Transcriber’s Note: Obvious printing errors have been corrected.
The German Constitution
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ALFRED A. KNOPF, _Publisher_ NEW YORK
The New
German Constitution
_by_
René Brunet
_Professor of Constitutional Law in the Faculty of Law at the
University of Caen, formerly legal advisor to the French Embassy
at Berlin_
_Translated from the French by Joseph Gollomb_
Foreword by Charles A. Beard
[Illustration]
New York Mcmxxii
Alfred·A·Knopf
COPYRIGHT, 1922, BY
ALFRED A. KNOPF, INC
_Published April, 1922._
_Set up, electrotyped, and printed by the J. J. Little & Ives
Co., New York, N. Y._
_Paper furnished by W. F. Etherington & Co., New York, N. Y._
_Bound by the H. Wolff Estate, New York, N. Y._
MANUFACTURED IN THE UNITED STATES OF AMERICA
FOREWORD
It is a pleasure to introduce M. Brunet to the American public. He is
a French scholar of the finest type, careful, objective, and sincere.
The present work on the German constitution bears the impress of these
high qualities. In this volume we find the scientific spirit that was
to be expected, combined with an intimate, first-hand knowledge of the
forces and materials which are described. All this is very significant.
The long night of the Great War was hardly over before M. Brunet began
an impartial and thorough-going study of the state of affairs created in
Germany by the revolution of November, 1918. If a Frenchman who suffered
so much can display such good sense and sobriety, then surely American
scholars ought to give more than a hearty welcome to this volume. It is
an excellent beginning in the reconstruction of the republic of letters.
In this book we have a plain and simple account of the German revolution
and the conflict of forces which ended in the establishment of the
republic. The balance of parties is examined. The results of the
elections to the national assembly are summarized. Then follows a
systematic analysis of the new plan of government, illuminated by
continual reference to the concrete historical circumstances in which the
makers of the German constitution had to operate.
M. Brunet has tried to steer his way on an even keel between the highly
theoretical methods of the German political philosophers and the hard,
matter-of-fact methods of the Anglo-Saxons. He has succeeded admirably.
Accordingly, the usefulness of his volume extends beyond the information
which it presents. It affords an interesting model to young American
writers who have occasion to deal with constitutional and legal matters.
There is no reason why a doctor of philosophy should not love insight and
form as much as the poet does. The great English doctor of law, Maitland,
certainly did.
M. Brunet’s excellent qualities have enabled him to write the best
treatise on the German constitution which exists in any language. Any one
who will spend a day comparing this volume with Dr. Fritz Stier-Somlo’s
_Die Verfassung des Deutschen Reichs vom 11. August, 1919_, for example,
will soon discover how much more ingenious and penetrating is the French
commentator. M. Brunet’s volume is to be commended on other grounds than
those of intrinsic excellence. It brings information to the American
public on a subject concerning which very little is known at present. The
new German constitution has been translated into English and there are a
few stray articles by the way of commentary available to Americans, but
this is the first systematic treatise on the topic in our tongue.
It would not be fitting to give in this foreword a résumé of M. Brunet’s
volume. The admirable survey presented in the analytical table of
contents can be seen at a glance. It may not be out of place, however, to
indicate some points of contact between the present course of American
thinking and the system of government here described. Notwithstanding
the curious constitution worship that flourishes in many places in the
United States, there are signs of fresh currents of thinking. Mr. Woodrow
Wilson, in his remarkable essay, _Congressional Government_, set in train
new opinions as to our constitutional system which have by no means been
lost to view in the general revulsion of feeling that followed the war.
Only recently Professor Lindsay Rogers, of Columbia University, took
occasion to remark, in the course of an interesting article on modern
French politics, that we ought to have a more lively and intelligent
discussion of constitutional questions in America. The ink was hardly dry
on his paper before Professor William Macdonald accepted the challenge by
bringing out his highly suggestive book, entitled _A New Constitution
for a New America_.
The rhythm of human affairs is such that we may reasonably expect
a return to the constitutional searchings of 1912 on a higher and
different plane. Those who fix their eyes not upon the written letter
of our Constitution, but upon judicial decisions, political practice,
and congressional procedure are never under the delusion that our
constitutional system does not change. If, as Professor Seligman long
ago pointed out, economic conditions are rapidly becoming the same all
over the world with similar legal results, then we may, with proper
warrant, expect very soon a new and lively examination of constitutional
principles to break in upon us. M. Brunet’s book fits in with the
signs of the times. No person who pretends to be intelligent about
constitutional matters can neglect it.
It would be difficult to imagine anything more illuminating than a
comparison of the Constitution of the United States drawn up in 1787, the
fundamental law of the Australian Commonwealth adopted in 1900, and the
new German _Reichsverfassung_ of 1919, which vibrates with the tramp of
the proletariat. In the attempt of the Germans to combine the strength
of Hamilton’s government with the democratic control so vaunted by
Jefferson we have an experiment that ought to stir our deepest interest.
In the provisions for social, not to say socialistic, enterprise, both
the Australian and the German constitutions offer noteworthy contrasts
to our own fundamental law. It will not escape the close observer that
the Germans have not created a supreme court, on the model of our own,
endowed with power to set aside acts of the executive and legislative
branches of the government. The relations established by the Germans
between the federal government and the states, ingenious compromises all
must admit, ought to be studied in connection with Mr. Roosevelt’s “New
Nationalism”--not as an echo of a dead past but as a prophecy of the
future.
The science of comparative government is as fruitful to-day as it was a
generation ago when it nourished in such vigour. A teacher who will place
M. Brunet’s book and “The Federalist” in the hands of a college class
cannot fail to evoke a lively interest in politics and a more intelligent
consideration of American constitutional problems.
To the historian, the introductory part of M. Brunet’s volume will
afford food for thought. There is no doubt that the new German
constitution is the product of a sharp and determined conflict of
classes. M. Brunet records the fact and gives the alignment of parties.
No sophisticated person will ever imagine (whatever he may say) that
the German fundamental law was drawn from abstract political thinking,
theories about the rights of states, or reflections on the fate of Greek
democracies and ancient Rome. The pressure of class interests is evident
in almost every line. If one should underscore the socialist sections
with red, the Centre clauses with yellow, and the capitalist phrases with
black, one would have an interesting study in constitutional artistry.
From time to time, M. Brunet makes specific references to the precise
effect of party pressures upon legal phraseology. It would, however, be
a work of supererogation to point out to American scholars the relevancy
of these passages. Having recovered from the shock of learning that the
Fathers of our Constitution were made of mortal clay, they are prepared
to receive M. Brunet’s book with open minds.
My hearty thanks are due to Mr. Knopf, who, on my suggestion, undertook
to make this volume available to the American public. I am indebted to
Professors Munro and Holcombe for the right to use their translation
of the “Constitution of the German Commonwealth” issued by the World
Peace Foundation. Especially am I under obligation to Mr. Joseph Gollomb
for undertaking the translation of M. Brunet’s text. Mr. Gollomb was
himself a witness at many of the scenes described in these pages. He has
first-hand knowledge of European politics. His long residence in Paris
gave him a mastery of the French tongue. In making this English version,
he has kept in mind the requirements of the general reader as well as
those of technical students.
CHARLES A. BEARD.
New Milford, Conn., December 14, 1921.
CONTENTS
FOREWORD v
CHAPTER I
THE ORIGINS
SECTION 1
THE REVOLUTION
The Constitution of April 16, 1871, and the reforms of
October, 1918 1
The fall of the old régime 12
The republic of councils 16
SECTION 2
THE NATIONAL CONSTITUENT ASSEMBLY
The composition of the Assembly 24
The Provisional Constitution of February 10, 1919 28
The adoption of the Constitution and supplementary laws 35
CHAPTER II
TOWARD A UNIFIED STATE
SECTION 1
TERRITORIAL STATUS OF THE STATES
The problem of the dismemberment of Prussia 43
Modifications of the territories of states 53
The creation of a state--Thuringia 57
SECTION 2
DIVISION OF POWER BETWEEN THE REICH AND THE STATES
The constitution of the states 59
The legislative power of the _Reich_ 61
(1) Fundamental limits of power 61
(2) Supremacy of national over state laws 65
Administrative services of the government 65
Justice and the High Court 68
SECTION 3
JURIDICAL AND POLITICAL STRUCTURE OF THE REICH
Is the _Reich_ a federal state? 69
Prussia and the _Reich_ 72
CHAPTER III
THE DEMOCRATIC PRINCIPLE
SECTION 1
THE PRINCIPLE
The power of the state is derived from the people 75
The system of councils, or the dictatorship of the proletariat 77
The Chamber of Labour, or the Vocational Parliament 82
The Political Activity of the Unions 91
SECTION 2
THE APPLICATIONS
The republic 98
Universal suffrage, the political parties and the electoral
law 100
General principles 103
The electorate and eligibility 109
Preparations for elections 112
Distribution of seats 113
The actual working of the law 115
Direct government 118
CHAPTER IV
PARLIAMENTARY GOVERNMENT
SECTION 1
THE REICHSTAG
Privileges and guarantees accorded to the Reichstag 131
The rules of the Reichstag 135
The duration of the powers of the Reichstag 137
Powers of the Reichstag 138
1. Powers of the Reichstag, as principal holder of sovereignty 138
2. Legislative powers; how laws are proposed and passed 139
3. Power of control; interpellations and committees 147
SECTION 2
THE PRESIDENT OF THE REICH
The need for a strong president 153
The election of the President and the length of his term 156
The powers of the President 162
The responsibility of the President 168
SECTION 3
THE CABINET OF THE REICH
The Chancellor and the Ministers according to the Constitution 172
The working of constitutional rules; how a Ministry is
formed, how it works and is dissolved 177
SECTION 4
THE REICHSRAT
General features of the Reichsrat 186
The composition and the functioning of the Reichsrat 188
Powers of the Reichsrat 192
CHAPTER V
FUNDAMENTAL RIGHTS AND DUTIES OF GERMANS
Legal and political aspects of fundamental rights and
duties 195
Fundamental rights and duties of the individual 202
Fundamental rights and duties of communities 216
Religion and the churches 222
Instruction and the schools 226
CHAPTER VI
THE ECONOMIC CONSTITUTION AND SOCIALIZATION
SECTION 1
THE ECONOMIC CONSTITUTION
The “anchorage” of the Councils in the Constitution 236
Constitutional provisions relative to the Councils 244
Factory Workers Councils 248
The Trade Unions and the Councils 257
The Provisional Economic Council 263
SECTION 2
SOCIALIZATION
The problem of socialization 269
Collective economy 275
The regulation of the coal industry 280
CONCLUSION
APPENDIX
The Constitution of August 11, 1919 (text) 297
The German Constitution
CHAPTER I
THE ORIGINS
Up to the autumn of 1918 Germany was under the Empire of the Constitution
of April 16, 1871. Then in November, 1918, the work of Bismarck was
suddenly overthrown and military defeat and revolution plunged Germany
into chaos. How she worked out of it, through what vicissitudes she
passed and with what groping she finally achieved her new Constitution is
the question to examine first.
SECTION 1
THE REVOLUTION
The revolution of November, 1918, was preceded by partial reforms
embodied at a late hour in the Constitution of 1871; and when it broke
out, in a few hours it completely threw over all the apparatus of the old
régime. A new government sprang up which for several weeks held power in
the name of a minority and without any right other than that of force.
1.--THE CONSTITUTION OF APRIL 16, 1871, AND THE REFORMS OF OCTOBER, 1918.
The principal characteristics of the Constitution of April 16, 1871, are
well known.
Germany was a federal state, that is to say, above the member states,
which renounced a part of their individual independence to strengthen
their collective political and economic power, there existed a central
state in whose favor they had given up that degree of independence--the
German Empire.
In the Reich sovereign power belonged to an assembly of Princes and of
governments represented by the Bundesrat or Federal Council. This council
which consisted of representatives of all the member states shared with
the Reichstag the power to initiate and vote legislation. It promulgated
the general administrative measures necessary for the execution of the
laws; and with the consent of the Emperor it could dissolve the Reichstag.
The nation was presided over by the German Emperor. He exercised
generally the rights which modern nations reserve to the executive power.
In particular he represented the Empire in its international relations;
promulgated its laws; watched over their execution; appointed civil and
military officials, etc.
Several remarkable details have to be pointed out. Although in principle
the Emperor’s actions had to be countersigned by a minister he was free
from that restriction in such matters as concerned military affairs,
particularly in the nomination of the superior officers of the army and
the navy. The German Emperor was the absolute chief of the forces of the
Empire on sea and land. Furthermore, although he could not declare war
without the consent of the Bundesrat he could act on his own authority in
case of attack by a foreign power against the territory or the coasts of
the German Confederation.
The Emperor nominated the Chancellor, who was after the Emperor himself,
the sole chief of the political and administrative organization of the
Empire. “The Chancellor,” says Article 15, “presides over the Bundesrat
and directs its labours.” But as he clearly could not himself assume such
an overwhelming task, he was authorized by the law of March 17, 1878,
to call assistance and be supplemented at need by high functionaries
placed at the head of Imperial departments--those of foreign affairs, of
the interior, justice, treasury, railroads, marine, colonies, posts and
telegraphs. These officials carried the title of State Secretaries, which
seemed to give them something of the nature of ministers, though in
reality they were completely subordinated to the Chancellor.
Just as the Bundesrat represented the federated Princes so the Reichstag
represented the German people. Elected by direct and universal suffrage
the Reichstag had the right to initiate legislation; and no law was
operative unless it had obtained a majority both in the Bundesrat and in
the Reichstag. Furthermore the Reichstag had the right to interpellate,
not the Secretaries of State but the Chancellor himself and to ask
questions; and discussions of a question could be closed by voting an
expression of the confidence of the Assembly.
Under the Empire there were twenty-five states[1] and the territory of
Alsace-Lorraine.
These states were governed by constitutions of the greatest variety.
There were three free cities, Hamburg, Bremen and Lübeck; twenty-two
monarchies, which carried different titles; Kingdoms--Prussia,
Bavaria, Saxony, Wurtemberg; Grand Duchies--Baden, Hesse;
Duchies--Saxe-Coburg-Gotha, Saxe-Meiningen; and Principalities--Waldeck,
Schaumburg-Lippe, etc.
Among these states some, a large majority but the least important, had
adopted the system of the single legislative chamber, which, with one
or two exceptions, comprised, beside the deputies elected by universal
suffrage, members named by the princes of the state, or by special
electoral colleges such as groups of the heaviest tax payers, chambers
of commerce, industrial and agricultural organizations, the clergy, the
professions, etc.
The other states, four kingdoms and the Grand Duchies of Baden and of
Hesse, had two chambers each. The upper house was almost entirely
composed of members of the reigning families or their kin and of
personages charged with representing the nobility or the great landed
proprietors. The lower house was elected sometimes by universal suffrage,
sometimes by a system of plural voting; or by a system that divided the
population in such a way that the voice of the people was nullified
almost entirely in favor of the big taxpayers as in Prussia.
All this would present an erroneous and incomplete picture if one did not
take the precaution to search beyond the letter of these constitutions
and inquire how the government of Germany was actually conducted. The
political institutions of Germany presented a certain number of aspects
which it is important to bring out clearly:[2]
1. _These institutions were anti-democratic._ It is true the Reichstag
was elected by universal and direct suffrage. But, on the one hand the
electoral legislation of the Reich contained certain provisions which
were singularly behind the times, such as the denial to the poor of the
right to vote, the fixing of the voting age at twenty-five, etc. On
the other hand, the Bundesrat, which was not elected, possessed powers
superior to those of the Reichstag; and the latter could do nothing
without the Bundesrat. The same situation existed within the individual
states, which either did not have a chamber elected by universal suffrage
or else limited it in power by the check of an upper house, feudal and
conservative in character.
2. _These institutions were anti-parliamentary._ The Reichstag could
interpellate the Chancellor but could not depose him. To a question or
to an interpellation the Chancellor was always free to respond that
he did not wish to reply; or he could fix his own time for replying;
and finally, if he was in the minority in the house he did not have to
resign.
3. _The Reich encroached more and more on the domain of the individual
states._ This encroachment, this evolution toward unitarism, manifested
itself in most divers ways. In military matters it took the form of a
fusion of fighting contingents which belonged more or less nominally to
the various states, but which, with the exception perhaps of Bavaria,
placed their whole force at the direct command of the Emperor. As for
Bavaria, at the outbreak of the war its “reserved rights” had almost
completely disappeared. The development of the legislation of the
Empire had accentuated this evolution toward unitarism. In the measure
that the Reich legislated in a large number of domains, it wiped out
in these matters the different regulations that existed up to then in
the individual states. It is true that the execution of the national
legislation was entrusted to functionaries within these states; but these
officials were under the control of the Bundesrat and subject to the
supervision of the Reich. Even in financial matters the liberty of the
individual states was more and more limited. While it is true that they
conserved their autonomy in matters of duties and taxes, the more the
Reich discovered new sources of revenue the more the legislation of the
Empire imposed on the several states the task of collecting this revenue
and the more narrow became the scope in which the states could manage
their own financial affairs, and the dependency of the states grew the
more on the financial legislation and the budgetary dispositions allowed
them by the Reich.[3]
4. In contrast to the other federated states whose Constitutions were
based on the principle of equality of the component states, Germany was
based on the notion of the inequality of the states federated in it.
_Prussia exercised a true hegemony in Germany._ In the Bundesrat it was
represented by 17 votes whereas the other most favoured state, Bavaria,
had but 6; two others, Saxony and Wurtemberg, had only 4 each; two,
Baden and Hesse, 3 each; Mecklenburg and Brunswick, 2 each; and all the
others but 1 apiece. In addition the Rhineland was also represented by
3 votes in the Bundesrat but these votes were instructed by Prussia.
The latter, therefore, had 17 votes, 20 with those of Alsace-Lorraine,
21 with that of Waldeck, since the latter by its treaty of entry into
the Confederation had abandoned its governmental rights to Prussia.
It had therefore numerically a third of the total strength of the
Bundesrat, while in actual influence it counted much more. Only Prussia
could feel assured that its representation made it mistress of the
situation in the Bundesrat; fourteen votes were sufficient to head off
a constitutional change. Consequently Prussia possessed absolute veto
power. It must not be forgotten that the representatives of the Princes
in the Bundesrat received imperative mandates from them and that the
representatives of the state had to cast their votes as a bloc--that
is, as a unit. It mattered little, therefore, that such and such was
the numerical representation in the Bundesrat of the particular states,
that Prussia had 17 votes, Bavaria 6, etc. As to legislative changes
relating to the army or the navy, and to taxes feeding the treasury of
the Empire, nothing of this kind could be enacted if it was opposed by
the “presidency.” And the “presidency” belonged by undisputed right to
Prussia.
In the Reichstag Prussia exercised the same preponderance. The Reichstag
was composed of deputies, one for each 100,000 inhabitants. There Prussia
counted much more than half, for its population was nearly two-thirds
that of the whole Empire--40,165,217 out of 64,925,933. She also elected
236 deputies out of the 397 that made up the Reichstag.
To the same degree she was in control of executive action. While
sovereignty nominally resided in the assemblage of Princes in the
Bundesrath, it resided no less in the hands of the King of Prussia who
had full rights as the German Emperor; and it was he who nominated the
Chancellor, the sole responsible minister of the Empire. The Chancellor
was almost always a subject of the King of Prussia and, following a rule
to which there were few exceptions, at the same time the Prime Minister
of Prussia.
Thus, therefore, Prussia elected a majority in the Reichstag, and if
by some extraordinary chance the latter voted against the desire of
Prussia the decree could be nullified by the Prussian representative
in the Bundesrath. The King of Prussia was Emperor. He nominated the
Chancellor, chief of all the administrative machinery of the state. The
King of Prussia was master of the government of the Empire. Germany was a
veritable Prussia enlarged.
We can now distinguish the essential traits that characterized
constitutional Germany on the eve of the war. There was in Germany, under
the infinite complexity of written provisions, behind a deliberately
effected juxtaposition of the most modern formula by the side of some of
the most archaic, a living reality. It was a despotic organization that
placed full power in the hands of a feudal monarch. It was, to put it in
the words of President Wilson, the largest enterprise of domination that
the world has ever known.
* * * * *
Such a system and that which made it such an anachronism could not
survive the test of war and still less that of defeat.
Already during the war several demands for reforms made themselves
felt. In proportion as the war was prolonged and the heavier became the
burdens that weighed on the people together with the sacrifices that
were imposed upon them, there developed a pressure on the part of the
people for recognition, for compensation, for the right to participate
in a more effective fashion in the conduct of public affairs. The
Reichstag appointed a commission to investigate to what extent it was
possible to modify the Constitution of the Reich in conformity with
the desires of the people. On his part the Emperor in a message on
April 7, 1917, declared that it was the duty of the Chancellor to
satisfy the exigencies of new times with every means appropriate; and
to reconstruct the constitutional edifice in such a way as to insure a
free and spontaneous collaboration of all the elements of the nation. The
Chancellor seemed to be in accord with the Emperor on the necessity and
urgency of a “new orientation.”
On the 15th of May, 1917, Bethmann-Hollweg spoke of realizing a programme
of “trusting collaboration of the Emperor and the nation.” On July 19,
1917, Michaelis foreshadowed the establishment of a close contact between
a government and parliament, the creation of a bond of mutual confidence
between the government of the Empire and the Reichstag, in the sense that
the management of various affairs should be entrusted to men who, aside
from their professional abilities, would enjoy the full confidence of the
great parties in the popular branch of the government.
They were nothing but vague words; and this “parliamentarization” of
the government of the Reich did not commence to show itself until
the pressure of defeat came, such as was felt in the summer of 1918.
The adoption of a parliamentary régime then seemed the sole means of
obtaining from the masses the sacrifices which were still expected of
them both on the firing line and in the interior.
The true reforms commenced with the letter which the Emperor wrote
on September 30, 1918, to the departing Chancellor von Hertling, and
which was a real message to the German people and to the Reichstag. “I
desire,” said the Emperor, “that the German people shall collaborate more
effectively than in the past in the determination of the destiny of our
Fatherland. It is my wish therefore that men invested with the confidence
of the people shall participate in a large measure in the rights and
duties of the government.” Legally it was only an expression of the
hitherto recognized imperial will. But from a political point of view
this message constituted the recognition of a new system of government,
in virtue of which the centre of gravity of political institutions
passed from the organs of the government, the Bundesrath and the Emperor,
to the popular assembly, the Reichstag.
The spirit in which the new reforms were to be carried out and the
importance which they were to assume were made clearer several days
later when, on October 5, 1918, Chancellor Maximilian of Baden in a
programme speech addressed in the Reichstag said, “It is in the essence
of the system of the government which we are now instituting that I now
state clearly and without reservation the principles by which I shall
seek to fulfil my heavy responsibilities. These principles were accepted
before I assumed my duties as Chancellor in an agreement reached between
confederated governments and the chiefs of the parties of the majority
of this Chamber.… It is only when the people take an active part to the
largest measure in the determination of the destiny of the nation; and
when the sense of responsibility is also shared by the majority of the
political chiefs freely elected, that a statesman can accept direction of
the helm with confidence and himself participate in this responsibility.
Otherwise the shoulders of one man will be too feeble to support the
immense responsibility that now confronts our government. I am convinced
that the manner in which the directing government has been formed to-day
with the collaboration of the Reichstag is not temporary in its nature
and that in times of peace hereafter no government can be formed that has
not the support of the Reichstag, that does not lean on the Reichstag,
and that does not take from the Reichstag its principal chiefs.”
As a consequence two laws were passed which carried the date of October
28, 1918. They were designed to meet the three most important exigencies
of the hour:
1. _They realized the parliamentarization of the government of the
Reich._ Article 15 of the Constitution of 1871, which dealt with the
nomination of the Chancellor had the following amendment added: “The
Chancellor in order to continue direction of the affairs of the Reich
must have the confidence of the Reichstag. The Chancellor is responsible
for all the political acts of the Emperor performed in the exercise
of his constitutional rights. The Chancellor and his representatives
are responsible for the conduct of affairs to the Bundesrat and the
Reichstag.”[4]
This text established not only the responsibility of the Chancellor;
it also recognized constitutionally the right of parties or their
parliamentary groups to participate in the nomination of the Chancellor
and it specified that when the confidence of the Reichstag is withdrawn
from the Chancellor he must resign.
The responsibility of the Chancellor, who was answerable both to the
Reichstag and to the Bundesrat, extended not only to the general and
particular decrees issued by the Emperor and countersigned by the
Chancellor but also to acts of a political nature on the part of
the Emperor; and it followed from this that the Chancellor and his
representatives were also responsible for their own actions of the same
character.
Further, one of the laws of October 28, 1918, in abrogating paragraph 2
of Article 21 of the Constitution of 1871, permitted thereafter members
of the Reichstag to become secretaries of state while fulfilling at the
same time their functions as members of the Reichstag. On the other hand
the incompatibility between the Bundesrat and the Reichstag (article 9,
paragraph 2, of the Constitution of 1871) was not abolished. It followed
from that, therefore, that while a member of the Reichstag could become
a Secretary of State, he could not become a member of the Bundesrat and
therefore could not become Chancellor; for that office was open only to
members of the Bundesrat.
2. The laws of October 28, 1918, broadened considerably the authority
of the Reichstag and diminished correspondingly the Imperial authority
in the right to declare war and conclude treaties. The Emperor could
never again under any circumstances declare war in the name of the Reich
without the consent of the Reichstag and the Bundesrat. He was required
to obtain the same consent of the two assemblies to conclude treaties of
peace and all other treaties that touched matters in which either of the
assemblies had competence.
3. _The authority of the Emperor as military commander was put under
parliamentary control._
These reforms constituted certainly important progress along the road of
parliamentary rule and it can be said that it placed Germany thereafter
among the nations that are governed by such a system.
The texts of the laws of October 28, 1918, were accompanied by a letter
of the Emperor to the Chancellor in which he wrote: “Prepared by a series
of governmental acts a new order comes into being in which fundamental
rights of the Emperor pass to the people. After the events of these our
times the German people must not be denied a single right that is needed
to guarantee them a free and happy future. I acquiesce together with my
highest colleagues in the decisions of the representatives of the people
and do so with the firm determination to co-operate to the greatest
effectiveness, convinced that I will thus serve the welfare of the German
people. The Emperor is at the service of the people.”
German jurists with good reason characterized this letter as a “political
abdication.” But the changes which went with it came too late, and
a simple “political abdication” appeared thereafter as strikingly
insufficient. The German Empire was falling into ruin and it was no
longer a question of partial reforms.
2.--THE FALL OF THE OLD RÉGIME.
Revolution broke out in Germany at the beginning of November, 1918.
From the end of October riots and revolts had been taking place on board
the vessels of the Imperial navy. But on November 4 at Kiel there broke
out a revolt among the sailors, who became masters of the situation. They
formed a Council of Soldiers which presented to the mayor of the city a
list of demands--the liberation of arrested sailors; the suppression of a
military hierarchy outside of the service; a demand that the approval of
the Council of Soldiers be necessary for all military measures, etc.
The next day the workers of Kiel declared a general strike and formed
Workers Councils which united with Councils of Soldiers consisting of the
marines of the city.
From Kiel the movement spread the same day to Lübeck and to Hamburg. On
the 6th, a general strike was proclaimed in the dock yards of Hamburg and
revolution broke out in Bremen.
Simultaneously revolution won other cities: Hanover, Cologne, Magdeburg,
Brunswick, Leipzig, and Dresden, where Councils of Workers and Soldiers
were formed. From November 4th to the 9th all North Germany, the South
and the Centre fell into the hands of the Councils.
The movement, which at its beginning could be considered as principally
a military revolt, took on for the first time a political character most
clearly marked in Munich, where in the night of the eighth of November
after a great manifestation by the Independent Socialists serious
disturbances broke out. The royal family was expelled and the Republic
proclaimed.
With few exceptions the revolutionists met with no opposition. The
bourgeoisie did not react. It was enough for some thirty marines from
Kiel to enter a town or for a group of soldiers returning from the
fighting front to present themselves at the city hall. Immediately
every one yielded to their orders and the Councils were able to install
themselves in power without firing a shot. In this revolution, to which
no serious opposition had been presented and which appeared rather as the
collapse of an old régime whose reason for existence had vanished, there
lacked only to complete it the fall of the capital and the abdication of
the monarch.
At Berlin the military power devoted itself to the defence of the city.
On the fifth a state of siege was proclaimed and on the seventh a decree
forbade the formation of Councils of Soldiers and of Workers “on the
Russian model.”
But the same day the Social Democrats sent to Chancellor Maximilian of
Baden the Secretary of State Scheidemann, the bearer of an ultimatum
demanding the immediate abrogation of the decree forbidding meetings;
such a transformation of the government of Prussia that those in control
of it should be of the same political complexion as the majority of
the Reichstag; the strengthening of the Social Democratic influence
in the government; and finally the abdication of the Emperor and the
renunciation by the Crown Prince of all claims to the throne.
Although confronted with imminent revolution only officials and
functionaries were overthrown. The bourgeoisie here as elsewhere looked
on passively and attempted no resistance.
As for Maximilian of Baden he hoped to find a basis for negotiation. He
pondered measures to parliamentarize still further the old government
and contemplated the immediate convocation of a constituent assembly to
develop a new constitution. Meanwhile he did not reply to the ultimatum
of the Social Democrats. Whereupon there were organized Councils of
Workers and Soldiers in Berlin who made themselves felt with their first
act on the morning of the ninth of November by declaring a general
strike.
The Chancellor could no longer delay action. On the ninth at two o’clock
in the afternoon, after a telephonic conversation with William II, he
announced officially that the Emperor had abdicated and that the Crown
Prince had renounced the throne. He declared that he, Maximilian of
Baden, would remain in office until the installation of the Regent. He
would propose to the Regent the nomination as Chancellor of the Social
Democratic leader Ebert, and the convocation of electoral colleges with
the view of choosing a national constituent assembly to which would be
given the task of directing the future of the state.
Thus the Chancellor hoped to the last moment to effect in an almost legal
manner the transition from the old to the new Germany. But the pressure
of events was too strong for him and he was not able to realize his hope.
In the early part of the afternoon, Ebert accompanied by Scheidemann
appeared at the Chancellery and declared in the name of their party that
in order to avoid bloodshed and to maintain public order they considered
it necessary to take power in their hands and assume the direction of the
government. When Vice-Chancellor von Payer asked Ebert if he intended
to conduct the government on the basis of the Constitution or in the
name of the Councils of Workers and Soldiers, Ebert replied, “Within the
frame work of the constitution.” After short deliberation and in view of
the fact that the troops in Berlin had deserted the old government the
cabinet of Maximilian decided to place in the hands of Ebert the powers
of Chancellor of the Empire “subject to the approval of the legislature.”
Ebert at once entered into office without the question of the regency
being decided.
But the Socialist parties pressed for the proclamation of a republic.
This proclamation took place several minutes after the installation of
Ebert as Chancellor. In answer to the clamor of a great gathering of the
people in front of the Reichstag Scheidemann appeared on the terrace and
declared in substance, “We have conquered everywhere along the line.
The old régime is no more. Ebert is Chancellor. Our deputy, Lieutenant
Göhre, is associate minister of war. We must now strengthen our victory
and nothing will stop our march. The Hohenzollerns have abdicated. Let
us see to it that this magnificent day is marred by nothing. May this be
a day of eternal glory in the history of Germany. Long live the German
Republic!”
The same day and almost the same hour similar events took place in all
the states of Germany. Everywhere under the threat and under the pressure
of the Councils of Workers and Soldiers the old Diets and the old
governments vanished. The kings, the grand dukes and the dukes resigned
or were simply replaced. The republic was proclaimed. One can say that on
November 9, 1918, when at two in the afternoon in front of the Reichstag
Scheidemann proclaimed the Republic, the ancient régime had fallen in
Germany.
* * * * *
From this date on all the organs of government which had incarnated the
old régime disappeared or were entirely transformed.
The Bundesrat, in which the sovereignty of the old Reich was
incorporated, ceased to exist as such. It is true that the new leaders
of the Reich permitted the Bundesrat “the right to continue the exercise
of administrative powers according to laws and regulations” (decree of
November 14, 1918); and thus there continued a Bundesrat of limited
power. But it was no longer the old Bundesrat, for the governments of the
individual states, having changed through revolution, sent new delegates
who no longer represented princes but republics.
Naturally there was no longer any question of the Emperor. Having lost
his crown on November 9, he fled across the Dutch frontier on the 10th,
as a private individual and his letter from Amerongen on November 28,
1918, in which he, William II, declared that he expressly renounced for
all time the crown of Prussia and thereby “the Imperial German crown,”
had only, so to speak, a moral effect.
After the resignation of Maximilian of Baden there was no longer a
Chancellor of the Empire. It is true that he had passed on his powers to
Ebert but we will see shortly that Ebert did not consider himself as such
except for a few hours.
As for the Reichstag whose last session ended on October 26, 1918, it was
not exactly dissolved after the revolution. At the same time no formal
dissolution was necessary, for a new sovereignty had been installed and
had taken the place of the old Reichstag. Meanwhile, taking advantage of
the fact that no formal decision had been made as to the old Reichstag
the chairman of that assembly, Fehrenbach, refused to recognize its
implied dissolution. On November 12, 1918, he addressed a circular to the
deputies in which he declared that owing to the exigencies of the hour
and without the consent of the government he would convoke the Reichstag,
reserving to himself the right to announce later the time and place of
the assembly. The revolutionary government thereupon notified Fehrenbach
that a conflict would ensue thereat. Notwithstanding this Fehrenbach
several days later repeated the announcement of the convocation. But the
old Reichstag never met again. In February, 1919, it was dissolved by
decree which also declared that its last session was dated as of November
9, 1919.
3.--THE REPUBLIC OF THE COUNCILS.
While the Empire was collapsing there arose quickly on the ruins of the
old edifice a new structure. In place of the Empire, the government
of a bourgeois and military oligarchy, came the dictatorship of the
proletarian masses at one blow, the republic of the working class.
Everywhere Councils of Workers and Soldiers were formed, which, taking
political power in their hands, appeared to be thereafter the only and
real holders of sovereignty.
But the Councils lacked the needed agreement in aim and action. Two
diametrically opposed tendencies divided the new powers in control.
On the one hand the members of the Social Democratic party within the
Councils pursued a purely political goal--the creation of a German
republic on a democratic basis to be effected by a Constituent Assembly
to be convoked as soon as possible. On the other hand the Independent
Socialists, the Communists, the Spartacists and other left wing elements
set up as the principal aim an economic change--the quick and complete
socialization of all means of production. But they also had in view
a political objective, the establishment of a dictatorship of the
proletariat on the model of the Russian Soviet Republic, by the complete
organization of the system of Councils of Workers and Soldiers. The
particular question on which the antagonism between these two groups
broke out was whether or not there should be called a new constituent
assembly.
The revolution was undoubtedly the work of the Independents. Their
leader, Ernest Däumig, had been to Moscow to study the Bolshevist
movement, and Russia had come back with him in the persons of Joffe and
his agents of propaganda. Already during the strikes of January, 1918,
which had been organized by them, there had appeared for the first time
in Germany Workers Councils; and in the days preceding the insurrection
of November, 1918, Councils of Workers and Soldiers had been secretly
organized at Kiel as well as in Berlin. The Social Democrats, on the
other hand, to the last moment warned the people against the consequences
of an ill-considered insurrection. But when the success of the revolts
seemed assured it was seen that many who had condemned it were now
joining it. Thanks to Maximilian of Baden it was the Social Democrats,
Ebert and Scheidemann and the trade unions that were installed in power
on the 9th of November, 1918. The history of the German revolution is
the story of a revolution made by one political group and its fruits
garnered by another. At first the two Socialist parties divided power
equally. But after several weeks of collaboration the Social Democrats
eliminated the Independents and remained in sole control of the
government.
* * * * *
1. AT FIRST THE TWO SOCIALIST PARTIES PARTICIPATE EQUALLY IN CONTROL.--On
the 9th of November early in the afternoon Ebert had received from the
former Imperial cabinet his functions of Chancellor of the Empire. He
considered himself such at the time. His intention was to nominate
Scheidemann and Landsberg as secretaries of state, but to keep in the
cabinet the old state secretaries; in addition to which the Independent
Socialists were to enter the government. He proclaimed immediately
several decrees signed, “Chancellor of the Empire, Ebert.”
It must be observed that up to then the change which had been brought
about constituted without doubt a revolution, but a revolution remarkably
moderate. It is true that constitutional right did not give the
Chancellor the authority to name his successor; from the legal point of
view the nomination of Ebert certainly constituted a violation of the old
constitutional law. Nevertheless in its outer aspect the new government
with Ebert at the head sought to appear as the expression of the will of
the former government. The idea of a radically new law had not yet made
its appearance.
In the course of a few hours, however, the situation completely changed.
The Independents submitted as the condition of their entry into the
government the following twofold demand: The cabinet was to consist
only of socialists, and it was to recognize officially that political
sovereignty resided in the hands of the Workers and Soldiers Councils.
The next day the Social Democrats accepted these conditions--for the
Independents were still the actual power in control and “the street
belonged to them”--and a government of six chiefs was constituted. It
comprised three Socialist Democrats, Ebert, Scheidemann and Landsberg,
and three Independents, Haase, Dittmann and Barth.[5] In the evening
there was held at the Busch Circus a plenary session of the Workers and
Soldiers Councils of Berlin. This assembly passed a resolution which
declared among other things the following: “Old Germany is no more. The
dynasties are gone forever. The holders of thrones are stripped of their
power. Germany is now a Republic, a Socialist Republic. The Workers and
Soldiers Councils are now the holders of political power.” Then the
assembly nominated an executive committee (Vollzugsrat) of twenty-four
members, six Social Democrats, six Independents, and twelve Soldiers, and
they proclaimed as the men in control of the government the six named
above.
Following this meeting the cabinet was constituted. It formed a “college”
of which all the members had equal rights and which took the name of
“Council of Commissars of the People” (Rat der Volksbeauftragten); Ebert
and Haase were nominated chairmen. All the decrees of the government
would have to be promulgated by these two in accord and signed jointly by
them. It was, so to speak, a Chancellorship of two.
The Council of Commissars of the People thus found itself invested with
political power by the General Assembly of the Councils of Workers
and Soldiers of Berlin. Making immediate use of its power the Council
of Commissars issued on November 12, 1918, a proclamation which
constituted a declaration of rights of the new régime: The state of
siege was revoked. Freedom of assembly and meeting were restored without
restriction. All political offences were amnestied. The eight-hour day
went into effect on January 1, 1919. All elections thereafter would
be held on the basis of equal, direct, universal suffrage based on
proportional representation for all men and women who had passed the
twentieth birthday, etc.
* * * * *
But difficulties arose soon between The Council of Commissars of the
People and the Executive Committee of the Workers and Soldiers Councils
of Berlin. Each of these two bodies considered itself the chief holder
of sovereignty and launched proclamations issuing orders. It became
absolutely necessary to put precise limits to their respective powers.
That was the object of an agreement reached by these two bodies November
22, 1918.
According to the terms of this agreement sovereignty belonged wholly
to the Executive Committee. The Council of Commissars was to exercise
executive power under the permanent control of the Executive Committee.
The latter had the power to nominate or recall members of the Council
of Commissars. In reality the situation was somewhat different; for
the Council of Commissars exercised to some extent legislative powers
according to which it claimed the right to issue decrees that had the
force of laws.
For a month the two bodies worked in this accord. Collisions occurred,
of course. The functionaries of the old régime endured impatiently the
supervision of the Councils of Workers and Soldiers. Inflaming rumours
circulated of the extravagance with which these Councils managed the
public finances. Worst of all was the increasing opposition that
developed all over the country to the Executive Committee of Workers
and Soldiers Councils, which, consisting exclusively of Berlin members,
claimed to represent the Councils of all Germany and which acted in
effect as though it were delegated by the Councils of the whole country.
The fact that on November 23 this Executive Committee had added to itself
a certain number of delegates of Workers and Soldiers Councils of states
other than Prussia, delegates who had authority to deliberate in matters
that concerned all of Germany, did not strengthen the position of the
Executive Committee. Meanwhile, however, its machinery appeared to be
functioning.
* * * * *
2. THE SOCIAL DEMOCRATS ELIMINATE THE INDEPENDENTS AND REMAIN IN SOLE
CONTROL.--In the struggle that ensued among socialists, the Social
Democrats brought to their side the support first of individual states,
then that of a general Congress of Workers and Soldiers Councils.
1. From November 10 Ebert and his party showed an increasing
determination to call a constituent assembly. However, they did not
attempt to act upon it at once, being restrained by the strength that
still lay in the hands of the Councils. But on November 25 under the name
of “the conference of German Federated States” there was held at Berlin
a meeting of representatives of the revolutionary governments of several
states. It was presided over by the Commissar of the People, Ebert.
Speaking of the forthcoming constitution, Ebert declared, “The system
of collaboration between the government of the Reich and the Federated
States, which should be very definitely specified, must be established
by a National Assembly. The government has firmly resolved to call
this National Assembly with the least delay. Till then nothing but a
provisional agreement can be effected between the Reich and the States.”
In the course of the discussion the most conflicting opinions possible
were expressed; but finally the immense majority of the delegates present
adopted the following twofold resolution:
“It is to a National Assembly that the power of establishing the
constitution of the Reich should be entrusted. Till such a time, however,
the Workers and Soldiers Councils are the representatives of the will of
the people.”
Strengthened by this decision the Council of the Commissars of the People
promulgated on November 30 a decree for the election of a National
Assembly.
2. It was the general congress of Workers and Soldiers Councils at its
meetings in Berlin from December 16 to 20, more than any other factor,
that gave the Social Democrats the opportunity they had been seeking to
disembarrass themselves of the Executive Committee of the Workers and
Soldiers Councils of Berlin; and by this means to deliver a decisive
blow at the system of Councils as a whole. The Social Democrats had
an overwhelming majority in this congress and the delegates, well
disciplined and little familiar with parliamentary debate, carried out
punctiliously the instructions which had been given them by the official
spokesmen.
The congress passed a number of important resolutions:
a. _The Councils or Soviet System is rejected._--On December 19 by a
vote of 334 against 98 the congress rejected the motion made by Däumig
that “under all circumstances the Councils system shall be adhered to as
the basis of the Socialist Republic in the sense that the Councils shall
possess supreme legislative, executive and judiciary powers.”
b. _The Council of the Commissars of the People is strengthened._--The
congress, which declared itself invested with complete political power,
delegated legislative and executive power to the Council of Commissars
of the People up to the time the National Assembly convened. Further, it
nominated a central committee (Zentralrat) of the Workers and Soldiers
Councils of Germany, consisting of twenty-seven members which was to
exercise parliamentary control over the German and Prussian cabinets;
that is to say, according to the official explanation of Commissar of the
People Haase, all projects of law must be submitted by the Council of the
Commissars of the People to the Central Committee and discussed by them.
The Central Committee had the right to appoint and recall Commissars of
the People for Prussia and for the Reich. Finally the Council of the
Commissars of the People was to appoint to each Secretary of State two
delegates, a Social Democrat and an Independent, who would be charged
with the conduct of affairs within the ministries. As for the Executive
Committee of the Workers and Soldiers Councils of Berlin it was limited
by the congress to authority only in matters pertaining to the Berlin
group.
c. _Elections for the National Assembly are held January 19, 1919._--The
victory of the Social Democrats was complete. The Independents, because
of the small number of representatives they had elected, refused to form
a part of the Central Committee, which thereupon consisted only of Social
Democrats and was presided over by Leinert, then by Max Cohen, both very
moderate in their opinions. The conflict between the Executive Committee
of Workers and Soldiers Councils of Berlin and the Central Committee
never gave the government any trouble.
But the Independents and the Spartacists had not at all decided to give
up the game, for they believed themselves to be at least “masters of
the street.” And Christmas week of 1918 in Berlin was a bloody one. A
detachment of marines which had installed itself in the royal castle
and had refused to leave it in spite of the orders of the government
of Prussia had tried to capture Commissars of the People, Ebert and
Landsberg, to keep them as hostages against the non-payment of wages due
them. Their attempt failed and troops were summoned by the government to
force the sailors to leave the castle. Bloody fights ensued in Berlin
which lasted till Christmas.
These events produced a crisis in the government. On December 29 the
Independents, Haase, Dittmann, and Barth, resigned from the Council of
the Commissars of the People; whereupon the remaining three Commissars
immediately handed their resignations to the Central Committee. The
latter reappointed the three Social Democrats and completed the
Government by adding to them three new Commissars, all Social Democrats,
Noske, Wissel, Löbe. Löbe declined and his post remained vacant; but
Noske and Wissel entered the Government. Scheidemann replaced Haase as
co-president with Ebert.
The Independents and the Communists made another attempt. On January 3,
the Independents who had entered the Government of Prussia handed in
their resignations. But Eichhorn, since the revolution president of the
Berlin police, refused to resign his powers and, being recalled, refused
to relinquish his post. That was the signal for a veritable insurrection
which had been called, not without reason, “the second revolution.”
Troops of Spartacists met in bloody encounters in the streets with the
troops of Noske and the affair ended with the assassination of Karl
Liebknecht and Rosa Luxemburg.
When, three days later the elections for the National Assembly took
place, Germany found itself under an exclusively Social Democratic
Government.
SECTION II
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.[6] 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:
* * * * *
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,[7] in case an individual state were so
minded.
* * * * *
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.
* * * * *
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.
* * * * *
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.[8] 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.
CHAPTER II
TOWARD A UNITARY STATE
The first question with which the National Assembly found itself
confronted and which had to be decided was whether the German Reich was
to remain a federated state or whether it was to become a unitary state;
or, supposing that an intermediate solution were obtainable, to what
extent it could partake of the characteristics of one or the other type
of state.
The unitary state possesses an undivided and exclusive sovereignty.
There is unity of law, of power and of will with one Constitution, one
administration and one authority. The type of such a unitary state is
France. To the unitary state is opposed the composite state in which
co-exist several sovereignties, those of the member states as well as
that of the central government.
For, there are two principal types of federated states: the confederation
of states, which has as its basis an international treaty and the
expression of whose will is only the sum total of the wishes of its
member states; each component state retains its sovereignty, but certain
attributes of that sovereignty are exercised in common through the
confederate organs. The other type is the federal state, which has as its
basis a constitution and which possesses a sovereignty necessary for the
performance of its duties, the exercise of its rights and its independent
will.
But it goes without saying that these concepts are essentially relative.
Between the unitary state and the confederation of states lies a whole
series of state types, one merging by imperceptible nuances into the
other, types which differ one from another according to the extent to
which the member states are called upon to collaborate in the formation
of the common will. Further, the federal state is never static, in the
sense that its institutions never cease to change, tending either toward
unitarism--that is to say, toward the tightening of the federating bonds
or even toward their disappearance through the complete fusion of the
component states; or tending toward federalism, that is to say, toward a
loosening of the bonds, or even their disappearance by the dissolution of
the composite state.
There are undoubtedly in every composite state at the same time
tendencies of both kinds. Theoretically they may even act as balances
to one another. But this equilibrium is never completely realized and
according as one of these tendencies gains over the other, the composite
state tends more or less rapidly toward unitarism or toward federalism.[9]
Before the war the German Empire was a federated state with unitary
tendencies. Since the war these tendencies have strengthened. For, the
downfall of the Empire and its army, the economic catastrophe which
followed the war and aggravated the revolution, the separatist tendencies
which have shown themselves here and there on German soil, and the
financial burdens which have weighed on Germany all have convinced its
leaders that to save Germany and to build it up there was but one means
possible--to concentrate all the powers in the hands of those at the
helm of the Empire, and as a consequence, to diminish to the greatest
possible measure the powers of the member states (if not actually to
suppress them completely) in order to give all efforts available a single
direction and to utilize them to the maximum, avoiding at the same time
all unproductive energy and all scattering of forces.
By what means did this evolution manifest itself? How far did the
Constituent Assembly go toward unitarization of the Reich? Will the
German Reich remain a federated state?
To answer these questions we must successively examine: (a) whether the
states still exercise self-determination and particularly whether they
remain masters of their territory; (b) whether the states retain the
right to give themselves their individual constitutions and laws and
to govern themselves; (c) and finally whether the states participate,
as such, in the formation of the will of the Reich. This last problem
will be examined in studying the organization of the public powers,
particularly those of the Reichsrat. The present chapter will be devoted
to the study of the first two considerations.
SECTION I
TERRITORIAL STATUS OF THE STATES
Territory is one of the essential elements of a state. In a confederated
state the central government cannot force on the member states changes
or exchanges of territory, fusions or parceling of their respective
holdings. Such was in principle the régime prevailing in the old German
Empire. The historic composition of the individual states as they were
when their princes signed the federal pact in 1871 was guaranteed, and
the territories of individual states were protected by the Constitution
in the geographic integrity they had when they entered the Empire.
The Constitution of Weimar on the other hand put forward the principle
_of the mobility of frontiers_. But it was not until after the most
violent and passionate discussions that this was adopted, and not without
modifications that peculiarly limited its operation. For, what was
foremost in the deliberations and constantly dominated them was neither
more nor less than the question of the dismemberment of Prussia. The
cardinal consideration was this: legally the majority of the problems of
organization that the Constitution had to solve would depend for their
solution according to whether Prussia would or would not retain its
territorial integrity. But the political problem was also grave. Prussia
remaining as such, would it not exercise again its former hegemony over
Germany with all the attendant dangers to the domestic and foreign
policies of the Reich, dangers of an obstinate reaction at home and of an
insatiable pan-Germanism abroad?
1.--THE PROBLEM OF THE DISMEMBERMENT OF PRUSSIA.
In November, 1918, there was felt throughout Germany a very powerful
centrifugal movement. The masses of the people saw in the Reich nothing
more than an alliance of princes and Prussian domination. It was to
the princes and to Prussia that they attributed the inexpiable fault
of having begun the war and lost it. During several weeks of limitless
despair, two cries were raised, “Down with the Princes!” and above that,
“Separation from Prussia!” It must be added that behind these cries was
partly the unavowed hope that by abandoning the Reich one could more or
less escape the menacing consequences of defeat. The Reich seemed on the
point of dissolution.[10]
But some men at once realized that if Germany was to be saved the one
efficacious remedy was to revive in the people the sentiment of national
unity and to reconstruct the Reich on new bases. A unitary republic would
have to be created and the domination of Prussia overturned.
These two fundamental objectives were self-explanatory and mutually
compulsory. For, given the disproportion in power that existed between
Prussia and the other states, the more one increased the power of the
Reich to the detriment of the states the more one strengthened the
domination of Prussia, for thereby Prussia was made all powerful within
the Reich. If, therefore, the centralizing character of the Constitution
was to be accentuated, the following dilemma would have to be confronted.
Either Prussia as it was would have to be accepted by the Reich, in
which case the German Republic would in reality become a unitary
Prussian Republic in which non-Prussian parties would be subjected to
the will of Prussia. Or, if this state of affairs was to be avoided and
a unitary state with central will was desired, Prussia would have to be
suppressed, either by a partition of her own accord or one imposed upon
it by the Reich.[11] It was this latter alternative that Under-Secretary
of State Preuss chose when he was put in charge of the drafting of the
Constitution.
The individual states, he pointed out, were the products of purely
dynastic politics which almost everywhere ran counter to the natural
relations of populations and races, separating what should have been
united and uniting elements that had nothing in common. Only the republic
has the possibility--it is also its duty--to reunite what belonged
together. The fundamental question of the internal organization of
Germany is, can a centralized Prussian State be maintained within the
future German Republic? This question Preuss, after philosophical,
historical considerations, answered in the negative. He demanded the
territorial redistribution of the states on the basis of the right of
populations to self-determination, according to their needs and their
political and economic inclinations, with the intervention, by the
sanction and under the direction of the Reich. Preuss insisted throughout
on the fact that Prussia is not a nation, but that she constitutes an
artificial formation, due to the political hazards of a reigning house,
purchases, marriages, conquests, etc. The Prussian state does not form
an organic whole and is bound together neither by economic nor cultural
relations. It is an incomplete German state, “an edifice of fortune.”
Even admitting that it had been for a time indispensable, in that it
constituted to a certain measure an internal bond, it has now outlived
its usefulness as a state. The national unity of Germany as a whole is
a vital question for the German people and therefore for the German
Republic. It is imperative that the diverse races who lived in forced
unity in Prussia should be at once placed under the sovereignty of the
Reich instead of being “mediatized” by a state that interposes itself
between them and the Reich. It is only by the suppression of Prussia
that these populations can secure that equality which is their right by
the side of the other German states. It is only by the dismemberment
of Prussia that the small states of North and Central Germany can make
themselves communities able to survive. That an incompletely unified
state of forty million Germans, that is to say, Prussia, could co-exist
with a more complete unity of seventy million Germans, is contrary to
nature and is a political contradiction. The German people, therefore,
must be free to erect within the Reich new German republics without
regarding the actual boundaries of the existing German states, as far as
economic conditions and historical considerations permit the formation
of new states. Newly created states will have to have at least two
million inhabitants each. The fusion of several member states into a new
state can be effected by an interstate treaty drawn up by the states in
question, and approved by their parliaments as well as the government of
the Reich. If the population of a territory wishes to separate itself
from the state to which it belonged in order to unite with one or more
other German Republics, or to form for itself an independent republic
within the Reich, a plebiscite must be resorted to.
These proposals aroused most violent opposition. In the meetings of
the committees as well as in plenary sessions of the Assembly two
declarations were constantly emphasized. On the one hand, matters could
not remain as they were, for the interior boundaries of the country were
too entangled and there were states too small and powerless to discharge
conveniently their obligations. On the other hand, it was impossible
to conceive a radical transformation and to hope to see realized a
completely new regrouping if this had to be done on purely rational
principles. Revolution could perhaps effect this transformation, but the
Republic was not yet strong enough to undertake this task, particularly
as it was so preoccupied with the problem of a constitution. Insistence
on the complete solution of this problem, even if it did not invite
complete failure, would mean too much loss of time. A compromise had to
be found.
The terms of such a compromise were extremely difficult to find. For no
change in the territories of the various states could be effected without
encroaching on the territory of Prussia, which has “enclaves” or domains
in most of the states whose transformation was contemplated. If even one
were to content oneself with the fusing of several small states--which
it was unanimously agreed was highly desirable--it could be done only by
taking from Prussia such and such piece of its territory. No matter from
what side, therefore, the problem was attacked one came to the question
of the dismemberment of Prussia. And over this question came conflict.
Some of the members followed the lines of the proposal submitted by
Preuss on the partition of Prussia; but they went much further and
indicated precisely what territory they found necessary to take away from
it.
It was above all the question of the Rhineland. Through Trimborn,
spokesman of the Centre, deputies of Cologne and Aix-la-Chapelle, the
inhabitants of the Rhine country presented their claims. Prussia, product
of a political dynasty, is an aggregation of different races, for there
is no Prussian nation. The people who live on the banks of the Rhine feel
themselves handicapped in comparison with the other German races, since
they are not in direct contact with the Reich, and are represented in it
only through the medium of Prussia. It follows from this that the people
of the Rhine cannot have free expression of their native tendencies nor
develop their own culture. They suffer in every way by not having their
own administration and by having to endure Prussian functionaries over
them.
The objections which came from the Prussian side to the formation of
a Rhine state were not valid, insisted the partisans of the latter.
The separation of the Rhineland from Prussia need not entail in itself
a separation from the Reich. On the contrary, the Rhineland would be
more solidly and intimately welded to the Reich if they belonged to it
directly instead of being only part of Prussia. Nor would they admit
the argument that the Rhineland should belong to Prussia to supplement
economically the relatively poor Eastern provinces of Prussia. “The old
cry of the poor East and the rich West is to-day dead,” the Rhinelanders
insisted. War and revolution have done infinitely more damage to
industrial Rhine than to the rural Eastern provinces. Finally, while it
is possible that for a certain period, undoubtedly short, there might
be disturbances in Germany caused by the creation of a new state, these
would be less harmful than leaving on the Rhine a situation that would
remain a permanent source of trouble. In conclusion, the representatives
of the Rhineland demanded the creation of a Republic of the West, which
should take in the provinces of the Rhine, a part of Westphalia and the
territories of Oldenburg and Bremen.
On the other hand, the representatives of Hanover demanded justice
against the violent annexation to which it had been subjected in 1866.
There was formed in the Assembly a “German-Hanoverian” group which
demanded “a free Hanover within a new Germany.” It involved the fusion of
Lower Saxony with Hanover and Brunswick.
In the same way the small states of Central Germany wanted to fuse into
a single state which would take in also part of the territory of Prussia
and the region of Erfurt, and would form the state of Thuringia.
To these claims the representatives of Prussia, particularly the Prussian
Minister of Justice, Heinze, and the German Nationalist, Düringer,
replied, that the separatists were rats who were deserting a sinking
ship; and they presented a vigorous defence of Prussia.
Firstly, they insisted, Prussia is no longer what it was before the
Revolution. Formerly it was a powerful state enjoying all the advantages
of hegemony and all the privileges which came from the fact that the
German Emperor was the King of Prussia. To-day, said they, Prussia, whose
military backbone is broken, finds itself economically and financially
ruined and all its ancient prerogatives taken away. Furthermore, its
former electoral system based on a class suffrage is gone and all the
elements, including those of the Rhine, can make themselves equally felt
thereafter.
Prussia as it now exists should be maintained, they went on. Its
dismemberment would hurt the Reich more than it would serve it. Only
powerful states, in command of important financial resources, can
discharge the innumerable duties that to-day are incumbent on public
organisms. Not only is Prussian culture necessary for the development of
German culture, but the downfall of Prussia would involve the downfall
of Germany; for Prussia is the cement that holds together the unity of
the Reich, and renders services proportional to its greatness. Then,
too, what would be the result of a dismemberment of Prussia? Aside
from the fact that the advocates of dismemberment are absolutely unable
to indicate the number and extent of the states into which they would
carve Prussia, its parcelling out would involve a considerable loss in
power and spirit, in time and in money. For each new state will want to
have new administrative apparatus complete in every respect, a separate
constitution, a separate parliament, a separate legislature, and so on.
These states by reason of their weakness will be unable to discharge the
obligations that would fall upon them. Still further, nothing was more
illogical than to create new states if one wants to realize some day or
other the unity of the Reich; for, each of these states will constitute
later on just one more obstacle to such a unity.
Finally, said the Prussians, Prussia, which has already given all and
sacrificed all to the greatness of the Empire, is ready to renounce
still more, for the benefit of the Reich, what still remains of its
independence, provided, _that the other states do as much_.
But it was precisely this demand that made the proposition impossible of
acceptance by the others. In “sacrificing to the Reich all that remained”
of the ancient rights of Prussia, the latter in reality sacrificed
nothing; on the contrary, it gained a great deal. For, mistress of the
Reich as it would be, it would secure thereby not only everything it
brought to it, but also all that the other states contributed to it. It
was thus, therefore, that Preuss always came back to the same dilemma:
either a Germany under Prussian hegemony or a Prussia dissolved into the
Reich.
Following the position which they took on this question, the members of
the Committee on the Constitution supported either the text adopted by
the conference of States or the project put forward by the government.
It became indispensable to know who in the last instance would decide on
the territorial distribution. The conference of states replied, that
only the states concerned should have the decision, otherwise there
remains no such thing as states. The government insisted that it alone
should be the deciding power, for it was the natural arbiter between the
states, and only it controlled the situation sufficiently to resolve the
problem in accordance with the political and economic considerations that
were involved. Only the Reich can accomplish the necessary redistribution
according to a consistent plan. Such a redistribution would have to be
regulated by a law. A third current of opinion in this question came
particularly from the champions of the creation of a Rhine republic, who
pressed for the submission of the question of territorial redistribution
to popular referendum and insisted that the will of the population thus
expressed should be the ultimate guide for territorial redistribution.
After a preliminary examination of the question the committee to which
it had been submitted presented a project according to which territorial
changes would be regulated by a law, which, however, would have to be
demanded either by the people involved or by a predominant general
interest. It would be the Reich that would decide this in the last
instance. Against this first project of the committee, objections were
raised on March 29 by the states of south Germany; and negotiations
began between the government, the representatives of these states and
those of the majority parties. On May 29, a compromise was signed which,
after slight alterations on June 5 by the Committee on the Constitution,
provided that territorial changes must be accepted in principle by the
states involved, and approved by the Reich. If the states refused their
consent these changes could not be effected except by a law that took the
form of a Constitutional provision; but this law could not be enacted
unless the populations affected demanded it or unless the preponderant
general interest required it. This new version increased the rôle of
the states but also augmented the difficulty of procedure in any
dismemberment whatsoever. It did not, however, exclude the hypothesis of
a dismemberment effected in opposition to the wishes of the interested
states.
The debate came back again and again to this version; and when the
question reached the second reading before the National Assembly there
was presented an amendment drawn up by Löbe of the Social Democrats,
Trimborn of the Centre, and Heile of the Democrats, which after very much
discussion among the government and the representatives of the states
modified considerably the version of the Committee on the Constitution.
On the one hand, territorial modifications were facilitated in the sense
that new states could thereafter be created, even against the desires
of the interested states, by a simple law; for they wanted to avoid,
for example, the situation in which Prussia or another state could
completely prevent all territorial modification by rendering impossible
the necessary majority for the vote needed to enact a constitutional law.
On the other hand, the creation of such a new state was rendered more
difficult in the sense that it considerably complicated the conditions
according to which the populations affected could express their desires.
But most important of all--and that was the principal provision of the
amendment--it was specified that no territorial change could be effected
against the wish of the states concerned before a period of two years
after the formal adoption of the Constitution.
Thus Prussia was guaranteed for at least two years against dismemberment.
This last provision was aimed at the Rhineland whose situation, as
it was clearly indicated at the Assembly, was at the bottom of all
the discussion. It was declared that the Rhineland needed above all
tranquillity in the particular circumstances in which it found itself;
that occupied by foreign troops it could decide its territorial needs
only with difficulty; and that, above all, the creation of a state on
the banks of the Rhine would be considered abroad as a preliminary
to the complete independence of this state from the German Reich; and
that it was “necessary to maintain a unity of front against French
imperialism.” Along this line of argument it was further insisted that
the dismemberment of Prussia has been the chief aim of the war waged
by the enemies of Germany and the creation of a Rhenish Republic would
be exploited by them as an additional victory. This resulted in the
deputies from the Rhenish provinces declaring in the tribune of the
Assembly their loyalty to the Reich and that whatever were their desires
to see the Rhineland organized into a state, they would support the
Löbe-Trimborn-Heile amendment including the postponement for two years of
their justifiable claims.
The amendment was adopted by vote of 169 to 71, with 10 abstentions.
This version could not yet be considered as definitive, since when it
came up for the third reading before the Assembly a new version was
presented in the form of a new amendment by Löbe, Trimborn and Heile,
which modified the original version. The changes proposed dealt with
the method of calculating the majorities necessary in a popular vote to
determine territorial changes. The Prussian Minister of the Interior
Heine complained that the compromise previously adopted after such long
debate had been modified at the last moment in the course of conferences
to which the representatives of the states concerned had not been
summoned. He preferred the original version; nevertheless he accepted
the new one since he was convinced that the Constitution would have
to be revised in several of its parts. He added several interesting
declarations. It would be dangerous, he said, to seek to realize unity
within the Reich by creating new states, which would almost immediately
after have to abandon their newly won sovereignty and dissolve themselves
into the Reich as a whole. That would be a useless detour. Heine pledged
himself to facilitate the creation of the state of Thuringia and to give
up to it a part of Prussian territory on the condition that prior to this
a treaty would be enacted between that state and Prussia regulating the
administrative and economic relations between the two. But he opposed
with vigor the proposition to create the state of Upper Silesia and
above all opposed the creation of a Rhenish Republic. This Republic, he
pointed out, would unite the territories of the left bank of the Rhine
occupied by the enemy and the territories of the right bank administered
by Prussia. Such a union far from safeguarding the German spirit on the
left bank would incur the risk of submitting the right bank to the same
influences that prevailed on the other, and thus create a considerable
danger of infection to the right bank.
Finally the Löbe-Trimborn-Heile amendment in its new version was adopted
by the Assembly.
At the same time the Assembly passed a resolution which invited the
Government to institute a central office where the different states
would be represented; one which would have as its function to prepare
programmes for regrouping the territory in accordance with a general
plan. In July, 1920, a commission was formed in the Reichsrat with the
consent of the states to devote itself to this task. The Minister of the
Interior for the Reich, Koch, summed up its programme as “federation and
decentralization.”
2.--CHANGES IN STATE TERRITORIES.
The territorial status of states is regulated by Article 18 of the
Constitution.
This, as we have said, is a compromise; its leading idea is to fortify
and draw closer the bonds of unity within the Reich on the basis of a new
redistribution of territory according to economic and social interests
and taking into account the wishes of the population. It is true that
this has the value only of a programme without positive legislative
force; nevertheless it has its importance; it presents the principle
of a progressive revision of the territories of the states, a revision
whose new unities would form organic divisions of the Reich such as would
serve to a maximum degree the interest of the whole German people. The
idea which should direct this territorial regrouping must be exclusively
the interest of the German nation in its ensemble. The territorial status
of the states no longer has as formerly a value absolute in itself, but
is thereafter subjected to the condition that it assures in the largest
measure possible the highest well-being of the Reich as a whole. There is
in this undoubtedly a victory for the unitary idea.
Frontiers, therefore, will be “mobile” and their modification will have
to serve the development of the general welfare. It will have to be
the Reich that will be called upon to preside over the question of new
repartition of territories, because it alone is the holder of sovereignty
in Germany, and because it alone is in position to maintain an equal
balance between the varied and particular interests of the states.
No territorial change whatsoever, whether a fusion, a separation, or
the creation of a state, will be possible or operative no matter what
conditions exist for its consummation, _without a law enacted by the
Reich_.
In addition--and this general rule must be followed every time that a
change is envisaged which does not constitute an exception expressly
provided for--such a law of the Reich must be enacted in the _form of a
constitutional law_.
This rule has three exceptions in which an ordinary law of the Reich
suffices, provided that a certain number of other conditions are realized.
(1) An ordinary law is sufficient when the change, the separation or the
union of territories takes place _with the consent of the interested
states_. This consent manifests itself in the form of a declaration of
the governments of the states; for these governments by virtue of the
constitution enjoy the confidence of the people, since they are supposed
to be both democratic and republican; in which case a plebiscite is
superfluous.
(2) But cases may present themselves in which populations wish to
separate from a state to which they belong, against the desires of the
government of the state. The Constitution provides that the wish of these
populations must be followed. According to Article 18 an ordinary law
is sufficient to permit territorial changes or the creation of states
if the interested states do not consent to it, but _if the wish of the
population demands it and at the same time the preponderant interest of
the Reich requires it_. This provision is evidently directed against
Prussia; for should in such a case a constitutional law be demanded
Prussia would command a sufficient number of votes in the Assemblies to
prevent changes it did not wish. The dismemberment of Prussia is thus
rendered theoretically possible by this provision. But we know that this
provision is not applicable before August 12, 1921.
It remains to be seen how the wish of a population can manifest itself in
the operation of the latter provision.
The population may either be consulted by the government of the Reich,
which can order an immediate plebiscite; or the population can take the
initiative and impose on the government of the Reich the obligation of
ordering the plebiscite. This initiative must be signed by a third of
the inhabitants of the territory whose separation is asked for. The
plebiscite in such a case must be ordered by the government of the Reich.
Whether the plebiscite is ordered by the government or results from
popular initiative, it must, to be effective, satisfy the following
conditions of majority. They must obtain (a) three-fifths of the total
number of votes cast; (b) a majority of the votes of the inhabitants
entitled to suffrage; (c) and finally when the question is one of
dividing a territory which wishes to separate from its state, the
population of the whole district or administrative division of which
it was a part must be consulted; this in order to avoid break-ups due
to parochial quarrels. In other words, the plebiscite must extend to
the whole district even if the part that wishes to separate forms only
a fraction of this district. Nevertheless Article 18 provides for
practical purposes one exception to this third condition. This refers
to exceptional districts, that is to say, sections of territory that
have no geographical kinship with the district to which they belong. In
such a case a special law of the Reich could decide that the wish of the
population of this special district is sufficient and that the entire
population of the district to which it belongs need not be consulted.
The plebiscite having rendered an affirmative verdict the government of
the Reich must submit to the Reichstag the project of law necessary to
effect the changes in territory desired by the population.
(3) An ordinary law is sufficient _to modify the outer boundaries of the
state_, that is to say, the frontiers of the Reich itself, when these
are necessitated by a treaty of peace. When these modifications are to
be effected otherwise than by the special case of a treaty of peace, the
consent of the state affected must be obtained (Article 78).
Such are the provisions of the Constitution relative to the territorial
status of the states, but it must be recalled that certain of these
provisions--those which aim at territorial change based on the desires
of the population but against the wishes of their state government--do
not become operative until two years after the adoption of the
constitution. Thus up to August 12, 1921, no parcel of the territory of
Prussia, Bavaria, Hesse, Oldenburg, occupied by foreign armies, could be
constitutionally taken away from their states without their wish. The
aim pursued by the constituent Assembly in adopting this provision was
to combat separatist attempts of powers whose armies occupy German soil,
and to avoid all appearances and possibilities of dismemberment until
revolutionary effervescence and political disorders shall have come to
an end.
3.--THE CREATION OF A STATE--THURINGIA.
The provisions which we have elucidated have already been put into
operation. A new state has appeared in the Reich created by the fusion of
several former states.
Almost immediately after the revolution of November, 1918, a project was
born in central Germany to fuse several states there and to form of their
territories the state of “Thuringia.”
First the two states of Reuss reunited. On December 21, 1918, they
organized an administration in common and the fusion became operative on
April 4, 1919. This new state appeared thereafter as a sort of centre for
crystallization. The first state to join this movement was the Republic
of Altenburg, with which Reuss had many interests in common.
But this development toward the federation of states of central Germany
was soon interrupted and seemed for a time even definitely arrested. The
men who were pushing the project of extending this movement conceived
the idea of the creation of a “Great Thuringia,” which would comprise
important parts of Prussian territory and which would have as the
economic and political centre and as capital the Prussian city of Erfurt.
The execution of this plan aroused violent opposition on the part of
the government of Prussia, such as it manifested whenever the question
came up of the separation from it of any part of its territory. It
encountered also the strong objection on the part of the authorities
and the population of Erfurt who preferred the present advantage of
belonging to the most powerful German state rather than the possible
benefit of becoming an important element in a new state. The project of
a “Great Thuringia” was abandoned and the effort continued as before to
form a state which should comprise all the states of Thuringia without
appropriating any Prussian territory.
Of the eight republics of central Germany included in this plan of fusion
one, that of Coburg,[12] refused to join the movement. This republic,
having on October 30 inaugurated a plebiscite to find out whether the
population wished to belong to Bavaria or to the future “Thuringia,”
obtained 3,460 votes for Thuringia and 16,102 votes for Bavaria. This
reunion with Bavaria was then consummated, with the consent of Bavaria,
by a law of the Reich of April 30, 1920.
As for seven other republics--Saxe-Weimar-Eisenach, Saxe-Altenburg,
Reuss, Saxe-Gotha, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen and
Saxe-Meiningen--they concluded a “treaty” by which they combined in a
“community” to prepare their complete fusion.
To this effect the treaty provided two organs:
(_a_) A popular Council, the legislative organ of the “Community,”
composed of representatives of each of the seven Diets;
(_b_) A Council of States, the executive organ, consisting of
representatives of each of the seven governments.
These organs had as their mission to study and take all preliminary
measures necessary for the fusion. To permit the accomplishment of
this mission the states transferred to them all their legislative and
administrative powers necessary. The laws voted by the popular Council
were therefore compulsory in the territory of all the seven states. They
were particularly operative over the governments and the administrative
authorities of these states.[13]
The common organs were in addition instructed to prepare the Constitution
of their future state.
When all these necessary preliminary provisions had been taken the
Reich declared the fusion in being. All the interested states being in
agreement with this step an ordinary law sufficed; and it carries the
date of April 30, 1920.
SECTION II
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.[14] 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.
SECTION III
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.[15]
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.[16]
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.[17]
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.”[18] 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.
CHAPTER III
THE DEMOCRATIC PRINCIPLE
If the National Assembly has not completely realized the unitary state
and has allowed traces of the federal régime to remain, it has fully
admitted the principle of national sovereignty and has applied it to a
greater extent than any other country in the world.
SECTION I
THE PRINCIPLE
The democratic principle was adopted by the majority of the National
Assembly without any difficulty. But in the public opinion there became
manifest certain tendencies which are either directly contrary to this
principle or whose consistency with this principle is debatable; and
some of them have received and are still gaining active and influential
adherence.
It is important therefore to define in reference to the principle of
national sovereignty the theories to which it finds itself subjected in
practice.
1.--THE POWER OF THE STATE IS DERIVED FROM THE PEOPLE.
Democracy is defined as government by the people; a democratic government
is a government in which sovereignty resides in the people, or, to
speak more precisely, one in which the will of the majority determines
sovereignty.
That this principle was completely ignored in practice in Germany before
the Revolution we already know. According to the Constitution of 1871
sovereignty belonged to the ensemble of confederated princes, Germany
being governed by an association of monarchs under the all-powerful
direction of one of them, the King of Prussia.
Such a system obviously could not survive the disappearance of the
monarchs themselves; and after the Revolution the democratic principle,
to which Bismarck had given the semblance of expression in creating
a Reichstag elected by universal suffrage, became fully applied. One
consideration contributed above all to the establishment of government
by the greatest number: The German Princes had governed and had
conducted themselves as monarchs by divine right; under their régime
no social class could develop to which a certain political power could
be given over, which the people would become accustomed to regard as
authoritative. There was in Germany no political nobility, no bourgeoisie
invested with political power. So that when sovereignty fell from the
weakened hands of the monarchs it could be taken over only by the people.
The people are therefore sovereign. German jurists go on to say that the
people cease to be the object of sovereignty and become the subject of
sovereignty.
But we are here in a federal state, and the problem becomes more
complicated because of the particular form of the state. For there are
here, in theory at least, two sovereignties: that of the Reich, and that
of the State. Which is the primary sovereignty?
In committees the representatives of the states naturally supported the
latter of these alternatives. For them the former states at the moment
of signing the confederate pact gave up to the federal state a certain
number of their powers; but they have kept others. The Revolution has
changed nothing in this situation; it has thrown out the dynasties, but
it has not at all changed the integrity and the rights of the individual
states. It is in these states therefore that sovereignty originally
resides. The sovereignty of the Reich is only derived; although the
Reich is no longer an alliance of Princes, it is certainly an alliance of
the Republics that compose it.
This theory has not prevailed. It is true that one could not go so far
as to admit that the sovereignty of the states is derived from that of
the Reich and is given to them by the latter; but it is equally true that
it cannot be admitted that the sovereignty of the states is expressly
limited by the rights that the Reich attributes to itself. It has been
admitted, therefore, that the people is sovereign in the Reich, but
that it is equally and by the same title sovereign in the states in the
spheres of action which are left to the states.
Such is the principle proclaimed by Article 1, paragraph 2, of the
Constitution. That does not mean to say, however, that attempts and
proposals were not made to make a breach in it or to draw from it
debatable deductions. A study of these attempts and proposals will enable
us to understand more precisely the sense and import of this principle.
2.--THE COUNCILS SYSTEM, OR THE DICTATORSHIP OF THE PROLETARIAT.
The first projects formulated and presented against this principle, and
to the realization of which the Independents and the Communists bent
every effort, may be characterized in a word: they aimed to give over
all political and economic power to Workers Councils, to organize the
dictatorship of the proletariat.
These proposals, such as developed particularly by Däumig, theoretician
of the Independents, may be summed up as follows:
A parliamentary system--the proof is at hand--is powerless to bring about
the triumph of social democracy. The revolution throughout the world, if
it is to win quickly--and it must win quickly, for the proletariat can
no longer wait--cannot achieve its aims except by other methods. As in
Russia in 1905 and in 1917, so in Germany the necessary change can be
only the product of Workers Councils. It is only within the Councils that
the union of the proletariat is possible. Only the Councils assure the
co-operation of manual and of intellectual workers, which Russia had not
been able as yet to realize but which should be and can be accomplished.
The system of Councils in its final aspect realizes the most perfect
form of democracy, for it gives political and economic equality to all
its citizens. While waiting its ultimate triumph, however, it may be
necessary to proclaim the dictatorship of the proletariat; but this
dictatorship will not be any heavier than that which is borne by the
proletariat itself. It will last if necessary till the complete fusion
of social classes does away with the class struggle, till the advent of
integral socialism.
Therefore, all power to the Councils! No division of influence, no
juxtaposition of political assemblies and economic councils! The Councils
are an indispensable instrument to substitute permanently a socialist
for a capitalist régime. That is to say, they should fulfil two series
of functions: political and economic. Politically the Councils system
unites in the same organism both parliament and administration, thus
rendering possible that constant control of administration which the
parliamentary régime is incapable of exercising, and maintaining a
permanent supervision of the elected by the electors. Economically the
Councils watch over the execution of socialization measures; later they
become the regulators of production and consumption.
To this duality of functions there corresponds a double organization.
The political system rests on Workers Councils properly so called
(Arbeiterräte); the economic system rests on Factory Workers Councils
(Betriebsräte).
In each commune, workers, employés, and peasants, organized as much
as possible in vocational groups, elect worker councillors, one for
every 1,000 electors. These councillors have as their task, while
awaiting the final organization of the system of Councils, the control
of municipal administration. Their delegates constitute Local Councils
(Kreisarbeiterräte); the delegates of the latter, in turn, make up
District Councils (Bezirksräte). In addition, so long as the German
Republic is still not united, there will sit in the capital of each state
a Central Council (Landeszentralrat). These different organizations are
respectively charged with the control of administration of each degree of
the hierarchy. At the summit of the edifice, finally, sits the Congress
of Councils, which controls all political power, and whose meetings must
take place at least every three months. This congress elects a Central
Council (Zentralrat) which appoints and controls the Commissars of the
People. It is in a word a copy of the Russian system.
Parallel to this political organization, there is created in each
factory, shop, etc., a Factory Workers Council (Betriebsrat), elected
by the workers and employés in the proportion of one delegate to 100
electors. Small factories and rural enterprises are grouped so as to
form electoral units; the same with the professions. The Factory Workers
Councils are charged with the defence of the interests of the personnel,
and with the control of the enterprises in which they are employed.
They co-operate in the application of measures for socialization. But
their action, limited to the factory or the shop, cannot pretend to
embrace all the problems of production. Germany is divided, therefore,
into a certain number of economic districts (Wirtschaftsbezirke). In
each of these districts the Factory Workers Councils of each branch of
industry and of commerce designate a Council of Groups of this district
(Bezirksgrupenrat). All the Councils of Groups in the same district
designate delegates whose assembly constitutes the Economic Council of
that district (Bezirkswirtschaftsrat). In the same way the district
Councils of Groups of each branch of industry elect for the whole Reich
a Council of Groups of the Reich (Reichswirtschaftsrat), to which is
entrusted the general supervision of economic life, and which, in accord
with the Central Council, determines during the transitional period the
necessary measures for the maintenance of production and the application
of the laws for socialization. The Economic Councils of the districts and
the National Council may add to themselves, if they deem fit, experts,
economists, etc.
The whole system, so simple theoretically, rests on the elections of
workers as councillors in the Workers Councils and in the Factory Workers
Councils. The composition of the electoral body therefore takes on a
particular importance. The fundamental principle, in which Däumig and
his friends would tolerate no diminution, was that no employer as such
could take part in the system. _Only employés are eligible as electors._
An exception is made in favour of peasants “who do not permanently
employ farm hands.” A second axiom stipulates that those elected must
remain under the constant control of the electors. The electoral body
is therefore free to recall them whenever it seems desirable to it. In
any event a worker councillor must not remain such for more than twelve
months. He must stay a worker and not become a functionary.
Such is the organization that the Independents and the Communists
proposed. In itself lies the proof that it is contrary to the democratic
principle; for only part of the nation, manual and intellectual workers,
employés, the proletariat would have the right to direct public affairs.
And this consideration, without counting all the other criticisms that
may be made against the system, such as at least the present incompetence
of workers to govern, the necessary establishment of a reign of terror,
etc., has grouped against it not only the bourgeois parties but also
all the Social Democrats, who depend for the triumph of the socialist
idea on democratic and parliamentary means. “I do not wish to dwell long
on the study of the question of ‘the dictatorship of Workers Councils
versus democracy,’” said one of the Social Democratic drafters of the
Constitution. “It is sufficient for me to show that this dictatorship is
in contradiction to democracy, that we must choose between dictatorship
by a minority on the one hand, and democracy or government by the
majority on the other. The Committee on the Constitution has declared
in favour of democracy, control by the great majority of the people.
The idea, therefore, of a dictatorship by the Councils is rejected.”
(Sinzheimer in the session of July 21, 1919, of the Assembly; see
Heilfron, _op. cit._, vol. vi, p. 4265.) From the side of the Democrats
came the criticism, “Those who demand all power for the Councils, who
want to place between the hands of the Councils all administration and
all legislation are so indefinite as to the means of realizing their
demands, that it astonishes one … that a programme, so little developed,
can be put forward without the least explanation of how it is to be
realized.… We reject the granting of political right to the Councils.
We reject above all the dictatorship of a class that is at the base of
these Councils, emphatically and unconditionally.… We reject also the
Councils as organs of control. The idea of organizing the Councils as
a new assembly of control, side by side with each assembly already in
existence, seems to us incompatible with democracy.” (Erkelenz, session
of the National Assembly, July 21, 1919. See Heilfron, _op. cit._, vol.
vi, p. 4236-4328.)
The Councils System was, therefore, rejected by the National Assembly.
It must be observed, however, that it did not remain the mere formula of
isolated theoreticians. The organizations of the Councils, in line with
the plan we have just pointed out, was put forward as the programme of
all the Independents and the Communists, and, as we will see, these two
parties succeeded in casting 5,337,712 votes in the elections of June 6,
1920, sending 83 deputies to the Reichstag.
3.--THE CHAMBER OF LABOUR OR THE VOCATIONAL PARLIAMENT.
There is another project which was rejected in the name of the
democratic principle but whose partisans declared to be compatible with
this principle--one which in any event under different modalities has
determined champions in almost all the parties. That is the plan for
the creation of a Chamber of Labour (Kammer der Arbeit) or Vocational
Parliament.
The idea of granting to vocational interests a special representation
is not new, but since the Revolution it has been studied in Germany by
a group of publicists and students of politics, who have delved perhaps
more profoundly than ever before into the project and have given it a new
form by introducing new concepts into it.
The supporters of the Chamber of Labour declare that at the present time,
in contemporary states, the vital duty of a government is to organize
the economic life of the nation. This obligation has particular force
in a country whose whole economy had been overturned and ruined by a
disastrous war and revolution, and which, unless it decides to enter upon
a new road, runs the risk of crashing under the burden of its foreign and
domestic debts.
In order to reconstruct Germany economically one cannot depend on a
political parliament. A study of the history of the parliamentary
system brings the conviction that if a parliament has proved to be an
adequate organ of political legislation, it is nevertheless admittedly
incapable of solving the economic and social problems it encounters.
The parliamentary system, that is to say, the system that consists of
the formation of a government with the parties of the majority, is much
more a product of classical liberalism than the creator of new social
and economic forms. All the ideas current to-day and which constitute
the guiding principles of our political life, viz., democracy, national
sovereignty, the forming of the popular will, division of powers, belong
to an epoch in which the economic activity of the state was combatted
with passion. When it has created its political system liberalism remains
content with forms that answer only to purely political exigences.
But to-day ideas on the rôle of the state are changing. The state in
the last few decades has little by little ceased to limit its activity
to the rôle of “watcher of the night,” which liberalism assigned to it;
and more and more the organs of the state have been forced to exercise
an influence on public economy. Modern parliamentarism is insufficient
to permit the state to fill its new duties. For the political chambers
are divided in parties that group themselves according to changeable
ideological conceptions, based on the idea of “what should be,” the idea
that dominates the parties. But in taking a position in accordance with
such articles of faith and political axioms, one does not acquire the
necessary technical knowledge to gauge and judge economic questions. In
this matter there is only one method of learning, that is to study the
facts of economic life. What follows from this is self-evident. We must,
if not actually suppress the political parliament, at least put beside it
special organs charged with fulfilling the economic duties of the state.
(See August Müller, _Socialisierung oder Socialismus?_ Berlin, 1919.)
And these organs can be nothing but Councils, Workers Councils, Councils
of Producers.
Let us not cry immediately, Bolshevism! It is true that the system
of Workers Councils was born in Russia. First appearing under the
Revolution of 1905, we see them reappear in 1917, but it was not the
Bolsheviks who brought them into being. The Soviets were born because in
pre-revolutionary Russia the law did not tolerate unions of workers. As
a consequence the only form that an organization could take to combat
the tyranny of the Czars was to nominate in every factory, shop, etc.,
men who could be trusted. In 1917, Russian Workers Councils formed the
strongest support of the democracy; they were the firmest adherents of
the government formed by Kerensky. But when the Bolsheviks seized power
they crushed the democratic Soviets in the sense that they would not
any longer permit them to elect their members to office, and they, the
Bolsheviks, nominated men to represent these unions. In this fashion they
erected their dictatorship, a dictatorship of a small group, with the
slogan of, “All power to the Workers Councils!” But the advent of Workers
Councils has nothing in common with Bolshevism.[19]
To political representation one must join economic representation,
constituted essentially by the Councils. Workers Councils, somewhat
like those which Däumig would organize, are retained; to them should be
assigned the representation of workers’ rights, which have hitherto been
defended by the unions.
But by their side should be created Councils of Production
(Produktionsräte) charged, as their name indicates, with supervision of
production. There will be organized in each locality and for each branch
of economic activity a Council of Production. The enterprises of the
locality will each be represented by an equal number of delegates of the
employers and delegates of employés, for _the principle of parity between
employers and employés is absolute_. Above the Councils of Productions
of the communes there will be superimposed for each branch Councils of
Groups, Councils of the Province, etc., culminating in Central Council of
Production (Zentralproduktionsrat). There is thus for the whole territory
of the Reich a Central Council of Metallurgical Production, a Central
Council of Breweries, a Central Council of Chemical Production, etc.
There is in addition at each stage of the above structure a corresponding
economic council or Chamber of Labour, formed by a meeting of the
delegates of the Councils of Production of that stage.
The union of the delegates of the Councils of Production of each stage
constitutes a Chamber of Labour, that is to say, by the side of the
political assembly of the commune, of the district, of the province,
as well as by the side of the National Assembly, there is room for a
communal Chamber of Labour, a Chamber of Labour of the district, a
Chamber of Labour of the Province, and a National Chamber of Labour,
where all the economic interests of the commune, the district, the
province, and of the Reich, are represented. By means of a Chamber of
Commerce, the producers, as producers, participate in political life.
It is an economic parliament by the side of a political parliament.
Whether in the commune, the province, or the Reich, no assembly elected
according to merely habitual democratic principles (Volkskammer) can
of itself deliver verdicts or decisions of principle. An ordinance of
a communal assembly would have to be submitted to the approval of the
corresponding Chamber of Labour just as a law passed by the National
Assembly would have to be ratified by the National Chamber of Labour, no
matter what its subject matter. The Chamber of Labour thus plays the rôle
of a second chamber and its veto cannot be broken unless for three years
in succession the popular chambers vote the same provisions in the same
terms in regard to the matter in conflict. The Chamber of Labour and the
popular chamber have equally the right to invoke a referendum. Finally,
it belongs in principle to the Chamber of Labour to be the first to
examine all projects of an economic character; and it can, when it sees
fit, take the initiative in proposing a law.
There are between this programme and that of the Independents profound
differences. This programme gives the employers a place; the proletariat
is not all-powerful; and if it gives to the organs representing the
workers part of the public power, it does not _thereby completely abandon
the employers_. Neither dictation by the proletariat, therefore, nor
dictation by the Councils; but a political parliament and another
chamber in which employers are allowed to keep the right to existence,
collaborating by the same title and to an equal measure with the workers
in the direction of public affairs.
* * * * *
From the purely democratic point of view the most serious objections can
be made to this system and these were amply expressed.
In the first place, said the democrats, these Chambers of Commerce cannot
be made up of men who have the sufficient knowledge and experience with
economic questions except by selecting them from among the employers,
employés and the workers in the different branches of any given industry.
But these men are personally most strongly interested in the problems
they are supposed to solve. The danger is great, therefore, that they
would decide not according to considerations of general interest
but to considerations of the special interests of their particular
industry or their own commerce. The decisions of a Council composed
of representatives of different enterprises will be dictated by the
delegates of the most strongly represented enterprises; and if the
interests of all the vocations that have voice in the Councils can agree
on something at the expense of the interests not there represented, one
can be certain that this solution will be chosen. The proof of this is
already here; councils of producers grow always at the expense of the
consumers.
The champions of the Chamber of Labour, continue the democrats, are
guilty of a fundamental error. They believe that in economic questions
there are only such problems as can be studied by the technicians,
and that these can give such problems the only and obvious solutions.
Actually, however, even in purely economic questions, we ask always not
what is, but what should be, what we want of them and what we can effect.
A technical knowledge of circumstances, of causes, and consequences is
naturally necessary for a serious decision. But, even after the most
scientific examination, one arrives almost always, and above all in
important questions, at diverse conclusions, only because different aims
have been followed. _These conclusions are always dictated by political
conceptions._ Technicians can decide the best system for cleaning the
streets; though even here it may be a political question to know if such
a system, which is the best but also the most costly, can or should be
employed. But when it comes to questions of Sunday rest, if woman labour
should be countenanced, if and how the land should be distributed, how
the relations between capital and labour should be organized in the great
modern enterprises, and perhaps above all, who should pay the taxes--all
these questions and an infinity of others raise up problems not of
knowledge but of will. They are the questions in which the concern is not
with economy but with the situation of man, his rights, his liberty, and
his dignity within the economy. It is a question of the power of deciding
for the collectivity on a subject of collective interests. It is not for
the technician to decide, but for the man political.
A last and decisive objection, conclude the democrats, against the
system of a vocational parliament is that it replaces or annihilates
the democratic Chamber elected by the equal suffrage of all, that is
to say, by democracy itself, and substitutes for it a professional
chamber elected by a plural vote of privileged persons. Let the proposal
be remembered which the Prussian conservatives submitted two months
before the Revolution of 1918 to effect, as they claimed, the equality
of the right to suffrage. Each elector was to have one vote within his
professional vocational group; but the representation contemplated by
this proposition was that the group of farmers were to have one seat
for every 12,295 electors, whereas their labourers would not get more
than one seat for every 110,530, a landed proprietor having electoral
power ten times as strong as that of an agricultural labourer, six
times as strong as that of a factory worker and one-and-a-half times
as strong as that of a civil servant. It is true that the division of
mandates in a Chamber of Labour would not result in as anti-democratic
consequences as these; but the project of this chamber is based on the
essential principle of parity between employers and workers; the two are
supposed to be rigorously equal in numbers. That would be self-evident
and understandable fully if the two groups had to settle questions in
which their reciprocal interests were opposed, or if it were a question
purely technical, where the number of delegates does not enter into
consideration. But it is absolutely impossible to admit that an assembly
thus constituted should take decisions or vote resolutions; for, _a
numerically equal representation both of employers and employés would
correspond obviously to a proportion of electors much greater for one
class than for the other_. In any industry, for example, an employer
represents considerably fewer electors than a worker, and to give his
voice in the direction of public affairs an influence equal to that of a
worker, would be, from the point of view of democracy, an absurdity. One
thing or the other. Either the seats in the Vocational Parliament are
apportioned among the professions according to the number of electors in
each, the representatives being elected in each vocation by the equal
suffrage of all without distinction between employer and employé--in
which case there would result a duplication of the political parliament
of which the least one can say is that there is no apparent utility
in it. Or, the number of seats attributed to each profession must be
measured by the economic or social importance of that profession, basing
representation in each profession on the principle of parity--in which
case there would result a parliament of the privileged, condemned by
the democratic ideal. An assembly thus composed could very well draw
up reports and give advice on questions in which it possesses special
competence. But it cannot be a parliament having rights equal to those
of a political parliament.
* * * * *
Such are the objections put forward by democrats against the institution
of a Chamber of Labour, and their force cannot be denied. But the
champions of an economic parliament reply with vigour.
These objections, say they, all take the point of view of _formal
democracy_, that is to say, the point of view that considers only
the external forms of democracy, which contents itself with a purely
theoretical equality of right and equality between citizens corresponding
not at all to the facts of reality, which reduce this equality to
nothing. To this form of democracy, to-day condemned by reality, there
must be opposed _real democracy_, in which one takes into account the
special rôle which certain elements in the life of a nation play. Formal
democracy has been fully realized by giving all men and women the right
to vote. That is not enough. In a modern democracy public economy must be
given its proper place, which is in the forefront. Producers, as such,
must play the preponderant rôle in the state, for the other members of
the community live only as parasites on their labour, and the state does
not exist except by the labor of the producers. No decision can be taken
in a state if it is not accepted by the producers; the latter must be the
touchstone of all decisions.
It is not because of their technical competence that producers are
proposed as the constituents of a special chamber. _It is because they
judge things from the point of view of production_, which in a modern
democracy should count more than any other. It is not a question of
abolishing the political parliament, but of placing in juxtaposition to
it an economic parliament through which the voice of the producers can be
heard and by which the ideology of the politicians can be corrected by
the realism of men of affairs.
No division of competence between the two parliaments in such a way that
only social and economic questions shall be submitted to the Chamber
of Labour can be admitted. This distinction between political affairs
and economic affairs is a pure impossibility, for economy, politics
and general culture form a unity which must be respected. It is on
production, on “creation” that the existence of the people and all its
material and intellectual life rests. The two parliaments therefore
should have equal power to study these questions. They must also have
equal rights. To give the economic chamber only the right to draw up
reports and give advice, and even to oppose its veto only, would be
entirely insufficient and would not correspond to the primary rôle which
the producers play in the life of a nation.
It is superfluous, continue the partisans of a Vocational Parliament, to
present arguments of which history constantly furnishes corroboration. In
the countries which practise the system of two chambers, one of the two
chambers takes on always a greater importance than the other and plays
the preponderant rôle. It is the one which translates best the will of
the nation and best satisfies its needs. The other chamber may be able to
resist for some time but in the end it is always forced to surrender. Up
to now this preponderant rôle has been held by the lower houses, which
being the product of universal suffrage, are always nearer the people,
have more of their confidence and reflect more exactly their aspirations.
Let us create now by the side of the former lower chamber, a Chamber of
Labour and let us leave to it the care of determining its own future.
It will either become a parliament of the privileged, making decisions
that will not correspond to the true needs of the nation; in which case
it will be promptly annihilated by the more popular chamber. Or, on the
other hand, it will show itself to be the more practical and the more
useful chamber to the people. In the inevitable conflicts that will arise
between the two chambers, the economic chamber will have behind it the
support of the people. In case of referendum it will be in favour of the
Chamber of Labour that the national sovereignty will decide; in which
case the traditional rôle of a lower house will pass into the hands of
a Chamber of Labour. The proponents of the Vocational Parliament are
convinced that it will be this last alternative that will be realized.
The German Constituent Assembly has followed their suggestion only to
a very slight measure; sufficiently perhaps to attempt the experiment
recommended by the advocates of the Vocational Parliament. The Assembly
has created an Economic Council, which will be judged by its work,
although it is deprived, according to the Constitution, of any real
political authority. It is sufficient for the moment to say that in
principle it is the classic point of view of formal democracy that guides
it.
4.--THE POLITICAL ACTIVITY OF THE UNIONS.
Meanwhile, however, several things occurred that seemed to support the
arguments of the partisans of a Chamber of Labour, when they claim that
the natural evolution of events must lead shortly to the advent of this
chamber.
We know that on March 13, 1920, counter-revolutionary troops led by the
Infantry General von Lüttwitz seized Berlin, that the regular government
abandoned the capital and that the Director-General of Agriculture, Kapp,
was proclaimed at the same time Chancellor of the Empire and Premier
of Prussia. It was a _coup de main_ of officers and former reactionary
functionaries, all of whose acts aimed at the re-establishment of the old
régime. On the 14th the unions of workers and clerks sent an ultimatum to
the new masters of Berlin demanding that they immediately withdraw. As
this ultimatum was not obeyed, a general strike was proclaimed on March
15.
The counter-revolutionary government lasted four days; then, conquered by
the general strike, it disappeared.
But before giving the workers and employés the order to return to
work the chiefs of the unions wanted to obtain guarantees against the
return of a new _coup d’état_. They called therefore on March 18 the
representatives of the parties of the majority to a conference, where
they presented to them the following new ultimatum. These representatives
were to accept in the name of their groups--which would therefore be
bound--the claims which would be submitted to them; otherwise the general
strike would be continued in an aggravated form. The unions would not
hesitate, if necessary, to prevent the return to Berlin of the Government
and the National Assembly. They would even accept the responsibility of a
civil war. The representatives of the Democrats and of the Centre refused
to pledge their parties. They promised only to do what they could to get
them to accept the claims of the unions.
As for the claims themselves, they were presented by the union leaders,
and, after a long discussion and some modifications, they were accepted
by the representatives of the political parties. These claims formed the
celebrated agreement known in Germany as the “Eight Points.” They gave
particularly to the unions the right to exercise a veritable veto over
the nomination of Ministers and the formation of the Ministry.[20]
This agreement concluded, the regular government came back to Berlin. But
then came its turn to negotiate with the trade unions and to attempt to
satisfy their new claims.[21] These new engagements secured, the union
leaders ordered the end of the general strike and the resumption of work.
Meanwhile in accordance with the “Eight Points” the cabinet of Bauer was
formed. The crisis seemed ended on March 24 by the simple replacement
of some ministers; but the unions raised difficulties over the new
composition of the cabinet. They no longer wanted as Minister of Finance,
Kuno, director-general of the Hamburg-American Line; and demanded the
resignations of two former ministers, Schlicke and Schiffer, whom
they accused of having treated with Kapp and Lüttwitz. After long
negotiations, the unions withdrew their opposition to the retention of
Schlicke in the Ministry, but kept up their objection against Kuno
and Schiffer. These two, therefore, gave up their attempt to enter or
to remain in the ministry; but the Democrats took the part of Schiffer
and the whole cabinet was compelled to resign. It was replaced with the
consent of the unions by the ministry organized by Hermann Müller.
Meanwhile work far from being resumed, a new kind of civil war developed
in the Ruhr. On the one hand armed workers, who had first organized
to fight against Kapp and Lüttwitz, remained united and under arms
for fear that even after the conclusion of the _coup d’état_ of Kapp
and Lüttwitz, there would remain under another mantle a disguised
military dictatorship. On the other hand, troops of the Reichswehr,
some of whom were accused by the workers of having the support of
the counter-revolutionary government and whose powers seemed to be
unlimited, alarmed the labouring population. On March 21, there was held
at Bielefeld a conference in which met members of the constitutional
government, delegates of the parties of the majority, and representatives
of the Independents and of Labour organizations. An “armistice” was at
first concluded, then an accord was achieved--known in Germany as the
“Bielefeld Agreement”--in which to the “Eight Points” of Berlin was
added a “Ninth.” This would, at least it was so hoped, bring about the
dissolution of the revolutionary organizations and the re-establishment
of the regular administrative authorities.[22]
In spite of this agreement, however, fighting continued and on April 6
the unions, to whom the two socialist parties rallied, addressed another
ultimatum to the government. But it was precisely the moment at which
Franco-Belgian troops occupied German cities on the right bank of the
Rhine and attention was thereafter diverted entirely to foreign politics.
Such are the facts. The parties of the coalition have attempted to
justify them and to prove that the imperative injunctions addressed by
the unions to a government which had to yield almost at every point did
not constitute a violation of the constitutional principle of national
sovereignty. They pointed out that the first of the “Eight Points”
recognizes expressly the rights of national representation; that the
decisive influence accorded to the unions in matters of social and
economic legislation had to be exercised through the intermediacy of
representatives speaking for the unions in the ministries charged with
the preparation of law; and that the last word belonged, therefore,
always to the popular representation; that, although it is true that the
unions protested against the nomination or the retention of Kuno and
Schiffer in the ministry, yet in reality the cabinet of Hermann Müller
had been constituted according to the customary forms after an accord
with the parties of the majority.
Other members of the governmental parties, on the contrary, pleaded
extenuating circumstances. The Minister of Post and Telegraph, Giesbert,
after having participated in the “Bielefeld Agreement,” declared that
he did not want to examine whether this accord was contrary to or
in conformity with the Constitution; for, “extraordinary epochs and
extraordinary circumstances compel extraordinary measures. The conviction
of those who participated in the conference (of Bielefeld) is that this
agreement was the only possibility of avoiding chaos and devastation in
the territory of the Ruhr.”[23]
But the opposition parties unanimously insisted that the Government’s
attitude was really contrary to the principle of national sovereignty.
In a democracy only the parliament elected by the whole people should
decide; only it could appoint the Government and it was responsible
for its decisions and nominations only to the people of the nation
themselves. As for vocational associations, their function is to defend
only the corporate interests of their members and they had no right to
encroach on the political domain. In the events of March-April, 1920, the
unions, leaving their vocational domain, revealed themselves the real
masters of Parliament and of the Cabinet, which had to submit to their
injunctions. The Independents congratulated themselves and proclaimed
that thereafter the Government was placed under a certain surveillance
of the organized proletariat. The parties of the Right indignantly
refused to acknowledge a “side government” (Nebenregierung) over the
regular government. “Henceforth,” said one of the opposition journals,
“workingmen’s organizations can say that their orders are always carried
out. It is true that the Democrats seem troubled by the state of affairs.
But what difference does that make? There are only three parties that
govern Germany--workingmen, employés, and civil servants.”[24]
These statements are undoubtedly exaggerations in two respects. One fact
meanwhile must be noted of importance here. While the government was
discussing with the unions the formation of the ministry the newspapers
printed vehement protests from vocational associations and from other
labour unions and groups of clerks and civil servants, which demanded
that they, too, be allowed to participate in the negotiations. For they
did not understand why the labour unions should alone have the privilege
of participating, for example, in the choice of Ministers--and it is
impossible from the democratic point of view to deny the force of their
position.
Without deducing from these facts any premature conclusions one may ask
if the supporters of an Economic Parliament are not right in saying
that formal democracy no longer is able to meet the actual needs of the
people.
The events of the months, March-April, 1920, demonstrated, they say,
the complete incapacity of political powers to surmount any difficulty
as soon as it becomes in the least serious. One of them wrote, “The
political party is about to become a superfluous organization; it is
being ousted or perhaps absorbed by the vocational association.”[25] A
new epoch demands new political forms. It is true that it is inadmissible
for a certain class of unions to arrogate to itself the right to impose
its wishes on a government of the whole people. We must not think, on
the other hand, that in the future the unions would renounce the use of
means which have hitherto proved to be powerful. There is only one remedy
open: to associate the other productive parties of the nation with the
political work of the unions; to transform this present irregular and
irresponsible political work, such as it is now, into a constitutional
collaboration with the government of the state. It is there that the
events of the month of March have demonstrated the necessity of changing
the present system. These events appear thereby one of the steps which
lead from a formal democracy to a real democracy, from a purely political
parliamentarism of the past to a politico-economic parliamentarism of the
future.
SECTION II
APPLICATIONS
The democratic principle is one of the bases on which the Constitution
of August 11 is constructed; more or less immediate applications of it
are found in most of the institutions provided for by this Constitution.
We shall confine ourselves here to the study of the principal and most
direct of these applications.
1.--THE REPUBLIC.
The normal form of a government in a democracy is the republic. It is
logical that if the people is sovereign and if all power comes from the
people the chief of the state, like its other organs, should be elected
by the people and hold his authority by virtue of it. It is true that
there may be and that there are democratic monarchies, such as, for
example, England. But this juxtaposition of monarchy and democracy, is,
from the point of view of theory, difficult to justify and in practice
can be maintained only by reducing the effective power of the monarch
to almost nothing. Democratic Germany therefore, must be republican. In
reality the National Assembly arrived at a republic much less by logical
compulsion than through actual necessity; like the French Assembly of
1875, it adopted the republican form because it was difficult for it,
if not impossible, to do otherwise. It seems that the great modern
democracies do not become republican until monarchy has been demonstrated
as impossible. The republic is at the outset only a last resort; and this
must be realized and borne in mind.
Before the Revolution nothing in Germany was republican. Almost totally
deprived of political spirit and personal judgment the German people
had let themselves be convinced that it was only in the hands of the
monarchy, the army, and the bureaucracy that the affairs of the nation
were best and most safely conducted; and they naturally came to think
that the prosperity in Germany in economic and in technical matters,
as well as its development in social matters, was undeniable proof of
the excellence of the monarchical system. No political party dreamed of
incorporating in its program the establishment of a republic. Not even
the Social Democrats themselves really believed that the republican form
was a thing which the time had come to demand. They even held that the
economic and social interests of the working class could be more solidly
assured by a powerful monarchy than by a republic and a democracy of
“capitalists.”
After the Revolution the situation changed entirely. The sudden and
complete bankruptcy of monarchy demonstrated overnight, with all the
convincing force of fact, that this monarchy, in spite of its apparent
force, was incapable of fulfilling the duties whose accomplishment alone
could justify its existence. The powerful monarchy had not had any clear
and co-ordinated foreign policy; it had turned against Germany all the
active forces of the world; it had shown itself unable to utilize to its
full limit the military and economic capacity of the German people for
waging a desperate war to an acceptable conclusion; it had not been able
to realize indispensable internal reforms. After November 9, one can say
that there were no more royalists in Germany; monarchy had become really
impossible and the Reich could not continue except as a republic.[26]
Later the monarchist flag reappeared, rallying about it all the
deceptions and discontents. During the discussion of the draft of the
Constitution the German Nationalists, among them the former Minister
Delbrück, declared loudly that they preferred a constitutional,
parliamentary monarchy to a republican government; but the other parties
did not follow them. In Article 1 of the Constitution it was decided that
“The German Reich is a Republic”; and in Article 17 that “each state must
have a Republican Constitution.”
As a symbol of this change in the form of government the Constitution
changed the colours of the German flag; abandoning the black-white-red
of the old régime and adopting the colours, black, red and gold because
of their historical significance; because these colours had always
symbolized in the courts of the nineteenth century the tendency toward
political liberty and towards German national unity.
However, the Constitution does not give the new German state the name
“Republic” but keeps the name of “Reich.” The Independents protested
against that; they insisted on the fact that “Reich” will be always
translated in French and in English as “Empire” and that this word
will always signify to foreign powers all that militarist domination
implies, the despotic subordination and the dangerous pan-Germanism that
characterized the old Empire. But Preuss, followed by all the other
parties, observed that abroad “Reich” could not be translated as “Empire”
except in bad faith, for Article 1 specifies that Germany is a republic
and that the republican character of the state appears clearly in even
the most casual reading of the text of the Constitution. For him the
distinctive trait of the Constitution was that it places to the forefront
German unity. “After all, our historical development is precisely in the
words ‘Reich’ and ‘German Reich’ with which are associated the efforts
of the German people towards unity and the re-establishment of national
unity. I believe that to keep the word ‘Reich’ is entirely compatible
with the marked emphasis on republican character with which the whole of
the Constitution is impregnated.”[27]
2.--UNIVERSAL SUFFRAGE, THE POLITICAL PARTIES AND THE ELECTORAL LAW.
Democracy being the government of the state by the will of the majority,
the next problem, a difficult one, is how to indicate that will.
First of all, does such a will exist? Hegel once said, “The people is
that part of the state that knows not what it wants.” It seems at first
glance that that is true. How many men there are who, when faced by a
political problem, seem completely incapable of judging and making a
decision. In regard to questions of prime importance in contemporary
politics the great mass of individuals, no matter to what class they
belong, remain hesitant and uncertain. There is in the last analysis no
firm and conscious will in the many. There are unreflected and obscure
impulses which govern men in political matters. And if such are the
isolated volitions of individuals, what can one expect of the sum total
of these volitions? Is it possible to derive from the sum of these
negations anything positive and to extract from these fugitive volitions
anything that resembles a collective will?
The individual wills are not only too feeble and too little conscious;
they are also too dissimilar and contradictory to permit being
constructed into an ensemble. It is a chaos of infinitely diversified
indications; making it an absurd project to try by means of an election
to secure a parliament that will constitute a faithful mirror of these
chaotic indications.
Yet popular will should not be, cannot be, a myth, for in every chapter
of modern history it is encountered and its power felt. At the birth of
constitutional states and at every epoch of their increase in strength
its action is noted; whether in the victorious thrust of the principle
of nationalities or in the development of the socialist idea. All these
movements--and how many others!--have denoted that there is in the great
masses an active and powerful will. In war, too, is it not the popular
will that leads masses to consent to sacrifices such as would not have
been believed possible? There is such a thing as popular will, and no
arguments given against its existence are valid.
It must be examined, therefore, in concrete fashion how what is rightly
considered as the popular will is expressed in practice in modern
political democracies. If all the processes of this formation are
reduced to their essential elements, discarding all complications that
may introduce error, there is revealed this: the fact that between the
individual and the people as a whole there interposes itself a third
element, the political party. What matter if in some respects one may
think that, even under the most favorable circumstances, it is only
a necessary evil? The political party is a political means not only
indispensable but fecund and perfectly rational. Its essential function
is _to transform isolated volitions into a collective will of the
ensemble_. Therein, too, the apparent contradiction between the fact that
the crowd has no conscious will and the postulate of a popular will is
reconciled. The tendencies of individuals, chaotic as they may be, change
completely in nature when they are joined to equal or similar tendencies
of many other individuals. From the contact of these vague and troubled
impulses there springs forth the conscious and clear collective will.
Certain impulsive forces particularly powerful disengage from others and
unite with adjacent currents to create and to strengthen a movement that
can attract the masses. It is only when chaos is thus organized and when
impulses are thus transformed into forces that these forces acquire a
political significance and can be compared and confronted in a parliament.
Such being the primary function of the political party in a democracy,
positive legislation must be such as to permit it to fulfil this function
in order that the powerful popular will shall be most clearly and easily
clarified and formulated by it. We must examine how this has been
embodied in German law.
* * * * *
In conformity with the democratic principle the Constitution in Article
22 provides: “The delegates are elected by universal, equal, direct
and secret suffrage by all men and women over twenty years of age, in
accordance with the principles of proportional representation. The day
for elections must be a Sunday or a public holiday. The details will be
regulated by the national election law.”
This law is dated April 27, 1920, and was itself followed by an ordinance
on May 1, 1920, which specifies each application.
I.--GENERAL PRINCIPLES.
The system according to which the delegates to the National Assembly were
elected has not given complete satisfaction.
The principal objection made against it was directed above all against
the law of November 30, which permits parties to unite their lists of
candidates, a privilege from which the parties that lent themselves to
neither alliance nor compromise naturally suffered. Such lists have been
criticized as corrupting political morality and obscuring the results of
elections.
But it has been also estimated that the division of representation in
accordance with the Hondt system permits the stifling of small groups and
that after the apportionment of seats in the different districts there
are votes which secure no representation to the detriment of the small
parties.
It is found also that the division of the territory of the Reich into
electoral districts has been badly done, some districts being in a
general way much too extensive. There are, as a rule, an average of
eleven members per district in the National Assembly, and experience has
shown that this number is too large for the members to be able to know
well the needs of their districts and to maintain close contact with
their electors.
It has been decided to abandon, therefore, the system of Hondt and to
adopt an automatic system which was inscribed in Article 24 in the
Constitution of Baden, and which is more customarily known as the _Baden
System_. It is thus defined in the above-mentioned article: “Each party
or group of electors is allowed one member for every ten thousand
votes cast for its list of candidates. In each district the votes
remaining unused are added up for the whole country and are apportioned
representation according to the principle described above. Every fraction
of more than 7,500 votes is permitted a seat.”
The originality of the system consists in this: First, the number of
members, instead of being fixed according to the number of the population
or of the electors, depends on the number of those actually voting, in
such a way that not until after the elections can one count the number
of members that will make up the assembly. The latter, therefore, will
be more numerous if the electors are more numerous. There is also a
superimposition of the tickets. The votes not utilized in the tickets of
the first degree are reassembled on a list of the second degree where a
new division of seats is made.
This mechanism represents obvious advantages. It insures to each party
exactly as many members as it should receive according to the number of
votes cast for it throughout the whole state. It realizes the greatest
possible use of remnants of votes, and consequently satisfies as
completely as possible the exigencies of proportional representation. All
attempts by the government or by a majority at a cunning and dishonest
division of the country into artificial electoral districts are thus
eliminated. In addition this system permits the possibility on the part
of parties to give seats to candidates who have exceptional parliamentary
experience and who play political rôles of the first order, but who
despise mixing in local political struggles, such as may be considered
among the principal influences in the lowering of the personal character
of parliament. The ticket of the Reich permits each elector to vote
at the same time for the man in whom the locality has confidence, who
knows the needs of his districts and of his electors, as well as for the
leaders who direct his party.
The system of Baden can be in turn applied in different modes. To give
the public a chance to discuss these modes and to pronounce on this
matter, the government of the Reich in January, 1920, published three
advance projects of electoral law, each project defining and regulating a
particular modality.
Project A introduced the Baden system in its purest form. It provided
for electoral districts in which the number of voters was generally
sufficient to elect six members; the unutilized votes in each district
would be immediately summed up in a ticket for the Reich, where
representation would be apportioned in the same manner as within the
district.
Project B provided for electoral districts of four members each. But
between the district tickets and the ticket for the Reich there would be
a third: several adjoining electoral districts being united in “a group
of districts,” in which lists called “tickets of the groups of districts”
would have to be presented. The unutilized votes in the electoral
districts would be first added up within the “union of districts” and
credited to the ticket of this union. The ticket for the Reich would then
receive only the unutilized fractions of each group.
Project C provided for electoral districts of the same extent and for
groups of districts of the same nature as Project B. But parties would
be free to present or not tickets in the groups of districts, the
understanding being, that if they decided to present for election a list
of candidates in each group of districts, they could not present lists
within the districts of the group. This provision was designed to answer
the following need. Groups of electors, not numerous enough to obtain
in the first instance one or more seats in this or that district, could
unite in groups of the same party for adjoining districts to present a
ticket in common (a ticket of the group of districts) which would apply
for the whole group or for only some of the districts entering into this
group. While the big parties, to avoid the inconveniences of cumbersome
tickets, would present in general a list of candidates by districts,
the little parties would be able to present but one ticket for several
districts, which would enable them to secure seats they could not
otherwise win.
* * * * *
The project of the electoral law which was presented by the Cabinet to
the Reichsrat on March 2, 1920, adopted the mechanism of project C.
The Cabinet justified its choice as follows: It is only in small
districts that the indispensable contact between electors and their
deputies can be maintained and, that long lists of candidates, which
always lead to unpleasant surprises, can be avoided. If the electoral
districts are reduced to no more than four deputies each, as project C
would have it, the first candidate on each list would have in general
the best chance of being elected; which would in most cases assure
representation to the most intelligent electors in the district. The
criticism which can be made against the ticket for the Reich that a
certain number of members can be sent to Parliament elected not directly
by the people but by the executive committees of the parties, is reduced
to a minimum in project C as compared to project A, by the introduction
of the tickets for the groups of districts. The number of deputies to be
elected on the ticket for the Reich is thereby reduced and the influence
of executive committees of the parties is diminished in favour of the
influence of local organizations.
On the other hand, project B could not be supported. The establishment,
the examination, and the publication of each of the lists of candidates
for each of the three degrees to which the division of seats would be
made, must offer serious difficulties, given the brief time to which
would be reduced the preparations of elections. According to Article
63 of the Constitution, elections must be held at the latest on the
sixtieth day after the expiration of the legislature or the dissolution
of the Reichstag. Electoral authorities could not, except with hasty and
desperate work, assure in such a short space of time the preparation
of elections of the three degrees. In addition, system B has the
inconvenience of requiring a considerable number of candidates before
it is possible to foretell, even approximately, how many candidates of
each of the two first degrees would be elected. It is true, however, that
it had the advantage of reducing to a minimum the number of candidates
elected on the ticket for the Reich.
Finally, project C, in giving to groups of electors the choice of either
presenting district tickets or joining groups of neighbouring districts
in presenting a common ticket, answered best the need of parties to
dispose their forces most effectively within the different districts. It
permitted them, so to speak, to group their districts according to their
fancy, following their particular needs.
This was in outline the system which the Government designed and
submitted to the Reichsrat. But before this assembly finished its
scrutiny of it the events of March, 1920, transpired, completely changing
the political situation and rendering general elections imperative for
the following June. Instead of examining thoroughly, as it had been
their intention, the project submitted by the Government, the National
Assembly, in considering this project on March 27, was compelled to pass
to a vote as quickly as possible. Neither did the Government defend its
project with any particular consistency. Minister of the Interior Koch
explained that the Government adhered above all to the principle of the
automatic system and to the grouping of fractions into a ticket for
the Reich. As for the division of German territory into new electoral
districts, smaller and more equal in extent than those which had served
in the election of the National Assembly, but districts that could be
united into “groups of districts,” that was an interesting innovation.
But if this was to be effected it would be necessary to adopt in
their ensemble the projects admitted to the Assembly. Meanwhile the
question presented itself whether the party organizations would be able
to accommodate themselves to so radical a change in the division of
districts, given the brief delay which would be accorded them until the
elections. The Minister referred the question to the deputies themselves
to answer, as being in closer contact with the organizations of their
parties. The Assembly decided to retain in principle the electoral
districts that had served in their own election; the only modifications
to be made were those necessitated by very grave imperfections of the
distribution.
Having rejected a new distribution of districts, the Assembly had also
logically to reject the institution of “tickets of groups of districts”
as a substitute for district tickets; it thus came back to the system of
Project A--fixed districts for all parties and the assigning of fractions
to a ticket for the Reich.
This ticket for the Reich, therefore, would have been presented if
there had not been brought forward some modifications of the principle
because of grave inconveniences. Foremost of these was the following
objection: In trying to apportion the votes cast by the electors for
the National Assembly according to the mechanism provided by Project A,
it was seen that 18 per cent of the members of the Reichstag, that is
nearly one-fifth, would be elected on the ticket for the Reich and it was
estimated that such a result in the elections of future Reichstags would
be but little compatible with the constitutional principle of the direct
vote. It was decided in rejecting “group-of-districts tickets” to create,
nevertheless, groups of districts. Political parties could declare in
advance that they would “unite” within these groups the whole or parts
of their district tickets, in such manner that the votes cast for these
tickets and remaining unutilized would be assigned to the district
tickets receiving the largest number of votes. It would not be until this
second redistribution that the fractions would be transferred to the
ticket for the Reich. The object was to avoid the possibility that by
assigning fractions to “joined” tickets and to the ticket for the Reich,
the big political parties would be thereby risking loss to the advantage
of small groups of electors which could not assemble within any district
an appreciable number of votes.
For this reason the following double distribution was adopted. No party
will be entitled to a seat by “joining” its district tickets unless one
of its tickets has obtained at least 30,000 votes (half of the number
necessary to elect a member). No party will be assigned on the ticket
for the Reich a larger number of members of the Reichstag than had been
elected for that party in the districts on the district tickets.
II.--THE ELECTORATE AND ELIGIBILITY.
In principle every German twenty years old is an elector, without
distinction of sex.
Causes for the deprivation of the electoral right of individuals are
reduced to a minimum. The only ones denied this right are those who are
placed under guardianship and those who have been deprived of their
civic rights by a court decision. Bankrupts and paupers preserved their
electoral rights, in contrast to their situation before the war. Soldiers
who had taken part in the elections for the National Assembly were again
disenfranchised so long as they remained under colours. Finally certain
other conditions, which did not involve the loss of electoral rights,
still prevented their exercise: detention in institutions for mental
ailments and imprisonment, including preventive imprisonment. The laws
specified, however, that individuals imprisoned for political reasons
could demand that measures be taken to permit them to exercise the right
to vote.
To be able to vote, when one is an elector, one has to be entered on
an electoral list or on an electoral roll, or be furnished with an
“electoral certificate.” These last two institutions are unknown in
France and must be explained.
Germany ignores the principle known as permanence of electoral lists.
Before the Revolution electoral lists were in principle revised for each
election to the Reichstag. But the granting to women of the right to
vote, which doubled the number of electors, and the fact that thereafter
the electors of the Reich would have to vote not only every four years
for the Reichstag, but also in the election of the President, and
in cases of referendum, initiative, and plebiscites provided by the
Constitution, have increased the difficulty of retaining the former
system pure and simple.
There were in addition different proposals made to abolish it completely
and to replace it by a procedure which would do away entirely with
electoral lists. There would be given to each elector an “electoral
passport” or a “citizenship card”[28] which would be sufficient to
enable him to vote. But these propositions were rejected because of
the considerable cost of the passports or of the cards, and because of
the technical difficulties of furnishing adequate photographs of all
the electors, necessitated by this scheme; and in addition because for
certain votes, such as plebiscites and initiatives, it is necessary that
the number of individuals having the right to vote be known, which would
be difficult according to the systems proposed.
Another proposal achieved more success; that of electoral cards. This
system consists in this, that electoral lists, instead of being made
up by the administrative authorities, are made up by the electors
themselves. To this end there are given by the communes to their electors
cards which consist of several coupons. The elector fills out his card
and returns it to the municipality, which verifies and completes it.
The cards are then sent to the seat of the electoral district and are
numbered. Then the coupons are detached. Coupons Number 1 make up the
electoral lists; coupons Number 2 make up a duplicate; coupons Number
3 are sent back to the electors. This last coupon is for the elector
a proof that he is entered on the electoral rolls and establishes his
identity and the number he bears on the roll, before the election board.
It is his voting card.
This system is a simplification, in the sense that it dispenses with the
making of an alphabetical list and puts part of the work on the elector.
But in spite of these advantages it has not been completely adopted.
The electoral law _provides, that, the different districts before each
election must prepare lists of its electors; and it leaves to them the
choice of preparing this list either according to customary rule for
electoral lists, or according to the procedure of electoral cards_.
The elector is entered on the list of the district in which he lives, and
it is there theoretically that he is supposed to vote. But there is an
exception to this rule; if he is away from home on the day of election,
either because of business reasons that compel his travelling at the time
of election, or because of a necessary absence at some health resort,
or because he has had to change his residence before election, he can
demand an electoral certificate[29] which will permit him to vote in any
electoral district of the Reich.
This innovation has appeared to present little danger, for in the new
electoral system a political party is never interested in getting more
votes in one district than in another.
Every elector is eligible as candidate for the Reichstag on the double
condition that on the day of election he is twenty-five years old, and
that he has been a naturalized German for at least a year. In addition to
this he must be regularly placed on the list of candidates.
It will be recalled that for the National Assembly every elector was
eligible; one could thus be elected member at the age of twenty.
Actually, however, the youngest elected was twenty-seven years old. The
new law returned to the rule followed for the former Reichstag in fixing
the minimum age at twenty-five.
It must be noted that those who, without being permanently deprived of
the right to vote, are only prevented from voting by certain special
circumstances, because of being under colours, or imprisonment, or
because by mistake they have been left off electoral lists, are eligible
for election. In the same way civil servants are also eligible. German
law does not know relative ineligibilities, which French public law
admits.
III.--PREPARATION OF ELECTIONS.
In a country of sixty million inhabitants of whom more than half
are electors and vote, above all, where the system of proportional
representation has been adopted, preparation of the elections takes
on special importance. An organization must be provided which permits
to each elector the exercise of his right, and, as far as possible,
facilitates it.
German law provides to this end a rather complex machinery. First, it
provides for a table of thirty-five electoral districts into which the
territory of the Reich is divided, and for seventeen groups of districts,
into which districts are joined.
Then it institutes a whole series of organisms appointed by the
administration and charged with the duty of seeing that the electoral
procedure was carried out properly. These organisms are:
1. Electoral committees, which have as their function the examination
of lists of candidates, the union of such tickets, and the compiling of
the election results for each degree of the distribution of seats in the
Reichstag. There are electoral committees for each district, for each
group of districts, and a committee for the Reich. 2. Superintendents
of elections, who preside over electoral committees, whose function for
each stage of division of seats is to confer with the representatives of
political parties, to receive lists of candidates and the declarations
in which the parties “join” their tickets or make up a ticket for the
Reich; these superintendents announce the decisions. 3. Chairmen of
election boards who supervise the electoral operations in their boards.
4. Election boards which consist, in addition to the chairman, of
three members and six assistants, who supervise the voting and pass on
the validity of ballots. 5. Men trusted by political parties who serve
as intermediaries between them and the administrative authorities. 6.
Distributors of electoral envelopes, etc.
The law specifies very clearly the manner in which lists of candidates
must be drawn up and presented. There are or may be for each party
district tickets and a ticket for the Reich; there are no tickets for
groups of districts. These tickets must include only eligible candidates,
the status of eligibility of a candidate being examined by the competent
electoral committee. The lists must be signed by 50 or 20 electors,
according to whether the ticket is for a district or for the Reich. A
candidate may appear on the tickets of different districts but not more
than once within the same district.
Each party may “join” its tickets; which is distinguished from “groups”
of tickets, such as were allowed in the elections for the National
Assembly. The “group” of tickets was a contract between the signatories
of two or more tickets of different parties, the intention being to
have these tickets considered in the counting of ballots as one and the
same tickets as against other tickets. It was, therefore, an electoral
alliance between different parties within the same district. These unions
of tickets, as we have seen, are now forbidden. The new law, on the other
hand, provides that tickets may be “joined,” that is to say, that a union
may be effected of tickets of the same party within different electoral
districts, in order to utilize best the electoral fractions. In order
to be valid this combination must take place within the same group of
districts and between lists belonging to the same party, that is to say,
joined on the same ticket for the Reich.
IV.--DISTRIBUTION OF SEATS.
Seats are distributed among the tickets.
Each district ticket receives one seat for every 60,000 votes cast for
it in that district; the number of those elected, therefore, depends no
longer on the vote of electors or of inhabitants but on the number of
those voting.
The votes which cannot enter into this count because their number is
less than 60,000 remain unutilized if the ticket has not been joined to
another in the same group of districts; or if it has not been combined in
a ticket for the Reich. But if, as is the case usually, the situation is
otherwise, the votes are treated differently, according as one of two of
the following conditions is encountered:
(_a_) If district tickets of the same party are joined together within a
group of districts, the votes constituting the fractions described above
are added together and the party receives as many seats as there are
groups of 60,000 in the total. These seats are assigned to the ticket
that receives the largest fraction, on the condition that this district
ticket has already received at least 30,000 votes. The design is to avoid
the possibility that small groups, in joining their lists, may obtain
a seat at a time when they have not received in any district half the
number of votes necessary to elect a member of the Reichstag. If this
condition is not fulfilled the vote fractions are not utilized.
(_b_) If the district tickets are not united, all these vote fragments
are immediately transferred to the Reich ticket. Here, too, are assigned
the vote fragments that remain after the operation provided in the above
provision.
(_c_) The ticket for the Reich receives a member for every 60,000 votes
thereon. Beyond that every fraction in excess of 30,000 is considered
equal to 60,000. But the ticket for the Reich can never obtain more
seats than the total won by the district tickets whose excess fractions
have been united therein; for here, too, the design is to avoid the
possibility that small groups may secure more seats by means of the
ticket of the Reich than they have received by direct votes in the
districts themselves.
The distribution of seats among the candidates of the same ticket is,
because of the system which excludes “splitting” and the joining of
tickets, extremely simple. Those elected are designated according to the
order in which their names appear on the tickets, so that the wish of the
electors has no part in this matter.
V.--THE ACTUAL WORKING OF THE LAW.
The electoral system which we have described was applied for the first
time in the elections to the first Reichstag of the German Republic on
June 6, 1920. From the purely technical point of view it seems to have
worked satisfactorily. It is interesting above all to inquire how the two
principal innovations in these elections have worked out: woman suffrage
and the automatic distribution of seats.
I.--Women already voted in January, 1919, at the elections for the
National Assembly. They voted in considerable numbers. Of the women
eligible to vote 83 per cent did so. The percentage among the men was
82.4, which is approximately the same as the women. But this equality
disappears when we consider the proportion according to the ages of those
voting. Among the male electors twenty years old only 59.6 per cent
voted; whereas among the women of the same age 80.5 per cent voted. Thus
the young women seemed twice as zealous to use the new privileges that
had been accorded to both. Of the electors from twenty-one to twenty-five
years old, 70 per cent of the men and 80.9 per cent of the women voted.
But the statistics change when we come to the older groups. Past the age
of twenty-five it was 84.8 per cent of men that voted, and only 82.6 per
cent of women.
At the elections of June, 1921, fewer women seemed to have voted than the
year before, and this time it was the men who proportionally voted in
larger numbers.
But in 1920 there was tried an experiment in several districts which had
not been done in 1919. The men and women of these districts voted in
separate polling places, in order to determine their respective strength
in the various parties. We will cite, among other facts, two instances
obtained in cities of differing political complexion.
In Cologne 119,263 men and 110,364 women voted in the sections in which
this experiment was carried out. The vote was distributed as follows:
Centre 32,964 men 49,154 women
Social Democrats 36,295 “ 24,134 “
People’s Party 17,768 “ 15,944 “
Independents 18,245 “ 8,973 “
Democrats 6,554 “ 4,677 “
German Nationals 3,190 “ 3,422 “
In Spandau 23,294 men voted and 23,359 women. Out of every 100 men and
100 women the different parties receive the following proportion:
Independents 35.4 men 32.6 women
Social Democrats 21.3 “ 19.3 “
German Nationals 12.8 “ 16.7 “
People’s Party 12.5 “ 14.5 “
Democrats 8.3 “ 7.5 “
Communists 6.3 “ 4.2 “
Centre 3.2 “ 5.0 “
Other parties .2 “ .2 “
Thus in the two districts women voted more for the Centre and the parties
of the Right.
Of the total vote cast for the Independent Socialist Party 33 per cent
were women. In the Social Democratic party the proportion rose to 40 per
cent. For the parties of the Right the percentage was 52. Whereas of the
Centre women comprised 60 per cent.
The newspapers of the Left noted bitterly this irony of history, that it
is precisely the parties that have always been against woman suffrage
that are most strongly supported by women.
II.--The application of the automatic system has had several interesting
results.
Throughout Germany there were cast 26,017,590 votes. This gave the
Reichstag 466 members. The votes and the seats were distributed as
follows:
_Parties_ _Votes_ _Seats_
Social Democrats 5,614,456 112
Centre 3,540,830 68
Democrats 2,202,394 45
German Nationals 3,736,778 66
People’s Party 3,606,316 62
Independents 4,895,317 81
Communists 441,995 2
Bavarian Peasants’ Union 218,884 4
Guelphs 319,100 5
Christian Federalists 1,171,722 21
One may wonder that the Communists with 441,995 votes received only two
seats. This is explained by the fact, although they had put up tickets in
all the districts they did not receive more than 60,000 votes, that is
one seat, in any district other than Chemnitz. The votes that had been
cast for them in the other districts and the excess of 60,000 received in
Chemnitz were transferred to their ticket for the Reich. But there they
could not receive more than one seat according to the provision that no
ticket for the Reich may receive more seats than the number which the
party in question has won in the districts directly.
Of the members elected 329 were elected directly in the electoral
districts; 44 were elected in the district groups; 51 on the tickets of
the Reich; 42 other members were sent by territories in which plebiscites
had been ordered. These districts had not participated in the elections,
and retained until the new system the representation they had received in
the election for the National Assembly.
It must be noted finally, what could have been foreseen and what was
aimed at by the law, that the number of votes not utilized is extremely
small. The smallest fragment discarded was that of the People’s Party
with 8,851 votes; then came the Independents with 9,872 votes; the Social
Democrats with 11,457 votes, etc.
The cases in which a fragment of more than 30,000 votes became equivalent
to 60,000 and therefore won seats were as follows: Democrats, German
Nationals, Christian Federalists.
3.--DIRECT GOVERNMENT.
Universal suffrage is the means by which the sovereign people manifests
its will in a democracy. Once the election is over it leaves to the
representatives it has elected the freedom of directing in its name the
affairs of the state. This is the system of representative government. At
the same time the people give their representatives only limited powers,
and they reserve the right themselves to decide on certain particularly
important affairs. In such a case there is direct government. This system
constitutes obviously an immediate application of the democratic idea;
and it may be said that that Constitution is most democratic which avails
itself most of direct government.
The National Assembly has admitted without any difficulty the principle
of direct government into the Constitution. According to the expression
of Preuss, direct government to-day is a “postulate of democracy”; to
this the Social Democrat Quarck has added that direct government is “an
essential element of democracy for which to-day there have been found
positive, practical, and scientific forms, according to established
principles of public law.”[30]
But in this form of government there is found not only a logical
consequence of the principle of national sovereignty; there are also in
it certain considerable advantages.
First, there is the educational value in the fact that the people
participate directly in the conduct of public affairs. It is true it
sometimes happens, in countries which have already applied this form
of government that a decision of the people, far from constituting
progress, actually marks if not retrogression, at least an arrest in the
development of social legislation, or even in some matter of general
policy. Nevertheless the very efforts that are made to convince the
people and to bring them back to primary considerations, constitutes the
best kind of civic teaching and gives them a political experience, the
value of which in a democracy cannot be exaggerated. The collaboration
of great strata of the population in the creation of laws and in
political life profoundly educates the masses in the principles of their
Constitution; and an institution which has been established in a country
after bitter struggles, perhaps after several defeats, becomes thereafter
almost impregnable, or cannot be discarded except with extreme difficulty.
In addition direct government constitutes the best system of democratic
control over the organs of the state. Care must be taken in a democracy
to institute control over control; for democratic government is
essentially the reign of trust. The destinies of a nation should not,
therefore, depend exclusively on the parliament. While one may be for
parliamentary government, one may still fear that a powerful majority
may establish a veritable dictatorship and oppress minorities; or that
a majority formed by chance combinations may show itself incapable of
action and retard indefinitely the adoptions of measures impatiently
awaited by the people.
There is, then, place in Germany for direct government; but to what
extent? At first this place seems quite limited. Preuss, who in his
draft of the Constitution made only limited use of it, presented direct
government as convenient above all for small states; but he doubted that
one could apply it in any considerable number of ways in a big country
like Germany. In spite of this opinion direct government gained ground
little by little and in the final text occupies considerable place. One
finds in the Constitution not only the classic forms of constitutional
and legislative initiative and referendum such as, for example, have been
traditionally employed in Swiss and American democracies; but also we
find there new applications of direct government.
The people express themselves not only on the text of a law. They are
also the great political judges, the supreme arbiters to whom must be
submitted all difficulties of vital importance to the nation. The people
give to the organs chosen by them the right to legislate and to govern;
but if a discord arises between these organs or if these organs once
nominated do not bend to the people’s will, they intervene themselves on
the appeal of one of the organs or of their own accord. Direct government
expresses itself, therefore, when a conflict arises either between the
organs of national representation, or between this representation and
the nation itself. In these two cases it is the people who decide the
conflict.
* * * * *
First, then, discord may arise between the organs of national
representation. Being given a multiplicity of these organs the issues in
which the people is thus appealed to for intervention may be of several
kinds.
(1) The conflict may arise between two legislative chambers of the Reich.
If the Reichstag and the Reichsrat cannot agree on the text of a law, the
President of the Reich may or must, according to circumstances, order the
text to be submitted to a popular referendum. The conditions under which
this referendum is to take place are different according to whether the
law in question is a constitutional one or an ordinary law.
If the law in question is to be an amendment of the Constitution, the
presupposition is, that (Article 76) this change has been passed by the
Reichstag and objected to by the Reichsrat. If the Reichstag does not
yield to this objection and persists in its first decision, or if it
modifies it but in a manner not entirely conforming to the exigencies of
the Reichsrat, the latter may demand a referendum and the President must
order it.
If, on the other hand, it is an ordinary law that is in question, the
presupposition is again that the Reichsrat has objected to a law voted
by the Reichstag and that the latter disregards this objection. The
President in such a case is allowed to decide whether the situation
remains as it is--that is to say, that the projected law fails of
enactment; or, that the difficulty between the two Assemblies shall be
submitted to a referendum. It must be noted besides that these matters
referred for referendum to the people must be limited to the divergencies
arising between the two assemblies, and that the people pronounce for
either the text of one assembly or that of the other. If, however, the
Reichstag has rallied a majority of two-thirds against the objection
raised by the Reichsrat the choice on the part of the President is
thereby limited. He can only either promulgate or publish the law, or
refer it to the people.
(2) The conflict may arise between Parliament and the President; and this
may present two quite different aspects.
The two chambers are in accord on the text of a law which the President
does not approve; this is the first kind of conflict. In such a case,
unless the President wants to promulgate the law adopted, he must submit
the text to a referendum (Article 73, par. 2). It is in effect a very
strong right of veto given to the President and accorded to him without
much difficulty. The Independents, however, in accordance with their
thesis of the uselessness of the President, did not want to grant this
right to appeal to the people in such a case, except to a responsible
minister. Also the members of the German People’s Party opposed the
granting of this power as useless, being a duplication of the President’s
right to dissolve Parliament. The majority of the Assembly, however,
disagreed with them.
The German Nationals saw in this measure new opportunity to strengthen
the authority of the President and did not let the occasion escape them.
The parties of the coalition, on the other hand, felt that in investing
the President with these powers they only applied logically their
democratic principles. The referendum appeared to them, in addition in
this particular case, less of an increase of the President’s powers than
as a corrective of the fact that he has powers too great. A democracy,
according to them, can with less risk give itself a strong executive, if
it also includes among them his right to call a referendum in case of
conflict, which would thereby enable the people to rule on the conflict.
On the other hand, the supporters of the principle of separation of
powers supported this use of the referendum, which seemed to them more in
conformity with their principles than the power to dissolve the Reichstag.
Another kind of conflict which can arise between the Reichstag and the
President is not merely a question of legislation but of general policy.
According to the terms of Article 43, par. 2, “the President may be
removed by the vote of the people on proposal of the National Assembly.”
This provision was adopted without discussion and its presence in the
German Constitution is quite understandable. The National Assembly wished
to create a strong president; in fact, it has given him almost absolute
power. He is the man entrusted by the people along with the Reichstag
and the Cabinet. If he betrays this trust who other than the people
themselves should decide that? But if he has retained the confidence of
the people, what is there to fear from his being brought before it as
a tribunal? In addition to this Article 43 specifies wisely that the
vote, whereby the Reichstag decides to place the question of removal
of the President before the public, must be a majority of two-thirds.
Finally the same Article logically provides that if the people pronounce
against the removal of the President in such an instance, the Reichstag
is thereby dissolved, for it is the latter in such a situation that has
ceased to be in contact with the people.
(3) A conflict can also arise within the Reichstag itself. The hypothesis
is provided by Article 73, par. 2, thus: “A law whose promulgation is
deferred at the demand of at least one-third of the National Assembly
shall be submitted to the people, if one-twentieth of the qualified
voters so petition.”
This procedure complicates the work of the legislator. Dr. Heinze, member
of the German People’s party, has developed the following argument with
much force: A project of law has been sent by the Cabinet, with the
approval of the National Council, to the Reichstag, which, however, votes
a different text for it. This text comes back to the Reichsrat, which
raises objection to it. The Reichstag on a reconsideration of the text
adopts a compromise, as in the great majority of actual instances. But
there is always in the Reichstag a minority opposed to this compromise,
one which proposes to postpone the promulgation of the law and to submit
it to a referendum. For this proposal to become operative, it is required
that one-twentieth of the electors of the Reich support it, which, if
obtained, compels a popular referendum on this matter. This procedure is
extremely complicated and can often become dangerous. For one-third of
the Reichstag, forced by the party or the group that is behind it, can
feel itself obliged to propose a referendum to the people even when the
Reichstag and the Reichsrat have concluded happily a precise agreement.
Into this agreement there becomes injected a referendum with all its
hazards.[31]
In spite of this criticism the text was adopted because in Germany
cabinets are most often formed by temporary coalition of parties; and
the provision in question has the effect of giving an existing coalition
longer life and permitting the solution of disputes, thereby avoiding the
break-up of the coalition or a dissolution of the Reichstag.
(4) A conflict, finally, may arise between the government of the Reich
and that of a state over the question which is perhaps the most serious
one that can arise in a federal state--the territorial constitution of
member states. Suppose the question comes up of either changing the
territorial boundaries of a state or forming a new state. If one of the
states in question refuses to give its consent the population is then
consulted and it decides.
* * * * *
There is another kind of conflict, more serious perhaps than those just
examined. These are the conflicts that arise between the people and its
representatives. Let us suppose that the latter do not carry out the
provisions or the orders given them by the people. The latter in such a
case take matters into their own hands, with or without the collaboration
of the representatives, and impose their will upon them. Such a procedure
is popular initiative.
But here, too, several hypotheses must be distinguished:
(1) The people, for example, want a law which its representatives do not
give it. Shall the people be given the right themselves to bring that law
into being?
The parties of the Right of the Assembly supported the negative to this
question with considerable force. They held that to give the people such
a right to initiate legislation is to set up a rule of mistrust against
the qualified organs of national representation. Once these organs are
elected, they bear the responsibility of their decisions in the eyes of
the nation, and the latter must give them freedom to act. But to submit
representatives to the incessant control on the part of the people is
an exaggerated democratization. Further, if the Reichstag does not pass
the law demanded by the people, the President, the man in whom trust
has been placed by the nation, has only to dissolve the Reichstag.
Modern laws, also, are too complicated for the people to be able to give
qualified decision on everything they feel like deciding.
The supporters of such initiative replied that a control of this kind
over Parliament could not be instituted by leaving it all to the
President of the Reich alone. Occasions may arise in which both the
President and the Reichstag have lost contact with public opinion;
in which case it would be necessary for the people to make its voice
heard. It is also a truth born of experience that all great political
and social thoughts are at first the product of very small groups, and
it is only little by little that these become impressed on the masses.
The initiative is only a particular form of this evolution, and it
presents also this advantage, that it gives the popular movement the
chance to concentrate on a particular and important question, instead
of, as in ordinary elections, becoming dissipated among a large number
of questions of unequal interest. Finally, the example of Switzerland is
very encouraging. The proof is found there that the people often see more
clearly than their government, and that the initiative is the most solid
bulwark against the impositions of extremists. In the last analysis the
possibility of a popular initiative makes the political activity of the
government more living, and influences public agencies democratically in
a very desirable sense.
Finally legislative initiative by the people has been included in the
Constitution (Article 73, par. 3), but under certain conditions. It is
required that a detailed bill be submitted, to avoid the possibility that
the people may be called to decide merely on a general principle, about
which it is very easy to create an artificial disturbance. It provides
that one-tenth of the electors of the nation must support this bill.
This approval given, the Cabinet is obliged to submit the text to the
Reichstag after stating its own attitude on it. The Assembly then either
accepts the bill, thus satisfying the people; or it changes or rejects
it; in which case a referendum is then resorted to, in which the people
decides as the final resource.
(2) A second hypothesis is that in which a conflict between its people
and its representatives, or a part of its representatives, occurs as
in the case we have already described, where a third of the members of
the Reichstag demand that the promulgation of a law be deferred. It is
recalled that in such a case a referendum is obligatory if one-twentieth
of the electors of the nation support the demand of these deputies. There
is in this a combination of the initiative and the referendum. The action
of the deputies of the minority of the Reichstag in order to achieve a
referendum must be supported by an already considerable number of the
country’s electors.
But it must be noted--and this applies equally to the two kinds of
initiative we refer to--that according to the terms of Article 73, par.
4, certain laws are not open to popular initiative, and consequently to
referendum. These are the laws which because of their financial character
offer to electors a very strong temptation to profit by their sovereignty
to make their personal interest prevail. Such laws are those on the
budgets and taxes and those relating to the salaries of civil servants.
(3) There is finally a last instance in which popular initiative may
operate. It is that provided by Article 18, par. 4, whereby a population
wishes the government of its state and the government of the Reich to
proceed to a change in the territory of the state or to the creation of
a new one. If one-third of the inhabitants demand it the Cabinet of the
Reich is obliged to order a referendum.
* * * * *
Such are the conditions and the limits within which the Constitution
provides for direct government within the Reich. It prescribes that a
law shall be enacted regulating the details of the application of the
principles it puts forward; but up to the present time this law has not
yet been enacted. The Cabinet has, however, proposed a bill concerning
it.[32]
In the case of discord between the organs of the state, that is to
say, in the case where the people are called in by one of the organs
in conflict, the government proposes to apply, _mutatis mutandis_, the
procedure prescribed by the electoral law.
For the initiative, the procedure is naturally more complicated, for it
consists of two phases. One part of the people takes the initiative and
collects support for it. If this support attains the numbers prescribed
by the Constitution, a referendum is called. The initiative, therefore,
is always followed by a referendum, unless in the interim the authors of
the initiative have been satisfied otherwise.
The difficulty is to organize effectively the first phase of this
procedure, to launch the initiative properly so-called, in a country
comprising on the average thirty million electors who vote. In the Swiss
cantons, and in the United States of America, the initiative comes into
being by the gathering of signatures to a petition. In Switzerland such
signatures of electors often require authentification; but this leads
to considerable difficulty, for, frequently the electors have their
names signed by others whom they delegate to do so. In certain of the
United States the conditions for the exercise of the right of initiative
are variable. Often it is sufficient that the individuals who gather
the signatures to such petitions give assurance that the signers are
qualified electors.
In Germany it is believed that such a system could not be accepted and
a procedure has been considered in which the electors would inscribe
themselves on lists placed at their disposal by district authorities. In
addition the formality of inscription on these lists would be preceded by
an examination whose purpose would be to see if the conditions provided
by the Constitution for the inauguration of a popular initiative have
been complied with. This provision has for its purpose the elimination
of initiatives doomed obviously to failure. This would permit the
public authorities, once the principle of the initiative is accepted,
to announce such a possibility officially in order to give the people a
chance to take a position on the matter.
A demand that an initiative be admitted must be made by at least
five thousand electors. When the proposal for the inauguration of an
initiative has been admitted, all the electors can vote on it within a
period, which usually is about thirty days. This voting is done under the
auspices of the district authorities, to whom the task of gathering and
counting the signatures is thus confided as one of their official duties.
If the signatures thus gathered are sufficient in number, the referendum,
if it is decided upon, proceeds according to the provisions indicated
above and which are analogous to the electoral procedure.
CHAPTER IV
PARLIAMENTARY GOVERNMENT
A democracy, above all one comprising seventy million inhabitants, no
matter to what great extent it makes use of direct government, cannot
nevertheless govern itself that way. It must furnish itself with
representatives charged with the direction of public affairs. Democracy
presupposes by definition a representative government.
But this government may assume different aspects, and the republic--for
we have seen that the republic is the normal form of democratic
government--may be organized according to three different principles.
There may be noted, according to the type, the _presidential republic_,
such as the United States of America, which tends to realize a separation
of powers as complete as possible and in which the President elected by
the people and his ministers or secretaries nominated by the President
are never responsible to the Parliament. Then there is the _collegiate
republic_, such as Switzerland and the Hanseatic Cities, in which
the President is replaced by a college which is, by the side of the
Parliament, an organ of popular sovereignty and which exercises executive
powers. This college is elected by the popular representative body and
depends on it. Finally there is the _parliamentary republic_, such as
exists in France.
We know what makes up parliamentary rule. Here also legislative
power and executive power are separated and are to a certain measure
independent. But the two cannot exercise their functions except when in
co-operation. On the one hand, a certain separation; on the other, a
certain co-operation, co-operation of separate and independent powers.
The functioning of this system is insured by a very simple mechanism.
The president names his ministers but these ministers cannot begin
functioning or remain as such until they have obtained the confidence of
the national representative body. The day that these ministers lose this
confidence they also lose their power. Parliament does not only exercise
legislative power therefore; it also controls executive action. The chief
of states names his ministers, but he has not the liberty to appoint
them. He must take those designated by the majority of the Chamber and
reject them when they are discarded by the Chamber.
It is this last system that the German Constitution has chosen. One may
express surprise thereat. For has not Germany been the classic ground
for pleasantries over “parliamentary cretinism”? However, it has chosen
parliamentarism. To use the words of Member of the Reichstag Koch, “The
best form of expression of democracy is parliamentarism. We know of
no other form superior to it and we have consequently decided to make
parliamentarism one of the foundations of the new edifice.”[33]
Now, the mechanisms which the Constitution has instituted, and through
which the parliamentary system must function, are--either because of
the federal form of the State, or because of new ideas which it has
introduced in its creation--more numerous and more complicated than in
most other countries. There is a Reichstag, a President, a Cabinet, a
Reichsrat, and an Economic Council.
This last will be studied in the section of this book devoted to the
Economic Constitution. In the present chapter we shall study the other
organs, and shall inquire in what measure they are capable of insuring
and do insure in fact to Germany the parliamentary government which it
has chosen.
SECTION I
THE REICHSTAG
The Reichstag already existed under the régime of 1871. But its
powers have become much more extensive, for it is now the principal
representative of the people, from whom sovereignty is derived. It is
the principal holder of popular sovereignty. In conformance with the
principles of parliamentary government, it enacts laws and controls
the Cabinet. The regulations that determine its composition and which
specify its powers should, therefore, be such as to permit it to fulfil
completely its double rôle.
1.--THE PRIVILEGES AND GUARANTEES ACCORDED TO THE REICHSTAG.
The Reichstag, charged with the expression of the will of the sovereign
people, must be able to manifest this will freely. Charged with the
control of the Cabinet it must be protected against all possible
counterventions of the latter. To this end the Constitution contains a
number of provisions which give to the Reichstag as a body, as well as to
its members as individuals, a group of guarantees designed to insure for
them complete independence of the Cabinet.
* * * * *
(1) The Reichstag considered as a whole possesses a certain number of
privileges and guarantees, much more numerous than those which were
allowed the former Reichstag and analogous to those which in general
the parliaments in other free countries possess. To this end the German
Constitution contains several special features.
It is known that the right of political assemblies to pass on the
eligibility of their members and the regularity of their elections
constitutes one of their traditional prerogatives, one to which they
have most strongly adhered. For they have seen in it a weapon against
executive power to be used in cases where the latter is tempted to abuse
its authority and exercise pressure on elections. Also most of the
democratic countries confer upon their Chambers the right to investigate
the election of their members and to decide in sovereign fashion on the
validity of these elections. Such is the rule particularly in France;
such was the rule in Germany up to 1919. But the new Constitution
abandons this tradition in the sense that instead of leaving election
disputes to the Reichstag itself, it entrusts them to a special
tribunal working alongside of the Reichstag: the Electoral Commission
(Wahlprüfungsgericht). This device, however, was not inspired by any
desire to limit the rights of the Reichstag. It was dictated by political
considerations. The former Reichstag, when it verified the election of
its members, instead of being inspired solely by legal motives often
let itself be guided by political considerations. The verification of
elections is in itself an act of adjudication, and a political assembly
is ill-prepared to fulfil such a function. That is why the English
Parliament has already entrusted the function of judging of elections of
its members to a separate tribunal. Without going as far as that, the
new German Constitution refers contestants to a mixed tribunal, in which
there are both members of the Reichstag, and, in order to insure the
impartial applications of legal provisions, judges by profession.
The Electoral Commission includes members of the Reichstag elected to
it by the whole legislature, as well as members of the Administrative
Tribunal; until the creation of this body these consist of members of
the National Judicial Court or Reichsgericht. These are nominated by the
President of the Reich on the motion of the President of the Commission.
In order to become operative the Electoral Commission must be made up as
follows: five judges, of whom three must be members of the Reichstag, and
two magistrates. The procedure is presided over by a commissioner named
by the President of the Reich. This commissioner is particularly charged
with investigation. It is hoped in Germany that in consequence of the
introduction of proportional representation, election contests will be
less frequent than formerly and that adjudications of elections by this
Commission will have less importance for the parties than in the past.
* * * * *
Once elected and the elections verified, can the Reichstag freely meet
and continue just as it pleases? In other words, can it be permanent,
that is to say, has it the right itself to fix the date and the duration
of its sessions? A double danger is here possible. To create a permanent
assembly, would it not give to parliament a dangerous preponderance? But
to give to the executive power unlimited right to call, adjourn, and
prorogue parliament, would it not be to give a prerogative unacceptable
to a democratic country and dangerous to the maintenance of its
institutions?
Under the old régime, the Reichstag could not meet or commence its work
without having been convoked by the Emperor and expressly opened by him.
However, the Constitution provided, that the Reichstag must be convoked
at least once every year. But the Emperor had the right to prorogue the
assembly; and the latter had not the right to sit and continue its work
against the wish of the Emperor. The Emperor’s right in this respect had
but one limitation: the prorogation of the Reichstag could not extend
beyond thirty days without the consent of the Assembly, and it could not
be renewed during the same session. On the other hand, the Reichstag
could not conclude its sessions without the consent of the Emperor. It
could only interrupt its meetings.
The new Constitution gives the Reichstag the right to _convoke itself
and to meet of its own accord_. It is the Reichstag which decides as to
when it is to meet and how long its session is to continue. It is neither
convoked nor adjourned by the President of the Reich. According to the
Constitution of Weimar the Reichstag meets for the first time no later
than the thirtieth day after elections. In addition it is required to
meet every year on the first Wednesday in November at the seat of the
government. The Reichstag also decides for itself the conclusion of its
sessions and the day of its re-assembling. However, the President is
bound in two cases to convoke the Reichstag at a time prior to the annual
date fixed by the Constitution, or to the date fixed by the Reichstag
for its re-assembling. Such situations are (a) when the President of the
Reich, (b) when at least a third of the Members of the Reichstag, demand
it.
* * * * *
Independent as it is of the Cabinet, the Reichstag must be assured the
power freely to deliberate without fear of riots and insurrections. Most
governments have no special legislation in regard to this. They leave to
the assembly, to which a special guard is assigned, the right to protect
itself. Events, however, have demonstrated that in Berlin revolutionaries
either of the extreme Left or of the extreme Right become, when they so
desire, “masters of the street.” More efficacious measures had to be
provided than prevail elsewhere. Accordingly a law was passed by the
National Assembly, May 8, 1920, “for the protection of the Palace of the
Reichstag and of the Landtag (State Assembly).”[34] This law draws about
these palaces a perimeter of protection, within the limits of which no
armed troops may penetrate, and it also provides different measures to
make these palaces an adequate shelter against any _coup de main_ such as
may come at any time from revolutionists.
* * * * *
2. The Members of the Reichstag as individuals enjoy, like the Reichstag
as a whole, privileges and guarantees such as are necessary to insure
their independence. The situation accorded them in this respect is very
analogous to that which other democratic countries assure the members
of their popular legislatures. They receive compensation.[35] They are
“irresponsible and inviolable.”
2.--THE RULES OF THE REICHSTAG.
Protected against the Cabinet, against insurrections, and against
individuals who have designs on their independence, the deputies of the
Reichstag can and must organize themselves in such a way as to assure
for their labours maximum efficiency. It is imperative that the majority
shall be able to impose its will without thereby sacrificing the rights
of the minority. To this effect Article 26 provides, “The National
Assembly chooses its President, Vice-President, and its Secretaries. It
regulates its own procedure.”
The National Assembly adopted the procedure of the old Reichstag and the
new Reichstag seems to have continued it also.
Meanwhile a change of considerable importance has been adopted by the
National Assembly. Theretofore the members of the Reichstag were divided
by lot into bureaus, and these elected the committees. There are no
longer any bureaus; and the essential machinery on which the functioning
of the Assembly depends is the group or fraction, each of which consists
of all the members of the Reichstag belonging to the same party.
According to the procedure of the Reichstag, no party can constitute
such a fraction if it does not have at least fifteen members. To-day
it is these groups that nominate the various committees of the Assembly
on the basis of proportional representation.[36] The group plays a rôle
in Germany much more important than, for example, in France, because of
the strict party discipline that prevails in these groups. For every new
question brought before the Reichstag each group assembles its members,
who discuss among themselves the attitude to take and the way in which
the group as a whole is to vote. When the question is most important
there are held _interfractional meetings_. At these meetings are called
together either all the members of certain groups, or only trusted men
or the chiefs of these groups. Sometimes two or more related groups
deliberate in common; sometimes they are the groups of the majority
parties. Thus, either in single groups or in common the various political
factions decide in advance their line of actions; and when the matter
comes up for deliberation in the Assembly, everything is already decided.
The public meetings of the Assembly are only a kind of show, in the
course of which a speaker for each party generally mounts the tribune to
acquaint public opinion with the motives that have determined his group
in taking such and such a stand. A certain amount of dramatic interest
is thereby lost, but perhaps the element of surprise is replaced by more
thoroughly considered and riper decision.
The vote is then proceeded to. Voting by proxy is not recognized. Only
those present can take part in the vote, which is theoretically taken
“sitting” and “rising.”
In case of doubt all the members are invited to leave the hall and then
to reenter, those voting “yes” coming in by one door, those voting “no”
by another. There can also be a vote by name, if fifty members demand
it and if the Assembly so decides. In this case ballots of different
colours are distributed among the members. These ballots bear the names
of the deputies and one of the following: “yes,” “no,” or “I abstain.” At
the moment of the vote the leaders of the various groups hold up their
ballots above their heads, this movement being immediately followed
by all the members of their groups. Then the ballots are given by
those voting to the Secretaries, who place them in the ballot boxes.
A supervision is maintained to prevent those present from voting for
absent members. This procedure presents the triple advantage of giving
to the abstaining vote its precise significance, of maintaining strict
discipline within the groups and of preventing absent members from voting.
3.--THE DURATION OF THE POWERS OF THE REICHSTAG.
The question of the term for which the members of political assemblies
should be elected is always a delicate one. It has given rise in Germany
to much lively discussion in committee as well as in plenary sessions.
Under the Empire, the Reichstag was at first elected for three years.
Since 1888 it has been elected for five years. Should this term be
retained?
On the Left the Independents considered that the motive which had
prompted the change in 1888, that is, the fear of too frequent elections,
did not deserve consideration. They held that it was necessary to give
the German people quickly the political education it lacks, and that
frequent elections are the best means to employ. They declared that in a
true democracy the people should be given the chance to make themselves
heard as often as possible.
The Right replied that in all parliaments the first year that follows
general elections is, so to say, lost because of the necessary labour
of preparation; and because the old and the new members must become
accustomed to working together before their efforts achieve appreciable
efficiency.
Preuss added that the question to find out was whether parliamentarism
was wanted or not. A parliament, said he, is inefficient to the extent
that the term for which it is elected is short. In America the House of
Representatives is, it is true, elected for two years, but it is not
the centre of power and of parliamentary authority. The Senate has more
authority than the House, and it is elected for six years. In addition
there is no dissolution of parliament possible in America. If a period of
two years is fixed and if in addition the right of dissolution admitted,
which is in itself already a remedy against too protracted a term,
the development of the parliamentary system would be rendered thereby
extremely difficult.
Finally on the third reading of a bill the Assembly arrived at a medium
term. The duration of power for members of the Reichstag was fixed at
four years.
4.--THE POWERS OF THE REICHSTAG.
The Reichstag is the principal holder of popular sovereignty; as such
it is the most important organ of the national representation. Its
activity is manifested under different forms and, compared to the old
Constitution, its limits have been greatly broadened. Although it is
above all a legislative organ, it exercises also an unceasing action on
the executive power.
I.--POWERS OF THE REICHSTAG AS PRINCIPAL HOLDER OF SOVEREIGNTY.
The Reichstag being the principal representative of the sovereign people,
it naturally falls to it to speak whenever it is necessary in the
national or international life of the state to translate or express the
will of the people. That is the rôle which has devolved upon parliament
in all the democratic countries, and it is also the mission confided to
the Reichstag by the German Constitution. The situations in which this
Assembly acts as spokesman for the people are of three kinds:
1. The granting of amnesty. Amnesty is a measure of a general character
whereby the sovereign, with the object of general pacification, declares
such and such crimes legally expiated. In the German Constitution amnesty
has to be declared in the form of a law. The ordinary procedure for the
enactment of law applies here.
2. Declaration of war and the conclusion of peace. These proclamations,
in the same way, must be made in the forms of laws.
3. Treaties of alliance and international treaties. Each of these is
theoretically concluded by the President of the Reich; but when these
treaties touch questions which are regulated or can only be regulated
by a law of the Reich, such settlements are not valid except with the
consent of the National Assembly. (Article 45.) This hypothesis differs,
therefore, from the first two just examined. In those cases there was
required a law, that is to say, the Reichsrat had the right of protest,
and the President could only prepare and execute the decision of the
Reichstag, to the same extent that he is compelled to prepare other
laws of the Reich. In the cases of treaties, however, what is required
is a meeting of the wills of both the Reichstag and the President. This
agreement is required even for the international validity of the treaty,
but it is self-sufficient, and the Reichsrat would probably not have the
right to protest against such a conclusion.[37]
II.--LEGISLATIVE POWERS.
In contrast to the terms of the Constitution of 1871, which divided the
right to legislate between the Bundesrat and the Reichstag but gave the
preponderance to the former, the new Constitution gives to the Reichstag
the principal rôle in legislative work. The right to legislate is
expressly placed in its hands. “National laws are enacted by the National
Assembly” (Article 68). But this fundamental right of the Reichstag is
limited by important powers granted to the Reichsrat, to the President
and to the people.
The principal co-operator with the Reichstag, from the point of view of
legislation, is the Reichsrat. The Reich being, at least theoretically,
a federal state, the Constitution grants to the Reichsrat, which
“represents the German states in the legislation and administration of
the Reich,” the right of important co-operation in legislative matters.
But this right is not as extensive as that which the old Bundesrat had.
It consists first of all in this, that no bill can be submitted to the
Reichstag unless it has been _previously accepted by the Reichsrat_.
However, this provision does not constitute, as formerly, an absolute
obstacle. When the Reichsrat disapproves of a bill which the Cabinet
has submitted to it, this project may be, without the consent of the
Reichsrat, nevertheless sent on to the Reichstag. The Cabinet is in such
a case only obliged to set forth to the Reichstag, in presenting this
bill, the dissent of the Reichsrat (Article 69).
The co-operation of the Reichsrat is manifested also in its _right of
protest_ against the laws enacted by the Reichstag. These laws must in
theory be enacted with the express or tacit approval of the Reichsrat,
but this provision is not absolute. If, in effect, after the protest
of the Reichsrat, no accord is reached between this body and the
Reichstag, it devolves upon the President of the Reich to decide whether
the project of law will be abandoned by him, or whether he will resort
to a referendum against the decision taken by the Reichsrat. If this
bill gains the support at the Reichstag of a majority of two-thirds
the President has then, in spite of the protest of the Reichsrat, the
right to promulgate and to publish the law, without any further vote
on it by the Reichstag. But he may also, instead of proceeding to this
promulgation, order a referendum, if he does not want to take upon
himself the responsibility of deciding this conflict of the Reichstag and
the Reichsrat.
There are thus two ways of breaking the opposition of the Reichsrat:
either the referendum, or else a two-thirds vote for the law on the part
of the Reichstag and joined to it the approval of the President.
On the other hand, when this majority of two-thirds cannot be assembled
in the Reichstag, there are two ways for the opposition in the Reichsrat
to become effective. First, the President may remain passive after
the protest of the Reichsrat, that is to say, he may not order the
referendum. The co-operation of the Reichsrat and of the President in
such case weighs more than the decision of the Reichstag which has not
been able to rally a majority of two-thirds in its favour. The other
way in which a protest of the Reichsrat can become effective is for the
referendum to support the objection of the Reichsrat and reject the
project voted by the Reichstag.
The power of the Reichstag to legislate is, in the second place, limited
by powers assigned to the President in certain matters. He has the right
to veto any law passed by the Reichstag, in the sense that, according
to Article 73, he is not obliged to promulgate the laws voted, and may
within a month submit it to a referendum. If the President is convinced
that a bill voted by the Reichstag with the consent of the Reichsrat is
against the welfare of the people; or if there are serious objection
lodged against it of another character; or if he believes that the
law does not correspond with the conceptions held by the people, his
situation as an independent organ of popular sovereignty gives him
the right and imposes on him the duty of submitting this project to a
referendum. In addition, the Constitution (Article 72) authorizes him
to disregard a demand on the part of a third of the Reichstag that
the promulgation of a law passed by the Reichstag and approved by the
Reichsrat be deferred. He can, therefore, promulgate the law voted and
give it operative power when the Reichstag and the Reichsrat declare it
to be urgent.
In the third place the legislative power of the Reichstag is limited by
the right reserved by the people itself to decide, and in certain cases
directly on this or that project of law. Such are the cases we have
described as touching the Constitutional provisions for initiative and
referendum.
We must finally note, as the fourth legislative factor, the Economic
Council, whose powers, it is true, cannot be considered as constituting
a limitation of the Reichstag’s powers, but which may nevertheless be
called in to co-operate with the latter in the preparation of laws.
Such are the organs that participate in the legislative work. We must now
see in what manner they function and how a law is passed through this
intricate mechanism.
The _initiation_ of a law can take place under any of the following
conditions:
1. The Government of the Reich, that is to say, the Cabinet, has in the
first instance, the initiation of laws. In theory the Cabinet is supposed
to proceed with the consent of the Reichsrat; but in case this agreement
is refused, the Cabinet may nevertheless submit the bill to the Reichstag
together with a statement of its attitude. (Article 69.)
2. Members of the Reichstag may also introduce bills. (Article 68.)
3. The Reichsrat also has the right of initiation. In theory it is
supposed to act on a bill in harmony with the Cabinet. But if the latter
refuses its consent to a bill, the Reichsrat may still submit it to the
Reichstag together with a statement of its point of view on it. (Article
69.)
4. The people themselves may initiate a proposal for a law. (Article 73.)
5. In matters of social and economic policy, finally, the National
Economic Council has also the right to propose bills; but here, too,
the agreement with these bills on the part of the Cabinet is required.
If, however, the Cabinet refuses its consent to the bill, it must
nevertheless present the proposition to the Reichstag at the same time
presenting its opinion.
The law being proposed, _how is it voted on and accepted_? Here, again,
several different kinds of situations must be distinguished:
1. The normal procedure is the vote on the bill by the Reichstag in
agreement with the Reichsrat. The bill may be presented by the Cabinet,
duly passed on by the Reichsrat in agreement and without change and
accepted by the Reichstag as it stands. Or changes by the Reichsrat may
be approved by the Reichstag. Or the Reichsrat may accept without a
contest the changes voted by the Reichstag. Or, after a protest by the
Reichsrat against a bill voted by the Reichstag, an agreement may be
reached by the two assemblies after a reconsideration of the bill by the
Reichstag.
2. If an agreement cannot be reached between the Reichstag and the
Reichsrat, that is to say, if the Reichsrat having raised objection to
a bill voted on by the Reichstag, a reconsideration by the latter has
not brought about an agreement between the two bodies on the bill, the
Cabinet may then follow another course. The President may decide that
this agreement on the bill between the Reichstag and the Reichsrat
being impossible, matters rest where they are; then the law does not
become operative. If this solution does not commend itself to him, he
may prescribe a referendum on the question that forms the conflict of
opinion between the two assemblies and the law becomes operative when the
referendum sanctions the decision of the Reichstag.
3. If, in the proceeding in case of a difference of opinion between the
Reichstag and the Reichsrat, the Reichstag persists, after the protest of
the Reichsrat, in its first decision and supports it with a majority of
at least two-thirds of those voting, the President has the choice either
of passing over the protest of the Reichsrat and promulgating the law, or
else he may order a referendum. His decision must be made within three
months after the decision of the Reichstag. In this case the law may
become operative, either by the vote of the Reichstag together with the
President’s favorable decision, or by the vote of the Reichstag together
with the sanction by the referendum.
4. The President may, in the case of a bill passed by both the Reichstag
and the Reichsrat in agreement, use his right of veto; that is to say, he
need not promulgate the law but must refer it to a referendum. In that
case the law does not become operative unless the referendum supports the
vote of the Reichstag. If the referendum pronounces against it the law is
definitely rejected. The Constitution does not say whether the President
may, in such a case, propose a change in the bill and submit this change
to another referendum. We must consequently conclude that he cannot do so.
5. If one-twentieth of the electors demand that a law already passed
by the Reichstag shall be submitted to a referendum; and if, at the
same time, at the demand of one-third of the Members of the Reichstag
the promulgation of that law has been deferred, the latter cannot go
into effect except after having been approved by a referendum. If the
referendum pronounces against the bill, the latter is rejected. But this
possibility does not exist in the case where both the Reichsrat and the
Reichstag have declared a law to be urgent. The President may in such a
case promulgate the law in spite of the demand for its postponement.
6. There remains finally the exceptional case in which a popular
initiative by one-tenth of the electors proposes the project of a law. In
such a case the law, if it is accepted by referendum, becomes operative,
whether the bill has been passed without change by the Reichstag, or,
with changes by it, or even in spite of the Reichstag’s rejection.
It is thus seen that a referendum is never resorted to, unless the
Reichstag has first taken a vote on the subject. The decisions of the
people appear, therefore, as a kind of control over, and check on, the
Reichstag’s decisions.
The procedure just described is that followed for all ordinary laws.[38]
In theory it holds also for _constitutional laws_, that is, laws
which, according to the Constitution, must be enacted in the form of
constitutional laws; but there are certain modifications in the procedure
in such cases.
Under the old Constitution, changes in it could be brought about by the
same means as ordinary laws. The new Constitution places constitutional
law under special protection, and demands that a certain fixed majority
be obtained for any change in the Constitution. Decisions of the
Reichstag tending to such a change are not valid unless two-thirds of
the legal number of members are present and of those present at least
two-thirds vote for such change. In the same way decisions of the
Reichsrat tending to a change of the Constitution must obtain a majority
of two-thirds of all the votes cast in their favour.
The Constitution contains a special provision in case a constitutional
change is to be realized on the initiative of the people. In such a
case, at least one-half of the _electors_ must approve of the change.
This particular majority was introduced as a condition for the following
reason; the situation had to be met in which the Reichstag rejects a
constitutional change proposed by popular initiative. Against such a
vote on the part of the Reichstag, which may not be in favour of the
constitutional change proposed, the decision of the people in favour of
the change, to become operative must be supported by at least half of the
people. Where, however, the Reichstag votes in favour of a constitutional
change it is enough for the referendum to secure a majority of those
_voting_, provided that a majority of the electors have participated
in the vote. Consequently if the Reichstag has voted a constitutional
amendment by a vote of two-thirds and if this amendment has been
submitted by the President to a referendum, it is sufficient to nullify
the favourable vote by the Reichstag, if half of the electors of the
Reich participate in the vote and the majority of those voting pronounce
against the amendment. In other words, to effect a constitutional
amendment by means of a referendum a simple majority is sufficient if
the Reichstag has voted for such an amendment; but if the Reichstag’s
approval is to be nullified in such a case a specified majority is
required.
Another provision of the Constitution deals with the case where a
divergence of opinion arises between the Reichstag and the Reichsrat on
a constitutional matter. In general when the Reichstag, over the protest
of the Reichsrat, maintains its stand by a majority of two-thirds,
the President has the option either of promulgating the law voted by
the Reichstag over the protest of the Reichsrat, or of prescribing a
referendum. In the matter of a constitutional amendment, to strengthen
the position of the Reichsrat, the President’s choice is limited. In
such a case, if the Reichsrat demands a referendum the President cannot
promulgate the law, even though it has been passed by two-thirds of the
Reichstag. This demand must take place within two weeks of the passage
of the bill by the Reichstag. If within that time, the Reichsrat has not
made use of its right just described, the President recovers his right to
choose between promulgation and referendum.
III.--POWER OF CONTROL.
In the parliamentary system, the parliament exercises an incessant
control over the acts of the Cabinet, such control consisting of the
responsibility of the ministers. How is this organized in Germany and in
what manner is it actually exercised?
It must be noted first that the Constitution does not give control over
the Cabinet to any but the Reichstag. It is to the Reichstag only that
the Ministers are politically responsible. The other assemblies that the
Constitution has created, in particular, the Reichsrat, have in this
respect no power. On the other hand, the confidence of the Reichstag is
absolutely indispensable to the Cabinet. If the Reichstag withdraws its
confidence in a Ministry or in a Minister, especially if the Reichstag
expresses its lack of confidence, the Ministry or the Minister must
resign. (Article 54.) To give to the vote of the National Assembly a
complete guarantee of execution the Constitution provides that the
Reichstag may prosecute the President and the Cabinet before the National
Judicial Court and demand that the people pronounce on the removal of the
President. (Article 43.)
The means by which the Reichstag exercises its control over the Cabinet
are, with some minor differences in procedure, the same in Germany as in
most parliamentary governments.
The Reichstag may, first, demand the presence of the Chancellor or the
Ministers at its meetings, whether in committee or in full session. The
Chancellor, the Ministers, and the Commissioners have the right to be
present at all the meetings of the Reichstag and its committees. The
representatives of the Cabinet have the right to be heard on their own
demand at the deliberations of the Reichstag even contrary to the order
of the day. They are subject to the disciplinary power of the President.
* * * * *
The members of the Reichstag may address _questions_ to the Cabinet. The
question must be addressed in writing, and if the author of it agrees,
the Cabinet may respond to it in writing. On the other hand, it must
not be taken up in public session of the Reichstag except on a Tuesday
or Friday at the head of the order of business. It is then read by its
author. The Minister interrogated or some one commissioned by the Cabinet
replies. But no discussion or motion whatsoever may thereupon at once
result on this reply. Only the author of the question may take the floor
after the Minister, and then only to complete or to rectify his question.
There is naturally no vote taken immediately after the question and it is
not permitted to transform a question into an interpellation, as it may
be done, for instance, in France.
The parliamentary question seems to play a much smaller rôle in Germany
than in England or even in France, if one compares the German procedure
on the written question with that of the French. During the first six
months of its existence, the National Assembly addressed about 280
questions to the Cabinet, most of them in open session. Most of the
Tuesday and Friday sessions commence with a series of questions; some of
them with as many as fifteen to twenty questions.
* * * * *
The Constitution does not say one word more on interpellations than on
questions; but the first form an essential practice of a parliamentary
régime. It existed to a lesser extent under the old régime. It was of
necessity retained and developed under the new.
The interpellation must be signed by thirteen members. Thus it is no
longer an individual who interpellates, but a party and the individual
is only the spokesman for the party. When the interpellation is made the
Cabinet declares either that it is ready to answer at once, or it fixes
the date of its reply in agreement with the President of the Assembly.
In theory this reply must be given within a fortnight. It goes without
saying that, in contrast to what the Chancellor permitted himself under
the Empire, the Chancellor and the Ministers of the Reich to-day do not
use the right, still granted to them by the regulations, to refuse to
reply to an interpellation or to refuse to name the date on which they
would be disposed to reply.
The interpellation is inscribed on the order of business for the day
among the other subjects on which the Assembly is to deliberate. The
spokesman of the party who interpellates and the representative of the
Cabinet having spoken, no discussion ensues unless at least fifty of the
members present demand it. In such a case all those present may in turn
take the floor. When all the speakers have finished those present declare
the discussion closed and the assembly passes automatically and without
vote to the next subject on the order of business.
However, the regulations provide that in the course of the discussion
and interpellation motions signed at least by thirty members present
may be presented demanding that the assembly declare that the position
the Cabinet has taken on the affair which has been made the subject of
the interpellation does or does not correspond to the opinions of the
Reichstag. The vote is then proceeded to--unless at least thirty of the
members present demand that the vote be postponed to the next session,
such a postponement being their right.
In practice, however, little use is made of the above provision, and
interpellations rarely end with a vote; for that would have for its
purpose the ousting of a ministry or a minister. Such a change takes
place, as we shall see, in circumstances entirely different. The
interpellations, therefore, are used only to give the parties a chance
to present their points of view on this or that problem raised by the
political circumstances of the hour.
From this ensues a twofold consequence. First, interpellations are much
fewer than in France. During the first six months of its existence the
National Assembly discussed only about ten interpellations. Second, being
rarely the direct cause of the ousting of Cabinets, they provoke less
excitement in political circles and in public opinion, and the Assembly
may therefore discuss the problem embodied in an interpellation perhaps
more objectively.
The control by the Reichstag over the Cabinet may be exercised also by
means of a _parliamentary investigating committee_. This is a novelty in
German public law. In its first draft the project of the Constitution
did not permit the institution of investigating committees except in
cases where the sincerity or the legality of an act of the Cabinet is
questioned. But the National Assembly has gone further than that and,
with the exception of a case of actual lack of confidence in the Cabinet
on the part of the Reichstag, the latter assumes the right without
limitation of appointing investigating committees. These committees
may, for example, be created to examine economic and other questions of
importance.
The Reichstag must proceed to the appointment of an investigating
committee if a fifth of its members demand it. The procedure according
to which these committees may operate is not at all prescribed. The
Constitution says only that such a committee may take such testimony
in open session as it itself or the authors of the proposal of the
investigation may consider necessary. But by a majority of two-thirds the
committee may decide that the meetings shall not be public. Tribunals
and administrative authorities are obliged to comply with the requests
of these committees, with the view of developing evidence. The files of
these authorities are, on demand, open to these committees.
The Reichstag nominates in addition two _permanent committees_. One of
them is that on Foreign Affairs. Its purpose is to submit the foreign
policies of the Cabinet to a constant surveillance by the popular
representation. It may after the adjournment of the Reichstag, or when
the powers of the Reichstag have expired, or after a dissolution of the
Reichstag remain in power until the National Assembly has reconvened. Its
meetings are theoretically not public. However, a majority of two-thirds
may order that they be such. It has the same powers as an investigating
committee.
During the deliberations on the project of the Constitution, serious
objections were raised against the institution of the Committee on
Foreign Affairs. It was claimed that this committee would in advance
be an expression of lack of confidence in the Cabinet and as an organ
of surveillance would exercise a particularly troublesome influence on
foreign policies. To this the reply was, that in the countries in which
there have been appointed committees on foreign affairs there has been no
evidence of unfavorable results. In addition, this committee would not be
in the first instance a committee of surveillance, but an organism which,
in matters of foreign policy would bring the influence of politically
experienced personalities of the Reichstag to bear on the professional
agencies of the diplomatic service.
The second permanent committee provided by the Constitution has as its
purpose the control of the activity of the Cabinet of the Reich when the
Reichstag is not in session, between the last meeting of one Reichstag
and the opening of a new one.
This committee, which is formed on the model of an institution already in
existence before the Revolution in the Grand Duchy of Baden, is supposed,
during the period which the Reichstag is not assembled, to safeguard the
right of popular representation against the Cabinet of the Reich. It
must see to it in a permanent fashion that administration is conducted
in conformity with laws, with the decisions of the Reichstag, and the
will of the people. It may not sit except when the Reichstag is not in
session. It has also the powers of an investigating committee.
When the Constitution was being discussed, prior to its adoption, this
committee, too, was the subject of much lively opposition. Some held
that the Cabinet, so long as it enjoyed the confidence of the Reichstag,
did not require a special organ of surveillance. This committee, its
opponents went on, was only an application of the conception that assumed
an opposition between the Cabinet and popular representation. It was
incompatible, therefore, with the principle of parliamentarism that rests
on a harmony of the Cabinet and the Parliament. But the majority of
the National Assembly held, on the contrary, that this committee would
correspond fully in character to the Reichstag as an organ of control,
and would be consistent with the confidence and the good will on which
the Cabinet depends.