imposed on the several states the task of collecting this revenue and the more narrow became the scope in which the states could manage their own financial affairs, and the dependency of the states grew the more on the financial legislation and the budgetary dispositions allowed them by the Reich.

4. In contrast to the other federated states whose Constitutions were based on the principle of equality of the component states, Germany was based on the notion of the inequality of the states federated in it. Prussia exercised a true hegemony in Germany. In the Bundesrat it was represented by 17 votes whereas the other most favoured state, Bavaria, had but 6; two others, Saxony and Wurtemberg, had only 4 each; two, Baden and Hesse, 3 each; Mecklenburg and Brunswick, 2 each; and all the others but 1 apiece. In addition the Rhineland was also represented by 3 votes in the Bundesrat but these votes were instructed by Prussia. The latter, therefore, had 17 votes, 20 with those of Alsace-Lorraine, 21 with that of Waldeck, since the latter by its treaty of entry into the Confederation had abandoned its governmental rights to Prussia. It had therefore numerically a third of the total strength of the Bundesrat, while in actual influence it counted much more. Only Prussia could feel assured that its representation made it mistress of the situation in the Bundesrat; fourteen votes were sufficient to head off a constitutional change. Consequently Prussia possessed absolute veto power. It must not be forgotten that the representatives of the Princes in the Bundesrat received imperative mandates from them and that the representatives of the state had to cast their votes as a bloc--that is, as a unit. It mattered little, therefore, that such and such was the numerical representation in the Bundesrat of the particular states, that Prussia had 17 votes, Bavaria 6, etc. As to legislative changes relating to the army or the navy, and to taxes feeding the treasury of the Empire, nothing of this kind could be enacted if it was opposed by the “presidency.” And the “presidency” belonged by undisputed right to Prussia.

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