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.