SECTION II. The National Constituent Assembly

THE NATIONAL CONSTITUENT ASSEMBLY

The National Assembly elected on January 19, 1919, had as its foremost task the conclusion of peace and the creation of a new constitution for Germany. But in view of the problems that it was confronted with, it will be difficult to understand precisely how it was led to take this or that position and to know how to reconcile the intent of the different resolutions voted if one does not keep constantly in mind the spirit in which they were drawn up, the forces that met in conflict within the Assembly, and the proportion of strength they bore to one another--if one does not follow at least in its ensemble the long process of elaboration in the midst of which the work of the Assembly was accomplished.

1.--THE COMPOSITION OF THE ASSEMBLY.

The Constituent Assembly had been elected according to what was perhaps the most democratic suffrage ever known.

All Germans were electors, men and women, soldiers and officers, poor and feeble, provided they had passed the twentieth birthday. All electors were eligible to vote who had been Germans for at least a year.

The election took place on the basis of general tickets which could not be “split,” that is, an elector could not vote for candidates of different tickets; but facility was offered for parties to present lists in common.

The distribution of seats followed the system of proportional representation known under the name of Hondt.

These elections sent to the Assembly 423 deputies, of whom 39 were women.

At the extreme right were the German Nationalists (Deutschnationalen) with forty-two members. They were the former Conservatives of whom the least one can say is that they had learned but little from the war. It was the party of the big landed proprietors and the big manufacturers. Politically they declared themselves in December, 1918, in favour of the restoration of the monarchy and willing to accept a parliamentary monarchy. Economically they did not ask a single reform. Reactionary in politics they were in economic matters strongly conservative. Their leaders, Clemens von Delbrück, former minister of the Emperor and former chief of the Emperor’s civil cabinet, Düringer, raised their voices whenever it was necessary to defend the old régime, opposing all diminution in Prussia’s share of the government, and combatting every democratic institution.

To the left of them sat twenty-two members of the German People’s Party (Deutsche Volkspartei). The name is new; their ideas resembled those of the former National-Liberals. It was the party of business men. Of the future form of government they said nothing. In fact, most of them remained monarchists, but that was a minor question. Their main concern was to establish in a tranquil and well regulated state freedom of commerce and a guarantee of protection for private property. They did not shut their eyes completely to the realities of the hour and intended to scrutinize certain reforms which it would be useless to oppose; such as new governmental monopolies, the participation of workers in industry control, etc. They were nationalist in feeling and would not sign a peace except one that safeguarded the economic prosperity of Germany. They were democrats in the sense that they were in favor of a strict legal equality for all persons. This group was presided over by Stresemann, whose cleverness in manipulating the parliamentary game was widely recognized.

Then came the Centre with eighty-nine deputies. Of all the parties it was this one that remained since its inception most faithful to itself. Its programme had not changed. It contained several propositions which formed its solid framework and for which the party was prepared to fight with all its power: the union of Church and State, confessional public schools, liberty of instruction, etc. On the political and economical problems of the hour the Centre certainly had its opinions; but it always ended by conceding whatever was necessary to safeguard the essential principles of a religious state and of freedom of instruction. Among those elected to the Centre there were Fehrenbach, who presided over the Assembly, Trimborn, Professor Beyerle, and Erzberger, whose indefatigable activities and limitless fertility of resources assured him perhaps a preponderant rôle in the government for some months, and who as much as the Minister of Finance was to effect a fundamental reform in the German fiscal system.

Then came seventy-four Democrats. Their party was born after the revolution of 1918 of a fusion of the old Progressives with the group of National-Liberals who did not go with the Volkspartei. Their program was that of the classic liberalism: national sovereignty, universal suffrage, equality of right of all citizens, individual rights, the right of private property and commerce. They opposed the intervention of the State except in extraordinary circumstances. This party attempted to group about itself all Germans in favour of a bourgeois republic, and was resolute in its opposition to both reaction and revolutionary socialism. This group counted among its members some of the men whose personal worth impressed itself on the assembly and who played rôles perhaps the most important in the development of the constitution--Haussmann, president of the committee on the Constitution; Frederick Naumann, whose idealism had free reign when he proposed with Beyerle the list of fundamental rights and duties of the Germans; Dernburg, Minister for the Colonies under the old régime and Minister of Finance under the Revolution; Koch of Cassel, future minister, and others.

There were 163 Social Democrats. They formed the most numerous group in the Assembly but, accustomed to the facile negations of opposition they seemed little prepared for the constructive rôle, at that time particularly difficult, which their electoral success suddenly called upon them to exercise. Theoretically they declared themselves faithful to the programme of Erfurt and to the Marxian theory of the class struggle. But at the same time they declared their faith in democracy, opposed all dictatorship and counted only on universal suffrage and the parliamentary régime to effect their socialistic reforms. It is from this Social Democratic group that there came the three Chancellors who governed Germany while the National Assembly sat--Scheidemann, Bauer and Hermann Müller. It is to this group that belonged Legien, president of the German Federation of Labour, Wissel who as Minister tried in vain to organize systematic control of business, and the Ministers Noske, David, the deputy Sinzheimer, who drew up the remarkable report on the Workers Councils, and others.

Finally there came the group of Independents of whom there were twenty-two. They accused the Social Democrats of having betrayed the cause of Socialism. As for their own program they did not specify any measures more definite than did the Social Democrats. They contented themselves with demanding that socialization be immediately commenced in order to break capitalist domination, to promote production to the highest possible degree and to distribute the fruits thereof among all citizens. Their spokesmen were Cohn and Haase, former Commissar of the People, who was later assassinated in July, 1919.

To sum up one can present the following table of the forces of the respective parties in the National Assembly:

PARTY VOTES DEPUTIES

German National People’s Party 3,200,000 42 (3 women) German People’s Party 1,200,000 22 (1 woman) Centre 6,000,000 89 (6 women) Democrats 5,600,000 74 (7 women) Social Democrats 11,400,000 163 (17 women) Independents 2,300,000 22 (3 women) Other parties 500,000 9 (2 women)

Besides these, troops from the Western front sent two deputies, both Social Democrats.

2.--THE PROVISIONAL CONSTITUTION OF FEBRUARY 10, 1919.

The National Constituent Assembly met at Weimar February 6, 1919. It wisely avoided meeting in Berlin where it would be tempting prey for organizers of revolts and insurrections.

Elected by the people the Assembly incorporated the sovereignty of the people. It was the supreme power. That power was universally accorded to it.

The first question that had to be dealt with by the Assembly was that of a provisional government of Germany. It was true that a Constitution was to be adopted by the Assembly eventually; but that would be a labour of several months at least. Meanwhile it would be necessary for Germany to be governed in its internal affairs by some authority created in the spirit of democracy, one which could be represented abroad by delegates of the German people. A provisional constitution would have to be adopted, and adopted at once.

On February 8 Secretary of State of the Interior Preuss submitted a draft of a provisional government of the Reich. It was only an improvisation. Commencing with January 25, 1919, a conference of more than one hundred representatives of different states met with the Minister of the Interior to consider the project of this provisional constitution. The draft presented by Preuss was approved by them. This gave assurance that no fundamental objections would be raised. On the other hand, to assure a quick vote on it the author of the project had prudently avoided all vexing questions whose immediate settlement was not indispensable; and on the questions which he had to treat he wisely did so in the spirit of compromise. Thanks to these precautions the draft by Preuss was adopted on February 10. It dealt with these four points:

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1. CONSTITUTIONAL LAWS.--The National Assembly was to retain all power in dealing with this province. Elected above all to furnish Germany with a constitution this was its essential work.

Only the Assembly could decide constitutional questions and could do so without consulting anybody else. Meanwhile, however, although keeping control the members could limit themselves, if they wished, in authority--and this is one of the instances in the provisional constitution characterized by its spirit of compromise--if this limitation seemed to them in the general interest and necessary to the prompt accomplishment of their work. In fact, the National Assembly limited itself in this matter of the constitution only on one point, a fundamental one--the territorial status of the states. According to Article 4, paragraph 2, of the law dealing with that question “the territories of the component republics cannot be modified except by their consent.” This meant that the sovereign National Assembly did not permit even itself to change the territorial map of Germany. Minister Preuss explained to the Assembly that he had to make this concession, for they could not with a stroke of the pen and by a simple decision change the boundaries of the respective states without their consent. This provision was necessary to reassure the states, being given especially in view of the announced intentions of the government of the Reich on a territorial regrouping and a partition of Prussia. But it was distinctly specified by Preuss that this provision would hold only until the definitive action on the Constitution by the Assembly. For in this Constitution the National Assembly could of its own accord and without limitations take whatever decision it wished. In other words after the definite adoption of the Constitution the states could no longer invoke article 4, paragraph 3 of the law of February 10, 1919, in order to oppose the operation of article 18 of the Constitution of Weimar, in case an individual state were so minded.

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2. ORDINARY LAWS.--The National Assembly had other work to do besides the Constitution. They recognized (Article 1 of the law of February 10, 1919) that beside the Constitution they had to vote “other urgent laws for the Reich.” But here in contrast to the procedure in the adoption of constitutional laws the National Assembly did not adopt laws except in agreement with the representatives of the individual states. No project could become a law until it was accepted both by the representatives of the individual states and by the National Assembly. For this purpose the law of February 10, 1919, created a Commission of States.

This Commission recalled in several respects the old Bundesrat but differed fundamentally in certain other respects. It was composed of representatives of all the German states whose governments were based on the confidence in them of their representative assemblies elected by universal suffrage. Each state had at least one vote; but the more important states could have additional votes; one vote for every million inhabitants, and a fraction in excess would be counted as a supplementary vote provided that fraction was equal at least to the number of inhabitants of the least populous state in the Reich. No state was allowed more than two-thirds of the total number of votes. Some writers find this reform important. “The traditional proportion of representation is broken,” writes Apelt in “Das Werden der neuen Reichsverfassung, Deutsche Juristen Zeitung,” 1919, p. 205. “It has been replaced by the modern principle of the distribution of influence according to the number of inhabitants.” But we must not delude ourselves. The application of paragraph 2 of the law of February 10 resulted in the following: Prussia had 19 votes, Bavaria 7, Saxony 5, Wurtemberg 3, the Grand Duchy of Baden 3, the Grand Duchy of Hesse 2; the other states one each, in all 58, and after the fusion of the two states of Reuss, 57. Thus Prussia had two votes more than in the Bundesrat, Bavaria and Saxony each one vote more, Wurtemberg, Hesse, Mecklenburg-Schwerin and Brunswick each at least one vote. If one considers the loss of Alsace-Lorraine and the disappearance of the two Reuss states it is quite remarkable to note that in the Bundesrat and in the Commission of States the total number of votes was exactly the same and the distribution almost the same in both.

However, the Commission of States differed in other respects from the Bundesrat, especially in authority. It is true that as formerly no law could be enacted except with the approval of the Assembly. But now the centre of gravity of political power passed from the Assembly of States to the popular assembly. From this came the following consequences: formerly if a projected law emanating from the Presidency of the Empire did not secure a majority in the Bundesrat it could not be considered by the Reichstag, and was thereby definitely buried. Whereas now the government could submit for decision by the National Assembly a project which had been rejected by the Commission of States. Formerly, too, in a disagreement between the two assemblies over a projected law which the Reichstag had accepted but the Bundesrat had rejected, the last word rested with the negative party, that is to say, the Bundesrat, where naturally the project was buried. Now, however, the government was never bound by a decision of the majority of the Commission of States and it could always bring a project up again before the National Assembly, which had been defeated in the Commission. The members of the government of the Reich and those of the Commission of States had the right to participate in the National Assembly and defend their respective points of view; but it was the National Assembly that always made the final decision. If, however, a discord between the two Assemblies could not be broken the President of the Reich had the right to submit this difference to a popular referendum for decision. This situation, however, has not as yet presented itself.

The differences between the former Bundesrat and the new Commission of States were considerable. The champions of a united Reich criticized the Commission as an obstacle to the foundation of a united German Republic and this objection seemed from their point of view justifiable. It must be noted also that the provisional constitution does not specify which, the state’s parliament or its government, in each member state nominates the delegates to the Commission. We know only that the members of the Commission of States had an imperative mandate, for its representatives defended the point of view of their governments.

A law became operative when it was adopted by both the National Assembly and the Commission of States.

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3. THE PRESIDENT OF THE REICH.--The Provisional Constitution placed at the head of the Reich a president.

The president of the Reich had to be elected by an absolute majority of the National Assembly. He was to remain in power until the inauguration of the president elected in conformity with the permanent constitution.

To avoid discussions which would retard the adoption of the law and not to have to specify the powers of the president the provision attributed to him generally the powers of a chief of state in a modern republic.

However, the Provisional Constitution specifically described the authority of the president on certain particular points which because of special circumstances and on account of German traditions were especially delicate. The right to declare war and to conclude peace was taken away from him and given to the National Assembly. He represented the Reich, however, in foreign relations, accredited and received ambassadors and signed treaties. But in this last respect his right was limited by two restrictions. He could not without the consent of the National Assembly and of the Commission of States conclude any treaty containing matters on which the authority rested with these bodies; and were Germany to enter a league of nations that excludes secret treaties, all the treaties with states which are members of that league would have to be submitted to the approval of the National Assembly and the Commission of States. In other words, secret treaties were in principle forbidden; but in order not to place Germany in a disadvantageous position with regard to other states it was specified that this prohibition would be effective only in regard to treaties with other states that forbade secret treaties.

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4. THE MINISTERS.--The president of the Reich nominated a ministry charged with the government of the Reich.

The law specified nothing on the organization of the ministry. However, there were several provisions which clearly indicated an essentially parliamentary régime. Thus ministers could remain in power only as long as they had the confidence of the Assembly. Decrees and ordinances of the president were operative only when signed by a minister. The ministers were responsible to the National Assembly for the conduct of their departments.

The provisional constitution of February 10 became operative immediately upon its adoption. Two series of acts thereupon naturally followed.

First the authorities who received their powers from the Revolution resigned these into the hands of the National Assembly. On February 10, Commissar of the People Scheidemann declared before the Assembly, “Since the National Assembly is in session and the Provisional Constitution is adopted the historic mission which had been entrusted to us as a provisional government is terminated. We return the powers which we have received from the Revolution into the hands of the National Assembly.”

The next day, February 11, there was read before the Assembly a letter from the Central Committee of the German Socialist Republic in which three propositions should be noted. First, the Central Committee returned to the German National Assembly the powers which it had held by virtue of the authority given it by the Congress of Workers and Soldiers Councils. Secondly, it demanded the incorporation of the Workers and Soldiers Councils in the future Constitution of the Empire to strengthen the representation of the workers and to defend the interests of the producers as well as to assure a popular organization of the Empire’s armed forces. Thirdly, it opposed with utmost energy the dangerous reappearance of the rights of sovereignty of individual states when these rights went beyond the domain of questions affecting the autonomy and the culture of the states.

There remained the task of organizing the new government in conformity with the provisions of the law. On February 11, Commissar of the People Ebert was elected President of the Reich by a vote of 277 out of a possible 328. He resigned as deputy and named a ministry headed by Scheidemann. As David, who had been elected President of the Assembly, was also appointed member of the Ministry without portfolio he was replaced as President of the National Assembly by Fehrenbach on February 12.

3.--THE ADOPTION OF THE CONSTITUTION AND THE SUPPLEMENTARY LAWS.

The elaboration of the permanent Constitution lasted nearly seven months. There were preliminary drafts, drafts and supplementary drafts; which were studied in conference with the states, in sub-committees and committees, and in full session of the National Assembly with countless changes and modifications up to the last minute.

The man who was constantly in the breach throughout all this labour and who may be considered the principal author of the Constitution was Professor Preuss.

Before the Revolution he belonged to the Progressive Party; after which he joined the Democrats. Under-secretary of State for the Interior, on February 15, 1918; Minister of the Interior in Scheidemann’s cabinet of February, 1919; representative of the government at the National Assembly to discuss the Constitution when, in June, 1919, he left office; it was on him from the beginning to end that the chief burden of these discussions rested. Master of constitutional law he showed himself in politics essentially a realist. He fought stubbornly for the ideas he put forward in his first draft--the necessity of unifying the Reich and dismembering Prussia, the need of creating confidence in democracy, the superiority of a parliamentary régime. He fought for these to the very end with vigour of argument and such fertility of resources that the greater part of his ideas survived every attack. Certainly the definitive text of the Constitution is quite different from his original project; Preuss did not underestimate the forces and influences with which he had to deal; nevertheless he won great support on his principal issues and he is really the chief artisan of the work of Weimar.

The Constitution was adopted on July 31 by a vote of 262 for and 75 against. Those who voted against it were the German Nationalists, the German People’s Party, The Independents, The Bavarian Peasant Union, and several members of the Bavarian People’s Party, among them Dr. Heim.

It was promulgated and published on August 11, 1919, and became operative at once.

Having concluded peace and adopted the Constitution the National Assembly, it would seem, should have dissolved. But it did not. It had the authority to fix the duration of its mandate. The Assembly considered that its work was not finished on August 11, 1919, two tasks still remaining to be accomplished; the first of these to draw up and pass the principal laws needed for the application of the constitution. The latter in a number of its provisions necessitated the passing of a series of special laws and ordinary laws regulating details which, in the course of the deliberations on the Constitution, the members could not find time to enact or on which they had not been able to agree. Among such were laws regulating the election of the Reichstag and of the President of the Reich, laws on initiative and referendum, on the state of siege, the army, Workers Councils, and Economic Councils, laws regulating the transfer of railroads and postal systems of the various states to the control of the Reich, etc.

The Assembly in addition considered itself bound to study and pass laws of a character not necessarily constitutional but urgently needed by the Reich. In the front rank in importance were the laws designed to create the financial resources of which the Reich had great need in order to meet the enormous charges imposed upon it by the treaty of peace, the losses of five years of war and the increased public expenditure. It was also urgent to enact laws governing pensions and indemnities to the wounded, the mutilated, and the widows of the war, etc.

But from the moment the Constitution entered into force on August 11, Germany was under a new constitutional régime. It was no longer the régime of the Provisional Constitution of February 10, 1919; that Constitution was abolished by the definitive one. Nor had it as yet entered on the complete régime of the definitive Constitution; for that provided for a Reichstag, and no one would dream of calling a Reichstag to sit at the same time as the National Assembly. It was a transitional régime; from August 12, 1919, to June 6, 1920, the Constitution of August 11 was in force but the National Assembly performed the function of the Reichstag, and the President of the Reich, elected by the National Assembly, remained in office until the people should elect his successor (Article 180 of the Constitution).

In conformity with this decision on August 21, 1919, President of the Reich, Ebert, took the oath of allegiance to the new Constitution before the National Assembly in the course of its last session at Weimar.

From September 30 on, the Assembly sat in Berlin in the palace of the Reichstag, where it discussed and passed important financial legislation, which included “a law on the income tax”; another “on a consumption tax on liquors”; and still others dealing with “factory councils and with the relief of public distress throughout the Reich.”

In the early part of March, 1920, the parties of the Right, who hoped by means of new elections to obtain considerable increase in strength, submitted a proposal in which the Reich was asked to make known at once what projects for laws it expected to submit to the Assembly before its dissolution; and demanding that the Assembly submit as soon as possible proposals regulating the elections to the Reichstag, the election of the President, on initiative and referendum; and in addition proposing that the Assembly declare itself dissolved on May 1, 1920. This motion was defeated on March 10 after the Minister of Interior, Koch, had indicated the laws which still remained to be enacted. He insisted on the necessity of a profound study of the project of the law governing the election of the Reichstag; and that the first Reichstag of the Republic should not be elected according to the provisions of a temporary and little studied law. He declared that the National Assembly could not be dissolved nor the elections held before the autumn of 1920.

But two days later came the putch of Kapp and Lüttwitz. Berlin fell into the hands of a military faction who announced openly their determination to bring back the old régime. The regular government fled to Stuttgart, where it hastily convoked the National Assembly. A general strike was declared everywhere. Defeated by this, Kapp and Lüttwitz fled and the regular government came back to Berlin. But the workers refused to resume work without receiving first the guarantees they considered necessary against the return of the military dictatorship. Then followed also troubles in the Ruhr and the occupation of German cities on the right bank of the Rhine by Franco-Belgian troops.

All these events were too important and upset too profoundly the political situation to make it feasible to go on without an immediate consultation with the people of Germany. Therefore, after hastily enacting the last of the immediately urgent laws, particularly electoral provisions, the Assembly dissolved at the end of May, 1920.