SECTION III. The Juridical and Political Structure of the Reich

THE JURIDICAL AND POLITICAL STRUCTURE OF THE REICH

Having described the provisions which regulate the distribution of authority and territory and mark the reciprocal relations of the Reich and the States we may now attempt to define the Reich and to give precision to its relation to the States, politically and juridically.

1.--IS THE REICH A FEDERAL STATE?

Formerly when one spoke of the German Constitution the question was, “Is the German Empire a federal state or a confederation of states?” To-day when speaking of the Constitution of Weimar the question is asked, “Is the Reich a federal state or a single state?”

Nearly all the German jurists have attempted to answer this question and are almost equally divided in the answer. Some of them observe that the states have no longer the power to fix the form of their governments and that they can no longer change the organic provisions of their Constitutions; that the Reich can prescribe changes in territory against their will and even order new formations of the country. The Reich is in control of sovereignty and of the life and death of German states. It may against their will deprive them of their sovereignty. The new financial constitution of the Reich, which entered into operation on October 1, 1919, has taken away finally whatever had remained of their state rights, and all financial powers of the states have passed into the hands of the Reich. The states are no longer independent states, they are only autonomous administrative bodies within the Reich. The Reich has become a single decentralized state.

The other jurists emphasize the characteristics of the States which bring them nearer in nature to states properly so called. The Constitution has recognised that if sovereignty in the Reich emanates from all the people, sovereignty in the states also emanates directly from the people of those states. From this it follows as a logical consequence that this power is exercised within the states, in the matters within their jurisdiction and through the organs of the states on the basis of their Constitution. The Constitution has admitted that the states have their own proper territory since the territory of the Reich is composed of the territories of the state. The latter have also their own individual legislative and administrative organizations. It need only be added that if the Reich disappeared the states could still subsist and continue to live according to their Constitutions, which proves that their sovereignty belongs to them and is not surrendered to the Reich. Finally, and this is the essential argument, in the Reichstag the states are represented as such and as such they participate in the formation of the will of the Reich. This makes it, therefore, a federated state.

The National Assembly did not want to take a position on this question and of its own accord adopted an entirely colourless declaration on it which left the doors open to all opinions. While the individual states were called in the Constitution of 1871 “federated states,” they were thereafter called “republics” in the Preuss draft, “member-states” in the draft submitted by the government and finally “länder” in the draft of the constitutional commission and in the definitive text.

Actually, however, it is difficult to understand the interest in this question. What difference does it make whether the states are states or provinces, so long as their powers and obligations are strictly defined by the Constitution? From their names alone we can deduce nothing practically informative about their nature. It is an academic question which has not progressed one step in three generations, which one studies but does nothing about, for there is no reality in it.

In fact it is not possible to indicate a precise and material criterion according to which one should differentiate between a state and an autonomous province which is not entitled to the name of state.

There are no clearly defined categories which one can label once for all and among which one can distribute the different state and provincial collectivities.

There are only collectivities that are according to different circumstances more or less broad in power. They differ one from another not in quality or in nature but in the quantity, in the total powers which they may exercise. Here all one can ask is, whether the states, as they are defined by the Constitution, resemble more the type generally called a state, or the type generally called autonomous province; and one can say, if one wishes, that they are more the former than the latter.

2.--PRUSSIA AND THE REICH.

There is a second question of more immediate interest; and that is to know how the political forces in the Reich are divided and in what relation they find themselves one to another.

The Constitution has increased the power of the central state already great under the old régime as compared with the individual states; the states have lost considerably in their importance and this in the measure that the Reich has gained. They have undoubtedly the theoretical right to legislate; but the Reich legislates on all matters of any importance and the legislative domain of the states is thereby reduced almost to nothing.

They have in principle judiciary and administrative services, but in all important respects such as relations with foreign states, military administration, railroads, waterways, posts and telegraphs, their authority has been taken away; the whole domain of financial legislation has also passed to the Reich and they can no longer exist except through subsidies from the Reich.

They have a territorial sovereignty; but a constitutional law, and in certain cases even an ordinary law may modify that territory against their will.

They still have their citizens; but every German may exercise in every state of the Reich the same rights and duties as those exercised by a citizen of his own state.

In reality the states no longer count and the Reich is all powerful. Such is the situation in which the centralizing tendencies of the Constituent Assembly have culminated. But we come back to it in a problem that presents itself as follows: Has Prussia retained the hegemony which it exercised actually under the Empire and has it kept it to the extent that any increase in the centralizing character of the republic will only increase the power of Prussia in the Germany of to-day? Professor Schücking said one day to the National Assembly that all history of Germany past and future can be summed up with, “Up to 1867 Prussia was against the Reich; from 1867 to 1918 Prussia was above the Reich; the Reich must hereafter be above Prussia.” Will this consummation ever be attained? To what extent has the Prussian hegemony been diminished since November, 1918?

The Constitution embodies several important provisions affecting this question. Prussia has lost all the advantages it derived from the fact that the German Emperor was the King of Prussia; the privileges it enjoyed in the legislative initiative, in military matters and in fiscal affairs have disappeared; the Bundesrat, in which it played a preponderant rôle, and which was in itself the most powerful organ of the Empire, is now reduced to a Reichsrat which can no longer prevent anything. There is no longer a Chancellor nominated by an Emperor-King and chief of all the politique of the Empire and of the entire administration; the powers of the Emperor have been transferred to the President of the Reich elected by all the people; Prussia may even against its will--though not for two years, it is true--be deprived of several sections of its territory and see them erected into new states or attached to still other states. All these diminutions of right have been consented to by Prussia itself. Are they sufficient to suppress totally the political domination which Prussia exercised over the German states, small and great? It does not seem so, for there still remains this paramount fact: Prussia represents four-sevenths of the total population of the Reich; that is to say, Prussia alone has the majority. The Reich being a democracy wherein the majority is sovereign Prussia is assured in important questions of the opportunity to impose its will always on Germany.

The remedy is evidently to divide Prussia into several states. But the Constituent Assembly did not have the desire--or the force--to resort to this; so that to-day Prussia is still above the Reich.

Perhaps another remedy is possible; and it is on this that those who wish to place the Reich above Prussia base all their hope. That is to give to Prussian provinces a very broad autonomy in such a way that their powers being progressively increased, they will join little by little the states whose powers are diminishing. There must be effected a decentralization as complete as possible, in such a way that these provinces while still remaining in the state of Prussia will have sufficient means to be able to live individual lives and to impress their special temperaments on the different acts of their political life. It would be necessary--and it is there that the problem is most difficult--to maintain in these provinces Prussian legislation and at the same time give them the right also to legislate and assure them a sufficiently independent administration.

These are only projects and one cannot tell to what extent they are realizable. We shall see, however, that the Constitution of Weimar has timidly commenced an effort to realize them.