SECTION II. The President of the Reich

THE PRESIDENT OF THE REICH

The parliamentary system assumes, by the side of the Parliament elected by the people, a titular chief of state with executive power who, himself not responsible politically but assisted by ministers who are responsible, co-operates with Parliament in the different functions of the state. Basing itself, therefore, on the principle of parliamentary government, the German Constitution places at the head of the Reich a President whose situation corresponds generally to that of all the chiefs of state in parliamentary countries. The Constitution also attempts to create within the general framework of the parliamentary system, a new type of chief of state. It is important therefore to examine precisely the principal characteristics of these provisions.

1.--THE NEED FOR A STRONG PRESIDENT

The dominant idea, which guided the constituent assembly when they drew up the provisions relative to the President, was this: the German parliamentary republic requires that its President shall be powerful.

There must be a President. The Independents did not want one. “The President will either take his position strictly within the limits of the functions which are his according to the parliamentary principle,” said their spokesman, Haase, “in which case it will be his ministers who will exercise his powers. He will thus play a purely ornamental rôle, therefore useless and one for which the German Republic cannot afford to pay. Or he will exceed his legal powers, and the Cabinet will be compelled to develop in the direction of a régime of personal autocracy. It is enough, for the purpose of government of the country, that there should operate a Ministry in harmony with the popular representation.”

These ideas had no chance to prevail. In committee Preuss fought them energetically. The President, he held, could be replaced in two ways; either by a directorate elected by the people or by one elected by Parliament. The directorate would itself name its ministers. A Cabinet thus composed would be doomed to inertia and incapable of making any decision would “cry for a Bonaparte.” The Ministers who should be responsible to the Parliament would be practically deprived of authority, and the Parliament, with control only over the Ministers, would itself be weakened. The following system could also be considered: Parliament could directly elect a college whose members would themselves administer the various ministerial departments; that is to say, instead of being appointed by the President, Ministers would be elected by Parliament. This is the Swiss system. But such a Cabinet, admissible in a small country, could not exist in Germany, for the distribution of portfolios depends not according to merely logical premises but according to the relative strength among the different parties of the Reichstag. There could be no unity of direction in a Ministry thus composed. Above all what was needed was a personage who should be in the Constitution a firm centre. The more committees there are, and the more elections, the greater also becomes the need of having a fixed point to which may be attached the various strands in the network of the Constitution. There must therefore be a President.

This President must be powerful. A powerful chief of state is necessary above all in Germany, where people like to be governed. This is particularly necessary in such a revolutionary period as the Reich is traversing. There must be a President who will be a worthy representative of the nation and who will adequately personify, with all the authority needed, a state as considerable as the Reich. The President must be powerful in order also to act as a balance to the Parliament, which without it might become omnipotent.

This is why, first of all, the President of the Reich must not resemble the President of the French Republic. The fact that in France the President is elected by the National Assembly engenders a constitutional situation full of inconveniences. The President there is only a purely representative figure, Parliament having acquired absolute omnipotence which is directly contrary to true democracy. The parliamentarism which Germany wants is a parliamentarism whose mechanism is controlled by the people; and not a parliamentarism in which the President is reduced to complete inactivity and has no other care than to remain on the best possible terms with the Chambers. The members of the Constituent Assembly in supporting this condemnation--unanimous in Germany--of the French system quoted Professor Redslob, according to whom parliamentarism in France is completely adulterated.

But neither must the President of the Reich resemble the President of the United States. True, there were many in Germany at the end of 1918 and at the beginning of 1919 who wished for a chief of state a man who could act and represent the Reich with the independence and the authority of a Wilson. But this wish does not seem to have prevailed. The Constituent Assembly, in any event, wanted to inaugurate in Germany a parliamentary régime; whereas in America, the House of Representatives has only legislative power and the executive power rests wholly in the hands of the President. The Assembly resolved to give the Reichstag the right to co-operate in executive action and to exercise a control over the administration. In addition the President in America himself nominates his Cabinet without concern as to whether or not his Secretaries have the confidence of the Chamber, to whom they are not responsible. He is invested with a dangerous omnipotence, incompatible with parliamentary régime. The American system therefore, like the French system, must be rejected.

None of the forms of existing republican governments were entirely suitable for the German Republic; there would have to be created for its use a new type of chief of state. There would have to be created for the first time true parliamentarism, different from the imperfect parliamentarism such as exists in France. French parliamentarism consists of the omnipotence of Parliament which for four years acts free of all control on the part of the people. After each election democracy in France plays no part. In the true parliamentarism, however, Parliament is not omnipotent; but is subject to a control exercised by a democratic authority and this authority must be, in Germany, a President.

The problem is therefore to institute in a Republic what now exists only in parliamentary monarchies, that is, a chief of state sufficiently powerful to act as a balance to the Parliament and to control the latter in the name of the people without, however, giving him such a power as, in abusing it, would enable him to dominate or annihilate the rights of the Parliament and to establish an anti-democratic rule. Let us see how the German Constitution has solved this problem.

2.--THE ELECTION OF THE PRESIDENT AND THE LENGTH OF HIS TERM.

To give the President of the Reich the authority and the independence which it deemed necessary, the National Assembly insured him a very strong personal position.

To this end the Constitution declares first of all that he shall be elected by the whole German people (Article 41); that is, the plebiscite. The President is elected by the same electors as Parliament itself. Thus, President and Reichstag issue from the same source, the pure popular will. Thus, there is the certitude that if one of these two organs rejects the direction desired by the people or deviates from the direction desired by the people, the other organ will immediately be able to apply the necessary corrective. The President can be the sought-for counter-balance to the authority of the Reichstag, for he is truly the man entrusted by the people, delegated by them to rule with the Reichstag.

This system is not without danger. We have seen it in Germany itself when in March, 1920, the rumour spread that Marshal Hindenburg would be a candidate for the presidency of the Reich, a candidacy expressly approved by the former Emperor, one which seemed to open the way for a monarchical restoration. The Social Democrats thereupon declared that the election of the President by the whole people was an institution republican only in appearance; that it was in reality much more monarchical than republican; that the President elected by the people could arrogate to himself a power which would weigh heavily on the functioning of the governmental machinery; that to institute the election of a President by the people would subject his person to disputes and attacks which would leave his dignity seriously compromised. They, the Social Democrats, foresaw the possibility of supporting again a proposition which they had already made during the discussion on the Constitution, but which they had withdrawn, according to which the President would have to be elected by the Reichstag. The Democrats, alarmed by the prospect of a conflict that could arise between the Reichstag and a President elected by the people, seemed ready to support such a proposition. The Centre abstained from a decision on this matter. But nothing could be done without the Centre, for since this was a matter of constitutional amendment a majority of two-thirds of the National Assembly was indispensable, and it could not be obtained without the Centre. The coup d’état of Kapp and Lüttwitz had meanwhile the effect on these discussions now well known. The Democrats concluded from it that thereafter all attempts to establish a military candidacy would be doomed to failure and that the people would never either nominate or support a dictator; and that therefore there was no longer any need to change the Constitution on this point.

Every German is eligible provided he is thirty-five years old. The proposal in committee as well as the text of the Constitution at the second reading declared for an absolute ineligibility of members of families who had ever ruled a state in the German Empire. This provision was done away with on the third reading by a majority consisting of the German Nationalists, the People’s Party and the Centre. The motive expressed by the representatives of these parties was that this measure would constitute a law of exception of the most shameful kind, contrary to the principles of the Constitution, that it was a confession of weakness and an avowal of the lack of solidity in the benefits afforded by the victories of the Revolution.

But how shall the President be elected? After long discussion the National Assembly decided that the election of the President should not be regulated by the Constitution but that the matter should be left to an ordinary law. The Assembly was not able to decide either for the proposition of the Cabinet or for that of the Committee on the Constitution. The proposal of the Cabinet provided for a general election. If in the first canvass no candidate received the majority of the votes cast, a second one would have to take place in which only the two candidates who had received the largest number of votes in the first canvass could run. Of these two candidates the one who obtained the majority would be elected.

This proposal aroused serious opposition in the Constitutional Committee. It was held that, given a multiplicity of political parties, it was probable that in the first canvass a great number of candidates would present themselves and consequently at the second ballot neither of the two surviving candidates would rally to his support any important fraction of the whole people. On the other hand, it would be difficult before the first vote to effect any union among neighbouring parties on a common candidacy, because up to that moment the various groups would not know what possibilities there were for the election of their own candidates. In any event the position of the President would be weakened, for a great number of those voting for him would not do so primarily out of sympathy with him, but in order to keep out some other person still less in their confidence. All the criticisms that were made at another time against the balloting under the former electoral law would be applicable here with added force, since it was a matter of the election of the personality who must be vested with the highest dignity in the Reich.

Having condemned this method of election, the committee adopted the proposal that seemed to them most opposed to this: that candidate should be elected who received on the first ballot the largest number of votes (a relative majority). If this system did away with some of the inconveniences of balloting, there nevertheless could be urged against it and with greater force the same objection as filed against the preceding proposition, viz., that, given the division of political parties as it was, a man could be called to the head of the nation who would have behind him a relatively small fraction of the German population.

According to a third proposition, the second balloting could be avoided in the following fashion. The elector would be permitted to indicate on the first ballot a second person to whom he would give his vote should his first candidate not obtain the necessary number of votes. This proposition had as its point of view the idea that neighbouring groups or parties could in this way and in advance effect electoral compromises in the event that none of their candidates alone should survive the first ballot. In this way there would be the advantage that a second ballot would be unnecessary. But this system was not without danger, for first of all it lacked simplicity, and again there was nothing to show that the electors would thereby abide by the agreements concluded by their parties. A well disciplined party, in which the electors held to the agreements made by the chiefs of their party would risk being put at a disadvantage by this system in relation to a party in which there was no discipline whatever. There was the danger in accepting this proposition that the elections would bring about a result that would not truly express the real wish of the people, but which would depend on the tactics and the more or less effective discipline of the parties.

None of these propositions having been accepted only one procedure remained possible. This was to have two ballots, but not to limit the second ballot to two candidates and to declare elected the candidate who has received the largest number of votes. Thus, no group is obliged to deprive itself of a candidate who might be able to win. But when the different candidates have measured their strength on the first ballot, the parties could then freely come to agreement based on precise results. Nor would it be indispensable that this agreement should be based purely and simply on the proportion of votes obtained on the first ballot. Parties could agree on a candidate who on the first ballot had not been presented. It could be hoped that the political situation, being to some degree cleared by the first vote, there would be a considerable decrease in the number of candidates, with the result that the President elected would receive the majority of all the votes; or at least that he would obtain a number of votes much larger than if he were considered elected on the first ballot by a merely relative majority. The vote which a candidate would thus obtain would be given him by the free choice of the population; he would be much more the man trusted by the people than he would be if a majority of the electors had voted for him constrained by a balloting procedure. But the doing away with the second ballot could not be accomplished without at the same time losing the clearness with which the popular will should express itself.

Such is the system which was finally adopted as law on the election of the President, on March 4, 1920. According to the terms of Article 4 of this law, “The one who has obtained more than half of all the valid votes is elected. If no one obtains this majority a second ballot must be proceeded to, after which the candidate obtaining a plurality of the valid votes shall be considered elected. In case candidates obtain an equal number of votes election shall be decided by lot.”

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The President is elected for seven years and is eligible for re-election. The choice for so long a term and the possibility of re-election corresponded closely to the prevailing idea according to which the President should constitute a fixed and permanent point in the constitutional mechanism. “Granting,” said Preuss, “that the institutions set up by our Constitution should be as profoundly as possible stamped with democratic character, it is best, for the solidity of the whole edifice, that there should be in some part of it a durable and firm framework.” The Social Democrats observed that the longer the term of the President’s powers the more difficult it would be to effect a change in the person, and consequently the greater was the danger of seeing a life President installed. They proposed to fix five years as the term for which the President could remain in power and to make re-election more than once impossible. But this proposal was rejected.

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Having fixed the term of the presidential power the Constitution had to provide for the situation in which a President ceased to function before the normal expiration of his powers or found himself prevented from exercising them. It was not desired, as in the United States, to institute a Vice-President who, as permanent representative and possible successor of the President, would have the status, in the words of Preuss, of a “republican crown-prince.” The provisions which were thereupon adopted are much more supple.

In case the President ceases his functions before their normal expiration, that is to say, in case of death, resignation, or impeachment, a new election is immediately held.

In case he is prevented from filling his duties, there must be made a distinction according to whether this inability seems apparently of short or long duration. In the first case, that is, in case of slight illness or because of a short voyage abroad, or during the first days of a disability which seems likely to be prolonged, or in the interval between the death of a President and the election of his successor, the place of the President is filled by the Chancellor. In the second case, that is, in case of serious illness or insanity, or when a motion has been passed by the Reichstag to impeach the President, or there is inaugurated a penal prosecution of the President before the National Judicial Court, the Constitution decides that an ordinary law shall determine expressly by whom his place shall be filled. This law may according to circumstances either install a temporary Vice-President, or confer temporarily the functions of the President on the Chancellor until the President is able to resume office, or finishes his term.

3.--THE POWERS OF THE PRESIDENT.

The powers vested in the President of the Reich by the Constitution are in general analogous to those possessed by every chief of state in a parliamentary country. Just as the Reichstag exercises in addition to its purely legislative powers a control over the Cabinet and its administration, just so, if the principles of the parliamentary system are to be applied, the President must be invested, in addition to his strictly executive authority, with powers that permit him to co-operate in legislative work and to exercise a control over the Reichstag itself.

It is precisely this, in effect, that the Constitution provides for. The President of the Reich has executive powers. He nominates ministers, he represents the Reich in foreign relations, he appoints all the civil and military servants, he is supreme chief of the forces of the Reich by land and sea, he exercises the right of pardon and he may make regulations. He has also powers of a legislative character. He alone has authority to promulgate and publish enacted laws. He exercises a kind of right of veto over these laws; and he may, according to circumstances, in the complicated conditions we have already examined, either retard the entrance of these laws into operation, or submit them to the people by means of a referendum. Finally, he exercises a certain control over the Reichstag. He may order the President of the Reichstag to convoke that Assembly earlier than the normal date of its meeting. He nominates the judicial members of the electoral commission for disputed elections to the Reichstag. He may dissolve the Reichstag, etc.

It goes without saying that in none of these cases can the President take action without securing the support and the countersignature of a Minister. That is the essential condition of a parliamentary régime.

But to strengthen the action of a President and to give his position a place of real pre-eminence, which is desired for him, the Constitution entrusts him with a certain number of powers, which we must note particularly, for they are perhaps peculiar to the German Presidency, and give it a special character.

The President exercises an extremely powerful control over the legislative work of the Reichstag. When a law has been enacted he may, before promulgating it, submit it to a referendum. He may, when the Reichstag and the Reichsrat have declared urgent a law which they have enacted, promulgate it immediately even if a third of the Reichstag has demanded that its promulgation be deferred (Article 72). The aim of such a demand for postponement is to give the opponents of the law the chance to prepare a referendum and to proceed to it. The fact that the President has the right not to act on such a postponement and to give the law immediate operative power by promulgating it, offers him the chance to prevent such a referendum. It is also in his right when there is no agreement between the Reichstag and the Reichsrat on the text of a bill, either to decide that the law is not in effect and shall not enter into operation, or to decide for a referendum. He is free, finally, when a law has been passed in the Reichstag by a two-thirds majority against the protest of the Reichsrat, either to promulgate this law, or, if he does not wish to take the responsibility of that, to submit to a referendum the question on which the Reichstag and the Reichsrat disagree.

The President commands all the armed forces of the Reich. He is from this point of view the direct successor of the Emperor. He has, therefore, the power called Reichsexecution; that is to say, that when a state does not carry out the obligations imposed upon it by the Constitution or by a law of the Reich, he has the right to compel it to do so with the aid of armed force. But, above all, he has the right to declare a state of siege.

This is a peculiar point in the German Constitution. Whereas in France, the state of siege cannot be declared except by a law, in Germany it is sufficient to declare it by means of a simple order of the President. Article 48 gives him the right, when security and public order are seriously affected or menaced, to take necessary measures for the re-establishment of security and public order and at need to use, therefore, armed force to that end. But in order that he may be able to resort to these exceptional measures, tranquillity and public safety must be seriously affected or menaced. But he alone has the power to decide if and when this condition is fulfilled. In the same way he alone decides what measures are necessary for the re-establishment of order. He may particularly--the Constitution expressly gives him this right but only in a general way--suspend individual liberties. As to details in this matter the Constitution provided for the passing of an ordinary law which should prescribe particulars more completely; but this law has not yet been enacted. It is agreed to recognize that until such a law has been passed the authority of the President in this respect remains unlimited. He may therefore not only order all measures which seem to him necessary for this or that emergency, but he may also by an ordinance prescribe general and permanent measures. He may institute penalties or increase those provided by the penal code. He may also establish special tribunals. It is in effect a dictatorship.

This extraordinary power which has been given him, the President uses to a very large extent. Germany, it is true, is traversing a particularly troubled period and it is probable that this is responsible for the great number of ordinances issued by the President creating states of siege. There are regions that are almost constantly in a state of siege, particularly the Ruhr. In 1920 Berlin remained in a state of siege from January 13th to May 28th.

The modes of applying these high executive powers are extremely variable and, according to circumstances, the measures prescribed constitute a menace more or less grave to the rights of the individual. In serious situations all the authority goes to the Minister of War, who may exercise them himself or transmit them to his subordinates, and who is assisted in civil administration by a Commissioner of the Cabinet. Penalties are enacted; arson, the illegal use of explosives, flooding, damage done to railways, and resistance to legal officers in the course of a riot are punishable by death. Extraordinary court-martials are created and invested with broad authority. The military powers may even institute court-martials appointed by the commanders of the troops charged with suppressing the disorders and presided over by an officer of these troops. In less serious situations the authority in the territory involved is given over to a commissioner of the civil government, nominated by the Minister of the Interior. The liberty of individuals is suspended, but certain guarantees are retained. Prison sentences and fines are instituted. Between these two extreme types of state of siege there is a whole gamut of provisions more or less severe; and almost daily new ordinances appear establishing the state of siege in this region, sharpening it in another, relaxing here and abolishing it there. There are territories declared in a state of siege in which this abnormal situation is not manifested by a single practical restriction; it is there only a measure of precaution on the part of the government. But there are others where repressions of a terribly brutal nature take place.

The only limit that the Constitution has provided to this omnipotence of the executive power consists in the obligation it places on the President to acquaint the Reichstag with all the measures he has taken by virtue of Article 48; and in the right that is given by the Constitution to the Reichstag to demand that he withdraw these measures. It is because of such a demand that the Cabinet was compelled on May 28, 1920, to abolish the then state of siege throughout the whole Reich, except in the Ruhr, to permit the elections of June 6 to be held under normal conditions.

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The parties of the Right, for whom the authority given the President seems never strong enough, wanted to give him still another power, the right to prescribe a referendum or to dissolve the Reichstag without a countersignature of a Minister. The President, they held, would never be able to secure the countersignature of a Minister to a dissolution of the Reichstag, or to appeal to the people against the Reichstag, because ministers depend for their official lives on the confidence the Reichstag reposes in them. It will be necessary in such a case, therefore, for the President to form a new ministry to countersign his ordinance. But if the electors of the nation decide against a President, he will have to call back to office the former Ministry. Of what use is this roundabout method?

But Preuss vigorously defended the necessity of the countersignature, dictated by principles of a republican democracy and of parliamentarism.

He began by reviewing the hypothesis of a referendum. In such a situation, he said, one of two possibilities occurs. Either the President and the Minister are in agreement to prescribe a referendum; in which case would the Minister refuse his countersignature? That would be contrary to the normal relations which must exist between the President and his Ministry; especially, too, as a referendum is subject to certain conditions imposed by the Constitution, and these conditions have to be observed and some one must take the responsibility in case they are violated. Or in the other case, the more important, the Ministry are against the referendum; they are determined not to permit such a politically important act to be committed against their best judgment. In such a situation the Ministry will immediately resign and the President, not being able to remain without a Ministry, would have to form a new one. Whether or not, therefore, the countersignature of a Minister to such decrees is required, the situation culminates in a change of Ministry. But it is more natural that if the President wants to bring about an act against the political convictions of his Ministry, he will seek a Cabinet that will accept the responsibility for this act.

The situation is quite analogous in reference to the dissolution of a Reichstag. If the President dissolves the Reichstag and wants to prevail over its majority he can no longer retain the Ministry supported by this majority. Dissolution results from the fact that the President seeks, by a new election, to change the majority to a minority and the minority to a majority. He must therefore ask himself this question. What political combination can I use? Such a calculation must be faced if it is not permitted the President to prescribe a dissolution of the Reichstag except with the countersignature of a Minister. The President is not absolutely subject to the majority; he may attempt, in appealing to the people, to make another majority of the minority, but in that case he must take into this minority statesmen who will accept the responsibility for such an attempt.

The President may, therefore, order the referendum and dissolve the Reichstag; but these two decisions, like all the others, must be countersigned by a Minister.

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In addition to the powers we have just examined, all of which are expressly provided by the Constitution, there are others which the President possesses because they logically follow from even the practice of a parliamentary régime. Certainly he has the right to demand reports from Ministers and any information from them on the course of affairs. He has the right also to be present at sessions of the Cabinet; and while it is true that he has not the right to vote there, he may come there whenever he pleases and take the chair.

4.--THE RESPONSIBILITY OF THE PRESIDENT.

Responsibility engenders authority and there is no authority without responsibility. Whatever powers a Constitution may give its chief of state, they will rest a dead letter if he cannot personally assume the responsibility for the exercise of these powers. The President of the United States, who is thus held responsible, really governs. In a parliamentary régime the chief of state is not responsible; thence comes its weakness. But the German Constitution desires at once a parliamentary régime and a strong presidency. It must therefore seek a ground for the combination of the two.

(1) Politically the President of the Reich is in theory not responsible. That is to say, that he cannot be overthrown by vote of lack of confidence on the part of the Reichstag. All his acts must be countersigned by a Minister, and it is the latter who takes the responsibility for them and who alone suffers the consequences.

There is, however, a limit to this political irresponsibility of the President. If the conflict between the President and the Reichstag is really irreconcilable he may submit the conflict to the people, who decide. It is recalled to this effect that, according to Article 42, the Reichstag by a decision taken by a majority of two-thirds may demand of the people a vote on the impeachment of the President. If the people approve, the President ceases his functions; therein operates a kind of political responsibility of the President.

(2) The President of the Reich is criminally responsible. Two hypotheses must be considered:

(a) The President may have committed some crime for which the ordinary penal law prescribes punishment. Can he be prosecuted before ordinary tribunals as an ordinary individual? This question was vigorously debated before the Committee on the Constitution. It was not desired that the President should be absolved from all criminal responsibility. But, on the other hand, it was equally undesirable that he should be placed in the same status as ordinary citizens, because this would give him a position less favorable than that which the Constitution grants members of the Reichstag. It was decided finally that, like the latter, he cannot be criminally prosecuted during the term of his powers, except with the authorization of the Reichstag.

(b) Or the President may be guilty of a violation of the Constitution or a law of the Reich. In this case Article 59 provides that he may be prosecuted by the Reichstag in the Supreme Judicial Court. The proposal to bring an impeachment must be signed by at least one hundred members and supported by a two-thirds majority. But it must be specified here that this is a matter of legal procedure and that therefore this prosecution can be based only on the violation of a definite provision of the Constitution or of a law. In the case of a simple political divergence of opinion between the Reichstag and the President, only the political responsibility for the matter can be called into the question, and the one way open to the Reichstag is that of an impeachment approved by the people.

What penalty can the Supreme Judicial Court pronounce against the President in case of a verdict of guilty? The Constituent Assembly at first adopted a provision according to which the Court could simply declare the President removed, or to declare him incapable of exercising any public function whatever. Finally, however, it was decided to leave this question to the law organizing the Court of Justice.

But the situation may arise in which an act committed by the President constitutes both an infraction of the penal law as well as a violation of the Constitution. Which shall pass first upon this, the ordinary tribunal or the Supreme Judicial Court? After long hesitation, the Constituent Assembly decided to leave this question also to the future law dealing with the Supreme Judicial Court.

(3) The President is finally civilly responsible for any acts of damage he may commit. Although he is not really a civil servant, in the actual sense of the word, he is on this point subject to the same regulations as the civil servants of the Reich. (The law on the responsibilities of civil servants, March 22, 1910.)