SECTION IV

THE REICHSRAT

The Reichsrat is placed by the Constitution by the side of the Reichstag,

the President and the Cabinet, and has as its rôle the representation,

after these, of the States of the Reich in legislative and administrative

matters.

1.--GENERAL FEATURES OF THE REICHSRAT.

The Reichsrat constitutes a bond of co-operation between the Reich and

the States. Whereas the will of the whole German people taken together

is manifested through the Reichstag, the Reichsrat translates the will

of the States, such as it is conceived by the governments or cabinets of

these States.

The Reichsrat is the representative in the Reich of the federalist

principle. It is the federalist organ of the Reich. In this rôle it joins

the unitary organs and completes them.

The Reichsrat is the successor of the Commission of States of the

Provisional Constitution and of the Bundesrat of the old Constitution.

But as the unitary idea made important progress, the Reichstag

was endowed with powers considerably less extensive than those

of the Bundesrat. The latter, which represented the confederated

governments collectively, was the holder of sovereignty under the

Empire. The Reichsrat, on the other hand, since the new Constitution

placed sovereignty in the German people, is only an organ by which

the governments of the states participate in the legislative and

administrative powers of the Reich. Instead of being endowed, as compared

to the Reichstag, with powers equal or superior to it, as the former

Bundesrat was, it has received but very limited rights.

The question whether it would not have been better to organize instead

of the Reichsrat a Chamber of States, which would represent, not the

various cabinets, but the populations of the states, was vigorously

debated. It may be recalled that it was this solution Preuss proposed:

a Chamber of States composed of delegates of German republics. These

delegates would be elected by the Diets of the republics and would be

selected from among the citizens of these republics. In principle, each

state would have a delegate for each million inhabitants.

Such an organism would constitute a very characteristic application of

the centralist idea. But it was thought that this would create, by the

side of the Reichstag, a new popular representation, and that this would

not take into account the necessity of organizing a representation of

states. What was needed actually was the creation of an organ, within

which would be realized an equilibrium between the voices and the needs

of the Reich on the one hand and the voices and the needs of the states

on the other; if it was not wished to suppress completely the federal

structure of the Reich and make of it simply a unitary state. This

organism would have to include technical and vocational representatives

of the interests of the states, leaving aside the idea of parties and

all the programmes of parties. That is to say, there would have to be

representatives of the governments of the states, not merely political

representatives. The National Assembly decided on a Reichsrat organized

on the model of the former Bundesrat, representing the governments of the

states and endowed with less extensive powers.

The Reichsrat differs profoundly as to authority from the old Bundesrat.

It has lost completely the sovereign character of the Bundesrat. It has

not even the right to issue administrative regulations, this right having

been taken away from it and given to the Cabinet. It has ceased to be, in

comparison with the Reichstag, a legislative organ invested with rights

equal to those of the Reichstag; and it has no more than a very limited

right to co-operate with it in legislative work.

This institution, therefore, comprehends both historic tradition and the

actual situation of the Reich. But it marks at the same time a progress

in the sense of a stronger unity of the Reich, and it should in the

future facilitate a new development of the unitary idea.

2.--THE COMPOSITION AND THE FUNCTIONING OF THE REICHSRAT.

“In the National Council each State has at least one vote. In the case of

the larger States one vote is accorded for every million inhabitants. Any

excess equal at least to the population of the smallest State is reckoned

as equivalent to a full million. No State shall be accredited with more

than two-fifths of all votes.” (Article 61.)

The original proposal provided that three years after the Constitution

had entered into effect, small States having less than a million

inhabitants would lose their right to be represented in the Reichsrat.

The obvious purpose of this provision was to compel, by indirect means,

the small States to join together, as well as to prevent the unnecessary

parcelling out of territories with the view of creating new States. This

measure, however, was not accepted by the committee. We know that in

its place the committee and the National Assembly accepted a resolution

inviting the government to interpose in the hope of realizing a union of

small States.[46]

An early distribution of seats, after the adoption of the Constitution,

on the basis of Article 61, gave to Prussia twenty-five votes out of the

total of sixty-three in the Reichsrat. But, as we know, after May, 1920,

seven small states of Central Germany formed the State of Thuringia,

which had 1,584,324 inhabitants and was entitled to two votes. By this

the number of non-Prussian votes in the Reichsrat was reduced by five,

which also diminished the number of votes coming from Prussia from its

former twenty-five to twenty-two. So long as no new changes in the

interior geographic configuration of the Reich are made, the distribution

of votes in the Reichsrat will be as follows: Prussia, twenty-two;

Bavaria, seven; Saxony, five; Wurtemberg, three; Baden, three; Hesse,

two; Thuringia, two; other States, one each. Total, fifty-five.

The States are represented by members of their Cabinets. So it was under

the old régime. There is, however, an essential difference, for the

Cabinets now depend on the confidence in them of the Diets elected by

universal suffrage. It is public opinion that governs in the States now

and no longer the will of an autocratic government, independent of this

opinion. The government of a state is responsible before the Diet for

the manner in which its representatives exercise their mandates in the

Reichsrat, whether the members of the Cabinet are themselves present

there or whether they are represented by civil servants. The former

provisions relating to instructions given by Cabinets of States to their

plenipotentiaries in the Reichsrat, as well as measures to insure that

the representatives of each state shall join in a common vote, have

become useless and have not been incorporated into the Constitution.

The provision according to which the states are all represented by

their Cabinets has been changed, however, in one respect. Article 63

specifies that only half of the Prussian votes will be at the disposal

of the Prussian Cabinet, the other half being at the disposal of the

Prussian provincial administrations. Thus the National Assembly, which

has not had the force to effect directly a dismemberment of the Prussian

state, and which has deferred for over two years every effort to be made

toward this end, has nevertheless attempted to anticipate this reform.

It seems in effect that if the Prussian provinces receive progressively

more and more autonomy, if the powers granted to them become comparable

to the more and more diminishing powers of the states, the assimilation

of these provinces to states other than Prussia will be facilitated and

hastened by the fact that these provinces, like states, are directly

represented in the Reichsrat. Each of them will be able to defend its own

particular interest, different, perhaps, from those of other provinces.

Each province, above all, will be able to defend its rights and make its

interests prevail when in conflict with those of the Prussian State,

whose dominant centralization will thus be broken.

This solution is not entirely satisfactory, for the regrouping which must

be proceeded to in the Reich must be inspired above all by social and

economic considerations. And it must have as its aim the creation of an

autonomous body capable of self-development and productivity. Above all

in this work, the historic frontiers of the States must be disregarded

since these frontiers have been drawn to satisfy dynastic interests or to

conclude victorious wars. What is true of the interior of the Reich is

also true of Prussia. The Prussian provinces are not natural organisms in

whose interests there should be created and developed a political life.

Still, Article 63, for lack of other provision, constitutes progress,

which, however, does not seem as yet to be near realization. This Article

provides, in effect, that the manner in which Prussian votes at the

disposal of the provinces shall be distributed must be regulated by a

Prussian State Law; and Article 168 provides that until the adoption of

this law but, at the most for only a year, all the Prussian votes in the

Reichsrat may be cast by members of the State Cabinet. This law should

already have been adopted and applied. This has not been done, however,

and the Prussian government has asked and obtained a modification of

Article 168, which prolongs the delay accorded to Prussia and gives

it till July 1, 1921, to pass this law. In support of this request

Prussia claimed that the reduction of its total number of votes in the

Reichsrat to twenty-two made the distribution of this number among the

provinces more difficult. In reality, however, the Prussian government

under the Republic remains true to its traditional tactics, which

consist in opposing all development and progress by means of the most

obstinate passivity. Until the new state of representation is adopted the

twenty-two Prussian votes will be cast by the members of the Prussian

Cabinet or by delegates named by it.

* * * * *

The Reichsrat has the right to create its own committees.[47] But the

privileges which certain states, particularly Prussia, enjoyed in the

committees of the old Bundesrat are suppressed; particularly as no state

may hereafter have more than one vote on any committee. (Article 62.)

The Reichsrat, in contrast to the Reichstag, has not the right freely to

convene. It must be convoked by the Cabinet of the Reich. Nevertheless,

it has a right to convoke itself if the demand is made by a third of

its members. It is the Cabinet that presides over the Reichsrat and

its committees; but the Cabinet has not the right to vote in either of

these. The Reichsrat has the right and the power to demand that the

members of the Cabinet be present at its meetings or at the meetings of

its committees. It may invite there the Chancellor and the Ministers and

the latter are obliged to attend. Those invited have the right at all

times to be heard in the deliberations. By this means the Reichsrat has

the possibility of participating in the policies of the Reich. It is

true that no fixed influence is guaranteed to it by the Constitution.

What authority it will be able to exercise in the future will depend on

the quality of its work and on the personalities by which the states

will be represented. The Cabinet of the Reich, like all the members of

the Reichsrat, is authorized to propose measures in the Reichsrat. The

plenary sessions of the latter, in contrast to those of the Bundesrat,

are theoretically public; its committee meetings are not. Decisions are

made by a simple majority of those voting.

3.--POWERS OF THE REICHSRAT.

The former Bundesrat was an organ which had in legislative matters

the same rights as the Reichstag. It exercised in addition important

executive functions; in particular it had the right to promulgate general

administrative regulations for executing the laws of the Reich. It was

the central administrative authority in matters relating to customs

and taxes. It decided conflicts of a constitutional character as well

as miscarriages of justice. Of all these powers few have descended to

the Reichsrat. In order to emphasize the idea of the unity of the Reich

and of the sovereignty of the whole German people in the Reich, the new

Constitution limits to a considerable extent the powers of the Reichsrat.

However, it has left it a certain right to participate in the making of

laws and in the exercise of executive power.

In legislative matters, it will be recalled, that all proposals of

laws on the part of the Cabinet must be presented at first to the

Reichsrat; in theory, must be accepted by it before being submitted to

the Reichstag. But as we know this consent is not indispensable and the

government may disregard it. It will be recalled also that the Reichsrat

has the right to protest against any law voted by the Reichstag; but that

it may have its protest disregarded under certain conditions.

Already the Reichsrat has made use of its right of protest. That was

done in connection with a bill that raised postal taxes. The National

Assembly, acting in the character of the Reichstag, had voted a provision

according to the terms of which the sending by mail of official documents

would have to be paid for, no longer by him who received them, but

by the sender. The representatives of Prussia, Bavaria and of Saxony

criticized in the Reichsrat this measure, and found support in the

Assembly to the extent of a majority of thirty-eight votes. Whereupon

the Reichsrat raised a protest against this measure, April 29, 1920.

The bill then returned to the National Assembly; but the conflict ended

with a compromise, without recourse to the procedure provided by the

Constitution for such a case.

The Reichsrat still possesses some executive powers. On the one hand, the

Constitution and the law frequently stipulate that a regulation by the

Cabinet of the Reich must be authorized by the Reichsrat. On the other

hand, the law of April 17, 1919, “for a simplified form of legislation

on economic matters” provides that regulations decreed by the Cabinet in

this matter must be approved both by the Reichsrat and by a committee of

twenty-eight members of the Assembly. The Reichsrat and the Committee

have in this case absolutely equal rights. Finally Article 67 provides

that the Reichsrat must be kept informed by the national departments of

the conduct of national business.

The New German Constitution · 第 4 / 7 章