SECTION II. The Division of Power Between the Reich and the States

THE DIVISION OF POWER BETWEEN THE REICH AND THE STATES

The unitary character of the Constitution appeared not only in the fact that it recognized in principle the right of the Reich to regulate the territorial status of the states. It appeared also in the clauses relating to the division of authority between the Reich and the States, provisions that took from the latter and gave to the Reich a considerable quantity of powers of a constitutional character as well as legislative and administrative.

1.--THE CONSTITUTION OF THE STATES.

The Constitution of the German Empire of 1871 recognized the right of the member states to choose whatever constitutions they desired. The Empire never concerned itself with the form of government chosen by any of its states nor with the different provisions they inserted in their constitutions.

Germany was thereby the only federated state which thus left, theoretically at least, such a latitude to its member states. The United States and Switzerland, for instance, impose certain fundamental provisions on the constitutions of their component states, relating to the form of their State.

This latitude could not exist in the new Germany for the Reich, having adopted a democratic and republican constitution, could not, without condemning the very principles on which it had been built, agree that such and such of the member states should remain monarchical. Proscribed in the Reich, monarchy would also have to be barred in the states. Also the co-existence of both monarchies and republics within the Reich would have something so inconsistent within itself that it would run particularly counter to the centralizing tendency which was being so eagerly promoted.

Article 17 therefore indicates to the states the bases on which they must erect their future constitutions, in order to insure a harmony of principles between the Constitution of the Reich and the constitutions of the states. These bases would have to be analogous to those serving as the foundation of the Constitution of the Reich. One can group these principles under three heads:

1. THE DEMOCRATIC PRINCIPLE.--All power springs from the people; as a consequence national representatives must be elected by popular vote; that is to say, they must be elected by all the Germans, men and women, by universal, equal, direct and secret suffrage following the rules of proportional representation. The same applies for municipal councils. On the other hand the states remain free to provide different modes of suffrage in elections in wards, districts and provinces.

2. THE REPUBLICAN FORM OF THE GOVERNMENT.--All monarchical restoration is forbidden.

3. PARLIAMENTARY GOVERNMENT.--But this provision was only desired by the Constituent Assembly; it is not strictly imperative. Preuss formally declared in committee meeting that any constitution, for example such as that existing in Switzerland, which provided for a council elected by popular vote, would be admissible; but there would be excluded a régime of despotism in which the government was completely independent of the popular Assembly. It mattered little otherwise whether the state adopted the one-chamber system or that of two chambers.

These three principles were accepted without serious difficulty. A twofold point must, however, be noted. First that all Germans could vote in all the states for the election of the popular Chamber, that is to say, for example, a Bavarian could vote at the election of the Prussian Diet. This provision is one of the principles that suppressed almost entirely the nationalistic motive of the individual states; it is clearly characteristic of the unitary tendency of the constitution. In addition to this, Article 17 adds to the general conditions a special condition in the case of local elections: a year’s residence in the district is necessary for the right to vote.

In the National Assembly the speakers for the parties of the Right insisted at great length on the difference that exists between political elections and purely local elections. In the latter it was necessary above all that the elector choose men known to be familiar with local needs and competent to satisfy them. These propositions are undisputable, but the conclusion which the German Nationalists drew from them was that to be an elector in a district one must be a holder of property in it. These conclusions were rejected by the Assembly as contrary to the democratic principle, and a year’s residence was the only condition finally adopted.

2.--THE LEGISLATIVE POWER OF THE REICH.

The states are limited not only in their right to adopt whatever constitution they desire; they are also limited considerably in legislative power by that of the Reich.

I.--FUNDAMENTAL LIMITS OF POWER.

Already the Constitution of 1871 had reserved to the Reich a certain number of matters on which only it had the right to legislate. It was thus that foreign affairs, citizenship, customs, indirect taxes, railroads, post and telegraph, legislation, civil, penal and commercial, the army, the navy, the police and regulation of the press, all were included in the legislative authority of the Reich. In the memorandum submitted by Preuss in his draft of the Constitution, he insisted on the necessity of revising this division of authority. He submitted as a principle that all state functions belonging naturally to the national collectivity as such should be concentrated in the hands of the Reich more strongly, more exclusively and more clearly than in the preceding constitution. On the other hand, the autonomy and free administration of the smaller collectivities, from the communes up, would find their consummation and their most complete development in the republics, which should be constituted in united groups according to the nature of their populations and their economic structure.

In the course of this work two tendencies clashed: the necessity for the development and strengthening of the unity of the Reich; and the necessity, on the other hand, of assuring the states a sufficiently individual existence. A compromise was effected; but more than ever before perhaps the centralizing tendency was accentuated; and it has gone as far as possible without completely suppressing the reason for the existence of the states.

The authority of the Reich is more or less extended according to circumstances. It can be, to use the technical expressions employed in Germany, exclusive, concurrent, and normative.

1. The competence of the Reich is exclusive, when it alone has the right to legislate, in the respect that the states cannot pass laws on the matters touching this authority of the Reich, even if the Reich abstains from using that right. These matters are enumerated in Article 6, which contains, as compared with the former constitution, important innovations.

The relations with foreign nations are hereafter the exclusive province of the Reich. The states lose the active and passive rights of legation, and they cannot enter into relations with foreign states except through the intermediacy of the Reich. However, Article 78 gives them the right to conclude treaties with foreign powers on matters which belong to their own proper legislative domains, policing of the frontier problems, for example. But these treaties must secure in addition the consent of the Reich.

Another novelty is the unification of the army. In place of the former contingents there is hereafter an army of the Reich in the hands of which is concentrated all the means of defence of Germany. The army is hereafter from this point of view placed on the same basis as the navy.

In the same way there is an increase in the authority of the Reich over the interior situation, the provisions according to which the Reich only has the power to legislate on posts, telegraphs, and telephones. It is true that the former constitution had put forward the principle that the posts and telegraphs of the German Empire should be organized and administered in a uniformed manner; but this provision and principle was nullified by the fact that it was not applied in Bavaria and in Wurtemberg, these states having in virtue of special treaties “particular” rights. But these rights were annulled by the present constitution.

Finally it must be noted that Articles 89 and 97 of the Constitution granted the Reich the right to administer the railroads and the waterways that served the general commerce. This right the Reich made use of in appropriating in April, 1920, the railroads belonging to the various states.

2. The second group of subjects entering the province of the Reich’s authority consisted of matters on which the Constitution gave to the Reich the right to legislate by priority, without thereby excluding the legislative authorities of the various states, so that there could exist concurrent legislation in the Reich and in the States, the states retaining the right to legislate as long as the Reich does not use its own right to legislate on these matters.

This group is defined in the Constitution by Articles 7, 8 and 9.

Article 7 sums up briefly, as did Article 4 of the old Constitution, the province of concurrent legislation, but adds considerably to the enumeration strengthening here the unity of the Reich and adding to the subjects which enter into the concurrent legislative competence of the Reich all such important matters as assistance and care to be given to mothers, infants, children and youths; also questions relating to professional representation, to the socialization of natural wealth, to economic enterprises as well as the organization of collective enterprises. To this, strengthening still further the competence of the Reich, Article 12, Section 2, adds that the government of the Reich has the right to veto laws passed by the states dealing with socialization, if these laws touch the well-being of the whole population of the Reich.

Article 8 introduces in the Constitution, in spite of the violent opposition of the states, the principle of financial sovereignty of the Reich and fiscal centralization therein. This article gives to the Reich the right to take possession of all sources of revenue, stipulating, however, that it must leave to the states resources sufficient for their existence. This provision constitutes an important advance along the road to the unity of the Reich and strengthens considerably the financial competence of the Reich compared to its former situation.

Article 9 also deals with the concurrent authority of the Reich in matters concerning the public weal and the protection of order and public security; but under this head there is the limitation, “to the extent that it shall become necessary to pass uniform legislation.” This limitation, however, is of no particular importance, for as with the matters dealt with in Article 7 the Reich does not make use of its right of legislation except as it feels the need for it. The restriction provided by Article 9 is explained by the fact that the authority of the Reich in these matters naturally met resistance on the part of the states and that a compromise had to be effected; they came to the agreement that the Reich would not take up these questions in advance and in the first instance.

3. Besides “exclusive” and “concurrent” legislation there is also “normative” legislation. This is provided by Articles 10 and 11 and consists in the right of the Reich to “lay down principles simply leaving the details to be enacted and carried out by the legislators of the state.”

According to Article 10 in this kind of legislation are included matters of vital importance from the points of view of culture and of social considerations. Already in its second part the Constitution enacts a certain number of principles to which both the legislators of the Reich and of the states are subjected.

Article 11 deals with the “normative” competence of the Reich over financial legislation of the states. It was necessary that the Reich legislate on this question for otherwise there was the fear that the states, in attending to their own financial needs, would drain sources of revenue needed by the Reich.

II.--AUTHORITY OF NATIONAL OVER STATE LAWS.

However precise and rigorous may be the division of the authority between the Reich and the states, conflicts may nevertheless arise between the two. In such cases it was natural that the Reich should claim for its laws, “the authority of Empire surpasses the authority of states.”

3.--THE ADMINISTRATIVE SERVICES OF THE REICH.

Before the Revolution the Reich did not have in principle an administration proper to it; the execution of the laws of the Empire were as a general rule assured by the functionaries of the member-states under the control of the Reich. The new Constitution continued, it is true, the same principle but it provided exceptions of the first importance. Three hypotheses must be noted here:

1. Certain powers belong exclusively to the Reich. They are those which we have enumerated as contained in Article 6. The Reich has the exclusive right to legislate on these matters, but in addition it has also the sole right to execute these laws; that is to say, it creates and directs the administrative services necessary to assure the application of the provisions which it has the exclusive right to promulgate. Foreign affairs, the army, the navy, etc., are administered directly by the Reich. But in addition in matters that belong concurrently both to the Reich and to the State and which have been placed in the hands of the Reich the latter has created a special administration which it directs itself, that of finances.

2. In other cases in which the Reich has the right to legislate and uses it, it yet leaves the care of the execution of these laws to the functionaries of the State. Although these public services are instituted and organized according to the laws of the Reich the functioning is assured exclusively by the officials of the state. There was formerly, and there still is to-day, the hypothesis of authority in common in matters of public security, assistance and the Reich.

3. In a third series of cases, finally, the states have exclusive competence. They may both legislate and administer.

Of these three hypotheses the one most important from our present point of view is the first. The recognized right of the Reich to have public services designed to apply its laws and acts, permits it to organize public administrations and to have functionaries subordinate directly to the Reich throughout the whole German territory. The unity of the Reich is greatly strengthened by the fact that the principal public services--the army, finances, diplomatic corps, postal telegraphs, railroads--are hereafter completely concentrated in its hands.

In addition when the Reich fails to organize its own administration or when it has left to the states the task of legislating on subjects that are contained in the legislative competence of the Reich, the latter is far from being weakened in its power therein. For it possesses in such cases the Right of Control over the administrative authorities of these states, and this right was notably strengthened by the Constitution of 1919 as compared to its former power.

According to the terms of Article 15, paragraph 2, control by the Reich may be exercised by the government of the Reich in matters on which the latter has the right to legislate. That means that control on the part of the Reich extends not only to the domains which have been already assigned to it by the legislation of the Reich, but also to matters in which it has the right to legislate even though it has not yet made use of such right.

The means by which these rights of control are exercised are the following:

(a) General instructions addressed to the authorities of the states for the execution of the laws of the Reich. These instructions of the government of the Reich are compulsory on the different authorities of the states. But instructions to subordinate authorities of these states must not be given in particular applications of these laws, for otherwise these authorities might receive contradictory orders from different sources; and in that way the governments of the state might lose all authority.

(b) The control of the Reich is exercised in addition by sending to the governments of the states commissioners charged with the supervising of the execution of the laws of the Reich. Such commissioners may even be sent, with the consent of the governments of the states, to subordinate authorities. In the latter case it must be admitted even that the Reich has the right to demand that the files of the state authorities be opened to it and with the consent of the governments of the states the Reich may examine witnesses, take testimony and make surveys within the provinces of the state.

(c) Finally the Reich may demand that lapses observed in the execution of its laws be corrected.

The ensemble of all these measures constitutes a strengthening of the right of control by the Reich as compared to the former régime. On the one hand, the recognized right of the Reich to send commissioners to subordinate authorities with, it is true, the consent of the governments of the states, is new. Formerly such imperial commissioners were received only by the governments of the states themselves, instead of allowing immediate access to subordinates as to-day. In addition and above all when difficulties arise especially from the insufficiency of the measures taken by the authorities of the states, the power to settle these difficulties no longer belongs as formerly to a college constituted by the representatives of states, such as was the Bundesrat; but is now the function of the independent organs of the Reich, such as the government of the Reich or the High Court of Justice of the Reich.

4.--JUSTICE AND THE HIGH COURT OF JUSTICE.

The centralizing influence of the Constituent Assembly is manifested, finally, in the provisions which it adopted relating to the organization of justice. We know that in Germany justice, particularly such as is regulated by the laws on the organization of justice, the Code of Civil Procedure, the Code of Criminal Procedure, is administered by the tribunals of the states. The Reich had only one judicial organism, the Reichsgericht, whose powers are in principle similar to those of the Cour de Cassation (the highest court of appeal in France). The new Constitution has changed nothing in this system. A proposal submitted in committee for the purpose of giving the Reich full control over the administration of justice and making all judges functionaries of the Reich, was defeated. Now as before the sole authority of the Reich in this domain lies in the Reichsgericht.

But the Constitution has introduced a new judicial organism whose authority extends over all important cases of a national scope, and constitutes thereby a powerful element in centralization: that is the High Court of Justice. The task of organizing this Court is left by the Constitution to a special law. Until this law enters into effect the powers of this Court are entrusted to a senate of seven members, of which four are nominated by the Reichstag and two by the Reichsgericht.

The authority of the High Court of Justice is regulated by the Constitution. It is this Court that passes on the difficulties that may arise between states in the cases of division of patrimony where changes or separations of territories are involved. It is this Court also that decides constitutional difficulties within a state when there is no competent tribunal within the state to deal with such a question. It is this Court that adjudicates disputes as to public rights that arise between different states or between a state and the Reich, when there is no other tribunal of the Reich that has jurisdiction over such a dispute. This Court in addition presides over actions instituted by the Reichstag against the President, the Chancellor and the Ministers of the Reich for culpable violation of the Constitution or the laws of the Reich.