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Title: The New German Constitution
Author: Brunet, René
Language: English
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The German Constitution
_SOME RECENT BORZOI BOOKS_
IN DAYS TO COME
_By Walter Rathenau_
EARLY CIVILIZATION: AN INTRODUCTION TO ANTHROPOLOGY
_By Alexander A. Goldenweiser_
HUMAN NATURE IN POLITICS
_By Graham Wallas_
HOW ENGLAND IS GOVERNED
_By Rt. Hon. C. F. G. Masterman_
PRINCIPLES OF SOCIAL PSYCHOLOGY
_By James Mickel Williams_
THE HISTORY OF SOCIAL DEVELOPMENT
_By Dr. F. Müller-Lyer_
THE FOUNDATIONS OF SOCIAL SCIENCE
_By James Mickel Williams_
_For sale at all bookshops_
_For further particulars address_
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.
SECTION II
THE PRESIDENT OF THE REICH
The parliamentary system assumes, by the side of the Parliament elected
by the people, a titular chief of state with executive power who,
himself not responsible politically but assisted by ministers who are
responsible, co-operates with Parliament in the different functions of
the state. Basing itself, therefore, on the principle of parliamentary
government, the German Constitution places at the head of the Reich a
President whose situation corresponds generally to that of all the chiefs
of state in parliamentary countries. The Constitution also attempts to
create within the general framework of the parliamentary system, a new
type of chief of state. It is important therefore to examine precisely
the principal characteristics of these provisions.
1.--THE NEED FOR A STRONG PRESIDENT
The dominant idea, which guided the constituent assembly when they
drew up the provisions relative to the President, was this: the German
parliamentary republic requires that its President shall be powerful.
There must be a President. The Independents did not want one. “The
President will either take his position strictly within the limits of
the functions which are his according to the parliamentary principle,”
said their spokesman, Haase, “in which case it will be his ministers who
will exercise his powers. He will thus play a purely ornamental rôle,
therefore useless and one for which the German Republic cannot afford
to pay. Or he will exceed his legal powers, and the Cabinet will be
compelled to develop in the direction of a régime of personal autocracy.
It is enough, for the purpose of government of the country, that there
should operate a Ministry in harmony with the popular representation.”[39]
These ideas had no chance to prevail. In committee Preuss fought them
energetically. The President, he held, could be replaced in two ways;
either by a directorate elected by the people or by one elected by
Parliament. The directorate would itself name its ministers. A Cabinet
thus composed would be doomed to inertia and incapable of making any
decision would “cry for a Bonaparte.” The Ministers who should be
responsible to the Parliament would be practically deprived of authority,
and the Parliament, with control only over the Ministers, would itself
be weakened. The following system could also be considered: Parliament
could directly elect a college whose members would themselves administer
the various ministerial departments; that is to say, instead of being
appointed by the President, Ministers would be elected by Parliament.
This is the Swiss system. But such a Cabinet, admissible in a small
country, could not exist in Germany, for the distribution of portfolios
depends not according to merely logical premises but according to the
relative strength among the different parties of the Reichstag. There
could be no unity of direction in a Ministry thus composed. Above all
what was needed was a personage who should be in the Constitution a
firm centre. The more committees there are, and the more elections, the
greater also becomes the need of having a fixed point to which may be
attached the various strands in the network of the Constitution. There
must therefore be a President.
This President must be powerful. A powerful chief of state is necessary
above all in Germany, where people like to be governed. This is
particularly necessary in such a revolutionary period as the Reich is
traversing. There must be a President who will be a worthy representative
of the nation and who will adequately personify, with all the authority
needed, a state as considerable as the Reich. The President must be
powerful in order also to act as a balance to the Parliament, which
without it might become omnipotent.
This is why, first of all, the President of the Reich must not resemble
the President of the French Republic. The fact that in France the
President is elected by the National Assembly engenders a constitutional
situation full of inconveniences. The President there is only a purely
representative figure, Parliament having acquired absolute omnipotence
which is directly contrary to true democracy. The parliamentarism which
Germany wants is a parliamentarism whose mechanism is controlled by the
people; and not a parliamentarism in which the President is reduced to
complete inactivity and has no other care than to remain on the best
possible terms with the Chambers. The members of the Constituent Assembly
in supporting this condemnation--unanimous in Germany--of the French
system quoted Professor Redslob, according to whom parliamentarism in
France is completely adulterated.[40]
But neither must the President of the Reich resemble the President of the
United States. True, there were many in Germany at the end of 1918 and
at the beginning of 1919 who wished for a chief of state a man who could
act and represent the Reich with the independence and the authority of a
Wilson. But this wish does not seem to have prevailed. The Constituent
Assembly, in any event, wanted to inaugurate in Germany a parliamentary
régime; whereas in America, the House of Representatives has only
legislative power and the executive power rests wholly in the hands of
the President. The Assembly resolved to give the Reichstag the right
to co-operate in executive action and to exercise a control over the
administration. In addition the President in America himself nominates
his Cabinet without concern as to whether or not his Secretaries have
the confidence of the Chamber, to whom they are not responsible. He is
invested with a dangerous omnipotence, incompatible with parliamentary
régime. The American system therefore, like the French system, must be
rejected.
None of the forms of existing republican governments were entirely
suitable for the German Republic; there would have to be created for
its use a new type of chief of state. There would have to be created
for the first time true parliamentarism, different from the imperfect
parliamentarism such as exists in France. French parliamentarism consists
of the omnipotence of Parliament which for four years acts free of all
control on the part of the people. After each election democracy in
France plays no part. In the true parliamentarism, however, Parliament
is not omnipotent; but is subject to a control exercised by a democratic
authority and this authority must be, in Germany, a President.
The problem is therefore to institute in a Republic what now exists only
in parliamentary monarchies, that is, a chief of state sufficiently
powerful to act as a balance to the Parliament and to control the latter
in the name of the people without, however, giving him such a power as,
in abusing it, would enable him to dominate or annihilate the rights of
the Parliament and to establish an anti-democratic rule. Let us see how
the German Constitution has solved this problem.
2.--THE ELECTION OF THE PRESIDENT AND THE LENGTH OF HIS TERM.
To give the President of the Reich the authority and the independence
which it deemed necessary, the National Assembly insured him a very
strong personal position.
To this end the Constitution declares first of all that he shall be
elected by the whole German people (Article 41); that is, the plebiscite.
The President is elected by the same electors as Parliament itself.
Thus, President and Reichstag issue from the same source, the pure
popular will. Thus, there is the certitude that if one of these two
organs rejects the direction desired by the people or deviates from the
direction desired by the people, the other organ will immediately be able
to apply the necessary corrective. The President can be the sought-for
counter-balance to the authority of the Reichstag, for he is truly the
man entrusted by the people, delegated by them to rule with the Reichstag.
This system is not without danger. We have seen it in Germany itself when
in March, 1920, the rumour spread that Marshal Hindenburg would be a
candidate for the presidency of the Reich, a candidacy expressly approved
by the former Emperor, one which seemed to open the way for a monarchical
restoration. The Social Democrats thereupon declared that the election
of the President by the whole people was an institution republican
only in appearance; that it was in reality much more monarchical than
republican; that the President elected by the people could arrogate to
himself a power which would weigh heavily on the functioning of the
governmental machinery; that to institute the election of a President by
the people would subject his person to disputes and attacks which would
leave his dignity seriously compromised. They, the Social Democrats,
foresaw the possibility of supporting again a proposition which they had
already made during the discussion on the Constitution, but which they
had withdrawn, according to which the President would have to be elected
by the Reichstag. The Democrats, alarmed by the prospect of a conflict
that could arise between the Reichstag and a President elected by the
people, seemed ready to support such a proposition. The Centre abstained
from a decision on this matter. But nothing could be done without the
Centre, for since this was a matter of constitutional amendment a
majority of two-thirds of the National Assembly was indispensable, and it
could not be obtained without the Centre. The _coup d’état_ of Kapp and
Lüttwitz had meanwhile the effect on these discussions now well known.
The Democrats concluded from it that thereafter all attempts to establish
a military candidacy would be doomed to failure and that the people would
never either nominate or support a dictator; and that therefore there was
no longer any need to change the Constitution on this point.
Every German is eligible provided he is thirty-five years old. The
proposal in committee as well as the text of the Constitution at the
second reading declared for an absolute ineligibility of members of
families who had ever ruled a state in the German Empire. This provision
was done away with on the third reading by a majority consisting of the
German Nationalists, the People’s Party and the Centre. The motive
expressed by the representatives of these parties was that this measure
would constitute a law of exception of the most shameful kind, contrary
to the principles of the Constitution, that it was a confession of
weakness and an avowal of the lack of solidity in the benefits afforded
by the victories of the Revolution.
But how shall the President be elected? After long discussion the
National Assembly decided that the election of the President should
not be regulated by the Constitution but that the matter should be
left to an ordinary law. The Assembly was not able to decide either
for the proposition of the Cabinet or for that of the Committee on
the Constitution. The proposal of the Cabinet provided for a general
election. If in the first canvass no candidate received the majority
of the votes cast, a second one would have to take place in which only
the two candidates who had received the largest number of votes in the
first canvass could run. Of these two candidates the one who obtained the
majority would be elected.
This proposal aroused serious opposition in the Constitutional Committee.
It was held that, given a multiplicity of political parties, it was
probable that in the first canvass a great number of candidates would
present themselves and consequently at the second ballot neither of
the two surviving candidates would rally to his support any important
fraction of the whole people. On the other hand, it would be difficult
before the first vote to effect any union among neighbouring parties on
a common candidacy, because up to that moment the various groups would
not know what possibilities there were for the election of their own
candidates. In any event the position of the President would be weakened,
for a great number of those voting for him would not do so primarily out
of sympathy with him, but in order to keep out some other person still
less in their confidence. All the criticisms that were made at another
time against the balloting under the former electoral law would be
applicable here with added force, since it was a matter of the election
of the personality who must be vested with the highest dignity in the
Reich.
Having condemned this method of election, the committee adopted the
proposal that seemed to them most opposed to this: that candidate should
be elected who received on the first ballot the largest number of
votes (a relative majority). If this system did away with some of the
inconveniences of balloting, there nevertheless could be urged against it
and with greater force the same objection as filed against the preceding
proposition, viz., that, given the division of political parties as it
was, a man could be called to the head of the nation who would have
behind him a relatively small fraction of the German population.
According to a third proposition, the second balloting could be avoided
in the following fashion. The elector would be permitted to indicate on
the first ballot a second person to whom he would give his vote should
his first candidate not obtain the necessary number of votes. This
proposition had as its point of view the idea that neighbouring groups
or parties could in this way and in advance effect electoral compromises
in the event that none of their candidates alone should survive the
first ballot. In this way there would be the advantage that a second
ballot would be unnecessary. But this system was not without danger,
for first of all it lacked simplicity, and again there was nothing to
show that the electors would thereby abide by the agreements concluded
by their parties. A well disciplined party, in which the electors held
to the agreements made by the chiefs of their party would risk being
put at a disadvantage by this system in relation to a party in which
there was no discipline whatever. There was the danger in accepting this
proposition that the elections would bring about a result that would not
truly express the real wish of the people, but which would depend on the
tactics and the more or less effective discipline of the parties.
None of these propositions having been accepted only one procedure
remained possible. This was to have two ballots, but not to limit the
second ballot to two candidates and to declare elected the candidate
who has received the largest number of votes. Thus, no group is obliged
to deprive itself of a candidate who might be able to win. But when the
different candidates have measured their strength on the first ballot,
the parties could then freely come to agreement based on precise results.
Nor would it be indispensable that this agreement should be based purely
and simply on the proportion of votes obtained on the first ballot.
Parties could agree on a candidate who on the first ballot had not been
presented. It could be hoped that the political situation, being to some
degree cleared by the first vote, there would be a considerable decrease
in the number of candidates, with the result that the President elected
would receive the majority of all the votes; or at least that he would
obtain a number of votes much larger than if he were considered elected
on the first ballot by a merely relative majority. The vote which a
candidate would thus obtain would be given him by the free choice of the
population; he would be much more the man trusted by the people than he
would be if a majority of the electors had voted for him constrained by a
balloting procedure. But the doing away with the second ballot could not
be accomplished without at the same time losing the clearness with which
the popular will should express itself.
Such is the system which was finally adopted as law on the election of
the President, on March 4, 1920. According to the terms of Article 4
of this law, “The one who has obtained more than half of all the valid
votes is elected. If no one obtains this majority a second ballot must
be proceeded to, after which the candidate obtaining a plurality of the
valid votes shall be considered elected. In case candidates obtain an
equal number of votes election shall be decided by lot.”[41]
* * * * *
The President is elected for seven years and is eligible for re-election.
The choice for so long a term and the possibility of re-election
corresponded closely to the prevailing idea according to which the
President should constitute a fixed and permanent point in the
constitutional mechanism. “Granting,” said Preuss, “that the institutions
set up by our Constitution should be as profoundly as possible stamped
with democratic character, it is best, for the solidity of the whole
edifice, that there should be in some part of it a durable and firm
framework.” The Social Democrats observed that the longer the term of
the President’s powers the more difficult it would be to effect a change
in the person, and consequently the greater was the danger of seeing a
life President installed. They proposed to fix five years as the term for
which the President could remain in power and to make re-election more
than once impossible. But this proposal was rejected.
* * * * *
Having fixed the term of the presidential power the Constitution had
to provide for the situation in which a President ceased to function
before the normal expiration of his powers or found himself prevented
from exercising them. It was not desired, as in the United States,
to institute a Vice-President who, as permanent representative and
possible successor of the President, would have the status, in the words
of Preuss, of a “republican crown-prince.” The provisions which were
thereupon adopted are much more supple.
In case the President ceases his functions before their normal
expiration, that is to say, in case of death, resignation, or
impeachment, a new election is immediately held.
In case he is prevented from filling his duties, there must be made a
distinction according to whether this inability seems apparently of
short or long duration. In the first case, that is, in case of slight
illness or because of a short voyage abroad, or during the first days
of a disability which seems likely to be prolonged, or in the interval
between the death of a President and the election of his successor,
the place of the President is filled by the Chancellor. In the second
case, that is, in case of serious illness or insanity, or when a motion
has been passed by the Reichstag to impeach the President, or there is
inaugurated a penal prosecution of the President before the National
Judicial Court, the Constitution decides that an ordinary law shall
determine expressly by whom his place shall be filled. This law may
according to circumstances either install a temporary Vice-President, or
confer temporarily the functions of the President on the Chancellor until
the President is able to resume office, or finishes his term.
3.--THE POWERS OF THE PRESIDENT.
The powers vested in the President of the Reich by the Constitution
are in general analogous to those possessed by every chief of state in
a parliamentary country. Just as the Reichstag exercises in addition
to its purely legislative powers a control over the Cabinet and its
administration, just so, if the principles of the parliamentary system
are to be applied, the President must be invested, in addition to his
strictly executive authority, with powers that permit him to co-operate
in legislative work and to exercise a control over the Reichstag itself.
It is precisely this, in effect, that the Constitution provides for. The
President of the Reich has executive powers. He nominates ministers, he
represents the Reich in foreign relations, he appoints all the civil
and military servants, he is supreme chief of the forces of the Reich
by land and sea, he exercises the right of pardon and he may make
regulations.[42] He has also powers of a legislative character. He alone
has authority to promulgate and publish enacted laws. He exercises a kind
of right of veto over these laws; and he may, according to circumstances,
in the complicated conditions we have already examined, either retard the
entrance of these laws into operation, or submit them to the people by
means of a referendum. Finally, he exercises a certain control over the
Reichstag. He may order the President of the Reichstag to convoke that
Assembly earlier than the normal date of its meeting. He nominates the
judicial members of the electoral commission for disputed elections to
the Reichstag. He may dissolve the Reichstag, etc.
It goes without saying that in none of these cases can the President
take action without securing the support and the countersignature of a
Minister. That is the essential condition of a parliamentary régime.
But to strengthen the action of a President and to give his position a
place of real pre-eminence, which is desired for him, the Constitution
entrusts him with a certain number of powers, which we must note
particularly, for they are perhaps peculiar to the German Presidency, and
give it a special character.
The President exercises an extremely powerful control over the
legislative work of the Reichstag. When a law has been enacted he may,
before promulgating it, submit it to a referendum. He may, when the
Reichstag and the Reichsrat have declared urgent a law which they have
enacted, promulgate it immediately even if a third of the Reichstag has
demanded that its promulgation be deferred (Article 72). The aim of
such a demand for postponement is to give the opponents of the law the
chance to prepare a referendum and to proceed to it. The fact that the
President has the right not to act on such a postponement and to give the
law immediate operative power by promulgating it, offers him the chance
to prevent such a referendum. It is also in his right when there is no
agreement between the Reichstag and the Reichsrat on the text of a bill,
either to decide that the law is not in effect and shall not enter into
operation, or to decide for a referendum. He is free, finally, when a law
has been passed in the Reichstag by a two-thirds majority against the
protest of the Reichsrat, either to promulgate this law, or, if he does
not wish to take the responsibility of that, to submit to a referendum
the question on which the Reichstag and the Reichsrat disagree.
The President commands all the armed forces of the Reich. He is from this
point of view the direct successor of the Emperor. He has, therefore, the
power called _Reichsexecution_; that is to say, that when a state does
not carry out the obligations imposed upon it by the Constitution or by
a law of the Reich, he has the right to compel it to do so with the aid
of armed force. But, above all, he has the right to _declare a state of
siege_.
This is a peculiar point in the German Constitution. Whereas in France,
the state of siege cannot be declared except by a law, in Germany it is
sufficient to declare it by means of a simple order of the President.
Article 48 gives him the right, when security and public order are
seriously affected or menaced, to take necessary measures for the
re-establishment of security and public order and at need to use,
therefore, armed force to that end. But in order that he may be able to
resort to these exceptional measures, tranquillity and public safety
must be seriously affected or menaced. But he alone has the power to
decide if and when this condition is fulfilled. In the same way he alone
decides what measures are necessary for the re-establishment of order.
He may particularly--the Constitution expressly gives him this right
but only in a general way--suspend individual liberties. As to details
in this matter the Constitution provided for the passing of an ordinary
law which should prescribe particulars more completely; but this law has
not yet been enacted. It is agreed to recognize that until such a law
has been passed the _authority of the President in this respect remains
unlimited_. He may therefore not only order all measures which seem to
him necessary for this or that emergency, but he may also by an ordinance
prescribe general and permanent measures. He may institute penalties or
increase those provided by the penal code. He may also establish special
tribunals. It is in effect a dictatorship.
This extraordinary power which has been given him, the President uses to
a very large extent. Germany, it is true, is traversing a particularly
troubled period and it is probable that this is responsible for the
great number of ordinances issued by the President creating states of
siege. There are regions that are almost constantly in a state of siege,
particularly the Ruhr. In 1920 Berlin remained in a state of siege from
January 13th to May 28th.
The modes of applying these high executive powers are extremely variable
and, according to circumstances, the measures prescribed constitute a
menace more or less grave to the rights of the individual. In serious
situations all the authority goes to the Minister of War, who may
exercise them himself or transmit them to his subordinates, and who
is assisted in civil administration by a Commissioner of the Cabinet.
Penalties are enacted; arson, the illegal use of explosives, flooding,
damage done to railways, and resistance to legal officers in the
course of a riot are punishable by death. Extraordinary court-martials
are created and invested with broad authority. The military powers
may even institute court-martials appointed by the commanders of the
troops charged with suppressing the disorders and presided over by an
officer of these troops.[43] In less serious situations the authority
in the territory involved is given over to a commissioner of the civil
government, nominated by the Minister of the Interior. The liberty of
individuals is suspended, but certain guarantees are retained. Prison
sentences and fines are instituted. Between these two extreme types of
state of siege there is a whole gamut of provisions more or less severe;
and almost daily new ordinances appear establishing the state of siege in
this region, sharpening it in another, relaxing here and abolishing it
there. There are territories declared in a state of siege in which this
abnormal situation is not manifested by a single practical restriction;
it is there only a measure of precaution on the part of the government.
But there are others where repressions of a terribly brutal nature take
place.
The only limit that the Constitution has provided to this omnipotence of
the executive power consists in the obligation it places on the President
to acquaint the Reichstag with all the measures he has taken by virtue
of Article 48; and in the right that is given by the Constitution to the
Reichstag to demand that he withdraw these measures. It is because of
such a demand that the Cabinet was compelled on May 28, 1920, to abolish
the then state of siege throughout the whole Reich, except in the Ruhr,
to permit the elections of June 6 to be held under normal conditions.
* * * * *
The parties of the Right, for whom the authority given the President
seems never strong enough, wanted to give him still another power, the
right to prescribe a referendum or to dissolve the Reichstag without a
countersignature of a Minister. The President, they held, would never
be able to secure the countersignature of a Minister to a dissolution
of the Reichstag, or to appeal to the people against the Reichstag,
because ministers depend for their official lives on the confidence
the Reichstag reposes in them. It will be necessary in such a case,
therefore, for the President to form a new ministry to countersign his
ordinance. But if the electors of the nation decide against a President,
he will have to call back to office the former Ministry. Of what use is
this roundabout method?
But Preuss vigorously defended the necessity of the countersignature,
dictated by principles of a republican democracy and of parliamentarism.
He began by reviewing the hypothesis of a referendum. In such a
situation, he said, one of two possibilities occurs. Either the President
and the Minister are in agreement to prescribe a referendum; in which
case would the Minister refuse his countersignature? That would be
contrary to the normal relations which must exist between the President
and his Ministry; especially, too, as a referendum is subject to certain
conditions imposed by the Constitution, and these conditions have to
be observed and some one must take the responsibility in case they
are violated. Or in the other case, the more important, the Ministry
are against the referendum; they are determined not to permit such a
politically important act to be committed against their best judgment. In
such a situation the Ministry will immediately resign and the President,
not being able to remain without a Ministry, would have to form a new
one. Whether or not, therefore, the countersignature of a Minister
to such decrees is required, the situation culminates in a change of
Ministry. But it is more natural that if the President wants to bring
about an act against the political convictions of his Ministry, he will
seek a Cabinet that will accept the responsibility for this act.
The situation is quite analogous in reference to the dissolution of a
Reichstag. If the President dissolves the Reichstag and wants to prevail
over its majority he can no longer retain the Ministry supported by this
majority. Dissolution results from the fact that the President seeks, by
a new election, to change the majority to a minority and the minority to
a majority. He must therefore ask himself this question. What political
combination can I use? Such a calculation must be faced if it is not
permitted the President to prescribe a dissolution of the Reichstag
except with the countersignature of a Minister. The President is not
absolutely subject to the majority; he may attempt, in appealing to the
people, to make another majority of the minority, but in that case he
must take into this minority statesmen who will accept the responsibility
for such an attempt.
The President may, therefore, order the referendum and dissolve the
Reichstag; but these two decisions, like all the others, must be
countersigned by a Minister.
* * * * *
In addition to the powers we have just examined, all of which are
expressly provided by the Constitution, there are others which the
President possesses because they logically follow from even the practice
of a parliamentary régime. Certainly he has the right to demand reports
from Ministers and any information from them on the course of affairs. He
has the right also to be present at sessions of the Cabinet; and while
it is true that he has not the right to vote there, he may come there
whenever he pleases and take the chair.[44]
4.--THE RESPONSIBILITY OF THE PRESIDENT.
Responsibility engenders authority and there is no authority without
responsibility. Whatever powers a Constitution may give its chief of
state, they will rest a dead letter if he cannot personally assume
the responsibility for the exercise of these powers. The President of
the United States, who is thus held responsible, really governs. In
a parliamentary régime the chief of state is not responsible; thence
comes its weakness. But the German Constitution desires at once a
parliamentary régime and a strong presidency. It must therefore seek a
ground for the combination of the two.
(1) _Politically_ the President of the Reich is in theory not
responsible. That is to say, that he cannot be overthrown by vote of
lack of confidence on the part of the Reichstag. All his acts must
be countersigned by a Minister, and it is the latter who takes the
responsibility for them and who alone suffers the consequences.
There is, however, a limit to this political irresponsibility of the
President. If the conflict between the President and the Reichstag is
really irreconcilable he may submit the conflict to the people, who
decide. It is recalled to this effect that, according to Article 42, the
Reichstag by a decision taken by a majority of two-thirds may demand of
the people a vote on the impeachment of the President. If the people
approve, the President ceases his functions; therein operates a kind of
political responsibility of the President.
(2) The President of the Reich is criminally responsible. Two hypotheses
must be considered:
(_a_) The President may have committed some crime for which the ordinary
penal law prescribes punishment. Can he be prosecuted before ordinary
tribunals as an ordinary individual? This question was vigorously debated
before the Committee on the Constitution. It was not desired that the
President should be absolved from all criminal responsibility. But, on
the other hand, it was equally undesirable that he should be placed in
the same status as ordinary citizens, because this would give him a
position less favorable than that which the Constitution grants members
of the Reichstag. It was decided finally that, like the latter, he cannot
be criminally prosecuted during the term of his powers, except with the
authorization of the Reichstag.
(_b_) Or the President may be guilty of a violation of the Constitution
or a law of the Reich. In this case Article 59 provides that he may
be prosecuted by the Reichstag in the Supreme Judicial Court. The
proposal to bring an impeachment must be signed by at least one hundred
members and supported by a two-thirds majority. But it must be specified
here that this is a matter of legal procedure and that therefore this
prosecution can be based only on the violation of a definite provision
of the Constitution or of a law. In the case of a simple political
divergence of opinion between the Reichstag and the President, only the
political responsibility for the matter can be called into the question,
and the one way open to the Reichstag is that of an impeachment approved
by the people.
What penalty can the Supreme Judicial Court pronounce against the
President in case of a verdict of guilty? The Constituent Assembly at
first adopted a provision according to which the Court could simply
declare the President removed, or to declare him incapable of exercising
any public function whatever. Finally, however, it was decided to leave
this question to the law organizing the Court of Justice.
But the situation may arise in which an act committed by the President
constitutes both an infraction of the penal law as well as a violation of
the Constitution. Which shall pass first upon this, the ordinary tribunal
or the Supreme Judicial Court? After long hesitation, the Constituent
Assembly decided to leave this question also to the future law dealing
with the Supreme Judicial Court.
(3) The President is finally _civilly_ responsible for any acts of damage
he may commit. Although he is not really a civil servant, in the actual
sense of the word, he is on this point subject to the same regulations
as the civil servants of the Reich. (The law on the responsibilities of
civil servants, March 22, 1910.)
SECTION III
THE CABINET OF THE REICH
The Cabinet in a parliamentary government constitutes a bond of union
between the parliament and the chief of state. In Germany it must play
a still more important rôle, since both the Reichstag and the President
are directly elected by the people and have theoretically the same equal
powers. It is therefore indispensable that an organism of co-operation
and equilibrium exist between them.
But this mechanism is extremely delicate. The rôle of the Ministry,
always very complex, depends above all on the traditions and the
circumstances of the men in question. What relations should subsist
between the President and the Prime Minister; between the Prime Minister
and the other members of the Cabinet; and in what measure should one be
subordinated to the others? What is the exact position of the Cabinet
in regard to the Chamber? Is it its guide, or must it be limited to the
execution of the Chamber’s decisions? These are questions of degree that
require or may require different solutions in each country for each
Ministry.
It is difficult, if not impossible, to decide on these in advance in a
complete and detailed manner. In England there is no written provision on
the manner in which the mechanism of the Cabinet must function. In France
there are a few vague and insufficient provisions in the Constitution.
But the German Constitution has attempted to formulate the general rules
according to which the government of the Cabinet should operate.
The project by Preuss contained not a single detail on this point; it
confined itself to stating the principle of parliamentary government.
Against this reserve criticisms were raised in committee as well as in
plenary sessions of the Assembly. Former Minister von Delbrück criticized
Preuss’ project for its lack of a sufficient guarantee that the organism
of the government would develop in a specific manner and in the direction
desired for it. He held that the evolution of an organism as important as
the Ministry should not be left to chance, and that there must be fixed
at least the general lines according to which it should develop. He then
indicated some of these directing principles and they were incorporated
in the Constitution.
The National Assembly has certainly made therein an important attempt and
we shall study the regulations which it has thus established. We shall
then examine how these regulations work out in practice.
1.--THE CHANCELLOR AND THE MINISTERS ACCORDING TO THE CONSTITUTION.
In the terminology of Weimar, the Ministry is called the “National
Cabinet.” Article 52 says, “The National Cabinet consists of the
National Chancellor and the National Ministers.” There is thus stated a
difference--fundamental in the German system--between the Chancellor and
the Ministers.
It will be recalled how the Cabinet of the old Empire was organized. The
Chancellor, properly speaking, was the only Minister; and the Secretaries
of State, by whom he was assisted or represented, were simply high civil
servants absolutely subordinate to the Chancellor. These Secretaries
of State never met together to deliberate on public affairs; each of
them freely decided on the affairs of his department and executed them.
But the Secretaries of State had to refer to the Chancellor every time
that a difference of opinion arose between their departments over
any contemplated law or any administrative measure whatever. Such a
discussion was often prolonged for months, because the Chancellor was
not in a situation to express an opinion, nor to pronounce on the very
complex problem. This was the _bureaucratic_ system.
For this system, with its obvious inconveniences, von Delbrück proposed
to substitute a _collegiate_ one. The Ministers form a Cabinet, to which
all questions concerning general policy or involving the province of
their several departments are submitted. The Prime Minister is only the
first among them, _primus inter pares_; the decision is made by the
whole Cabinet, which naturally assumes the whole burden of responsibility.
The Constituent Assembly supported an intermediate solution, which
partook both of the bureaucratic system and the collegiate. It adopted a
sort of _limited collegiate_ system. The Chancellor is not as formerly
the only Minister of the Reich; he is Minister by the same title as the
other members of the Cabinet, but he has a character distinct from those
of the other Ministers. Without being a hierarchic superior over these he
is on another plane and enjoys certain rights in comparison to the others.
This distinction established by the Constituent Assembly, between the
two elements of the government, the Chancellor on the one hand and the
Ministers on the other, is manifested in the three respects in the
nomination of the ministers, their prerogatives and their responsibility.
(1) They are nominated in a different manner. The Chancellor is nominated
by the President of the Reich who naturally must be guided therein by the
political situation. According to circumstances, the President is obliged
to nominate some party leader of the group forming the majority of the
Reichstag; or his choice may be exercised among several political figures
according to the combination possible among the parties of the majority.
It is true that the Ministers are also appointed by the President of
the Reich, but _on the nomination by the Chancellor_, and it seems
that in practice the President is always bound by this consideration.
The Chancellor may not be recalled; his functions cease only through
resignation or because he is unseated by the majority of the Reichstag.
The Ministers, on the other hand, may be recalled and the decision may
be taken here, too, by the President of the Reich on the proposal by the
Chancellor.
(2) In regard to powers there exists a still more profound difference
between the Chancellor and the Ministers. The principle is this: the
Chancellor determines and alone determines the general course of the
Cabinet’s policy. The other Ministers direct the affairs of their
respective departments along the lines fixed by the Chancellor in his
general policy. (Article 56.) In other words, it seems that the German
Constitution, without expressly saying so, wants to establish the classic
distinction between “governing” and “administering.” The Chancellor
governs, the other members of the Cabinet administer. This essential
distinction recurs more or less clearly enunciated in all the provisions
relative to the powers of the Ministers.
The latter have as their most important function the exercise of those
powers of which the President of the Reich is the chief holder. They
prepare and countersign the ordinances of the President. But do they
all indiscriminately countersign all decrees and may each Minister
countersign any of the decisions of the President? Not in the least. The
Chancellor countersigns all decisions touching the general policy of the
Cabinet, but he is also authorized to sign other decrees. The Ministers
countersign only the decrees that effect their respective departments.
From this results the following: When a decree of the President is
countersigned by a Minister it may be considered that the Cabinet holds
it to be a purely administrative matter. Every decision presenting a
certain political importance is either countersigned by the Chancellor
only or by both the Chancellor and the Minister whose department is
affected. The Ministers have in the second place their own powers. They
make general or individual decisions which they sign themselves. These
decisions are of two kinds: some of them must be deliberated on and
decreed in the Council of Ministers; other decisions are taken by the
Ministers individually.
There are above all powers which the Ministers exercise in the Council
of Ministers, and it is here that the mixed character of the regulations
provided by the Constitution is revealed still more clearly. The
predominant position accorded the Chancellor comes from the fact that he
presides over the Council of Ministers--when the President of the Reich
is not present; and the fact that in case of a tie he decides. It may
be asked if the Chancellor can be put in the minority and what would
result from such a situation. Theoretically, according to the _collegiate
principle_, a decision adopted by the majority must always be executed.
But it seems that the Ministry cannot go against the opinion of the
Chancellor, who alone has the right to fix the general lines of policy
and who in addition can always exercise the threat of resigning, which
would thereby involve the fall of the whole Ministry. The Council of
Ministers has its own order of procedure which must be approved by the
President.
On the other hand, the collegiate system is found to be very widely
applied in the ensemble of the provisions vesting in the Council of
Ministers some of the most important powers that properly belong to
Ministers. The Chancellor fixes the general course of the policy to be
pursued by the government; but the Ministers must see to it that in
their various departments the policies practised conform to this general
course, as well as that their individual policies do not conflict with
the interests or the policies of other departments. Also the Constitution
itself enumerates a certain number of matters which cannot be dealt with
except in the Council of Ministers; and it provides that ordinary laws
may extend the number and character of these matters. They are as follows:
(1) All projects of law. In contrast to what occurs in France,
it is not the chief of state who has the initiative in laws but
the Council of Ministers. All projects of laws emanating from
the Cabinet must be discussed and drawn up in the Council before
being sent to the Reichstag.
(2) All matters that touch the domains of the authority of the
various Ministers, and on which the latter cannot privately come
to an agreement.
(3) The power to issue ordinances. In Germany there is no organ
that has general authority to make all ordinances. A particular
organ can only prescribe ordinances within its own limits and
to the end assigned to it by the Constitution or ordinary laws.
We have seen that such is the case for the President; and such
is also the case for the Cabinet. The Cabinet of the Reich may
prescribe regulations of three kinds:
(_a_) Sometimes the Cabinet of the Reich has authority to
prescribe _only_ a regulation. This is particularly the case
when it has to prescribe administrative measures of the general
character necessary for the execution of a law. (Article 77.)
(_b_) Sometimes the Cabinet cannot prescribe a regulation except
with the _approval of the Reichsrat_. This is particularly the
case in the circumstances aimed at in Articles 88, 91, 77, par. 2
of the Constitution.
(_c_) Finally, the law of April 17, 1919, “On a simplified
form of legislation relative to economy during the period of
transition,” gives to the Cabinet of the Reich the power under
certain conditions to enact by means of decrees what amount to
veritable laws. According to this law, the Cabinet may prescribe
regulations having the force of law, and consequently may even
modify laws previously made on condition that it has the _consent
of the Reichsrat and of a committee of twenty-eight members named
by the National Assembly_. The Ministers finally have powers
which they exercise individually. They are in theory purely
administrative powers.
(3) The distinction established by the Constitution between the
Chancellor and the Ministers recurs in the matter of their political
responsibility. Their rôles being different, it is logical that their
responsibility operate under different conditions.
The Chancellor and the Ministers are equally responsible before the
Reichstag. They “require for the administration of their offices the
confidence of the National Assembly. Each of them must resign if the
National Assembly by formal resolution withdraws its confidence,” says
Article 54. To follow the letter of this article it may be believed that
there is not a collective responsibility and that only those Ministers
must resign against whom a vote of want of confidence is passed. However,
that does not seem to be the real meaning of Article 54. This becomes
more clear when one compares it with Article 56. These two articles
together indicate the following. The Chancellor and the Ministers are
responsible to the Reichstag in the same way, but the provinces of their
responsibilities are different. The Chancellor is responsible for the
general course of policies, that is to say, for principles and plans
of great scope, to the exclusion of administrative measures. On the
other hand, the Ministers are responsible not for the general course of
policies but for the manner in which they direct their departments. In
addition the political responsibility of all the Ministers is involved in
decisions taken by them in the Council.
As for criminal and civil responsibility the Chancellor and the Minister
are placed on the same footing, and are answerable for criminal and civil
offences under the same conditions as the President of the Reich.
2.--THE WORKING OF CONSTITUTIONAL RULES; HOW A MINISTRY IS FORMED, WORKS,
AND IS DISSOLVED.
It is observed that the Constitution has attempted a kind of codification
of rules for a parliamentary régime, such as its authors have conceived
it. It attempts to give thus a guarantee that this régime, new in
Germany, will develop along the fixed course it has traced for it. It is
interesting to inquire how up to now German statesmen have observed these
rules. To this end it seems that the best thing to do is to describe how
a Ministry actually is formed, works and is dissolved.
* * * * *
(1) Normally, and it must be so according to the German Constitution,
when it is a matter of forming a new Ministry, the chief of state charges
some political leader with the task of constituting a Cabinet and
assuming the direction of its affairs. This man chooses collaborators
with whom he agrees or can come to an agreement to the effect that
they work in common for the realization of a specific programme. The
Ministry thus formed is submitted to the Parliament and presents to it
its programme. If the Parliament accepts, the Ministry goes to work.
Otherwise it is withdrawn. In any event a ministerial crisis resolves
itself in a few days.
In Germany the formation of a Ministry is always an extremely complicated
affair. Instead of only two great parties--which seems the ideal
condition or at any rate the traditional situation in the normal
functioning of a parliamentary régime--there are in Germany five or six
parties, none of which consists of a sufficient number of members to
have in itself a majority. In addition the Cabinet’s difficulties are
almost inextricable and the party that accepts a part in the ruling power
realizes the risk it immediately incurs in exercising it. Likewise the
different parties do not always lend themselves with good grace to this
risk and often prefer the egoistic attitude and the convenient rôle of an
opposition rather than the heavy and perilous task of governing. Whereas
any political party worthy of the name should have an excellent programme
in which it believes and should want nothing better than to come into
power in order to realize such a programme, the political parties in
Germany, little sure of their programmes, prefer, before attempting to
apply them, to wait until the insufficiency of the programmes of the
other parties has been previously demonstrated.
When a ministerial crisis opens there commences at the same time a period
of difficult negotiations. Each political group meets and discusses
the position it will take, deciding whether or not it will accept
participation in the Cabinet. The answer to this latter question depends
most often upon whether certain other groups will participate themselves
in power. Then the trusted men or the leaders of the different parties
meet together to find a basis for agreement. The President of the Reich
naturally keeps in touch with these negotiations; sometimes they are held
in his presence. The programme of the future Cabinet is discussed and
above all the choice of future Ministers. When an agreement is reached
the President of the Reich makes his nominations. There was one occasion,
however, when the task of forming the Cabinet was extremely difficult.
It was after the elections of June 6, 1920, which gave to the various
parties such a distribution of numerical strength that no majority was
practically possible no matter what combination was tried. The various
groups met and quarrelled but were not able to come to agreement. Then
the President charged a member of the Centre, not to make up a Cabinet,
but to serve as an intermediary between the various parties and to bring
them to an agreement. It is from this preparation that there issued the
Ministry of Fehrenbach. _Thus the Cabinet is constituted not by an act,
a free decision of the President, but by an agreement reached by the
parties._
From this ensue two consequences:
First, these crises are very long. The one in which the Fehrenbach
Cabinet was formed lasted nineteen days. In a country whose situation is
as difficult in every respect as that of Germany, such a lapse of time
without a Cabinet, entirely taken up in deliberations and discussions
between politicians, is obviously a deplorable state of affairs.
Another consequence is, that not only the Ministries are not homogeneous,
which is the necessary consequence of the fact that no party has a
majority in the Reichstag, but also they are heterogeneous in a fixed
and invariable manner. To constitute a Cabinet there must be observed a
triple rule. First, Ministers must be taken from the various political
parties that enter the Cabinet; those individuals who are not members
of the Reichstag being chosen from among the members of the party
represented in the National Assembly. _Secondly, each party has the right
to a number of Ministers proportional to the number of its members in
the Reichstag._ The only exception to this rule is that the number of
members in a Cabinet belonging to the same party must remain the same
as in the just discarded Ministry; and if a Minister is withdrawn, the
party to which he belongs designates his successor. If because of special
circumstances another political group is called upon to fill the vacancy,
this group in return as compensation to the other group cedes one of the
ministerial seats held by it. Thirdly, the composition of a Ministry must
remain unchanged for the whole session of the legislature.
The first Ministry constituted after the meeting of the Constituent
Assembly in February, 1919, consisted of Scheidemann, its President,
eleven members as department chiefs and three Ministers without
portfolio. The parties that assumed government in coalition were, the
Social Democrats, who had 163 members in the Assembly, the Democrats
with 74 members, and the Centre with 89. The Social Democrats had
exactly as many as the other two groups combined. In the Cabinet of
fourteen members, therefore, they had seven seats, among them that of
the President. The other seats were distributed, four to the Democrats
and three to the Centre. During the entire period of the Constituent
Assembly--with the exception of three months of the Summer of 1919, when
the Democrats, who did not want to sign the treaty of peace, remained
voluntarily aloof--the Ministry and the Ministers could change, but
the composition of the Ministry rested practically identical. The last
Cabinet formed under this Assembly, that of Hermann Müller, comprised
at the time of its constitution, March, 1920, eleven Ministers, of whom
one was without portfolio. And it was understood that it would later
be completed by the addition of three other Ministers then not yet
designated. Among the eleven members at first, there were five Social
Democrats, three Democrats and three members of the Centre. As for the
first Ministry constituted after the elections of 1920, that consisted
of five members of the Centre, among them Fehrenbach, three members of
the People’s Party and two Democrats; which corresponded approximately to
the respective strengths of the groups in the Reichstag, viz., 68, 62, 45
members.[45]
Generally the number of Ministers is variable. Instead of having a
fixed number of departments corresponding to a rational distribution of
affairs, there are created or abolished Ministries according to the needs
that have to be met to satisfy the demands of this or that political
group. The Scheidemann Ministry had a Minister of Finance. But the Bauer,
Hermann Müller, and the Fehrenbach Ministries had, in addition to a
Minister of Finance, also a Minister of the Treasury. On the other hand,
there was in the Scheidemann Cabinet a Minister of Economy, Wissel, and a
Minister of Food Supply, Robert Schmidt. These two Ministers kept their
portfolios in Bauer’s Cabinet formed in June, 1919. Then dissensions
arising between Wissel and the other members of the Cabinet, Wissel
resigned. But he was not replaced and the two Cabinet posts were made
one. They were again made two, however, and provided with distinct titles
in the Cabinets of Hermann Müller and Fehrenbach. A similar situation
exists in the case of Ministers without portfolio, whose number, when
there are any, is variable.
Sometimes in spite of all possible negotiations and combinations the
various groups necessary for a coalition commanding a majority cannot
arrive at an agreement. As a government must nevertheless be finally
constituted, this or that group, which has refused to enter into the
combination, promises nevertheless either its support or its neutrality
to those who have had the imprudence to participate in the Cabinet. When
the Fehrenbach Cabinet was constituted it could only count on the vote
of the groups represented in it and, therefore, commanded only 200 votes
in an Assembly of 466 members. But the Social Democrats promised not
to overthrow the Ministry until the new elections. The consequence of
this is that a Cabinet so placed is really not its own master, and this
one had to yield to a certain degree to the injunctions of the Social
Democrats. But on the other hand the latter, although they had refused to
enter the combination, were indirectly responsible for the acts of the
Ministry so long as they tolerated them in power.
When the necessary agreements are concluded, the Ministry appears
before the Reichstag. It reads its declaration and programme and a
grand political discussion commences. But the programme having been in
advance submitted to the groups, sometimes even corrected and redrawn
at inter-group meetings, the Ministry is sure of a majority and the
discourses are only manifestos by which each party explains why it is for
or against the Ministry.
* * * * *
(2) Parliamentary government, in practice, may take one of two different
forms: government by the Cabinet or government by the Assembly. In a
government by a Cabinet, it is the Council of Ministers that governs and
it is they who give the direction of general policy. It is the guide
and the superior of the Assembly whose confidence supports it. On the
other hand, one calls it government by the Assembly when the Ministry is
limited to executing the decisions of the Parliament and to following the
initiative of the latter.
In Germany, while it cannot be said that the Reichstag exercises
considerable authority over them, it seems that the Ministers take little
initiative and that they content themselves most often with following
the direction given them by the Assembly. It is the agreement that
prevailed at the formation of the Cabinet that continues as a policy. The
Ministers are either the presidents of the respective political groups,
or else have been nominated by these groups. How, therefore, can they be
completely independent? There are here some factors analogous to what one
called in France “the bloc of the Left” under Minister Combes. All the
important measures are first discussed between the government and the
groups and the Ministry does not act except in agreement with the groups
of the majority. Instead of placing itself at the head of the majority
and assuming the responsibility for the measures which it feels necessary
to take, the Cabinet comes to an understanding with it. Perhaps it cannot
be said that it follows the directions given it by the majority. But it
does not act, in any event, unless it is first assured of the majority’s
support. Perhaps, also, in the critical circumstances which Germany is
traversing and given the manner in which its groups are organized, it is
impossible to do otherwise. The head of a Cabinet appointed by the chief
of the executive power on a programme given him for the realization of
this programme, may act with independence, if this programme creates its
own majority. Even if it cannot command a stable majority, it can lean on
some of the minority groups and, according to circumstances, may create
different majorities. There are acts which no one can criticize and there
are successes which nullify opposition. But such is not the case in
Germany, where the Ministry has to abide by the contract which prevailed
at its organization.
* * * * *
(3) The preceding remarks suffice to explain the following fact: since
the establishment of the parliamentary régime in Germany _no Ministry has
ever been overturned_ by the Reichstag. How can it be, if it conforms to
the condition of its agreement and if, before each hazardous decision, it
assures itself the approval of the majority? On the other hand, if it
cannot obtain this approval, or if it does not want to accept the policy
desired by the majority groups, why should it go before the Assembly and
engage in a battle lost in advance? It resigns.
The Ministry, therefore, is never overthrown; it retreats, or more
correctly, it does not retreat, but changes. The number of men available
for a Ministry is very limited and the groups present almost always
the same men. There is in advance a certain knowledge as to who the
men are who will enter a Cabinet as soon as one knows what groups will
participate in the formation. Further, the possibilities of combinations
within a given Chamber are limited enough. From the beginning of
February, 1919, only four groups have participated in power, of these
the People’s Party participated only after June, 1920. It is inevitable,
therefore, that in each new combination there remain at least two groups
which already belonged to the preceding one. Quite naturally these groups
leave, without exception, the same men in power. Why change? An important
part of the preceding Ministry, therefore, is maintained in each new
Ministry.
In June, 1919, Scheidemann’s Cabinet, which consisted of Social
Democrats, Democrats and members of the Centre, was replaced by Bauer’s
Cabinet, in which only the Centre and the Social Democrats entered.
The members of these two groups which were in the Scheidemann Cabinet
remained in the Bauer Cabinet and it was sufficient to replace with
members of these two groups the vacancies left by Scheidemann and the
Democrats. In March, 1920, Bauer’s Cabinet, into which the Democrats
entered in October, 1919, attempted a new change after the _coup d’état_
of Kapp. Conferences took place, in which took part the President of
the Reich, the Ministers and representatives of parties, in which was
discussed the question as to which Ministers should remain and which must
go.
The more the discussion was prolonged, the greater grew the number
of Ministers to remain. But the unions intervened and demanded the
resignation of the whole Cabinet. Bauer acceded. Nevertheless the
Cabinet, which was thereupon constituted by Hermann Müller, retained
several members of the preceding Cabinet, notably Hermann Müller himself,
who from Minister of Foreign Affairs became Chancellor, and Bauer, who
from Chancellor became Minister of the Treasury. The same procedure took
place in the constitution of the Fehrenbach Cabinet. It was expected that
a Ministry coming after elections that expressed a considerable change
in the political situation, and after the Social Democrats withdrew from
power and the People’s Party arrived, would translate this change by a
more profound modification than usual of the Cabinet. But out of thirteen
members five had been members of the preceding Cabinet.
It does not seem, therefore, that the attempt made by the Constitution to
regulate as precisely as it may be done the functioning of the government
of the Cabinet has had up to now any appreciable effect on the practice
of parliamentarism. Germany begins at a point that other countries,
in which parliamentary government has operated for years, have hardly
attained, if they have at all attained it. A concentrated Cabinet, a
Cabinet of republican defence, a Cabinet of transition, a _bloc_ of the
Centre--are these accidental deformities of the parliamentary régime,
or are they forms toward which it must necessarily tend? We are told
in Germany that these practices, obviously little compatible with the
conception of parliamentarism or with the regulations provided in their
Constitution, are to be explained by the state of revolution in which
the country still finds itself; and that they will disappear if some
day Germany recovers its equilibrium, and make place for a correct and
complete application of constitutional rule.
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.
CHAPTER V
FUNDAMENTAL RIGHTS AND DUTIES OF GERMANS
The second part of the Constitution of Weimar is devoted entirely to the
fundamental rights and duties of Germans. It is the Declaration of Rights
of the new Germany. Aside from several articles relating exclusively to
the economic organization of the Reich, the five sections of this part
contain a long enumeration of the rights and duties granted to or imposed
on the Germans. To enter into details of this enumeration would be to
undertake a study of all of German public and private law. Nevertheless
an attempt must be made to outline the principal ideas.
1.--LEGAL AND POLITICAL ASPECTS OF FUNDAMENTAL RIGHTS AND DUTIES.
The articles relative to fundamental rights and duties, during the
discussion of the draft of the Constitution, were the subjects of lively
differences of opinion. It was questioned whether it was necessary and
useful to insert such provisions into the Constitution; moreover, every
one of these provisions one after another was debated. The Bismarckian
Constitution of 1871 contains no declaration of rights. On the other
hand, the drafters of the Constitution of 1849 proposed such a great
number of fundamental rights and applied themselves with such complacence
to the elaboration of these rights that the Constituent Assembly of
that time was unable to make itself heeded, and this defeat contributed
largely to the defeat of the whole of the project of such rights.
The first proposal of the Cabinet following the tradition of the proposal
of 1849 and also the Declaration of Rights of the French Revolution, as
well as of the American, Belgian and Prussian Constitutions, enumerated
in a few paragraphs several essential legal principles and enunciated
some fundamental dogmas which have been considered for a century and in
all civilized countries as self-evident truths. But in the Constitutional
Committee the discussion went far beyond these generalities. Desirous of
creating an intellectual background in which justice and administration
would have to operate, desiring also to furnish in the form of some
suggestive maxims a guide for the conduct of some of the most important
matters in the legal domain, and to furnish a solid foundation for the
juridical culture of the German people, the members of the Constitutional
Committee nominated a sub-committee, which prepared a new draft whose
provisions were embodied in the draft of the Cabinet, in different bills
prepared on private initiative, as well as in the new Constitutions of
Baden and Wurtemberg. In the drawing up of this new draft the principal
rôle was played by Beyerle, member of the Centre.
In the course of the discussions in sub-committee, in Committee, as
well as in plenary session, three currents appeared. Some wanted to
suppress drastically all declarations of rights in the Constitution of
the Reich; for they saw in these principles no stable system, but only
a collection of “declarations and declamations,” to which were joined
some legal maxims figuring already in other laws. Others wanted to
retain the system embodied in the cabinet draft, adding to it, however,
several provisions to assure the protection of the rights acquired for
religious denominations. A third group, among whom principally was
Frederick Naumann, held that the cabinet draft, even thus extended, was
retrogression and did not correspond to the actual development of German
culture. They demanded that there be substituted for it a declaration of
fundamental rights which would constitute a recognition of the principal
ideas that characterize the most recent development of this culture.
The Constitutional Committee, and after it the National Assembly itself,
adopted a middle course. The propositions by Naumann as a whole were
rejected; and it was decided not to inscribe in the Constitution, in
political sentences and aphorisms without any legal content, a complete
and solemn recognition of the directing ideas of the present and of
the future. Nevertheless there would be inserted in the Constitution a
certain number of political maxims and of “programme thoughts.” This
done, the Constituent Assembly wished, in the words of Düringer, to give
a foundation to the existing legal culture, and to furnish a mirror
to German juridical life, and at the same time afford a programme for
future juridical development. In addition the principles voted, since
they would figure in the text of the Constitution, would have to be
placed under the express guarantee of the Constitution and thus become
part of the fundamental law of the Reich. The Assembly hoped, finally,
that these articles would exercise a certain educational function. They
would constitute the basis of the civic and political education of the
people. The fundamental rights would have to be not only “the keystone of
the edifice, but must also become the substance whereby the Constitution
would live.”
This was a magnificent programme; unfortunately it was difficult to
carry it out and the most severe criticisms were rightly, it seems, made
against the manner in which it was carried out.
When the articles relating to the fundamental rights and duties were
being drawn up, the members of the National Assembly of necessity
remained party men, and were guided, even when they voted on
philosophico-legal questions, by party considerations. Also some of these
“fundamental rights” had the appearance of being simply extracts from
programmes or brochures of political parties. On the other hand, the
members who drew them up naturally put in the foreground the problems
which, at the time of the discussions, were the burning questions in both
Parliament and in public opinion. The result is that the second part
of the Constitution regulates questions of the day rather than of the
future, and issues prescriptions for circumstances more than it proclaims
fundamental rights.
However, all this would have been admissible, if there had been one
big party that could have without constraint and without difficulty
incorporated its own principles in the Constitution; or even if there
had been two or more parties with fairly similar conceptions, which were
able to agree on fundamental rights. There would have been at least a
Declaration of Rights that might have corresponded to the conceptions of
the majority. But there was no such majority in the National Assembly.
To be sure, there was an impressive majority that agreed on a democratic
Constitution. But on questions of schools, church, the family, and of
economic and agrarian reforms--questions that had to be dealt with in
the statement of fundamental rights--there was in the National Assembly
and in the parties of the majority such divergence of opinion that it
was impossible to construct of it any logical or coherent edifice. Also,
in reading each provision of the fundamental rights, one can guess which
party has furnished the first part of a phrase and which the second.
When, for example, referring to property one reads, “The right of
property is guaranteed by the Constitution. Its nature and limits are
defined by law”; or, when in Article 152 a phrase declares, “There is
an economic liberty in the measure indicated by the law,” every one, no
matter what may be his personal conceptions, may find himself entirely
satisfied, according to whether the first or the last words of each
provision are emphasized. This evident compromise between the political
parties on political conceptions so widely divergent was emphatically
pointed out by Member of the Assembly Koch, who characterized the
fundamental rights as “an interfractional political programme.”[48]
From the legal point of view, the defects of this programme are no less
serious. It is extremely difficult, if not impossible, to know what
authority and what meaning should be attached to the fundamental rights.
What precisely does such a phrase as one in Article 109 mean? “Privileges
or discriminations due to birth or rank and recognized by law are
abolished.” Does, again, the provision in Article 115, according to which
“The house of every German is his sanctuary and is inviolable,” prevent
a commissioner of buildings from dividing spacious lodgings in order to
combat a housing crisis?
What is still more regrettable is that the Constitution never specifies
to what extent the fundamental rights have or have not legal force. Do
all previously enacted laws that are irreconcilable with fundamental
rights in the Constitution cease to operate the moment the Constitution
comes into force? Should not this solution be applicable only to laws
enacted after the adoption of the Constitution and for such of their
provisions as are contrary to the Constitution? Or must it be interpreted
that the fundamental rights have no importance other than to constrain
legislatures to subject existing legislation to the principles these
rights proclaim, and to vote only for laws that conform to these
principles? Finally, are not these fundamental rights merely general
indications which may be expected to have such moral force as they can
impose on the legislature?
It was attempted to bring some clarity into the chaos of the discussions
on this head. At first a proposal was made according to which any one had
the right to complain before a tribunal of all injurious violations of
fundamental rights. This was rejected; for otherwise any one belonging
to the middle classes could complain on the basis of the provision of
Article 164, according to which “The independent … middle-class shall
be fostered,” and claim that the provision was a dead letter. There was
voted, however, on the first reading a provision according to which
the fundamental rights would constitute “a course and a limitation for
legislation, administration, and jurisprudence in the Reich and in
the States.” This phrase would have increased, without any possible
ambiguity, the immediate legal efficacy of the fundamental rights. It
was, however, done away with at the second reading, for it would not have
been applicable except to provisions which have a positive content, and
it would have had, aside from this, only the character of an abstract
maxim for scholastic manuals. It was decided, therefore, not to specify
in any way whatever the legal significance of the articles of the
Constitution relating to fundamental rights and duties. It would fall
to legislators, judges and public officers to interpret in the future
each of these articles separately, and to be guided according to the
results of this interpretation. If, however, one may attempt such an
interpretation, it would appear that these articles, from the point of
view of their legal efficacy, may be divided into three categories.
(1) Those having the force of law. These create actually and immediately
some new law, and consequently abrogate contradictory provisions of
antecedent laws. Such, for example, is Article 109, par. 6: “No German
may accept a title or order from a foreign Government.”
(2) Others limit themselves to _indicating_ to legislators of the Reich
and of the States the _course which they must in the future follow_
and prescribe the laws they must enact. But these provisions do not in
themselves constitute laws, and, therefore, cannot abrogate _ipso facto_,
contradictory provisions in antecedent laws. Such is the principle in
Article 145, according to which “Instruction and school supplies … are
free.” This cannot have for its effect the immediate doing away with
payments by pupils in the schools for supplies furnished them. There
is no doubt that the principle of gratuity cannot enter into operation
except through a special law expressly prescribed.
(3) Other provisions express _general truths_, which are most often
_ordinary philosophico-legal commonplaces_, whose exact meaning and
bearing in a text such as the Constitution is difficult to grasp. For
example, it is hard to see the special significance which a phrase can
have in a constitutional document such as the one which declares that
marriage is placed under the special protection of the Constitution.
* * * * *
However diverse may be the conceptions that prevailed at the drawing up
of the fundamental rights, and whatever uncertainty they may present from
the legal point of view, it is possible, nevertheless, when the whole of
the second part of the Constitution of Weimar is surveyed, to discover in
these articles some common characteristics and to unfold the fundamental
ideas that have inspired the majority of the Constituent Assembly.
It is evident that the Assembly conceived the fundamental rights and
duties in a manner quite different from that of the authors of preceding
Declarations of Rights in America, France, or even in Germany. These
declarations were inspired by purely individualistic doctrine. Man is by
nature free and independent; he holds rights that are limited only by
such other rights as will assure to other men the enjoyment of the same
rights as his. From this ensues a twofold consequence. First, he may act
in his own right provided that he confines himself within the limits of
the right in question. Within these rights he is truly sovereign, and the
state may not encroach on them to impose any obligation whatsoever. On
the other hand, conversely, the state does not owe any positive service
or pledge to the profit of the individual. It must abstain from all
interference and allow him free individual activities. The State owes
nothing to the individual, who in turn can claim nothing from it.
This doctrine does not appear in the new German Constitution. The
Assembly at Weimar has substituted for it a conception by virtue of
which man, while still, it is true, enjoying a certain number of
individual prerogatives, nevertheless _must place them at the service
of the collectivity_. In whatever concerns liberty properly so-called,
property, the means of production, the intellectual development of man,
there is found everywhere this dominant idea of the social function of
man. Individual liberties are no longer an end in themselves, nor do
they constitute any longer an independent good. _They are limited and
conditioned by the duty of the individual to co-operate in the well-being
and the development of the collectivity._ They have no value and are not
protected except in the measure that they serve for the accomplishment of
this social duty.
2.--FUNDAMENTAL RIGHTS AND DUTIES OF THE INDIVIDUAL.
The Constitution commences by enumerating as completely as possible
individual liberties such as traditionally figure in most declarations of
rights. Not a single one of them is left out, and there have been even
others added: equality, at least in theory, of men and women; protection
of minorities; the right to secrecy in telegraphic and telephonic
communication; liberty of opinion extended to manifestations of thought
by means of motion picture films, etc.
One may, therefore, apply for the Germans the classic table of individual
liberties.
First, the civil equality. The suppression of privileges of birth or of
class. Titles of nobility have no other value except as a part of a name.
Titles may not be conferred except as they designate an employment or a
function. The state may no longer confer orders or honorary insignia and
no German may accept a title or order from a foreign government.
Then come the individual liberties properly so-called; not only the right
to come and go, but also the right to settle in any part of the Reich,
to emigrate to any non-German country, to be protected from surrender to
a foreign government for prosecution or punishment; guarantee against
arbitrary arrests, imprisonment, and other penalties; the inviolability
of domicile and correspondence.
In a third place, the right to freedom of activity; liberty to engage in
work, commerce and industry; liberty of creed and conscience; liberty to
practise religion; liberty of instruction; liberty to express publicly
one’s thoughts by words, speeches, printed matter, figures, films and in
any other manner; liberty of assembly and association.
In the fourth place the liberty of individual property. This cannot be
expropriated except for the common good, by virtue of a legislative
provision and must be indemnified.
The enumeration of rights and duties is complete, but the idea that
prevailed at its adoption is different from that which inspired the
authors of preceding Declarations of Rights. In recognizing the liberties
of the individual, the object is no longer to protect him against the
State, but to permit him to co-operate in the most effective fashion in
the well-being of all.
This leads naturally to the imposition on the liberty of the individual
of a certain number of restrictions hitherto unknown. On the other hand,
it imposes on the state a certain number of new duties, the discharge of
which affords, as corollaries, new rights to the individual.
I.--INDIVIDUAL RIGHTS ARE SUBJECT TO CERTAIN NEW RESTRICTIONS IN THE
INTERESTS OF THE COLLECTIVITY.--The individual is no longer merely
entitled to work. _It is his duty._ This obligation is provided for by
Article 1, par. 1, of the socialization law of March 23, 1919, which
has become Article 163, par. 1, of the Constitution. “Every German has,
without prejudice to his personal liberty, the moral duty so to use his
intellectual and physical powers as is demanded by the welfare of the
community.”[49]
It is true, therefore, that personal liberty is conditioned. The draft
of the socialization law submitted by the Cabinet did not contain these
conditions, and the Social Democratic Minister, Wissel, in open session
of the National Assembly, expressly rejected the principle of the liberty
of the individual. In the same manner the Social Democrats and the
Independents proposed amendments according to which the sole liberty
guaranteed to the individual was that of choosing his profession; this
one right availed of, the liberty of the individual was thereupon used
up, and he must thereafter conduct himself exclusively according to the
needs of community. But a coalition of all the representatives of the
bourgeois parties organizing against the conceptions behind the Socialist
proposal, the provision concerning the principle of the liberty of
employment was introduced into the law of March 23, 1919, and into the
Constitution.
Saving his personal liberty, therefore, every German also has work as
his moral duty; that is to say, he should contribute all the economic
work that he is capable of according to his physical and intellectual
abilities. In addition, this work must correspond to a definite
condition; it must be such as is “demanded by the welfare of the
community.”
In Germany many see in this provision a central point of the law and
hold that it constitutes as a real transition from the old world to the
new. Formerly every German could, under the protection of the law, so
dispose of his work that it served only his selfish ends. Without regard
to the interests of his fellow citizens or those of the community,
he could, provided that he observed the outer forms of the law, so
to speak, “walk over dead bodies” without violating a single legal
provision. In a general way and aside from insignificant exceptions,
there reigned in the century of economic liberalism an unlimited egoism
of the individual, protected by the adage _qui jure suo utitur, nemine
lædit_. The socialization law radically changed this state of affairs.
Hereafter every German is obliged, for the well-being of the whole German
people, to furnish all the productive labor of which he is capable, and
must abstain from all action liable to hinder this well-being. It is only
within these limits that economic egoism may hereafter move.
However, this novel duty to work is as yet only a “moral duty.” These
words, which were not found in the original draft by the Cabinet, were
added by the Constitutional Committee; and the Independents tried, but
in vain, to have them omitted. It does not seem, however, that the
majority which has adopted them, has ever given them a clear, unequivocal
meaning. One thing is clear, however; the law wished to distinguish
between a moral duty and a positive legal obligation, whose execution
can be expressly compelled. But it is perhaps possible to interpret
this provision in such a way that the violation of the duty to work may
involve legal consequences, which can have as a result the right on the
part of the state to exercise indirect constraint on the individual who
does not carry out his duty. The German who does not work, or who lets
himself be dominated in his work by purely selfish ends, has no longer
the right to demand protection of the laws; he cannot demand that his
work shall be protected by the Reich. Perhaps one may even go so far as
to appeal to the article of the Civil Code, according to which all legal
procedure that violates good morals is null;[50] and hold it applicable
to acts and contracts that do not correspond to the moral duty imposed
by the socialization law and by the Constitution. In the same way perhaps
also Article 826 of the Civil Code may be applied, according to which any
one who in a manner contrary to good morals deliberately causes damage
to others is obliged to repair this damage; and it may be argued that an
act or contract inspired by a selfish end falls under the provision of
this law and brings about in such a case an obligation to compensate the
community.
Being obliged to work, is the individual at least master of the product
of his toil? May he dispose of his property as he wishes? No longer. As
with his work, the _individual must place his property at the service of
the community_. And the same idea that has resulted in the restriction of
his liberty to work now leads to a corresponding restriction of his right
over property; “Property rights imply property duties.” (Article 153.)
These restrictions are several kinds.
First, that of _expropriation_. It is true that this was already admitted
in individualist doctrine. But this doctrine hemmed the right of
expropriation on the part of the state within narrow limits, inasmuch as
it prescribed strictly the cases in which the state could use this right,
and provided always the payment of a just and, usually, a previously
ascertained indemnity. These two guarantees given to property owners are
strikingly diminished in the new German constitutional law. On the one
hand, it is true the principle is retained that expropriation must not
be resorted to except for the welfare of the community. But this notion
of general welfare has been particularly elastic. Thus in Article 155
the State is permitted to expropriate in cases of housing crises, in the
interests of settlement and reclamation of land, or in the improvement
of agriculture. Thus the Socialization Law and after it the Constitution
in Article 156 permit the state to transfer to public ownership private
business enterprises adapted for socialization. On the other hand, the
principle of a just indemnity seems to have been retained. However,
there is but one case in which indemnity is imposed and guaranteed by
the Constitution; it is that where the Reich expropriates “the property
of the States, municipalities, and associations of public utility.”
In all other cases the restriction provided in Article 153 applies;
expropriation takes place with indemnity “in so far as is not otherwise
provided by national law.”
In addition to expropriation, the Constitution provides other
restrictions on the right of property:
Land owners are under the _obligation to cultivate it and utilize it_.
However, there is no provision made in case this duty is not carried out.
_The right of inheritance is guaranteed_, but the State has the right to
take part of the inheritance according to provisions determined by the
laws of the Reich, in particular fiscal laws.
_An increase in the value of land_ arising without the application of
labour or capital to the property accrues to the benefit of the community
as a whole.
_Entailments_ are dissolved. This provision is an obligatory prescription
imposed on the legislatures of the States, which obliges them to put an
end to entailments, for this matter is given over by the Civil Code to
the rights of States. By entailments is understood the legal institution
by which a patrimony, particularly holdings of land, because of the
limitation of the right to sell and the establishment of a certain
succession provided by a testament, creates for the owning family in the
person of the holder of the entail an economic position of security and
thereby of increased advantage. These entails often go back considerably
in time, but they are very frequent in Germany, to such an extent that
land holdings subject to this legislation comprise, for example, in
Prussia about seven per cent of all the landed properties, with about
two and a half million hectares. In certain sections entailed property
represents about twenty-two per cent of the whole agricultural service.
For a long time now it has been questioned whether this institution,
which tends to the concentration of more and more land into fewer and
fewer hands, should not be abrogated. It is argued in particular against
the entails that the community cannot allow a mere decision taken by the
private will of a proprietor to be perpetuated; that entails have an
unfavourable effect on the distribution of land and that they finally
tend to wipe out the small and the average property. It follows of itself
that with the victory of the democratic idea and in an epoch in which the
tendency is to divide each piece of land as far as possible, entailments
must be dissolved. In leaving to the States the legislation on this
dissolution, the Constitution has only applied logically the democratic
principles on which it rests.[51]
II.--IN TURN THE STATE IS OBLIGED TO FULFIL A CERTAIN NUMBER OF DUTIES TO
THE BENEFIT OF INDIVIDUALS.--The classic individualist doctrine limits
the rights of the State but does not impose upon it any positive service,
no obligation to the benefit of its citizens. The State must abstain from
certain interferences, but the individual may claim no more than that
of it. German constitutional law, however, adopts another conception,
and while it restrains individual rights for the benefit of a community,
it also imposes upon the latter obligations to the profit of the
individual. From this there arise to the profit of the latter new rights
corresponding to the restrictions to which he is subject.
The individual owes the duty of working, but the State owes him the
chance to work, must protect his work and according to circumstances must
furnish him with the necessities of life. From this is derived for the
individual the right to work, the right to the protection of his work and
the right of subsistence.
* * * * *
_The State must furnish work to the individual._ This obligation explains
itself very easily. When the individual is left free to use his labour as
he pleases, that is to say, when he is free to work exclusively in the
interests of purely selfish ends, he must also be left the right to look
for such work and to dispose of his labour where and how he pleases. The
community disassociates itself from a work in which it is not directly a
beneficiary or from which it may even suffer. But if it demands of the
individual that he devote himself only to such labour as will benefit the
whole of the nation, and if it forbids him, therefore, a certain number
of occupations which benefit only the individual, it is indispensable
that it take measures to guarantee him sufficient remunerative work.
Article 163, par. 2, provides therefore: “Every German shall have the
opportunity to earn his living by economic labour.”
Of what exactly consists this duty on the part of the State? It is
certainly not a legal obligation that gives the individual the right
to demand before a tribunal the execution of this promise. It is a
promise that the Constitution makes and which it sufficiently fulfils if
the Reich institutes a general system to make known all the available
possibilities for work. An individual may ask only what kind of work is
available and what opportunity there is of securing it. The proposal
of the Socialization Law provided that every German shall receive work
corresponding to his powers. The final text of this law, like that of the
text of the Constitution, limits itself to prescribing that every German
must be given the opportunity to earn his living by economic labour,
that is to say, by labour that produces goods, utilizing to the utmost
the available conditions of work. In addition, the compensation to the
individual must be sufficient for a livelihood.
* * * * *
_The State in addition protects labour._ The Socialization Law
declares that the power of labour is the most precious economic good
and it imposes on the Reich the legal obligation to protect it. The
Constitution of Weimar applies in Article 157 the terms of the law of
March 23, with the exception of the words, “the most precious economic
good.” But the Constitution also extends and organizes in outline the
duty of the State in this respect. It amplifies this duty in expressly
specifying in its Article 158 that intellectual labour also is under the
special protection of the Reich. As to the measures for the protection of
labour, some of them come under domestic law, others under international
law. Within the Reich itself the Constitution prescribes the creation of
uniform labour legislation. In addition it guarantees to every individual
and to every vocation the liberty of organization for the defence and
the development of the conditions of labour and of economic life, and
it accords to each employé and laborer the free time necessary for the
exercise of the civil duties and free public functions that may be given
to him. Finally, it promises a complete system of social insurance to
be established for the maintenance of health and standards in labour.
In international relation, the Constitution imposes on the Reich the
obligation to protect abroad the products of German science, art and
technique, and to strive for the establishment of an international
regulation of the legal status of workers.
* * * * *
_Finally the State must provide for the needs of individuals out
of work_; and this obligation logically results from the principle
that inspires all of this part of the Constitution. Since the Reich
imposes on every German the obligation to work only for the good of
the community, it must see to it--apart from any humanitarian or
financial considerations--that every German’s capacity for labour shall
be maintained as long and at as high a standard as possible. That is
why, not content with merely protecting this capacity of labour, the
Socialization Law and the Constitution provide that every German must
receive what is necessary for his livelihood, to the extent that a
possibility of adequate employment cannot be assured to him (Article 163).
The draft of the Socialization Law provided as a condition to this duty
on the part of the State that the individual shall not have been able to
find employment. The final text of the law which the Constitution also
uses provides only that such opportunity for employment shall not have
been offered.
The burden of the proof is thus reversed from the general rule and an
attitude purely passive on the part of the individual in this respect is
sufficient to entitle him to public succour. On the other hand, it is not
sufficient for the discharge of all such obligations on the part of the
State if it merely offers the individual any employment whatsoever. For
it does not serve the community in any way, as the most interested party,
when an individual is employed in work for which he is not fitted. The
community, therefore, must procure work corresponding to the mental and
physical powers of the individual and to his capacity. If the State does
not succeed in doing so, it is obliged to furnish him a livelihood.
* * * * *
To put into operation the principles thus enunciated by the Constitution,
different laws are necessary--a law on the offer of employment, a law
protecting labour, a law on the help to be given to the unemployed. Such
laws have not yet been enacted. However, a certain number of ordinances
have been passed that constitute on the part of the Reich the beginning
of the execution of the new obligations imposed upon it.
First, measures have been taken to procure employment for individuals. To
this end, aside from the ordinance of December 9, 1918, which imposes on
municipalities the obligation of organizing employment bureaus, public
and impartial, there is also an ordinance of May 5, 1920,[52] creating
for the Reich a bureau devoted to finding employment. This agency has
for its principal function a survey of the labour market and the editing
of periodical bulletins on the situation in this market for the purpose
of establishing an equilibrium between supply and demand in the different
regions and in the different vocations.
Measures have been taken also to protect labour. The first step toward
the creation of uniform labour legislation was made by the provisional
ordinance of January 24, 1919, which, supplementing the divisions
of the Civil Code, regulates labour in agricultural and forestry
exploitations.[53] Social insurance legislation, such as is found
codified in the law of the Empire of July, 1911, _i. e._, as sickness,
accident, disability and death insurance, has been supplemented by
different provisions, particularly by a law of December 29, 1919,
relative to the protection of pregnant women.
Finally, regarding the obligation to provide livelihood for unemployed,
different ordinances have been issued which were codified by an ordinance
of January 26, 1920.[54] According to these ordinances, the duty of
organizing a service for the supplying of the needs of unemployed--a
service which must not take on the character of charity--falls upon the
municipalities, which are assisted financially by the Reich to the extent
of six-twelfths of the total expense and by the State with four-twelfths
of this expense. The municipalities must refuse this help to those who
do not accept the work offered them, even if this work does not fit the
vocation of the one refusing and even if it must be done away from home,
provided always that this work be adapted to the physical capacity of
the unemployed. The only ground on which one may refuse such work is
that the pay is not sufficient, given local conditions, to support the
individual and, if married, his family.[55]
In the same way that restrictions on the liberty of labour have
created for the State a number of duties relating to the employment of
individuals, so the restrictions on the rights of private property have,
as a consequence, engendered a number of obligations on the part of the
State to assure to every one, if not a minimum of property, at least a
minimum of well-being.
The Constitution guarantees individual property, but on the condition
that the distribution and the utilization of land do not present abuses.
The aim of this is to, “_to insure to every German a healthful dwelling
and … homestead corresponding to his needs_” (Article 155). To this end
colonization must be favoured, the development of agriculture and the
utilization of the soil must be promoted; a survey must be made of all
the mineral resources and all economically useful forces of nature.
In accordance with their conception of the duties of the State, the
Constituent Assembly outlined a vast programme of agrarian and social
policy. In addition they themselves passed several laws which form the
commencement of the execution of this programme and which are intended to
guide future legislation.
In order to insure every German a habitation and a homestead, the
Reich first promulgated a decree, July 31, 1919, “On small gardens
and little farms,” according to which tracts of land, which cannot be
used profitably, must be rented out at rates fixed by administrative
authorities after expert appraisal, or may be leased, and later
sub-leased, for gardens, by the authorities.
Later the law of April 11, 1919, was passed “on colonization.” This law
obliges the State to create interior colonies and small undertakings.
To this end territory belonging to the State must be put on sale
to “collective colonization enterprises”; these enterprises may be
subsidized by means of expropriations of swamps and uncultivated tracts.
They have the right of pre-emption in the sale of tracts of land of less
than twenty-five hectares. On the other hand, to develop colonization
tracts, there must be organized “associations for the furnishing of
tracts” in all districts where more than ten per cent of the cultivatable
soil is in the hands of big holders, that is, of more than one hundred
hectares per holder. These associations, formed by a union of big
landholders, must, on the demand of collective colonization enterprises,
put at the disposal of the latter at reasonable prices tracts of land
taken from the big properties. Their obligations in this respect cease
when they have thus given over to colonization a third of the utilizable
surface of the large properties, or when the total area of these
properties is not more than ten per cent of the area of the district.
The right of pre-emption by the colonization enterprises in respect to
large properties is exercised through the associations for the furnishing
of tracts. In urgent cases these associations may proceed by means of
expropriation.
The Reich, finally, in order to assure a habitation to individuals,
must take a whole series of measures in the case of housing crises.
Already before the Revolution a decree of September 23, 1918, gave to
municipalities the right to make regulations for the prevention of the
demolition of buildings or their use for other purposes than dwelling.
The municipalities had the right to draw up leases, even against the wish
of the owners, through the intermediacy of “offices for the distribution
of lodgings,” and to appropriate all unused buildings for the purpose
of converting them to dwellings. A later decree of November 7, 1918,
provided that associations of municipalities and groups of municipalities
could be created to fight against housing crises. After the Revolution,
a new decree of January 15, 1919, contained more important provisions
for meeting the most urgent needs created by such crises. The State
Cabinets were obliged to appoint “housing commissioners,” charged with
the care of homeless families and the creation of small and average
appropriate lodgings. To this end, they received considerable powers.
They could expropriate by a summary procedure unoccupied buildings they
deemed necessary, or have such buildings erected on grounds which they
had authority to lease for terms as long as thirty years. They could
dispense with the requirements of legislative provisions, expropriate
tile and other building materials necessary for the rapid construction
of buildings; they could seize building lumber and forbid unnecessary
construction. The service of these Housing Commissioners was under the
Minister of Labour for the Reich.
Finally, in order to protect tenants, the ordinances of September 23,
1918, and of June 22, 1919, sanctioned and supplemented by the law of
May 11, 1920, _limit considerably the rights of owners to dispose of
habitable quarters_ and entrust to the “offices for distribution of
lodgings,” extensive rights relative to the renting out of apartments and
the terms of lodgings. In particular, according to the law of 1920, if
grave inconveniences result from the lack of lodgings, the states may,
with the consent of the Minister of the Reich, authorize or constrain
the municipalities to take, or themselves take, measures that constitute
encroachments on the liberty of settlement and the inviolability of
domicile, on condition that these measures be expressly necessary to
meet a housing crisis or to combat it. This law specifies, in addition,
that decisions taken in the fight against the shortage of houses may be
executed by administrative constraint.
3.--FUNDAMENTAL RIGHTS AND DUTIES OF COMMUNITIES.
The Constituent Assembly did not limit itself to the establishment of a
list of rights and duties of the individual. The social conceptions by
which it was dominated led it to proclaim, after the rights and duties of
the individuals, the rights and duties of certain groups and communities
that seemed to it to play a particularly important rôle in society--the
family, associations, municipalities, civil service.
* * * * *
I.--THE FAMILY.--For the first time the family, the natural foundation
of all ordered national life, finds itself mentioned in the Declaration
of Rights of a modern state. The Constitution of Weimar formulates
the general principles which should dominate legislation relating to
marriage, to the education and the protection of children and to the
duties of education devolved upon parents.
Article 119 places marriage under the special protection of the
Constitution. Marriage, which forms the basis of family life and on which
depends the increase of the population of the nation, is based on the
equal rights of both sexes. Marriage and the family are recognized as the
basis on which social life reposes and as the primary source from which
develop German customs and culture. In consequence Article 119 enunciates
a legislative course of considerable social and political importance. It
prescribes the care of the purity, the health and the social advancement
of the family as a duty of the state and of the municipalities. Families
with numerous children have a claim to equalizing assistance. Motherhood
has the right to the protection and care of the State.
Proposals were made, during the discussion of the draft of the
Constitution, to lighten the lot of illegitimate children. They
were aimed to assimilate, from the point of view of family rights,
illegitimate and legitimate children. The majority of the National
Assembly decided, because of the difficulties of regulating in a
constitutional text questions of private rights, to leave this matter
to legislation and to later development. The Assembly limited itself to
forming guiding principles only. Legislation must assure to illegitimate
children the same conditions for physical, moral and social development
that legitimate children have. But convinced of the need of legislative
reform on this matter, the Assembly passed a resolution that there should
be taken, as soon as possible and by legislative means, a new ordering of
the legal and social status of illegitimate children.
Concerning education, Article 120 declares only that parents have the
right and the duty to educate their children; “The physical, mental, and
moral education of their offspring is the highest duty and natural right
of parents.” But the State must not leave it entirely to parents and
intervenes as an organ of surveillance. The political community watches
over the execution by the parents of these duties imposed upon them.
In addition the State assumes as an obligation in a general way the
protection of youth; the care of children and youth comes under the
legislative authority of the Reich. As a guide for the accomplishment
of this obligation, Article 122 specifies that youth shall be protected
against exploitation as well as against physical and mental neglect.
* * * * *
II.--ASSOCIATION.--The right of assembly and association was already
regulated by the law of April 19, 1908; in addition to this the Civil
Code contained some provisions on the acquisition of civic rights. The
Constitution contents itself with taking as its own the principles that
inspired these laws, but it makes certain changes in the existing laws.
_As to the liberty of assemblage_, Article 123 holds to rules previously
adopted, “All Germans have the right of meeting peaceably and unarmed
without notice or special permission.” The obligation that public
meetings be reported in advance to the authorities, which formerly
existed, is abolished. Furthermore, while the law of 1908 demanded that
public meetings in the open air and manifestations on public ways and
squares receive in advance authorization by the police--authorization
which must be applied for at least twenty-four hours in advance--the
Constitution, on the other hand, declares that _in theory_ these meetings
are free and do not need to be authorized. It adds, however, that in
the interest of security and public order, liberty of assembly may be
limited by law, this limitation consisting furthermore not in the need of
authorization, but only in the obligation to give the police notice in
advance.
_As to liberty of association_ the Constitution still holds to the
principle of the regulations of 1908. “All Germans have the right
to form associations or societies for purposes not contrary to the
criminal law. This right cannot be limited by preventive measures.”
(Article 124.) Associations may acquire a legal status according to the
regulations provided by the Civil Code. Hitherto these regulations gave
administrative authorities the right to oppose the acquisition of legal
status by associations of a political, social or religious character.
This opposition resulted in the associations in question being kept from
the register of associations, and thereby prevented them from acquiring
legal standing. This restriction is abolished by the Constitution
as contrary to the modern principle according to which liberty of
association must be kept intact. To this effect it is expressly provided,
“Every association has the right of incorporation in accordance with the
civil law. No association may be denied this right on the ground that it
pursues a political, social-political, or religious object.”
* * * * *
III.--MUNICIPALITIES.--Article 127 provides, “Municipalities and
unions of municipalities have the right of self-government.…” Thus
the _principle of decentralization_ is found introduced in the list of
fundamental rights.
The Constitution declares that this autonomy must be exercised “within
the limits of the laws.”
* * * * *
IV.--CIVIL SERVANTS.--Finally, the Constitution reaches the question of
civil servants, to which it devotes no less than six articles.
Before the Constitution went into effect, the status of civil servants of
the Empire was regulated by the law on civil servants, March 31, 1873,
as amended by the law of May 18, 1907. The new Constitution left this
law intact, but it superimposed a series of general rules, some of which
were borrowed from the preceding laws applying to the civil servants of
the Empire, and which are destined hereafter to hold good for all German
civil servants, as well as those of the states and of public corporations.
The principles that serve as a point of departure are: that civil
servants are in the service not at all of the party in power, but of the
community; that, therefore, civil servants who remain faithful to the
community all their lives have the right to be kept in office for life
and to have guaranteed them a financially adequate situation; finally
that outside of his office every civil servant is neither more nor less
than any other citizen. These principles the Constitution applies in
the provisions relative to the free access of all citizens to public
functions, to the political liberty of civil servants and finally to
their financial responsibility.
(1) “All citizens without distinction are eligible for public office in
accordance with the laws and according to their ability and services.”
(Article 128.) In the future, citizenship in a particular state may no
longer be demanded by the laws of the States as a condition for public
employment; for the Constitution expressly provides that citizens must
be admitted to public employment “without distinction.” In addition,
Article 110, par. 2, formally declares, “Every German has the same rights
and duties in each State of the Commonwealth as the citizens of that
State.” On the other hand, Article 16 provides that as a rule officers
directly charged with the administration of services that depend directly
on the Reich, and who are assigned to a State, shall be citizens of that
State. From this it must be concluded that the civil servants of a State
may as a rule be recruited from among the citizens of that State without
violating the spirit of the Constitution.
Already in preceding laws one finds no legal obstacle to the admission
of women to civil service. The Constitution declares, meanwhile: “All
discriminations against women in the civil service are abolished.” By
this--a logical consequence of the provision of Article 109, by which
men and women have in principle the same civil rights and duties--all
obstacles to the admission of women to the service of the State on the
same conditions as men are abolished.
(2) _Civil servants are in principle appointed for life._ However,
exceptions are provided for, either in case future legislation on civil
servants contains contrary provisions, or if, up to then, the law on
civil servants of the Empire and the laws of the states have provided
a different rule. A proposal by the Independents, according to which
civil servants would have to be chosen by election and therewith lose
all guarantees the Constitution and the laws accord them, was rejected
by a great majority. The rights acquired by civil servants must be
_inviolable_. Claims in money matters must be heard by tribunals. Civil
servants may not be temporarily deprived of their function, retired for
a time or permanently, or be given new work of a lower nature except
under conditions and according to forms provided by law and not by simple
arbitrary administrative measures.
Against any disciplinary measure, civil servants may enter protests
and commence procedure for damages. Furthermore, the system of secret
reports on persons employed is abolished. Every civil servant has the
right to consult his record, and no disparaging entry may be introduced
in it without the opportunity being given to the employé to explain
himself on this matter.
(3) _Civil servants are in the service of the State, of the community and
not at all the servants of a party or the party in power_. In consequence
of this they retain the liberty of political conviction and of
association. A later law of the Reich was provided for organizations in
which civil servants are represented and which are supposed to co-operate
in the regulation of all questions concerning them. The same idea that
led to the recognition of the right of workers and clerks to co-operate
in the form of Factory Workers Councils applies to civil servants and
gives them the right to co-operate in all matters concerning them.
(4) Finally the Constitution prescribes in a uniform manner for the whole
Reich, for the public servants of the states as well as those employed
by public corporations, the limits of the _financial responsibility of
public servants_.
The responsibility of civil servants is regulated by Section 838 of the
Civil Code. “Every employé, who through premeditation or negligence,
violates the duty imposed upon him by his function, to the damage of a
third party, must recompense this party for the damage thus caused.” As
to the manner in which this compensation is to be awarded, the Civil Code
leaves it to the legislatures of the individual states to determine.
Making use of this authorization, most of the States individually
have decided that the State shall be responsible instead of the civil
servants, and that the public treasury assume the indemnity to the limit
for which the civil servant is responsible, the treasury retaining,
however, the right to proceed against the civil servant. Prussia adopted
this system in the law of April 1, 1909, and the Empire followed it, for
the employés of the Empire, in the law of May 22, 1910. However, there
are still member states, Saxony for example, in which this solution has
not yet been adopted and where the civil servants are still directly
responsible to any individual who suffers damage through them.
The Constitution confirms in Article 131 a state of affairs that
exists in most of the States and in the Reich, and declares that if a
civil officer in the exercise of the authority conferred on him by the
law fails to perform his official duty toward any third person, the
responsibility is assumed by the state or public corporation in whose
service the officer is. The right of redress against the officer is
reserved.
4.--RELIGION AND THE CHURCHES.
Declarations of Rights generally contain, justly so, principles
relative to religious liberty and the free exercise of creeds. But
the Constitution of Weimar could not limit itself on this point to
traditional general maxims. The question of the relations of church and
state forms an essential article of the programme of the Centre, and also
of the programme of the Social Democrats. Their solutions would seem to
be self-contradictory. The Centre wanted to guarantee to the Church a
privileged and preponderant situation within the State. The programme
of Erfurt, on the other hand, declared religion to be a purely private
matter, and refused all subsidies levied on public resources in behalf
of ecclesiastical or religious needs. But these two parties entered
at that moment into a coalition which, together with the Democrats,
governed the Reich. As neither of these two opposed conceptions was able
to prevail, the conflict of the two theories was finally settled by a
compromise--which before consummation required laborious negotiations.
* * * * *
The Constitution first proclaims the principle of liberty of belief
and conscience and the free exercise of religion. These liberties are
expressly placed by the Constitution under the protection of the
State. They are guaranteed against every invasion no matter from what
side it comes. But the general laws of the State remain intact and
religious liberty finds itself limited by the general regulations for the
maintenance of order and public security. Every abuse in the exercise of
religious liberty is punished by ordinary law. Civil rights and duties
must not be restrained or conditioned by the exercise of religious
liberty. The enjoyment of civil and civic rights as well as the admission
to public employ are independent of the religion professed. No one is
obliged to divulge his or her religious convictions before any authority
whatsoever, and the right of an authority to inquire into the sect to
which one belongs may not be exercised except as one’s rights and duties
depend upon this, as, for example, in the matter of church tithes or
in the matter of guardianship or instruction; or where it is necessary
for the gathering of statistics ordered by law. No one may be forced to
attend any Church ceremony or to take part in any religious exercise.
No one may be forced to make use of any religious oath as was formerly
prescribed in civil and penal procedure. It is sufficient, in taking an
oath, that the one swearing shall declare without a religious formula, “I
swear!”
On the other hand, the Constitution contains several provisions regarding
the exercise of religion. Sundays and legal holidays remain protected by
law as days of rest and spiritual edification.
These principles being admitted, there still remained the difficult
problem of the relations of State and Church. The following solution was
adopted: There is neither complete separation nor any close union of the
Churches and the State. The Churches are emancipated from the State, but
they enjoy certain privileges.
_The Churches are free._ “There is no State Church.” The union that
formerly existed between the Church and the State, in Prussia, for
example, and in the majority of the German States between them and the
evangelical church, has disappeared, and the principle according to which
religious affairs depend upon the state is abolished.
This freedom of the Churches is manifested first, in that the creation
of religious denominations and sects is free, and that the assembly of
religious denominations in associations within the Reich is subject to
no limitation whatever. It is also revealed in the complete independence
of the Churches in regard to the State. Each religious denomination
administers and conducts its affairs freely, provided that it observes
the laws that apply to all. It conducts its work without the co-operation
of the State or of the municipality. The new system realizes thus the
emancipation of ecclesiastical administration from secular control. The
State may neither decree regulations affecting faith, nor appoint any one
to ecclesiastical service nor demand that its assent be required to the
nominations made by ecclesiastical authority.
However, the Constitution does not push the principle of the separation
of Church and State to such a point as to allow religious denominations
no more than the merely private rights accorded by law to natural
persons. Recognizing the social force and the importance in public life
exercised by the Churches, the Constitution accords them _privileges
similar to those given to public corporations_. Religious denominations
existing in Germany at the time of the adoption of the Constitution
remain recognized as public corporate bodies. As for other similar
organizations, the same rights are accorded them on the motion of the
state government if, by their constitution and the sufficient number of
their adherents, they offer guarantees of permanence. While recognizing
that in theory the smaller religious groups, chapels, and sects may be
invested with rights similar to those of the principal churches, the
object of the above limitation is to prevent ephemeral organizations from
acquiring the standing of public corporate bodies.
The Constitution does not expressly state of what the rights of public
corporations consist, for these rights result from provisions made in
the legislation of the various states. In a general way, however, public
corporations, in addition to the legal standing that private law gives
them, are under the special protection of the State. Their organizations
are indirectly public agencies, and they have the right to levy taxes.
This right, practically the most important of those accorded public
corporations, is expressly emphasized and guaranteed in the Constitution.
Religious denominations that are public corporate bodies have the right
to _levy taxes_ on the bases of the lists established for the collection
of civil taxes. The right to levy the taxes granted to public religious
denominations is limited, as a rule, to their members. They may, however,
in exceptional cases levy on certain other taxables, particularly
corporations and joint stock companies, etc., to the same extent as on
their co-religionists, if the laws of the particular State authorize this.
If several religious bodies combine into one association, the latter,
without being required to secure any special authorization, becomes a
public corporation. This provision is important and has been voted out
of consideration for the evangelical churches of the States which up to
now were territorially separated, and which are seeking to unite in a
German ecclesiastical organization, such as had to be formed after the
disappearance of the régime in which reigning princes ruled the churches.
The financial situation of religious bodies is regulated by Article
138. The property and other rights of religious bodies and associations
for the maintenance of their cultural, educational, and charitable
institutions, their foundations and other possessions, are guaranteed.
As a consequence of the separation of Church and State, the Constitution
provides that the obligations hitherto imposed on the State to
participate financially in the expenses of the Churches no longer
exists. But on this point the Constitution compromises. Payments due from
the State to the Churches because of some law or of legal title to such,
must be commuted by state legislation, on bases fixed by the Reich. The
States, however, cannot proceed to do this before a law of the Reich has
fixed these bases. Till then, these payments continue. (Articles 138 and
179.)
The liquidation must include not only the payments owed because of a law
or treaty, but also those due by virtue of some special legal title,
particularly those resting on customary law and tradition.
The question whether, in the new legislation relative to the Churches,
there subsists still any special right of supervision by the States,
cannot be answered uniformly. Properly speaking there is no right
of supervision by the States. But the latter may exercise over the
Churches the same control as over public corporations for the purpose of
maintaining order and public security.
5.--EDUCATION AND SCHOOLS.
After having regulated the question of the relations between Church and
State, the Constituent Assembly took up the problem of education. It
approached it in the same spirit that inspired the provisions it adopted
relative to fundamental rights and duties. Here, too, it exerted itself
to give its work a marked social character; and to a very large measure
it succeeded.
However, the Articles concerning the schools were the subject of long
deliberations and lively discussions in committee and in the full
session of the Constitutional Assembly. In the debates on schools, on
the relations of Church and State, and on the relations of schools and
churches, two conflicting conceptions were manifested. Whereas the
Centre and the parties of the Right declared in principle for religious
schools, the Social Democrats championed the idea of secular schools, and
long negotiations were required to find a compromise between these two
apparently irreconcilable doctrines.
The Constitution, in its final text, contains provisions relative to
public instruction, and to private instruction as well as provisions
applicable to both of these.
* * * * *
I.--Public instruction must form an “organized whole.” That is to say,
it must not consist of a collection of schools of different kinds
without any logical bond between them; but on the contrary it must be
systematically organized, in such a manner that each kind of school
will be part of a harmonious whole, constructed on a rational plan and
answering a definite object. This instruction must be systematized by
co-operation of the Reich, the States and the municipalities.
But what principles should guide this organization and what should be its
aims? It is here that the social doctrine of the Constituent Assembly
reappears. Public instruction whose detailed organization is left to
the regulation by ordinary laws to be enacted must present certain
characteristics, all arising from the same idea--_guaranteeing to every
individual a maximum of development to the end that he may co-operate in
the most effective fashion in the well-being of the community_.
(1) At the base of the educational edifice there is the common or
elementary school (Grundschule), which gives all children an equal
education, from the point of view of length of time and content. _This is
the principle of the “uniform” school._ This does not mean, however, that
everywhere and in all the states public schools must be organized after
an invariable pattern. They are uniform in the sense that they are one in
the conception underlying their establishment, in that they are inspired
in every respect and exclusively by the same democratic principles,
that no difference in instruction is made and that the economic and
social position and the religious beliefs of parents are deliberately
disregarded in according to children the right to an education.
(2) Above the common schools are the secondary and higher schools. The
Constitution does not say how these are to be organized. It indicates
only the idea that is to serve as a guide to legislators when they
construct the educational edifice. The State is not to yield to the will
and the desires of individuals, but is to be guided before all by the
aptitudes and the interests of the children.
(3) All children are naturally not compelled to go through the whole
educational curriculum, but there is an _obligatory minimum of
instruction_. Educational obligations are notably extended in the
Constitution as compared to their former limits. “Attendance at school is
obligatory. This obligation is discharged by attendance at the elementary
schools for at least eight school years and at the continuation schools
until the completion of the eighteenth year.” Formerly the obligation
to attend school was only for seven years for the public schools.
Supplementary instruction, therefore, thus becomes an essential part of
public education in all the Reich.
(4) Instruction is free, at least in the elementary and supplementary
schools. This is a necessary result of compulsory education. The
secondary and higher schools are in theory not free, but “to facilitate
the attendance of those in poor circumstances at the secondary and higher
schools, public assistance shall be provided by the Commonwealth, States,
and municipalities, particularly, assistance to the parents of children
regarded as qualified for training in the secondary and higher schools,
until the completion of the training.”
(5) Instruction in public schools, with some exceptions, remains
religious. The most serious disputes arose over this point. Undoubtedly
obvious progress has been realized by withdrawing the public school from
the local supervision of members of the clergy; and by making hereafter
public instruction as a whole subject to the inclusive control of the
State. Municipalities may in addition be summoned to participate in this
supervision. This will permit future educational laws of the Reich and
administrative laws of the States to give the municipality a share in
supervising the instruction--not only over the work of the schools but
also over the spirit in which it is carried on. Even parents will be
allowed the right to co-operate in it and teachers will be given a voice
in the management. The supervision of the schools on the part of the
Reich will be hereafter solely by civil servants, who will have this as
their principal function and who will be especially appointed for this
purpose.
But the principal question was whether the public school, even when
supervised by the State, should be neutral or whether it should remain
religious in teaching.
Three systems were submitted. One was the system of the secular school,
where no religious instruction is given. Another was the mixed school,
where children of all religious faiths are admitted without distinction
and where the parents indicate whether they wish their children to
receive religious instruction, and if so, what. The third was the
denominational system, properly so-called, in which the public school
is specialized by religious denominations, each denomination having its
own school where the child receives the religious instruction of its
denomination.
The discussions on this question went through three successive phases.
At first there was some agreement on a plan according to which schools
would be mixed, in theory, but the denominational school, properly
so-called, would not be completely excluded; for the law could admit, on
the proposition of parents, the creation of schools in which only the
children of a single denomination would be received.
This compromise not completely satisfying the Centre, which used its
influence to effect a change, a new plan was therefore accepted.
This introduced the denominational school, properly so-called, into
the Constitution. According to this plan, the wish of parents would
decide whether a school should be secular, mixed or denominational, the
free choice by the parents being limited only by the requirements of
well-ordered scholarship. The parties of the Left vigorously opposed
this. The most serious objection they raised was that it would have as a
consequence the necessity on the part of some states, such as Baden and
Hesse, which had already introduced mixed schools legally, to renounce
them again. A new compromise was thereupon arrived at, which under the
new form became the final text. Denominational schools and lay schools
would constitute exceptions and could not be established except when
demanded by heads of families and conditioned by the requirements of
well-ordered scholarship. As for the rest the educational questions must
be regulated, the principles by an educational law for the Reich, the
details by the legislation of the States.
Thus _in principle the public school is mixed_. The public school is
attended by all children no matter to what religion they belong, and
religious instruction forms part of the regular school curriculum.
(Article 149.) The imparting of religious instruction in the school must
take place within the general framework of educational legislation. In
other words, it is not the church but the State which gives instruction.
It is the State that must take into its hands the organization of
religious instruction. It is the State that decides what place religious
instruction shall hold in its curriculum. It goes without saying,
however, that, as to the content of religious instruction, this must be
in agreement with the principles of the religious society concerned.
No teacher, according to Article 149, par. 2, can be compelled to give
religious instruction or to participate in religious exercises. In the
same way no pupils are obliged to take religious instruction or to
participate in ecclesiastical ceremonies and festivities. They may only
be compelled to do so if the persons who have the right to decide on
their religious education express the desire that they do so.
But public secular schools and public denominational schools, properly
so-called, also may continue, and their existence is constitutionally
guaranteed. These schools, by the same title as the mixed schools, are
elementary schools, on which may be based secondary and higher education.
But these cannot be established in municipalities except under certain
specified conditions. There must first be a formal demand on the part
of a sufficient number of heads of families. Then the organization of
the school asked for must conform to high educational standards. From
all this it may be concluded that the system of the uniform school and
the transition from the public school to secondary and higher schools
must not be interfered with. In addition, the arrangement of instruction
based on the diverse vocational needs, must not be made impossible.
Finally, public instruction must not be handicapped by the unnecessary
establishment of useless and inefficient schools. The wishes of heads of
families, as far as possible and in accordance with the above conditions,
must be taken into consideration and their proposals accepted. Questions
of detail, such as, what is understood by “head of a family”; how
many such are sufficient within a municipality to be able to demand a
sectarian or a secular school; how many schools there shall be and of
what kind, must be settled by educational laws of the Reich and by laws
of the States which must follow those of the Reich.
* * * * *
II.--_Private instruction is permitted._ (Article 142.) However, this
liberty is subject to important restrictions (Article 147) in the case of
private schools considered as substitutes for public schools.
In general, establishments of private instruction, no matter of what
grade, can be created only _by the authorization of the State_. This
authorization is subject to the following conditions: the programme
and the equipment of private schools must not fall below the programme
and equipment of public schools. The scientific training of teachers of
private schools must be of as high a standard as that of public school
teachers. The economic and legal position of private school teachers must
be guaranteed. Finally, private schools cannot become the schools of
class or caste.
Elementary private schools are subjected by the Constitution to several
special conditions. Their establishment is authorized when in any
municipality there does not exist for a minority of heads of families,
whose needs must be considered, a public school of their denomination,
or one that conforms to their ethical system. Such a school may also be
established if educational authorities recognize in the demands of such
a group a special pedagogical interest. The Constitutional provisions
relating to programmes and free instruction apply also to private
elementary schools.
Private preparatory schools are abolished.
Finally, for private schools that are not substitutes for public schools,
such as commercial and professional schools, the laws formerly in
existence still operate.
* * * * *
III.--The Constitution contains a number of provisions for instruction,
both public and private. It provides that vocational instruction and
moral and civic education shall be part of the programme of all schools.
By means of vocational instruction children must be made to understand
the great importance of work, for the individual as well as for society
as a whole. Civic instruction must acquaint children with the rights and
duties of citizens, with the organization of the German State, and with
the public life of Germany. To this end, every scholar on completion
of the course in compulsory education shall receive a copy of the
Constitution.
* * * * *
Such are the provisions relative to instruction in the schools. They
constitute, as compared to the former state of affairs, a considerable
change. But these provisions cannot be effectively put into operation
except by a series of laws on the part of the Reich as well as of the
States, a process which threatens to be a long one in point of time.
However, in April, 1920, the first law on this matter was passed by the
National Assembly. It was the law _on the elementary school_. According
to this law, primary schools must be so organized that the first four
years may at the same time serve as a preparation for secondary and
higher education. Every child who has successfully graduated from the
highest class of the elementary school must be sufficiently prepared to
enter immediately a secondary or a higher school. Public preparatory
schools and public preparatory classes are abolished. As for private
preparatory schools, their suppression will take place only after a
sufficiently long reprieve; their complete abolition need not take place
until the commencement of the school year 1929-1930; since economic
difficulties prevent the earlier abolition of these schools, and means
must be taken to provide for the teachers who will be deprived thus
of their occupations. Private instruction is not allowed except in
particular cases and can only in special circumstances be substituted for
the elementary school. The law does not touch instruction and training
in auxiliary classes; nor does it concern itself with the instruction of
children physically or mentally diseased.
In addition a certain number of interesting innovations have been
enacted into legislation. These have as their purpose the participation
by parents and pupils in the administration of schools. On the one
hand, in the secondary schools there are organized Students’ Councils
(Schulgemeinden). These Councils are formed by pupils of the three upper
classes, who meet periodically in assembly to discuss questions of
instruction--educational matters, quarterly reports, discipline, duties,
etc. Teachers attend these meetings without the right to vote. Up to now
these assemblies have had only the right to propose reforms without power
as yet to make them operative. On the other hand, parents elect for each
school a Parents’ Council, one member for every fifty pupils.[56] This
Council concerns itself mostly with classes, examination and discipline.
If a pupil has committed a fault involving the possibility of expulsion
from the schools, it is before this Council that this question is taken.
Teachers are sometimes admitted to these deliberations but have not the
right to vote.
CHAPTER VI
THE ECONOMIC CONSTITUTION AND SOCIALIZATION
The Constitution imposes on each German the duty of work. It is not
sufficient in modern states, especially in one defeated in war, that
every one therein merely work, unless this work is directed in a
certain spirit, following a given plan and toward a determined end. The
fundamental idea that inspired the Constituent Assembly in the last
provisions of its work is as follows: The whole German system of economy,
public and private, is destroyed or demolished by the war. Germany cannot
dream of rising from its ruins unless it realizes immediate and radical
reforms. It must completely reconstruct its former economic system. The
whole country must become an immense enterprise directed by a conscious
will aimed at a definite goal. All the forces of the country solidly
organized and scientifically utilized must be so managed that a maximum
of production will be assured.
To this end, two series of reforms are contemplated. They are summed
up in these words, “councils” and “collective economy.” On the one
hand, there is projected an Economic Constitution, whose organs are
progressively destined to be parallel to those of the political
Constitution. On the other hand, the effort is made to realize in the
organization of production and distribution an economic system that is
intermediate between that of private economy on the one hand, and a
purely socialist régime on the other.
Nothing systematic, however, has as yet been achieved. The ground is
new. Surprised by the Revolution, the theoreticians of new systems have
not yet fixed their schemes nor elaborated complete and coherent plans.
On the other hand, the majority of the National Assembly is formed by a
coalition of parties whose economic conceptions differ still more than
do their political conceptions. This lack of definiteness and these
differences endanger all effective realization of a solution. But the
necessity of reforms has made itself imperatively felt and economic
difficulties are so grave and menacing that they cannot wait indefinitely
for solution. Further, there are very many people who are restive and
who do not hesitate to resort to general strikes and even to revolts,
when governments hesitate too long in effecting a reform from which they
hope an amelioration of their lot. That is why one will look in vain for
a plan as a whole or a logical order in the provisions we are about to
study. Most of them were adopted by an assembly uncertain of the work it
should do, one which went about its tasks most hurriedly and obeyed the
pressure of external forces more powerful than itself.
SECTION I
THE ECONOMIC CONSTITUTION
The Economic Constitution rests wholly on the idea of the Councils. It
is recalled[57] that the system of the Councils, even under the parity
principle which the supporters of the Vocational Parliament wished to
give it, was left out of the political Constitution but is included in
the Economic Constitution, for which it forms the framework.
1.--THE “ANCHORAGE” OF THE COUNCILS IN THE CONSTITUTION.
Before the Revolution, said the Socialists and Trade Unionists, there
was in Germany neither political autonomy nor economic autonomy. Just
as in their political life the people were governed by a coterie of
junkers and bureaucrats, so in their economic life the people were
under the absolute domination of the entrepreneur. This autocracy of the
capitalists expressed itself legally in the fact that the conditions of
work were fixed solely by the employers. The omnipotence of the latter
was, however, modified by the collective bargains concluded between them
and the trade unions. While it is true that these agreements or bargains
did not have legal guarantees, nevertheless thanks to the existence
of workingmen’s organizations there was instituted by means of these
agreements a contractual and coequal workingmen’s right.
The Revolution of 1918 introduced in Germany political democracy. The
republican government in its establishment has even taken several steps
along the road of economic democracy. Reforms, such as the granting of
complete liberty of organization, the abolition of ordinances on wages
and exceptional laws against agricultural labourers, and the protection
of workers and salaried employés against arbitrary discharge, certainly
mark interesting progress.
But the Socialists, followed on this point by the National Assembly,
held that these reforms were only preparatory in character. True
economic democracy can not content itself with the mere recognition of
workers’ organizations and collective bargaining. Economic democracy
cannot be established and therefore economic and social transformation
cannot be effected, unless the working class can exercise on production
the influence that is its due. There must be provided an organization
that accords the workers the right to participate actively in the
determination of the ends and of the duties of the vocation and the
enterprise; which makes of the workers co-operators with the capitalist.
There must be in every district, in the states and in the Reich an
economic representation created, in which workers and employés will be
represented by the side of their employers, and in which, on a footing of
equality, they will be called upon to co-operate in the regulation of all
economic questions. Such is the thesis; and all efforts and struggles
which we shall observe, centred about the problem of according to the
working class the right of codecision (Mitbestimmungsrecht); and about
the problem of organizing this right. But so far nothing has been done
beyond the statement of some indefinite principles and the roughing out
of the first measures of their realization.
* * * * *
These problems were not new. Already before the war the law of 1891
provided for “Committees of Workers” in the factories, who could be
consulted on the provisions of factory regulations; but as the formation
of these committees depended entirely on the good-will of the employers,
the workers looked with little sympathy on this institution. In fact,
such committees existed in several thousand factories, but their activity
was limited to the administration of the income from fines and the
institution of welfare work.
During the war the rôle of the workers increased considerably in
importance. The laws for compulsory patriotic service which took away
from them the liberty of work owed them compensation. There were
established therefore in all enterprises where there were more than fifty
employed, “committees of workers,” which were elected by all the workers
and had definite functions. There were in addition “joint arbitration
committees,” where conflicts between employers and employés were settled.
“Committees on decisions” also existed, charged with ruling on other
questions raised by the law for patriotic service. These different
organisms at once assumed an important place in the economic life.
On the advent of the Revolution the unions easily obtained some reforms
for which they had fought for a long time, and which constituted their
immediate claims.
On November 15, the unions concluded an agreement with the employers’
associations, which has served as the basis of an important development,
begun on that date and known as the “labour board” (Arbeitsgemeinschaft).
The _Arbeitsgemeinschaft_ appeared several months before the end of the
war, but assumed a rôle of prime importance in the new organization of
economic Germany.
The _Arbeitsgemeinschaft_ has been defined as “the combination of big
associations of employers and of workers for the regulation of reciprocal
relations between employers and workers and for the solution in common of
all economic and social questions touching industry and labour.”[58]
The essential principle of the _Arbeitsgemeinschaft_ is that of _parity_.
In the agreement of November 15, the labour unions are recognized as the
vocational representatives of the workers. The most complete liberty of
organization is accorded them. The agreement specifies as its practical
tasks the feeding of veterans, the distribution of raw material, and the
regulation in common of labour disputes. For the settlement of pending
questions there was organized a special committee composed one-half of
employers and one-half of workers.
Several days later, December 4, 1918, there was drawn up the “statutes
of the _Arbeitsgemeinschaft_ of the employers and employés of Germany.”
All German industries were divided into a certain number of groups,
which had common organs composed half of employers and half of workers,
each elected by their respective organizations. There was in addition a
central council, which was the _Arbeitsgemeinschaft_ of all the employers
and organized workers of all German industries. Its members were elected
by the groups from their membership; and these in turn elected a Central
Committee, which executed the decisions of the Central Council.
All these organs--and this point must be emphasized--were composed
half of employers and half of workers. The parity principle is at the
basis of the whole organization of the _Arbeitsgemeinschaften_. Thus
all economic and social questions concerning industry and labour were
regulated by committees in which the employers’ associations and the
labour unions were each represented by one-half in each committee. The
_Arbeitsgemeinschaft_ is a treaty of peace.
In addition on December 23, 1918, the Commissars of the People signed
a decree “on collective agreements, workers and employers committees,
and the arbitration of labour disputes.” This decree[59] maintained
the committees which were developed during the war by virtue of the
law for patriotic service, and increased their powers. Here, too, the
whole mechanism rested on the parity principle. According to this
decree, committees of workers and employers had to be organized in all
industries, in all the administrative bodies and in all offices where
there were at least twenty labourers or employés. These had as their
mission the protection of the economic interests of labourers and
employés against employers in the factories, administrative bodies and
offices. The committees had to supervise in co-operation with the bosses
the carrying out of the various provisions in the collective contracts.
In factories where there was no collective contract the committees were
supposed to co-operate in the regulation of wages and other conditions
of labour in agreement with the economic representatives of the workers
and employés. It was their task, in addition, to maintain good relations
among the workers, as well as between the workers and employers.
It would seem that an evolution thus commenced could have continued
normally and without difficulty, and that economic and social problems
raised by the reorganization of Germany could thereafter be regulated by
the _Arbeitsgemeinschaften_; that is to say, by direct agreement between
employers associations and labour unions. But the problem was peculiarly
complicated by the introduction and rapid diffusion in Germany of Russian
revolutionary ideas. The Soviet differs essentially from the committee
above described. Whereas in the latter employers and employés are placed
on terms of equality and the committee itself becomes a purely economic
institution, the Soviet, according to the Russian conception, is a
political organization, whose purpose is to eliminate the employers and
to establish the dictatorship of the proletariat. The Soviet must have in
its hands all the political and economic power of the State.
As to this conception of the political omnipotence of the Council, we
have seen that powerful opposition ensued on the morrow of the Revolution
and that in January, 1919, the Social Democrats remained in full control
of power after having eliminated the Independents. We know that this
struggle continued, however, and it will be recalled what organizations
the Independents provided for and wished to institute in order to assure
to the Workers Councils the political sovereignty they claim. Parallel to
the political struggle between the Social Democrats and the Independents,
there developed another, on the economic field, between the Trade Unions
and the Councils, which found themselves in conflict as much over
what reforms should be demanded by the working class as over the rôle
these two groupings should respectively retain in the struggle for the
recognition of their claims.
The Trade Unions declared themselves satisfied with the agreement they
had concluded with the employers, as well as with the decree of December
23, 1918, which Legien, President of the General Confederation of
Labour, called “The Great Charter of Labour.” They were convinced that
thereafter there was nothing more to do but to wait for time to develop
logically and peacefully the rôle of the _Arbeitsgemeinschaften_ and of
the Committees provided for by the decree of 1918. _They did not believe
that in this evolution there was any room for Councils._ It was they,
the Trades Unions, that had theretofore been the only ones to occupy
themselves with economic questions, and they did not propose to permit
special groups, operating in isolated factories, to deprive them of
their traditional mission. Legien in particular did not want to hear any
talk of the Councils. They did not seem to him to be able to “incorporate
themselves in the actual hierarchy of the organizations and agencies
of the workers.” He protested against any concession to the system of
Councils, and declared that the only organisms in position to defend the
economic interests of the working class, were the Trades Unions.
But an increasingly important part of the working class, attracted by
the ardent propaganda of the theoreticians of the Councils system,
physically and mentally depressed by misery and unemployment, irritated
by the mistakes of the Cabinet and disillusioned by the impotence of the
Assembly of Weimar, rallied to the doctrines of the Councils. The Trades
Unions were no longer believed by them able to lead the battle which
would assure to the workers the preponderant rôle which should be theirs
in economic matters. They showed during the war, co-operating with the
militarists and the bureaucrats of the Empire, that they were always
ready to compromise. They were directed by veritable functionaries, whose
whole careers developed within the Trades Union administration and who
had no qualification for representing the working class. In order to
secure what the working class wants these claims must be taken in hand
by organs issuing directly from the workers--militant organizations in
position to lead a swift energetic fight--these organs being the Workers
Councils. _The Councils must be placed above the unions_, and it is to
them that belongs the right to decide on the campaigns that should be
waged.
Between these two opposite conceptions there arose an intermediate
theory. The trades unionists of the later school and the Christian Trades
Unionists, energetically as they rejected all economic dictatorship by
the Councils, held, however, that there is something just and legitimate
in such theories. Giesbert, who holds an important situation in the
Christian Trades Unions and who was to be Minister of Posts, wrote in
April: “We have not sufficiently appreciated and above all we have
realized too late the degree of sound truth in the idea of the Councils.
The reason for this is that this idea has come to us from Russia as a
political conception, and also because it arrived accompanied by all
the tragic manifestations of the Russian Revolution. If the system of
Councils assures to the workers the right to participate more completely
in the organization and development of economic life, then it cannot
help but contribute, if this is done in a reasonable manner, to the
reawakening of the love of work and the establishment of a close
community of interests between employers and employés.”[60]
As for the Cabinet, it declared itself from the first against the
Councils, and in an official communication on February 26, 1919,
Scheidemann, President of the Council of Ministers, declared that the
Cabinet never considered the introduction of the Councils System in
Germany, and that above all, if any part should be accorded the Councils,
it could only be that of an intermediary between the employers and the
trade unions.
But it soon became impossible for either the Cabinet or the Trades
Unions to remain in this almost completely negative position; for the
struggle for the _Mitbestimmungsrecht_ ceased to be merely a debate among
theoreticians. At the beginning of March the workers in the metallurgical
industry declared a general strike in Berlin; and in April the miners of
Central Germany did the same.
The Cabinet found itself forced to modify its point of view. Receiving
at Weimar a delegation of strikers come to present an ultimatum to him,
Scheidemann recanted the communication of February 26, and engaged
himself by a written promise to effect the recognition of the principle
of Councils in the Constitution.[61] One month later he fulfilled his
promise. On April 5, a new note made known under what conditions and
to what extent the Cabinet envisaged the possibility of organizing and
utilizing the Councils. He proposed to inscribe in the Constitution an
article proclaiming in general terms the right of workers to participate
in common and on equal terms with employers in the regulation of
questions of wages and work, as well as in the development of the forces
of production in the common economic interest. By the side of special
Workers Councils there were to be mixed Councils which would have general
economic authority.
On their side the Trades Unions also found themselves obliged to seek
a working basis, and they concluded by agreeing to the introduction
of Councils in German economic life, on the condition that a very
sharp separation be marked between the powers of the Factory Workers
Councils and the Economic Councils on the one hand, and those of the
Trades Unions themselves on the other. Another condition was that
assurance must be given the Trades Unions that the _Workers Councils
would fulfil their mission in accord with the Trades Unions_. At the
Congress of Nuremberg, July, 1919, the Trades Unions engaged themselves
to use their whole influence to secure for the workers and employés the
_Mitbestimmungsrecht_ in the various industries and to help the Factory
Workers Councils to play an effective part.
2.--CONSTITUTIONAL PROVISIONS RELATIVE TO THE COUNCILS.
It was agreed, then, to recognize for wage-earners and salaried employés
the right of co-operation in the conduct of industries and that all
parties to the productive organization of the nation must co-operate in
the regulation of economic questions. This idea is developed and in part
realized in the provisions of Article 165, which form the foundation of
the future Economic Constitution.
The Constitution sets forth the idea that the economic organization of
the country must pursue two different courses and should therefore have
two different series of organs--the “Workers Councils” and the “Economic
Councils.” This double organization is based on considerations that were
expressed by Member of the Assembly Sinzheimer at the session of the
National Assembly on July 21, as follows: “In economic life there is
both a conflict and a community of interests. The conflict that exists
in our economic life and which it is impossible not to perceive is the
conflict between capital and labour. It is therefore necessary, since the
employers are already represented publicly in Chambers of Commerce, etc.,
that the side of labour should also receive special public representation
which should include all wage-earners and salaried employés. The mission
of this representation should be to express all the interests of the
working class, as such, in an organized manner, through a public organ
of representation. This public organ of representation is the Workers
Council. This Council is a unilateral representation of interests. It has
as its purpose the increase and realization of the economic influence of
the working class. But in economic life there is not only a conflict,
there is also a community of interest. The latter is based on the common
interest in production on the part of both employer and employé. The
Economic Councils have as their mission, in contrast to the Workers
Councils, to realize these common ‘duties of production,’ that are
equally incumbent upon employers and employés. They must satisfy all the
interests of production and bring into co-operation for production all
the elements that participate in it, to increase production, diminish its
costs and to regulate it as far as possible according to considerations
of social good.”
Workers Councils are: Factory Workers Councils, for each establishment;
District Workers Councils, organized for each economic district; and the
National Workers Council, whose authority extends over the whole German
territory. These Councils have as their mission the safeguarding of the
social and economic interests of the workers.
The Economic Councils are organized according to a geographical
division. They consist of District Economic Councils and the National
Economic Council. The former consist of the union of District Workers
Councils with the corresponding representatives of the employers and
other interested classes of the population. The National Economic
Council consists of the union of the National Workers Council with the
corresponding representatives of the employers and other “interested
classes of the population.” The Constitution does not state precisely
what is to be understood by this last expression. In the Constitutional
Committee it was unanimously agreed that the consumers shall be
particularly represented in the Economic Councils. The creation of these
Councils is obligatory and legislators are bound by the Constitution to
enact the necessary laws to this effect.
In addition there may be created “autonomous bodies” (Article 156, par.
2) the administration of which is incumbent upon Economic Councils
organized not by regions but by industries. Unlike the regional Economic
Councils, the creation of these autonomous bodies is only optional; they
must be organized, says the Constitution, “in case of urgent necessity.”
The Constitution specifies with a little more detail than for the Workers
Councils, the powers of the future Economic Councils. These have for
their purpose, in addition to general economic duties, _to co-operate
in the execution of socialization laws_. In addition the Economic
Councils of the autonomous bodies are charged with the administration of
enterprises placed under the economic collectivity, such as coal, potash,
etc.[62]
Finally, the National Economic Council must have certain political
functions, and thereby the Constitution makes concession to the
supporters of the institution of an Economic Parliament. The solution
adopted constitutes a middle ground between the views held by the latter
and those of the partisans of a purely formal democracy. It gives to the
National Economic Council a certain political influence, but it does not
accord it absolutely any power of execution. It has the right to be heard
on all bills of social and economic character before they are presented
to the Reichstag by the Cabinet. It has, in addition, the right itself to
propose laws on social and economic matters, and the Cabinet is obliged,
even if it does not approve of these projects, to take them before the
Reichstag. It may only present its own point of view as opposed to that
of the Economic Council. Finally, the latter may send a representative
from among its members to present its proposal before the Reichstag. The
situation of the Economic Council is, on the whole, on the social and
economic field very analogous to that of the Reichsrat.
The existence and the activity of free vocational associations, that
is to say, the unions of workers and employers, are not affected by
the institution of Councils. Article 165, par. 1, expressly recognizes
vocational organizations of workers and employers. In theory the spheres
in which the Councils and these organizations respectively move are
distinct, and the differences between them naturally result from the
difference in the aims of the two organizations. After the Constitution,
as well as before, these unions of employés and workers had as their
function the regulation of the conditions of labour and of wages with
the aid of collective agreements; whereas the Workers Councils and the
Economic Councils are concerned with questions other than the contractual
determination of the conditions of labour and wages. But we shall soon
see that in practice this separation is extremely difficult to maintain
and that it gives rise to considerable difficulties between the Councils
and the unions.
3.--FACTORY WORKERS COUNCILS.
I.--Of the different organisms provided by the Constitution, which shall
be created first?
Some wanted to start from above. They wanted, said these, to organize
first the National Economic Council, and to charge it immediately with
the important functions attributed to it by the Constitution, as in the
conditions prevailing in Germany at present these powers should not
remain without titular direction. They desired also that the National
Economic Council prepare and propose the bills necessary for the
organization of inferior councils. In other words, the National Economic
Council was asked to be the Constituent Assembly for the future Economic
Constitution.
Others wanted to commence from below, so as to erect the edifice
progressively, and not to construct an upper story before the one below
it was sufficiently built to afford a solid foundation.
It was the latter opinion that prevailed. On August 9, 1919, the Cabinet
announced a bill creating the Factory Workers Councils. It was urgent,
said the Cabinet, that these Councils be created first, because there
already existed in many enterprises Workers Councils; some of them had
been created by the provisions of collective contracts, others by the
will of the workers which had made itself felt during the Revolution, but
both kinds of Workers Councils lacked altogether a legal standing.
The bill expressed the idea that the power, hitherto accorded to the
Committees of Salaried Employés and Wage-Earners should be transferred
to the Factory Workers Councils, but that these powers should be
considerably enlarged. This bill was such as could be expected from a
Cabinet in which there co-operated, in addition to the Social Democrats,
the Centre and Democrats. It corresponded to the economic and social
ideas of the trade unionists of all shades, ideas evolutionary and not
revolutionary.
From Right and Left the most strenuous criticisms were directed against
this bill.
The employers recognized that it was necessary to institute workers
representation in each industry and enterprise, and they accepted
the creation of the Councils, in which both employers and workers
would be represented, which would discuss questions of work and wage,
which would supervise the execution of collective bargains and which
would serve as an intermediary between the workers and the bosses.
But they energetically rejected all measures that, under more or less
roundabout devices, tended to recognize for the workers any right of
control whatever over production or the management of enterprises,
since merchants and manufacturers must above all have freedom of
operation. They protested energetically against all provisions that gave
the Councils the right to intervene in the direction of business, in
questions of hiring and discharging; just as they rejected the proposals
that the workers be allowed to participate in the consideration of new
technical methods, and that they, the employers, must submit their
balance sheets to the workers, reveal the amounts of their profits or
their losses and admit workers as members in the Administrative Council.
The supporters of the pure doctrine of the Councils, on the other hand,
criticized the Cabinet’s proposal for the opposite reason, because it
did not organize the real workers representation, but only Councils in
which the employers and the workers have the same right. It is impossible
to conciliate labour and capital, said they; for, the co-operation of
these two must inevitably end in the domination, by the employers, of the
workers. The Councils must be made up exclusively of workers who would
have an absolute right to control production. The powers given by the
bill to the Councils were illusory; they would be only petty unions. The
regulation of production would remain intact as before. These Councils
would be allowed to examine once a year the balance sheets of each
establishment, but they could not control the direction of its business,
its purchases, its selling or its profits. The only real advantage would
consist of being able to discuss the questions of hiring and discharging.
Thus attacked and criticized the bill, after the most impassioned
discussion,[63] after many important alterations, was finally adopted on
January 19, by a vote of 213 to 64. This is the law of February 4, 1920.
* * * * *
II.--The organization of the Factory Workers Councils must be supple
enough to permit them to fulfil their mission, whatever the importance
or the form of the factory may be. They must be neither too small nor
too cumbersome; they must comprise both employers and employés; each of
these groups must be in position to defend its particular interests; the
electoral right must be wholly democratic and minorities must be insured
representation, which imposes the obligation of establishing proportional
representation; those delegated must always be guided by their duties as
representatives. As a consequence of the last, it must be provided that
the assembly of electors be enabled to withdraw its support from its
representatives and to recall them. The greater part of these conditions
was realized by the law of February 4.
The forms that the Factory Workers Councils may assume are extremely
diversified.
There is first of all the “Factory Workers Council,” properly so-called,
which exists in every industrial or commercial unit and in all the
public and private administrations where there are at least twenty
workers.
The wage-worker members of the Factory Workers Council constitute a
“Workers Council” and the salaried employé members make up an “Employé
Council.” If the Factory Workers Council has more than nine members
it elects according to the principles of proportional representation
a “Factory Committee” of five members. If the Factory Workers Council
comprises both representatives of workers and of employés, each of these
two groups must be represented in the Factory Committee.
A “General Factory Workers Council” must be created for enterprises of
the same kind situated in the same locality or in adjoining localities
and belonging to the same owners, if the Factory Workers Council in each
plant so decide. This organization may either remain in juxtaposition
with the Factory Workers Councils of the different plants, or it may
replace them. In that case it functions as a common Factory Workers
Council.
A “shop chairman” must be elected in the place of a Factory Workers
Council in establishments employing less than twenty workers, of whom at
least five must be electors.
There is finally a “Factory Assembly” composed of all the regular
employés of the factory. It is convened by the president of the Factory
Council. He must convoke it if the employer or at least one-quarter of
the workers demand it.
* * * * *
III.--The powers of the Factory Workers Councils are two kinds;
social and economic. _With one or two exceptions they are both purely
deliberative in character._
* * * * *
SOCIAL POWERS:
(A) _Conditions of Work_.
(1) The Factory Workers Council supervises the execution of legal
decrees, of collective bargains and of arbitration decisions in favour
of the workers. The regulation of the conditions of work by collective
bargaining remains the essential purpose of the Vocational Unions.
The Factory Workers Councils cannot and must not replace this general
trade union agreement by a regulation which would intervene between the
workers of any single factory and the management of that factory, for
the conditions of labour, particularly wage scales, must be fixed not
simply according to the conditions prevailing in any single factory, but
according to the general situation of the industry. On the other hand,
the Factory Workers Councils must see to it that the conditions of work
agreed to between the manufacturer’s union and the labour organizations
are strictly carried out, and must adjust any difficulties that may arise
in their application. Each Council must perform the same function in
regard to the execution of arbitration decisions and the carrying out
of legislative regulatory provisions relative to the condition of the
workers.
(2) The Factory Workers Councils co-operate in the fixing of wages
and other conditions of work, when these questions are not settled by
collective agreement. But it is understood that, even in such a case,
the Factory Workers Councils must act in accord with the Trade Unions
concerned.
(3) They co-operate with the employer in the adoption of rules for the
factory within the framework of the collective bargains in operation.
(4) They examine the questions of pensions for wounded veterans and
compensation for those hurt in course of work.
(5) They establish in agreement with the employers rules concerning the
hiring of wage-earners and salaried employés and they have the right to
oppose their discharge. In the respect to the former, the law specifies
that the rules relative to hiring must contain no provision by virtue
of which the hiring of a worker would be affected by his political,
military, religious or union activities. When these rules permit it, the
right of the Factory Workers Council, in so far as it concerns the hiring
of a worker, is waived and it is the boss or his representative who
thereafter decides in each particular case of hiring. But if the boss or
his representative violates the rule of contract, the Council of Workers
or the Council of Employés may raise a protest. If an agreement is not
thereupon reached between the boss and the council, the difficulty is
taken before the competent Arbitration Committee which decides finally.
On the other hand, in regard to discharges, the law of February 9 gives
to the discharged worker the right to appeal it to the Workers Council,
and, if an agreement is not reached by this Council, to appeal to the
Arbitration Committee in any of the following circumstances: (a) If
the discharge is due to the fact that the worker is active in certain
political, military, denominational or trade union matters or that he
belongs or does not belong to this or that political, denominational, or
labour organization; (b) if the discharge is without cause; (c) if the
worker is discharged because he has refused to do any piece of work other
than that agreed upon when he was hired; (d) if the discharge appears
particularly severe, and justified neither by the attitude of the worker
nor by the situation in the industry.
(B) _Differences between Employers and Workers._
The Factory Workers Councils maintain harmony among the workers as well
as between them and the employer, and insure the liberty of organization
among the workers. They must help avoid all troubles or disorders that
may make difficulties between the employers and the workers, and if such
arise, they must abate the trouble as soon as possible.
It is not the part of the Factory Workers Councils to take sides in
economic disputes in favour of this or that tendency. It is the organ of
all the workers of any industry taken together, and it must permit any
labour organization, no matter to what tendency it belongs, to enjoy all
the rights and all the control to which it is entitled.
(C) _The Well-Being of the Workers._
(1) The Factory Workers Councils must combat the dangers of occupational
accidents and diseases.
(2) They must co-operate in the creation of pension funds, the building
of workers’ homes, and other institutions of well-being in the factory.
* * * * *
ECONOMIC POWERS.--(1) The Factory Workers Council aids by its technical
advice the employer in giving the factory as high an economic efficiency
as possible, and co-operates in introducing in the factory new methods
of work. This co-operation on the part of the Factory Workers Council
assumes that the employer keeps it in touch with the condition in the
industry and with the most important events in it. The Council may
therefore demand that the employer supply the Factory Committee, or the
Council with all the necessary information on the work and the condition
of workers, and that he show the pay-rolls--for the purpose of checking
up with the schedules agreed upon by collective contracts--and all other
documents necessary for the supervision of the execution of collective
agreements. This right of inspection is limited in two respects. On
the one hand, the Factory Workers Council can only examine records on
the economic aspects of the factory, thus excluding all political,
union, militarist, denominational, scientific or other investigations
on the part of the Councils. On the other hand, the law specifies that
this right of examination must not be exercised in such a way that it
jeopardizes secrets of the factory or commerce. The question remains as
to what must be understood as a secret of the factory or of commerce;
this must be settled by judicial decision. From the first moment
commentators on the law of February 4th, held that business contracts,
records of profits and loss, the schedules and pay-rolls, estimates of
net cost, and the purchase price of raw material are not questions that
the Factory Workers Councils are forbidden to investigate. In addition
the employer must at least once every quarter furnish the Factory Workers
Council with a report on the situation and the progress in general of
the factory, on its output and on its prospective needs in the way
of workers. Finally the Factory Council may demand that every year a
balance sheet for the factory and a statement of profit and loss for
the preceding year shall be submitted to the Factory Committee, or the
Council, if there is no Factory Committee.
(2) In the factories that have Administrative Councils,[64] the
wage-earners and salaried employés are represented on these councils by
one or two delegates. This representation of workers on Administrative
Councils has aroused among the employers the liveliest opposition.
The Cabinet’s project provided that the worker representatives have
the same rights and duties as the other members of the Administrative
Councils. But the National Assembly has not followed the Cabinet on this
point and has limited the power of the workers’ representatives in the
Administrative Council to the mere statement of the interests and claims
of the workers, and to the execution of their votes and wishes concerning
the organization of the factory. In addition this representation must
be regulated by a special law, and, until such a law is passed, that of
February 4 confines itself to prescribing that the representatives of the
workers have a seat and voice in all the meetings of the Administrative
Council, but that they receive no remuneration other than the pay for the
time of attendance at the meetings. They are obliged to keep confidential
what they learn at the meetings of the Council. The underlying spirit
intended for the workers’ representation in the Administrative Council
is indicated as follows: “The granting of so extensive a power, changing
the right of co-deliberation generally accorded to the working class
into a right of codecision, is proposed in the conviction that nothing
is better calculated to increase the love of work, the sentiment of
responsibility and the output of industries than the right accorded to
workers to co-operate under their own responsibility in the supreme
direction of the factories.”
One cannot conclude the study of the economic powers of the Factory
Workers Councils without saying a word on the question of the
co-operation of these Councils in the socialization process. The
supporters of the theory of Councils have always forcefully insisted on
this co-operation to justify the necessity of giving the maximum power
possible to the Factory Workers Council. But the law of February 4 does
not grant these councils in economic matters anything but powers of
deliberation, hardly even conceding them the right of decision; nor does
it give them any privilege other than that of supporting and helping
their employers in the achievement of the factory’s purposes. Thereby
is denied all action on the part of the Factory Workers Councils that
might directly influence the socialization of the factory itself. The
law of February 4 seems to take the point of view opposed to that of
socialization.
Socialization is a work relegated exclusively to the State and
legislation. It cannot be included in the mission of the workers’
representations in a factory. To socialize is to modify economic
organization and the right of property, and this change cannot be
made except by law. Further, no particular factory can be socialized
of itself, that is to say, be transformed by itself into the property
of a community. The work of socialization must be undertaken by whole
divisions of industry. To accomplish this work it is not the Factory
Workers Councils that are competent, but only the parliamentary
representation of the whole people.
However, among the partisans of the Factory Workers Councils, some
hope that these Councils will be able to give the workers a socialist
education by affording them the chance to participate in economic
affairs. They believe that, thanks to the Workers Councils, there will
finally be formed a working class ready, under responsibility, to fulfil
administrative duties in a socialist commonwealth. The Factory Workers
Councils according to them will be a school for socialism.[65]
4.--THE TRADE UNIONS AND THE COUNCILS.
Such, in outline, is the law of February 4, 1920. The first elections
of the Factory Workers Councils were held during the month of May that
followed. Immediately there broke out disputes and rivalries, more
violent than before, between the Trade Unions and the partisans of the
Councils systems over the rôle which the Factory Workers Councils should
play, and particularly over the relations that should subsist between
these Councils and the Trade Unions.
The union leaders wanted to maintain their traditional policy, “the wage
policy” of the joint committee and the _Arbeitsgemeinschaft_. They held
that economic and social reforms can only be accomplished progressively,
given the complexity of economic phenomena, and they were convinced that
the necessary evolution will take place naturally, thanks to co-operation
of employers’ and employés’ organizations in the _Arbeitsgemeinschaften_.
The development of these organisms since the revolution seems to support
their opinion. On the basis of agreements concluded in December, 1918,
the _Arbeitsgemeinschaften_ have taken on considerable extension.
Little by little the organisms provided by the statute of December
4, 1918, have been created and expanded. Not only have individual
_Arbeitsgemeinschaften_ been established between employers’ and
employés’ organizations, but these have also been formed into larger
groups. For example, the _Arbeitsgemeinschaft_ of the Ruhr mines, those
of the Sarre, of Saxony and of Upper Silesia have united into a central
_Arbeitsgemeinschaft_, that represents the interests of the whole coal
mining industry of Germany. It is administered by a Central Council
composed, of course, of equal numbers of employer and worker delegates.
A great number of other industries have organized on the same model
and they, too, have added above the local organs a Central Council
that represents the general vocational interests. Finally, the Central
Committees of the different industries have joined and thus created on
December 12, 1919, a central _Arbeitsgemeinschaft_, which constitutes
the supreme organization and which is charged with settling by direct
agreements between employers and employés and on a parity basis all the
problems that touch the life of the industries and trades in Germany.
This is sub-divided into fourteen vocational groups: iron, provisions,
construction, textile, clothing, paper, leather, transports, glass and
ceramics, chemistry, oils and fats, forest and land workers, mines and
lumber. The Central Executive Committee (Central Vorstand) is composed
of twenty-three members chosen by the employers and twenty-three by the
workers. Other Committees are created on which the Central Committee
places part of its work. Seven such have already been constituted, on the
study of wages, labour legislation, economic policy, raw material, coal
and transports, tariffs, the execution of the treaty of peace and the
internal regulations of the _Arbeitsgemeinschaft_.
All this movement, say the trade unions, represent undeniable progress.
For the hostile interests of employer and employé is substituted the
_interest of the vocation as a whole_, which creates in the employers
and workers of the same vocation a consciousness of the community of
their interests and engenders among the different industries a fruitful
rivalry. In uniting the _Arbeitsgemeinschaften_ of all the industries,
conflicting interests are placed in equilibrium and neutralized and there
remains only common consciousness of national interests.
What can the Factory Workers Councils do otherwise than enter into the
framework of already existing organisms and, directed by the Trades
Unions, aid in the development of these organisms? In other words,
the Factory Workers Councils--and this is also the formal will of the
legislator--should be the _delegates of the Trades Unions in each
factory_ to supervise there the application of the agreements adopted by
the Trades Unions and the employers associations. In addition what could
the Factory Workers Councils do if they had not behind them the power of
the strong organizations of the Trades Unions? A Factory Workers Council,
that could not count on the support of a strong union, could exercise
no useful activity whatever. It would be soft wax in the hands of the
employers. If they want to do efficacious work, the Factory Workers
Councils, even though they are the direct emanation from the workers of
the factory, must conduct themselves as organs of the Trade Union, and
can only play an important rôle if they march hand in hand with the Trade
Union.
This dependence of the Factory Workers Councils on the Trade Union gives
rise naturally to two considerations. _The Factory Workers Council is
without resources_, whereas the Trade Union is rich; the one cannot
undertake anything without the aid of the other. But naturally it will
not obtain this aid unless it submits to the guidance given it. On
the other hand, in order to discuss adequately with the employer the
difficult problems that come within the authority of the Factory Workers
Council, there is required a preliminary education which the worker does
not possess unless he has had long experience in Trade Union life. He
often lacks the knowledge and the experience which cannot be acquired
except slowly and in the school of the Trade Unions. For this reason
also, the Factory Workers Councils should follow Trade Union direction.
The champions of the system of Councils do not concede this subordination
of the Factory Workers Councils to the Trade Unions. There is an
essential difference between the two, they declare. The Trade Union has
as its exclusive mission the preparation and the direction of struggles
for wages and conditions of work _under the régime of capitalist
production_. The Factory Workers Council is _warring for a new system of
production_. And its mission is to prepare the working class to take into
its own hands the direction of production. That is why the _organization
of the Factory Workers Council must be independent of the Trades Unions,
and must develop outside of the framework of the Trades Unions_.
The task which the Factory Workers Councils must accomplish and which
must serve as the basis of all their future activity, is to achieve a
unity of front of the whole working class. The Trade Unions have not yet
brought themselves to take the initiative in this fundamental reform.
At the present time workers are still scattered among approximately
fifty Trades Unions, which are divided still further into a number of
sections and branches. There is an inextricable network of collective
contracts, “tariffs,” and wage agreements down to the smallest labour
group, representing a great amount of work; but this cannot in the least
ameliorate the economic condition of the working class.
One thing must immediately be abolished, the _Arbeitsgemeinschaft_,
because it is contrary to the doctrine of the class struggle, and
because, under the pretext of co-operation, it insures the domination of
the capitalist over the worker.
As for the Trades Unions, the champions of the Factory Workers Council
recognize that the latter, although working on a different plan,
must remain in intimate contact with the former. But there is an
indispensable reform to be realized. Organization by trades must be
replaced by organization by industries or factories. In other words,
all the vocations functioning at the same time in the same industry
must be grouped within the same organization. In still other words,
the separation of wage-earners associations from the associations of
salaried employés must be done away with. On the contrary, all manual
and intellectual workers of the same industry must join together and
consecrate all their efforts to a common end.
Finally, declared the partisans of the Councils, the Factory Workers
Councils cannot remain isolated in the various separate industries. They
can only fulfil their function if they unite in district assemblies and
organize in such a way as to create a “Central Organ of the Factory
Workers Councils,” which will direct the activity of all the Factory
Workers Councils of Germany.
These arguments were not without effect on the Trades Union leaders.
They still maintained, naturally, the principle that the Factory Workers
Councils must enter into the Trade Union organization and that they must
remain an organ of the latter. But they declared themselves ready to
accept a great part of the reforms demanded by their critics.
Moreover the General Federation of Labour and the General Federation
of Salaried Employés organized “A Central Union of the Factory Workers
Council,” whose purpose is to unite the Factory Workers Councils with
the unions of wage-earners and salaried employés, and to incorporate
them into the whole Trade Union organization. To this end they undertook
a complete local organization of the Factory Workers Councils. First
the District Committees of the Trades Unions were to proceed to a
redistribution of the Factory Workers Councils into fifteen industrial
groups. Each industrial group was to decide independently on the matters
that concern the vocations included in this group. The Group Council
had to include a member of the Trade Union or of the corresponding
union of salaried employés. This organization by groups was to insure
the co-operation of Factory Workers Councils on an industry basis, and
thus attempt to meet the criticisms of partisans of the Councils. Above
the different industrial groups three organs were provided which would
represent the Factory Workers Councils as a whole: the General Assembly
of all the Factory Workers Councils, the Central Council, and the Central
Committee.
The mission of the Trade Union organization of the Factory Workers
Councils would be to give the latter a Trade Union direction and
development, to unite in the factories all economic and social forces
available, and to utilize these forces for the defence of the common
interests of all workers. There is thus a division of labour between the
traditional mission of the Trade Union branches and that of their local
committees, on whom would be still incumbent the duties of specifically
Trade Union organization, whereas questions of general, social and
economic policy would be given over to the “Central Factory Workers
Council.” It follows that the two parallel organizations must work hand
in hand and must consult each other on all questions, thus doing away
with all possibility of conflict.
Such was the plan, duly elaborated by the Trade Unions, which at this
time is submitted for discussion in common by the Factory Workers
Councils and the Vocational Associations of Germany. Naturally, it is
impossible to foretell what will result from these deliberations. All
that can be said at present is that the members of the Factory Workers
Councils are almost exclusively elected from among the wage-earners and
salaried employés _already active in the Trade Unions_, and thus the
conception to which the Trade Unions seem to cling above everything else,
the incorporation of the Factory Workers Councils into the Trade Union
associations, seems destined to be realized of its own accord.
5.--THE PROVISIONAL ECONOMIC COUNCIL.
These discussions, these vacillations, these difficulties, have up to
now prevented the government from submitting the necessary projects of
laws for the creation and organization of Councils, other than Factory
Workers Councils, provided for by the Constitution. In May, 1920, there
was an attempt to propose a law on “Local Workers Councils.” But the
government declared that it had not yet arrived at a clear conception of
the relations between the Factory Workers Councils, the future Economic
Councils and the employers’ organizations, and that it was still pursuing
its studies.
In view of the impossibility of continuing the building of the structure
from below, it was decided to change the method and, returning to the
system rejected the year before, resignedly the attempt was made to
continue from above. There was thus created a “Provisional Economic
Council.”
The organization of this Council, provisional as it must be, has not
proceeded without presenting great difficulties, which it is interesting
to sum up.
I.--This Council must consist of the representatives of all economic,
agricultural, commercial, and industrial interests. The first question
that came up was to fix the number of representatives to be allowed
to each different interest. Naturally, violent conflicts arose, each
interest fighting for the largest representation possible. Instead
of establishing a proportion based on the respective importance of
the various vocations in German economic life, and of holding to this
proportion, the Cabinet increased the total number of members of the
Economic Council as fast as this or that interest claimed a stronger
representation, with the result that the number of representatives,
originally fixed at a hundred, increased to 280 and finally became 326.
It is clear that the resulting proportion that came from these successive
increases favours agriculture to the detriment of industry and the
middle classes.
A place was given to the representatives of consumers; unwisely,
according to some critics. For one can understand the adding of the
consumers to the assembly of the producers of some one single industrial
group, that of coal, for example, which grows always at the expense
of the consumers. But in the Economic Council, all industries and
vocations are by definition represented; the producers in one industry
are the consumers in all the others and it is unnecessary to add to
them, in order to represent the interests of consumers, additional
representatives, who by hypothesis are only consumers.
The 326 members of the Economic Council are allotted as follows:
68 representatives of agriculture and forestry.
6 representatives of market industries and fisheries.
68 representatives of general industry.
44 representatives of commerce, banks and insurance.
34 representatives of transport enterprises.
36 representatives of small business and small industries.
30 representatives of consumers (municipalities, consumers’
associations and organizations of women).
16 representatives of civil servants and the professions.
24 other persons named by the government.
II.--There then followed the question of how the delegates of each
group are to be appointed. The discussion reverted to the question
whether these delegates should be appointed by vocation or region.
Where employers and workers were grouped, the principle of parity was
naturally adhered to. Agriculture, for example, which is entitled to 44
delegates, was represented by 22 land owners and 22 agricultural workers.
On the other hand, the mode of nomination in all groups representing
workers offered but few problems, for--at least until the Factory Workers
Councils have united and become organized geographically over the whole
Reich--the only labour organizations are those of the Trade Unions;
that is to say, organizations almost exclusively vocational, and the
labour delegates to the Economic Council cannot be elected except by
means of these organizations. But the problem became much more complex
in the case of the election of representatives of employers and property
owners. These had, in addition to their industrial associations, organs
of regional representation, such as chambers of commerce, chambers of
agriculture, boards of trade, etc. Should their delegates throughout be
elected by regional organs or by associations? The Reichsrat replied, by
chambers of commerce; and the National Assembly declared for associations.
The partisans of representation by chambers of commerce pointed out
that these chambers are, according to existing legislation, the only
representatives of industry and of commerce in public law; that
they embrace all the industrial and commercial circles, considered
vocationally as well as regionally, and that they constitute an electoral
body more complete than the organizations on a purely professional basis;
and that, in contrast to the associations, the chambers of commerce are
elected by all the manufacturers and merchants inscribed on the register
of commerce.
The supporters of the associations replied that, great as was the service
rendered by the Chambers of Commerce as local and regional corporations,
they play almost no rôle whatever in the public economy of Germany. Their
influence on economic management is practically nil; and they are limited
in the matter of projects for new laws, to the voting of resolutions that
have no outcome whatever. The special business associations, however,
although without official standing in public law, are acquiring more and
more importance in the public economy of Germany. What is most important
is to make up the Economic Council of “heads”--of the most eminent men
from each industry, whether of the North or the South, the West or the
East.
The solution adopted does not seem to have been a particularly happy
one. Of the sixty-eight industrial delegates, forty-eight represent
vocational divisions and twenty represent regional groups. Of the first,
forty-two are designated by the _Arbeitsgemeinschaft_ of the employers
and industrial workers of Germany (twenty-one employers and twenty-one
workers); six others represent the Council of Coal and the Council of
Potash. Of the regional representatives, twenty employers are named by
the Chambers of Commerce and of Agriculture but twenty workers are named
by the labour element of the Central _Arbeitsgemeinschaft_.
III.--The authority of the Provisional Economic Council is not quite the
same as that of the final Economic Council, provided by the Constitution.
It must, and that was its essential mission, construct the framework on
which the future Economic Council is to be erected, and determine how it
shall be elected. This necessitates its organizing in advance Workers
Councils, aside from Factory Workers Councils, and Economic Councils for
each locality, which, according to the Constitution, must contribute to
the formation of the National Economic Council.
In addition, the Provisional Economic Council must examine the projects
of all important laws, economic and social in nature, that the Cabinet
is required to submit to it for advice before placing them before the
Parliament. It must be heard on proposals for decrees and important
regulations. It has itself the right to present proposals for laws.
These powers are the same as those projected for the final Economic
Council. But the two differ in an important respect. Whereas, according
to the Constitution, the Economic Council will have the right, when it
differs in opinion from the Cabinet, to present its point of view by
one of its members before the Reichstag, it has not been considered
feasible, for constitutional reasons, to recognize the same right for
the Provisional Economic Council.
* * * * *
Generally, however, the Provisional Economic Council is considered as
already constituting an Economic Parliament, and at the commencement of
its work[66] it was so regarded by the press.
It does not deserve this name, for it has no power of decision. It
is purely and simply a technical Council that advises the Cabinet on
principal economic questions. It differs from ordinary technical Councils
in that instead of being appointed most of its members are elected. One
cannot therefore criticize it from the point of view of formal democracy,
in the way that any parliament composed according to the parity principle
can be criticized, viz., that each employer-member represents much fewer
electors than the worker-members. As it is here a matter of a council
of experts, the most important thing was to gather the best qualified
authorities of the whole country. It is evident, therefore, that in the
present state of affairs such authorities are found much more easily
among employers than among workers. The relative proportion of these two
elements within the Provisional Economic Council matters little since
decision lies exclusively with the assembly elected by universal suffrage.
Meanwhile, however, the importance of the services that the Economic
Council can be called upon to render must not be underestimated. It
is undeniable that, as at present composed, it has gathered together
nearly all the men considered in Germany to-day as the most experienced
and trained authorities in economic matters. It must not be lost sight
of also that a great number of these men, aside from their individual
importance, have behind them the support of the whole force of the
extremely powerful vocational and economic associations by which they
were elected.
One immediate danger menaces the Economic Council. It is that the men
who compose it will let themselves be guided on the technical questions
they are to examine by party considerations. It may be divided--as
is natural--into groups of employers, groups of workers, groups of
agriculturalists, industrialists, and merchants. If it turns out to be
an assembly of conservatives, democrats, Catholics and socialists, it is
doomed to sterility.
If, however, the Economic Council avoids this danger it will render,
first of all, the service of clarifying the political atmosphere itself.
The members will defend very legitimately only the interests by which
they were charged with representation. In this way economic groups will
not need to act indirectly through the intermediate agency of political
representatives. They will be able to express their point of view clearly
and support their interests directly. The political parties, too, will
gain thereby; for they will be freed of all considerations of interest
and they will no longer have to complicate technical problems by imposing
on them their general political conceptions. As for the authority that
will accrue to the Economic Council, it depends entirely on itself
whether it will be nullified or preponderant, and its future lies in its
own hands.
Former Under-Secretary of State, von Delbrück said before the National
Assembly--speaking, it is true, of the Economic Council to be organized
by the Constitution, but the Provisional Economic Council is nevertheless
its precursor--that the Economic Council is without doubt, by the side of
the Reichstag and the Reichsrat, a third legislative assembly. For such
an assembly, “called upon to deliberate on the most important questions
in the national life, will necessarily have a natural tendency to enlarge
its powers. We are undoubtedly on the eve of a period in which the
Reichstag and the Reichsrat will be considered as one side of a balance,
and the Economic Council as the other. Behold in this a wholly new
political evolution. There will come a day when the Economic Council will
seek to become the heir of the Reichsrat and to take its place.”
Will this prediction be realized? It will if the Economic Council is able
to render the government and the people the services they expect of it.
It will not if it does not deserve to be heard by them and does not know
how to make itself heard.
SECTION II
SOCIALIZATION
In order to reconstruct in Germany the public and private economy
destroyed by the war and the revolution, it is not enough to give the
producers a special right to co-operate in the regulation of economic
questions; nor to recognize particularly for the working class the right
of co-deliberation in the determination of these matters. It is hoped
that such measures will increase production. But it is also necessary
that no part of production be lost and that all of it be utilized to the
utmost for the community. One is thus led to inquire whether the system
of production and the distribution of wealth, such as prevails under a
capitalist régime, is capable even if improved, of attaining such an
end; whether it were not better to substitute a new system, socialist or
not, giving the utmost guarantee that production will benefit the entire
community.
We must inquire what attitude the Constituent Assembly took on this
question and what solution it adopted.
1.--THE PROBLEM OF SOCIALIZATION.
On the morrow of the Revolution, power passed entirely into the hands
of socialists, that is to say, by definition, men whose programme may
be summed up in these words: the abolition of private property and the
taking over by the state of all the means of capitalist production.
The Independents undoubtedly would have set about at once the task of
realizing this programme. But we have seen that they had but a brief
period of power; and the Social Democrats seemed less in a hurry to keep
their promises.
For the moment the political revolution was enough to absorb all their
activity, and they postponed the economic revolution. They declared
that an industry cannot be socialized until it is “ripe” for such a
measure. But, they further declared, this maturity cannot be suddenly
effected by a vote of Parliament or even by the decision of the majority
of the people. It is the product of a slow social development, which
may find its expression in the vote of a majority, but which cannot be
thereby hastened. To tell the truth, the Social Democrats, whom events
had placed with their back to the wall, perceived how difficult it is
to put into practice the vague theories with which they had heretofore
contented themselves. Not only did they realize that the solution of
economic questions raised by socialization is extremely difficult, but
they became also convinced that it was necessary first to consolidate
some of the elements of German economic life that had survived the war
and its unhappy conclusion before proceeding to experiments which might
accomplish their ruin. They resolved therefore to study the problems of
socialization more deeply before passing to its realization. For this
purpose they created, November, 1918, a “Committee on Socialization”
which was not to be an official organ but a free scientific committee
charged with the drawing up of reports and proposals on the question of
socialization. It consisted of eleven members with Kautsky as chairman.
But the impatience of the masses did not give the Socialist Cabinet the
respite they required. The people, who for years had been promised the
abolition of private capitalist property, and who saw in the realization
of the Socialist programme the end of the miserable situation into
which the war and the revolution had plunged them, demanded immediate
measures. The general strike which broke out in Berlin in March,
1919, and which, as we have seen, prompted the Cabinet to promise the
“anchorage” of the Councils in the Constitution, also pushed it to
prepare in haste two projects of law--one on socialization, the other
on the regulation of the coal industry, the two projects being adopted
within a few days by the National Assembly. The two laws carried the date
of March 23, 1919. The first is what is called in Germany a “blanket
law” or a “skeleton law.” It indicates the different forms according to
which socialization of private enterprises may become operative, and the
conditions in which these enterprises, once socialized, may be exploited.
The second makes immediate application of these principles to the coal
industry. In addition another law voted several days later, April 29,
1919, regulated according to the same principles the potash industry.
Whereupon the members of the Committee on Socialization, who complained
of having their work constantly impeded by the Cabinet, and their
recommendations remaining unheeded, handed in their resignations on April
7, 1919.
On the other hand, the Minister of Public Economy, the Social Democrat,
Rudolph Wissel, finding the measures for socialization taken or proposed
by the Cabinet too timid and insufficient addressed a memorandum to the
Council of Ministers on May 7, which had great reverberation throughout
Germany as soon as it became known.[67]
The Cabinet, said Wissel, followed a policy inconsistent and without
unity. Within the Council of Ministers a decision on fundamental
questions was avoided in order not to put the coalition in danger; and
the few measures taken were compromises dictated by necessity.
Meanwhile the economic situation of Germany was in an almost desperate
state, and a menacing catastrophe could be avoided only by completely
transforming the system of production that prevailed in peace times.
Wissel declared that he was not speaking of expropriation, for that
would do no more than substitute the state for private capitalism, that
is to say, one exploiter for another. But what he referred to was the
restriction of illegitimate profits, the regulation of prices and the
control of the distribution of profits. _Production and consumption
must be organized according to a co-ordinated plan_ in such a way that
enterprises may be exploited in the interest of all and not to the
exclusive profit of some. It was imperative to proceed by some solution
as a whole and not by incoherent and isolated attempts.
The principal measures for which Wissel demanded immediate adoption were
the following:
(1) The organization of the system of Councils by a special law
without waiting for the adoption of the Constitution. They must
include organizations of workers and of employers, regional and
vocational. These last, which would rest on the parity principle of the
_Arbeitsgemeinschaft_, would have for their mission the direction of the
economy in the vocation they represented, this direction to follow the
principles decreed by the Cabinet. There must be in addition an Economic
Council, which will be the supreme organ of the whole German collective
economy.
(2) Other branches of production must be regulated on the model of the
regulation already in operation for coal and potash. The next to be thus
regulated must be electricity and the cereals.
(3) The State must take a more and more important part in the functioning
and in the profits of industrial enterprises. By an inheritance tax and
by a tax on capital there must be put into the hands of the State a great
part of the industrial fortunes. Instead of collecting these taxes in
money or in war loans, the state must become the proprietor of part of
the enterprises in the form of shares.
(4) The stocks and bonds of the industrial concerns of the State will be
administered not by a Minister, but by a national bank which will conduct
its business according to purely economic rules to the exclusion of all
political considerations.
By these last two measures will be realized what the supporters of this
system call a “progressive mediatization of capital.”
(5) There will be created funds of several billions of marks which will
be administered by an office acting in close relation with the vocational
economic organization and designed to procure employment for German
workers.
(6) The cost of necessities which Germany must import exceeds greatly
the cost of domestic commodities. This circumstance compels the increase
of wages, which in turn causes the cost of living to rise and lowers the
value of money. To counteract this part of all wages must be distributed
hereafter in provisions, clothes, etc. Credits will be opened by
financiers and by the State.
(7) Temporarily the right to strike in certain industries vital to the
German economy will be restricted. The right to stop work will have to be
voted by nine-tenths of those employed in that industry.
(8) To realize this programme the number of Ministers who will occupy
themselves with economic questions will be reduced to three. They will
constitute within the Cabinet an “Economic Committee,” whose directions
will have to be followed absolutely by the political Ministers.
On the whole this project aimed at the realization of a state
intermediate between capitalism and socialism.
Defended only among the socialists by a small group of doctrinaires, this
project had against it at the same time the Independents, the bourgeois
parties and the Social Democrats. The Independents opposed it because it
permitted capital to survive. The bourgeois parties opposed it because
the supervised economy prevented the free play of economic factors
and paralyzed initiative. The Social Democrats opposed it for fear of
dissatisfying the Centre and the Democrats, of whom they had need to
maintain themselves in power. Particularly opposed to Wissel’s project
were the Trade Union conceptions supported in the Cabinet by the Minister
of Food Supply, Robert Schmidt. He presented a counter-project which
embodied the argument which the Socialists of the government opposed to
the theoreticians of socialism. The work of socialization, said they,
must be undertaken but slowly and the socialization of an industry must
wait until that industry is sufficiently matured. This last conception
prevailed and in July, 1919, Wissel resigned. Thereupon the offices of
the Minister of Public Economy and that of Food Supply were merged and
Robert Schmidt given the unified post.
It was to be expected, therefore, that the process of socialization would
be considerably slowed up. In fact, the Constitution of the month of
August confined itself to specifying and enlarging in several respects
the principles of the law of socialization of March 23; and for several
months there was only one law enacted along these lines, that of December
31, 1919, on the socialization of electricity.
But once more the people intervened. It may be recalled that one of the
“Eight Points” of the agreement imposed on the Cabinet by the Trade
Unions after the _coup d’état_ by Kapp, provided that the Committee on
Socialization be at once reconvened, that representatives of vocational
associations be added to it, that new industries be socialized and that
the socialization of industries already decreed be enforced.
In conformity with these engagements, the Cabinet in the beginning of
May, 1920, submitted to the Reichstag a project of law that provided for
the municipalization of a certain number of industrial enterprises, and
reconvened the Committee on Socialization. The members of this committee,
who were authorized to add to their number new colleagues on the
condition that the total number of the members should not exceed thirty,
were given a double mission. First they were to study and clarify the
fundamental principles of socialism, for the purpose of determining the
general lines along which the capitalist system should be transformed.
Then they were to submit concrete and immediate proposals, which,
inspired by the laws of collective economy, would permit the commonwealth
to utilize directly the natural resources and the sources of power. The
committee had also to study how the industries already socialized were
functioning, what results had been attained and to propose, if necessary,
all needful changes.
2.--THE COLLECTIVE ECONOMY.
All these labours, all these investigations, all these discussions of the
problem of socialization had one result. They have shown how confused,
even among the socialists, is the concept of socialism; that behind the
same word may hide two economic systems extremely different, and that a
whole series of almost imperceptible gradations may exist between the
capitalist system and complete socialism.
The Constitution raises the following principle: Economic organization
must cease to be dominated by considerations of private interests in
order that hereafter it may be inspired exclusively by considerations of
public interests. Private interests must be subordinated to collective
interests. The present economic régime, based on private ownership,
must be substituted by a new régime based on collective ownership
(Gemeinwirtschaft). What is understood by this?
In its largest sense the expression “collective economy” may be defined
as an organization, following a certain predetermined plan, of the
economic system of a country for the purpose, on the one hand, of
obtaining as large an increase as possible in production by the union of
all forces affecting economy; and, on the other hand, for the purpose
of devoting a proper part of the product to the community or to its
productive members.[68] Thus a system of collective economy is any
system that increases public influence in private enterprise, on the
condition that it results in a more just administration and distribution,
particularly in the cases of monopolized industries already organized
into trusts or cartels.
In practice, the principle of collective economy may be applied under
three different forms:
(1) The State may take over immediately and entirely the ownership of the
industries it wishes to subject to the new régime, and direct by itself
and alone, with the aid of its civil servants, the industries which it
has seized. _This is complete socialization._
(2) The State may content itself with participating in the ownership
of certain private enterprises. It owns, for example, a certain number
of shares in a corporation. In such a case, it does not manage the
enterprise wholly, but it has the right of codecision in the general
direction of affairs. _This is partial socialization._
(3) Finally, the State may leave in the hands of individuals the
ownership of enterprises which it wishes to subject to the principles
of collective economy; but it unites, if necessary by constraint, all
those that belong in one industry or in the same category of industries,
such as chemistry, coal, metallurgy, etc. Thus united the enterprises
are administered by means of organs in which are represented all the
categories of the population interested in it, such as owners, workers,
trade unionists, consumers, etc. These organs must be guided, in the
direction they give to this management, above all by a concern for the
general interests of the commonwealth. This is _collective economy_
properly so-called or _nationalization_.
This last form of collective economy is particularly interesting, be it
said. For, on the one hand, it avoids the just criticisms of bureaucracy
and exaction generally directed against socialism properly so-called.
On the other hand, it takes into account the principal demands of the
working class at the present time in recognizing for the workers the
right to participate in the direction of business enterprises.[69]
The Constitution does not clearly choose between these three different
methods of applying the principles of collective economy in the large
sense of the word. It declares all three possible and leaves to the
ordinary legislature, whenever it is desirable to regulate an industry
in the general interest, the task of choosing the bearing it wishes to
give such regulations and the régime to which it wishes to subject the
industry in question.
(1) In effect, according to the terms of Article 156 of the Constitution,
the Reich may transfer private business enterprises to public ownership,
that is to say, take over the property for the Reich, the States, or for
the municipalities.
(2) The Reich may participate itself or have the States or the
municipalities participate in the administration of these enterprises, or
may secure for itself in some other manner a decisive influence in these
enterprises.
(3) Or, finally, without taking to itself all or part of these
enterprises the Reich may regulate, on the basis of autonomy and
according to the principles of collective economy, the production and the
distribution of wealth.
In this last case the Constitution specifies that the business
enterprises which are made subject to a nationalization measure, shall
form “an autonomous body” (Selbstverwaltungskörper). This is a new form
in public law. The “autonomous body” is somewhat analogous to ordinary
public corporations. It administers itself with the organs necessary
for it. It enjoys great independence, but it is nevertheless subject
to supervision by the State. Article 156, par. 2, of the Constitution
specifies that when legislation subjects a given industry to the system
of nationalization and organizes the autonomous body it must constitute
the administrative organs of this body in such a way that there shall be
insured the co-operation of all the producing elements of the people, and
that the salaried employés and wage-earners participate in administration
and that the production and distribution satisfy first of all the
interests of the commonwealth.
These organs form the Industrial Economic Councils which we have already
examined. An example will illustrate this hypothesis. Legislature
decides, for instance, to subject the chemical industry to the régime of
the collective economy. It combines, therefore, all the manufactories of
chemical products into a sort of obligatory _cartel_, the bond uniting
the different manufactories being more or less close according to
circumstances. The system of administration by “autonomous bodies” will
consist of the institution of one or more organisms, such as Economic
Councils of the Chemical Industry, in which will be represented all the
individuals, associations and Councils interested, and which will manage
together the German chemical industry. The chemical industry will thus
form an autonomous body, that is to say, a sort of public corporation
under the supervision of the State. Further than this, however, it is
not possible at the present time to specify the distinctive traits of
this new legal category. We must wait until legislation has organized a
number of autonomous bodies before we can state precisely their general
characteristics and give them a place in the collective institutions
of public law. Still less possible, naturally, is it to forecast the
economic consequences to which they may give rise.
* * * * *
However, the Constitution has not felt that it should give the ordinary
legislator absolute freedom to proceed according to his fancy to the
enactment of measures for socialization more or less complete. It has
therefore provided certain limits on the exercise of the rights it
confers on the legislature.
(1) Only the legislature of the Reich may enact socialization measures.
(2) No industry may be socialized except when it is “ripe for this
socialization.” This is the so-called _maturity clause_.
(3) Enterprises which the legislator wishes to organize as “autonomous
bodies” may not be so proceeded against except “in case of urgent
necessity.”
These last two restrictions may seem very important. In reality, however,
they constitute a purely fictitious restraint; for the legislature is the
sole judge, at any time that it wishes to socialize an industry, as to
whether that industry is “ripe” or not, and whether or not the case is
one of urgent necessity.
(4) There remains finally the question of indemnity. As may well be
imagined, during the discussion of the project of the socialization law
as well as during the deliberations on the project of the Constitution,
this question was very vigorously discussed. The Socialist parties wanted
no allusion made to this question in the text of the law or that of the
Constitution. The bourgeois parties demanded that at least in the case
of complete socialization the state should be absolutely obliged to
accord an indemnity. It was impossible to arrive at agreement. So that
although the principle of indemnity was incorporated, it was left to the
legislature, whenever it enacts a special law decreeing a socialization
measure, to decide whether or not indemnity shall be accorded and to what
extent.
* * * * *
In accordance with the above provisions a certain number of industries
have been placed under the régime of collective ownership, where they are
about to be transformed.
For the coal, potash and iron industries the laws of March 23, of April
29, 1919, and the regulation of April 1, 1920, have chosen the system of
collective ownership, properly so-called. That is to say, the industries
of coal, potash and metallurgy, although to a very limited extent, have
been organized into autonomous bodies, self-administering under the
supervision of the Reich.
As to electricity, the law of December 31, 1919, provides that electrical
plants that have acquired a certain importance will become the property
of the Reich, the latter, however, providing a suitable indemnity.
The project of the law relative to municipalization, finally, provides
that municipalities may, with the authorization of the Reich,
transfer to the régime of collective ownership private industries
that serve principally common local needs. Full authority is given
the municipalities over all that concerns transportation, water, gas,
cinematographs, theatres, burial, baths, etc. These enterprises may be
either taken over entirely as the property of the municipalities, or
be organized into autonomous bodies. In principle the municipality is
required to indemnify in all such cases.
It is impossible to examine here in full detail these or later laws. It
is interesting, however, to devote several pages in describing in a very
general way, in view of the great importance of the coal industry at the
present time, the system into which it has been transformed.
3.--THE REGULATION OF THE COAL INDUSTRY.
The crisis in coal which to-day exists in almost every country in the
world has led the different governments to take various measures either
to avert it or to diminish it. In general, coal mining has remained in
the domain of private economy. Distribution, however, has passed more or
less completely into the domain of collective economy. The systems of
distribution to which the different countries have resorted are various.
According to the given circumstances they adopt one or another of three
possible modes of public economy. In France, the distribution of mined or
imported coal is carried on by the state itself. In Germany it is done
by a group of organisms in which are represented the various interested
elements of the population, but in which provisionally the mine owners
predominate.
It is advisable to study first the existing system in the coal industry
in order to understand better the changes we are examining.
* * * * *
I.--As regulated by the law of March 23, 1919, and the decree of August
21, of the same year, the mechanism of the coal industry consists of
three organs: the Colliers Association, the National Association, and the
National Coal Council.
The German Reich is divided into a certain number of coal mining
districts. In each district all the mine owners associations must form
a Colliers Association. If this cannot be accomplished voluntarily the
Minister of Public Economy promulgates the organization by means of a
decree. Each Colliers Association must have a Council of Administration,
in which it is obligatory that the workers be allowed representation.
In addition, in the Councils of Administration of the five biggest
associations there must be admitted a representative of the salaried
employés. The Council of Administration has the authority commonly
accorded to the councils of administration of stock companies by the
Commercial Code; it appoints its own president. In the same way all the
owners of gasworks that produce coke are united for the whole territory
of the Reich into an Association of Coal-gas Manufacturers, formed on
the same model as the Colliers’ Associations.
The Colliers Associations, the association of Coal-gas Manufacturers and
the German states that belong, by virtue of ownership of mines, in the
Colliers Associations, are united into a _National Coal Association_.
This has a Council of Administration in which must be included three
wage-earners and salaried employés and one representative of the
consumers.
_The National Coal Council_ is composed of sixty members--representatives
of the states, of mine owners organizations, wage-earners, office
workers, consumers, etc.[70] It is convened as often as conditions demand
and at least once every six months. It must in addition be convened if
at least ten of its members or the Minister of Public Economy of the
Reich demand it. It decides by majority vote. It creates three technical
committees, The Economic Committee on Mining Construction, The Economic
Committee for the Utilization of Combustibles and The Social Committee
of the Mines. Each member of the National Coal Council must belong to a
committee. The cost of the administration of the National Coal Council
and of its committees is borne by the National Colliers Associations.
* * * * *
Each of these organs has its own special powers.
The National Coal Council directs the economy of combustibles, in which
is included importation and exportation, according to the principles
of collective economy under the supervision of the Reich. It must
approve the charters according to which the Colliers Associations and
the National Coal Association are organized. The National Coal Council
may decree general policies for the administration of combustibles, in
particular for the abolition of unproductive enterprises and for the
protection of consumers. It sees to it that the National Coal Association
and the technical committees of the Coal Council work according to the
same principles and in a coherent system. It may demand information
from any of the organs that participate in the fuel industry; and the
authorities and committees are obliged to give it any assistance it
demands. The technical committee collect all important data based on
practice and experience, study all matters that enter within their domain
and prepare decisions for the National Coal Council.
_The National Coal Association_ controls the application of the general
policies and decisions decreed by the National Coal Council and regulates
the details of the execution of these decrees. It must approve the
general conditions of the coal deliveries of the Colliers Association.
_It establishes and publishes the selling prices of fuel, taking into
account proposals made by unions and the interests of the consumers._ On
this point it must insure the same treatment for the consumers’ societies
as for the wholesalers, and see to it that each consumer, who takes at
least a full carload of coal at the mine or at the point of delivery,
shall obtain fuel under predetermined conditions for cash payment.
Finally, the National Coal Association has authority in questions of
import and export.
_The Colliers Associations_ supervise the application of the decrees
issued by the National Coal Council and by the National Coal Association,
and, within the framework of these decrees, regulate the production,
utilization and consumption on the part of their members. They,
themselves, sell the fuel which should be put at their disposal by their
members, on the account of the latter. The powers of the Association of
Coal-gas Manufacturers are similar.
The mining companies may raise claims and protests against the
regulations of the Associations of which they are members, appealing
to the National Coal Association and beyond that to the National Coal
Council.
If any measure on the part of the National Coal Council, the National
Coal Association, or of the Colliers Associations violates any vested
right, the individual or the association injured is entitled to suitable
indemnity. This indemnity may be sued for before ordinary tribunals.
The powers of the Reich, the States, and the municipalities are fixed by
the decree of August, 1919, as follows:
The Reich, through the intermediacy of the Minister of Public Economy,
exercises general control over the fuel economy. The Minister may
in particular lower the price of coal fixed by the National Coal
Association. He may also organize a representation of fuel consumers, a
representation with authority to fix the retail price of coal. The cost
incurred by the Reich in the execution of the law on the regulation of
coal, up to a minimum of 200,000 marks per year, must be borne by the
National Coal Association.
The States represented by the Committee on Commerce and Industry in the
Reichsrat are authorized to participate in the deliberations of the
National Coal Council and its committees, but only with consultative
powers. Fiscal authorities are authorized to demand information of the
National Coal Council of the Reich and of its committees as well as of
the National Coal Associations and of the Colliers Associations.
Municipalities of at least 10,000 inhabitants and groups and Unions of
Municipalities, after having heard the claims of dealers and consumers,
and guided by the wholesale price of coal fixed by the National Coal
Association, are themselves empowered to fix the retail price within
their territories.
* * * * *
II.--The regulation above described was far from giving complete
satisfaction. It has been attacked both by the consumers and the
socialists. The latter criticize it as not having gone far enough along
the road of nationalization. The former, on the other hand, complain that
prices are fixed by an Assembly in which coal owners form a very great
majority (The National Coal Association), and that the other interests
are not able to make themselves sufficiently heard. The result of this
system is that the coal producers always come to agreement to the
detriment of the consumers and constantly increase the price of coal.
It must be conceded to the socialists that in the system established
by the law of March 23, 1919, the principles of collective economy are
applied in the most parsimonious manner possible. The only Council in
which there is parity between employers and workers is the National
Coal Council, but the rôle of this Council is reduced to a minimum. The
real directors and administrators of the coal industry are the Colliers
Associations and the National Coal Association. The National Coal
Council has hardly any effective power. As for the Cabinet, the right
of the Minister of Public Economy to oppose his veto to measures taken
by the National Coal Association and in particular to lower by law the
prices fixed by the latter, is considered by the Socialists entirely
insufficient in view of the close co-operation of the coal mine owners
and the dealers in league against him.
In May, 1920, a bill was elaborated by the Cabinet. It provided for the
abolition of the National Coal Association and for the transfer of its
powers to the National Coal Councils; in addition the influence of the
consumers was to be considerably increased within the National Coal
Council. But the Constituent Assembly adjourned before this project could
be examined by them.
Meanwhile a change was effected. It was agreed at the end of May, 1920,
that decisions of the National Coal Association would thereafter not be
operative unless they were made in agreement with a “Great Commission”
of the National Coal Council. If agreement is not arrived at the matter
must be brought before the National Coal Council itself which thereupon
decides, its decision becoming binding upon the Association.
* * * * *
III.--But this reform did not suffice, and the question of a complete
transformation of the regulation of the coal industry was submitted to a
searching examination by the Committee on Socialization. One thing was
unanimously agreed upon--the existing régime could not continue. The
Provisional Economic Council, in its meeting on July 24, the Cabinet of
the Reich in the meeting of the Reichstag on August 5, and the Committee
on Socialization declared that the coal industry must thereafter be
completely subjected to the principles of collective economy; that the
wage-earners and salaried employés in this industry must be included
in the number of responsible directors of the industry; and that the
profits obtained from the exploitation of the mines by private capital
must be considerably decreased.
As for the practical means of realizing these recommendations the
Committee on Socialization was not able to come to an agreement and
submitted two different proposals.
The first, that of Lederer, signed by ten out of twenty-one members,
demanded _immediate expropriation and nationalization of all the mines_.
The owners of the mines would receive an indemnity in the form of bonds
bearing a fixed interest, and the ownership of these mines would be
transferred to an autonomous body, called “The German Coal Corporation.”
This corporation is to be governed by the National Coal Council, which
appoints a “directorate” to administer affairs. The right to appoint
industrial heads, as well as the responsibility for the technical
exploitation, passes to the National Coal Council and to the Directorate.
Bonuses for production are to be given to directors, salaried employés
and workers.
The authors of this proposition insist on the fact that they are not
instituting state socialism for mines with all its attendant fiscal and
bureaucratic dangers; and to emphasize what it is they are aiming at,
they propose that the mines now owned by the Reich and by the States be
taken away from them and transferred to the German Commonwealth of Coal.
Prices will be fixed by the Reich, to whose budgets will be accounted the
profits of the exploitation--and undoubtedly the losses.
The second proposition, that of Rathenau and signed by eleven members
out of twenty-one, does not go as far along the road of nationalization.
The present owners of mines, according to this plan, provisionally
retain their property, but their rights therein are strikingly reduced.
The distribution and the sale of products cease to be guaranteed by the
National Coal Association--which is, in fact, done away with--and are
given over to the National Coal Council and to a Directorate, four out
of five of whose members are elected by the Council; the fifth, the
President, is appointed by the Minister of Public Economy.
The principal innovation consists in this. Whereas formerly the sale of
coal was made on the basis of the individual exploitations, according
to this project every mine transfers to the National Coal Council its
whole output, and the net price is averaged according to the books. The
National Council, therefore, has a monopoly on the wholesale trade and it
fixes the selling prices. In addition to the net cost the Council credits
to the mine (1) the cost of delivery and the interest and amortization
of bonds of the enterprises; (2) the interest and amortization of new
investments; (3) the normal fixed interest on the operating capital
employed in the exploitations; (4) bonuses, fixed according to a
schedule, for the increase of output of each exploitation; or deductions
in case of decrease of output.
The National Council may demand the inauguration of new projects, or
exploitations may propose improvements with the approval of the Council,
provided that either the Council or the entrepreneur furnishes the
necessary funds. Finally, in order to retain the free play of private
initiative, an entrepreneur may, even in spite of the National Council,
make investment but at his own risk and peril.
By these provisions the entrepreneur loses all interest in the increase
of the price of coal, for commerce in it and commercial profits are
denied to him. Also the fixing of high net prices does not serve him
in any way, since his books are supervised by the properly empowered
auditors of the National Council. The only way left him to make big
profits is to improve his exploitation in its economic and social
aspects. The interest or the profit which has hitherto ruled economy
is retained in form, but it can no longer work except in the common
interest. The situation of the manager will depend as to-day on an
objective economic success.
The Cabinet of the Reich announced its intention of soon submitting a
project of law which will adopt in outline the Rathenau proposition.
Already the mine owners are discussing in the press the question of
the “maturity” of the mines and the mode of calculating the cost of
production. But above private interest there is a collective interest and
the question will come up whether the system proposed by the Committee on
Socialization and the Cabinet does not incur the risk of becoming more
troublesome than profitable to the community itself.
CONCLUSION
We have analyzed in the preceding pages the principal provisions of the
German Constitution. There are in it a great number of other provisions,
which had to be omitted from this analysis deliberately, either because
they also occur in all the other Constitutions of the world, such as the
principle stated by Article 102, that judges are independent--provisions
which do not at all serve in characterizing the work of Weimar; or, on
the other hand, because they were dictated exclusively by the necessity
of solving problems created by the particular circumstances in the midst
of which the Reich found itself; such as the provisions of Article 88
and those following, dealing with the post, railroads, and navigable
waterways. These provisions present only a slight interest from the
general constitutional point of view.
In its final draft the Constitution of 1919 bears throughout the stamp of
_compromises_, which had to be effected between the parties represented
in the Assembly, on practically every problem attacked. On nearly every
question which the Constituent Assembly had to solve, bargains were
negotiated between the conflicting interests and theories of the parties
opposed. If one takes these articles of the Constitution one after
another, one can draw up the balance sheet of every party, and note
the points on which it has won its cause and those on which it had to
compromise. The Social Democrats wanted to substitute for the federal
Empire a unitary State; whereas the Centre, whose co-operation was needed
for the Social Democrats to remain in power, defended the federalist
idea. The final result constitutes a marked victory for the Social
Democrats. But on the question of the relation of Church and State, the
Centre obtained a solution that is much nearer their desires than those
of the Social Democrats. Sometimes problems of a non-constitutional
nature were mixed into negotiations on the Constitution. It is known, for
example, that the Social Democrats secured the signature of the Centre to
the Treaty of Versailles only in exchange for Social Democratic consent
to the compromise clauses on education.
Nevertheless the product of these negotiations and these transactions
constitutes a work whose essential characteristics are clearly enough
indicated, and whose bold outline seems to respond to the demands which
all constitutions of this kind make.
From the point of view of legal technique the Constitution of Weimar is,
on the whole, well made. Conscientiously, scientifically, the men who
drew it up studied foreign Constitutions, subjected them to the most
stringent criticism, tested them by the particular exigencies of the
Reich and by the special character of its people. Here they imitated,
there they initiated. Naturally, they were not wholly able to detach
themselves from the judgments, preferences and prejudices that prevail
in their country. Perhaps from the strictly German point of view it is
better that it should be so. The work is strongly marked with their
traits. It is logical and fine-spun, audacious, complicated and sometimes
obscure, painstakingly conceived and solidly constructed.
But whatever technical merit a legal document may present, it is worth
little unless it accommodates itself to the realities for which it is
created, unless, too, it is strong enough to resist the thrusts directed
against it and to master them. Has the Constitution of Weimar resistance
enough to withstand all the inevitable assaults which will be aimed at
it, and can it guarantee to the German people a well-ordered public life
and a stable government?
We know the bases on which it is constructed; politically--unitarism,
parliamentary democracy, the republic; economically--the participation
of the working class in the management of industry, evolution toward the
nationalization of the industries most important in the national life.
The political institutions, under more or less different forms, have been
tested by other peoples, who have not complained of them. Will these
institutions, adapted as they have been, succeed equally for the German
people? The economic institutions are new. What will be their worth?
The question is serious; for in this edifice so logically constructed
all parts are mutually interdependent, and the whole will not endure
unless the parts are solid. The downfall of any of them will drag down
the others. Political institutions will not function unless economic
provisions assure industry and commerce sufficient prosperity. But
economic institutions will be swept away if the government is overwhelmed
and ceases to fulfil its mission.
* * * * *
The Constitution begins with making the Reich a state as unitary as
possible without completely suppressing every trace of the federal
régime. But there are strong centrifugal tendencies. In Prussia there
are several provinces that demand to be formed into distinct states.
Throughout the Reich there are several states that demand the return to
a purely federal régime, if not actually the complete separation from
the German Reich. Will these tendencies be strong enough to bring about
a relaxation of the unitary bond, if not actually the disintegration
of the Reich? We have already pointed out the difference, for example,
separating Catholic, peasant and conservative Bavaria from Protestant,
industrial and socialist Prussia. The States were able to endure without
much difficulty the hegemony of a victorious, powerful, prosperous
Prussia, a hegemony by which they profited. But the same States resent
the thought that a Prussia, which they hold responsible for the defeat
and which they now see much weakened, should want to keep them still
under its yoke and to attempt, under the pretext of unity, to absorb the
Reich. They feel this all the more strongly since the future is dark.
Prussia has been dangerously stricken and it may appear more advantageous
not to tie up too intimately their own interests with those of such a
state.
Once more Prussia holds the fate of Germany in its hands. If, renouncing
the attitude which it has maintained since the Revolution, Prussia
permits a transformation of some of its provinces into states, or
if it accords them an autonomy so great that they will be in effect
assimilated into states, then the federalist or separatist tendencies
will probably lose much of their strength, and the unitarism desired by
the Constitution will be able to maintain itself and even to develop.
But if Prussia, relying on its strength and prestige, diminished though
they be, insists on keeping the other German states, willing or not, in a
Reich dominated by it, then it may be that the federalist or separatist
tendencies will prevail.
The political institutions of Germany are as strongly impregnated with
the _democratic idea_ as possible. The majority is sovereign. But
there are minorities, to the right and to the left, that aspire to
dictatorship. It seems little likely that another attempt like that of
Kapp and Lüttwitz will succeed any better than the last attempt--at least
unless a sudden and complete change in the political orientation of the
people takes place. On the other side, the Independents, for whom even
in Berlin a _coup d’état_ may be perhaps easy enough, know that they
would have against them the great majority of the German people, and
their leaders openly declare that their hour has not yet come. If in
the domain of democratic doctrine a change seems likely to come, it is
probable that it will appear in the form of a right expressly accorded to
economic associations or, in a still more general manner, to producers,
to exercise a special and direct influence on the government. If the
Provisional Economic Council succeeds, it is possible that Germany will
broaden the experiment and attempt a true Economic Parliament.
_Parliamentary government_ has been accepted but it is mistrusted.
There have also been introduced a whole series of measures such as
the referendum, initiative, the nomination and the impeachment of the
President by the people, which are not only logical applications of the
democratic principle, but which are also assurances against any possible
misdeeds of parliamentarism. This is a splendid proof of trust in
democracy. It is for the future to say whether it is justified.
As a matter of fact the referendum and initiative await the law which is
to organize them. What will these institutions produce in a country as
vast as Germany? It is easy to see that they will strikingly increase
the burden of governmental machinery, and one asks oneself whether
they will not incur the risk of completely impeding its functioning.
For the success of these institutions, we must suppose a sufficiently
firm political education and intelligence, a public that knows its
wishes and how to make them prevail, a Parliament and a Cabinet skilled
in recognizing the wishes of the nation and ready to submit to them.
Because of the mistrust of parliamentarism, it has been decided that the
President shall be elected directly by the people. He is endowed with
power by the nation and placed near to the Reichstag in order to control
it. But may he not become too strong, and is there not a danger that
he will abuse his powers to the great injury of liberty and democracy
itself? The present President has been elected by the National Assembly.
Considerable as are the powers which the Constitution gives him, he is
actually one of the least powerful chiefs of state in the world. Will
matters be different when he is elected by the whole people? Will he be
strong enough, or too strong?
This democracy which does not fear the plebiscite, has expressly excluded
the _monarchical form_ for the Reich and for the States. There are,
nevertheless, here and there, particularly in Bavaria, monarchical plots.
Will the Constitution have here, too, enough force to command obedience?
It does not seem for the moment that a monarchical restoration, no
matter of what dynasty its pretender, would have any serious chance of
succeeding. For, until some new state of affairs, the working class,
which would permit a dictatorship exercised by itself, will probably
oppose every attempt at a return to the abolished personal régime.
* * * * *
The Economic Constitution departs much more from old customs than the
political Constitution.
_The idea of the Councils_ is probably the only really new idea that
has appeared in the public law of modern states since the war. German
law has given this idea solemn consecration and has embodied it in the
Constitution. But up to now it has given it only the most restricted
application. The Factory Workers Councils have hardly begun to function,
and the working class has not yet any clear notion of the manner in which
it will use the power given by the law to these new organisms.
The doctrine of the Councils leads naturally to _nationalization_.
For to confide the administration of the whole of an industry to
Economic Councils, in which the workers are represented by the side of
the employers and consumers, is to make a direct application of the
_Mitbestimmungsrecht_. But other considerations are also tending to
give this system a place of increasing importance. “The free play of
economic forces” is no longer being upheld. It is affirmed everywhere
that classic liberalism has had its day, and that in order to improve the
economic situation so extremely unfavourable in all the modern states,
it is not enough that things be allowed freely to take their course.
It is now thought that “let alone” leads to bankruptcy. One no longer
believes in the former principles that held as absolute the right to
private property, the right of work, liberty of commerce, and freedom of
contract. To-day these rights are held to be limited by the general good
and must be exercised by the individual in the interest of all.
As the question of principle seems to be settled the problem becomes
almost exclusively a practical one. A certain number of industries have
become more or less nationalized or even socialized and will become still
more so, their number also probably growing. The discussion now seems
to be only on the modes of application, on the degree of “maturity”
necessary; on whether this or that industry is or is not ripe; on the
mode of calculating the cost of exploitation; on bonuses for output,
etc., etc.
Like the idea of the Councils, this doctrine of nationalization seems to
gain more and more. What will come of it for Germany and for the States
that will follow this road? Are not these new formulas the ephemeral
result of the upheaval due to the war? Or will they, improved and tested
by practice, be definitely installed in the economic organization of all
modern peoples? To the countries that adopt them, will they bring ruin
or economic prosperity and social peace? On these matters, one can only
write interrogation marks. In any event, however, it is important to
follow the German experiment with the greatest possible interest.
GLOSSARY
German Translation
REICH Commonwealth
REICHS- of the Commonwealth, national
REICHSARBEITERRAT National Workers’ Council
REICHSGERICHT National Judicial Court
REICHSKANZLER National Chancellor
REICHSMINISTER National Minister
REICHSMINISTERIUM, pl., -IEN National Department
REICHSPRÄSIDENT President of the Commonwealth,
National President
REICHSRAT National Council
REICHSREGIERUNG National Cabinet
REICHSTAG National Assembly
REICHSVERWALTUNGSGERICHT National Administrative Court
REICHSWIRTSCHAFTSRAT National Economic Council
LAND State (an integral part of the
Commonwealth)
LANDES- of the State, State
LANDESREGIERUNG State Cabinet
LANDTAG State Assembly
WAHLPRÜFUNGSGERICHT Electoral Commission
STAAT country, state (one of the family
of nations); referring to Germany,
it designates the Commonwealth and
separate States as a single
political entity.
STAATSGERICHTSHOF Supreme Judicial Court
STAATLICH political
FREISTAATLICH republican
APPENDIX
THE CONSTITUTION OF THE GERMAN COMMONWEALTH
_PREAMBLE_
The German People, united in all their branches, and inspired by the
determination to renew and strengthen their Commonwealth in liberty and
justice, to preserve peace both at home and abroad, and to foster social
progress, have adopted the following Constitution.
PART ONE
Structure and Functions of the Commonwealth
_SECTION I_
COMMONWEALTH AND STATES
ARTICLE 1
The German Commonwealth is a republic.
Political authority is derived from the People.
ARTICLE 2
The territory of the Commonwealth consists of the territories of
the German States. Other territories may be incorporated into the
Commonwealth by national law, if their inhabitants, exercising the right
of self-determination, so desire.
ARTICLE 3
The national colours are black, red and gold. The merchant flag is black,
white and red, with the national colours in the upper inside corner.
ARTICLE 4
The generally recognized principles of the law of nations are accepted as
an integral part of the law of the German Commonwealth.
ARTICLE 5
Political authority is exercised in national affairs by the National
Government in accordance with the Constitution of the Commonwealth, and
in State affairs by the State Governments in accordance with the State
constitutions.
ARTICLE 6
The Commonwealth has exclusive jurisdiction over:
1. Foreign relations;
2. Colonial affairs;
3. Citizenship, freedom of travel and residence, immigration and
emigration, and extradition;
4. Organization for national defence;
5. Coinage;
6. Customs, including the consolidation of customs and trade districts
and the free interchange of goods;
7. Posts and telegraphs, including telephones.
ARTICLE 7
The Commonwealth has jurisdiction over:
1. Civil law;
2. Criminal law;
3. Judicial procedure, including penal administration, and official
co-operation between the administrative authorities;
4. Passports and the supervision of aliens;
5. Poor relief and vagrancy;
6. The press, associations and public meetings;
7. Problems of population; protection of maternity, infancy, childhood
and adolescence;
8. Public health, veterinary practice, protection of plants from disease
and pests;
9. The rights of labour, social insurance, the protection of wage-earners
and other employés, and employment bureaus;
10. The establishment of national organizations for vocational
representation;
11. Provision for war-veterans and their surviving dependents;
12. The law of expropriation;
13. The socialization of natural resources and business enterprises, as
well as the production, fabrication, distribution, and price-fixing of
economic goods for the use of the community;
14. Trade, weights and measures, the issue of paper money, banking, and
stock and produce exchanges;
15. Commerce in foodstuffs and in other necessaries of daily life, and in
luxuries;
16. Industry and mining;
17. Insurance;
18. Ocean navigation, and deep-sea and coast fisheries;
19. Railroads, internal navigation, communication by power-driven
vehicles on land, on sea, and in the air; the construction of highways,
in so far as pertains to general intercommunication and the national
defence;
20. Theatres and cinematographs.
ARTICLE 8
The Commonwealth also has jurisdiction over taxation and other sources
of income, in so far as they may be claimed in whole or in part for its
purposes. If the Commonwealth claims any source of revenue which formerly
belonged to the States, it must have consideration for the financial
requirements of the States.
ARTICLE 9
Whenever it is necessary to establish uniform rules, the Commonwealth has
jurisdiction over:
1. The promotion of social welfare;
2. The protection of public order and safety.
ARTICLE 10
The Commonwealth may prescribe by law fundamental principles concerning:
1. The rights and duties of religious associations;
2. Education, including higher education and libraries for scientific use;
3. The law of officers of all public bodies;
4. The land law, the distribution of land, settlements and homesteads,
restrictions on landed property, housing, and the distribution of
population;
5. Disposal of the dead.
ARTICLE 11
The Commonwealth may prescribe by law fundamental principles concerning
the validity and mode of collection of State taxes, in order to prevent:
1. Injury to the revenues or to the trade relations of the Commonwealth;
2. Double taxation;
3. The imposition of excessive burdens, or burdens in restraint of trade
on the use of the means and agencies of public communication;
4. Tax discriminations against the products of other States in favour of
domestic products in interstate and local commerce; or
5. Export bounties;
or in order to protect important social interests.
ARTICLE 12
So long and in so far as the Commonwealth does not exercise its
jurisdiction, such jurisdiction remains with the States. This does not
apply in cases where the Commonwealth possesses exclusive jurisdiction.
The National Cabinet may object to State laws relating to the subjects of
Article 7, Number 13, whenever the general welfare of the Commonwealth is
affected thereby.
ARTICLE 13
The laws of the Commonwealth are supreme over the laws of the States
which conflict with them.
If doubt arises, or difference of opinion, whether State legislation is
in harmony with the law of the Commonwealth, the proper authorities of
the Commonwealth or the central authorities of the States, in accordance
with more specific provisions of a national law, may have recourse to the
decision of a supreme judicial court of the Commonwealth.
ARTICLE 14
The laws of the Commonwealth will be executed by the State authorities,
unless otherwise provided by national law.
ARTICLE 15
The National Cabinet supervises the conduct of affairs over which the
Commonwealth has jurisdiction.
In so far as the laws of the Commonwealth are to be carried into effect
by the State authorities, the National Cabinet may issue general
instructions. It has the power to send commissioners to the central
authorities of the States, and, with their consent, to the subordinate
State authorities, in order to supervise the execution of national laws.
It is the duty of the State Cabinets, at the request of the National
Cabinet, to correct any defects in the execution of the national laws.
In case of dispute, either the National Cabinet or that of the State
may have recourse to the decision of the Supreme Judicial Court, unless
another court is prescribed by national law.
ARTICLE 16
The officers directly charged with the administration of national
affairs in any State shall, as a rule, be citizens of that State. The
officers, employés and workmen of the national administration shall, if
they so desire, be employed in the districts where they reside as far
as is possible and not inconsistent with their training and with the
requirements of the service.
ARTICLE 17
Every State must have a republican constitution. The representatives of
the People must be elected by the universal, equal, direct and secret
suffrage of all German citizens, both men and women, according to the
principles of proportional representation. The State Cabinet shall
require the confidence of the representatives of the People.
The principles in accordance with which the representatives of the
People are chosen apply also to municipal elections; but by State law
a residence qualification not exceeding one year of residence in the
municipality may be imposed in such elections.
ARTICLE 18
The division of the Commonwealth into States shall serve the highest
economic and cultural interests of the People after most thorough
consideration of the wishes of the population affected. State boundaries
may be altered and new States may be created within the Commonwealth by
the process of constitutional amendment.
With the consent of the States directly affected, it requires only an
ordinary law of the Commonwealth.
An ordinary law of the Commonwealth will also suffice, if one of the
States affected does not consent, provided that the change of boundaries
or the creation of a new State is desired by the population concerned and
is also required by a preponderant national interest.
The wishes of the population shall be ascertained by a referendum. The
National Cabinet orders a referendum on demand of one-third of the
inhabitants qualified to vote for the National Assembly in the territory
to be cut off.
Three-fifths of the votes cast, but at least a majority of the qualified
voters, are required for the alteration of a boundary or the creation
of a new State. Even if a separation of only a part of a Prussian
administrative district, a Bavarian circle, or, in other States, a
corresponding administrative district, is involved, the wishes of the
population of the whole district must be ascertained. If there is no
physical contact between the territory to be cut off and the rest of the
district, the wishes of the population of the district to be cut off may
be pronounced conclusive by a special law of the Commonwealth.
After the consent of the population has been ascertained the National
Cabinet shall introduce into the National Assembly a bill suitable for
enactment.
If any controversy arises over the division of property in connection
with such a union or separation, it will be determined upon complaint of
either party by the Supreme Judicial Court of the German Commonwealth.
ARTICLE 19
If controversies concerning the Constitution arise within a State in
which there is no court competent to dispose of them, or if controversies
of a public nature arise between different States or between a State and
the Commonwealth, they will be determined upon complaint of one of the
parties by the Supreme Judicial Court of the German Commonwealth, unless
another judicial court of the Commonwealth is competent.
The President of the Commonwealth executes judgments of the Supreme
Judicial Court.
_SECTION II_
THE NATIONAL ASSEMBLY
ARTICLE 20
The National Assembly is composed of the delegates of the German People.
ARTICLE 21
The delegates are representatives of the whole People. They are subject
only to their own consciences and are not bound by any instructions.
ARTICLE 22
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.
ARTICLE 23
The National Assembly is elected for four years. New elections must take
place at the latest on the sixtieth day after its term comes to an end.
The National Assembly convenes at the latest on the thirtieth day after
the election.
ARTICLE 24
The National Assembly meets each year on the first Wednesday in November
at the seat of the National Government. The President of the National
Assembly must call it earlier if the President of the Commonwealth, or at
least one-third of the members of the National Assembly, demand it.
The National Assembly determines the close of its session and the day of
re-assembling.
ARTICLE 25
The President of the Commonwealth may dissolve the National Assembly, but
only once for the same cause.
The new election occurs at the latest on the sixtieth day after such
dissolution.
ARTICLE 26
The National Assembly chooses its President, Vice-President and its
Secretaries. It regulates its own procedure.
ARTICLE 27
During the interval between sessions, or while elections are taking
place, the President and Vice-President of the preceding session conduct
its affairs.
ARTICLE 28
The President administers the regulations and policing of the National
Assembly building. The management of the building is subject to his
direction; he controls its receipts and expenses in accordance with the
provisions of the budget, and represents the Commonwealth in all legal
affairs and in litigation arising during his administration.
ARTICLE 29
The proceedings of the National Assembly are public. At the request of
fifty members the public may be excluded by a two-thirds vote.
ARTICLE 30
True and accurate reports of the proceedings in public sittings of the
National Assembly, of a State Assembly, or of their committees, are
absolutely privileged.
ARTICLE 31
An Electoral Commission to decide disputed elections will be organized
in connection with the National Assembly. It will also decide whether a
delegate has forfeited his seat.
The Electoral Commission consists of members of the National Assembly,
chosen by the latter for the life of the Assembly, and of members of the
National Administrative Court, to be appointed by the President of the
Commonwealth on the nomination of the presidency of this court.
This Electoral Commission pronounces judgment after public hearings
through a quorum of three members of the National Assembly and two
judicial members.
Proceedings apart from the hearings before the Electoral Commission will
be conducted by a National Commissioner appointed by the President of the
Commonwealth. In other respects the procedure will be regulated by the
Electoral Commission.
ARTICLE 32
The National Assembly acts by majority vote unless otherwise provided in
the Constitution. For the conduct of elections by the National Assembly
it may, in its rules of procedure, make exceptions.
The quorum to do business will be regulated by the rules of procedure.
ARTICLE 33
The National Assembly and its committees may require the presence of the
National Chancellor and of any National Minister.
The National Chancellor, the National Ministers, and Commissioners
designated by them, have the right to be present at the sittings of the
National Assembly and of its committees. The States are entitled to send
their plenipotentiaries to these sittings to submit the views of their
Cabinets on matters under consideration.
At their request the representatives of the Cabinets shall be heard
during the deliberations, and the representatives of the National Cabinet
shall be heard even outside the regular order of business.
They are subject to the authority of the presiding officer in matters of
order.
ARTICLE 34
The National Assembly has the right, and, on proposal of one-fifth of
its members, the duty to appoint committees of investigation. These
committees, in public sittings, inquire into the evidence which they,
or the proponents, consider necessary. The public may be excluded by a
two-thirds vote of the committee of investigation. The rules of procedure
regulate the proceedings of the committee and determine the number of its
members.
The judicial and administrative authorities are required to comply with
requests by these committees for information, and the record of the
authorities shall on request be submitted to them.
The provisions of the code of criminal procedure apply as far as is
suitable to the inquiries of these committees and of the authorities
assisting them, but the secrecy of letter and other post, telegraph, and
telephone services will remain inviolate.
ARTICLE 35
The National Assembly appoints a Standing Committee on foreign affairs
which may also act outside of the sittings of the National Assembly
and after its expiration or dissolution until a new National Assembly
convenes. Its sittings are not public, unless the committee by a
two-thirds vote otherwise provides.
The National Assembly also appoints a Standing Committee for the
protection of the rights of the representatives of the People against the
National Cabinet during a recess and after the expiration of the term for
which it was elected.
These committees have the rights of committees of investigation.
ARTICLE 36
No member of the National Assembly or of a State Assembly shall at any
time whatsoever be subject to any judicial or disciplinary prosecution
or be held responsible outside of the House to which he belongs on
account of his vote or his opinions uttered in the performance of his
duty.
ARTICLE 37
No member of the National Assembly or of a State Assembly shall during
the session, without the consent of the House to which he belongs, be
subject to investigation or arrest on account of any punishable offence,
unless he is caught in the act, or apprehended not later than the
following day.
Similar consent is required in the case of any other restraint of
personal liberty which interferes with the performance by a delegate of
his duties.
Any criminal proceeding against a member of the National Assembly or of a
State Assembly, and any arrest or other restraint of his personal liberty
shall, at the demand of the House to which he belongs, be suspended for
the duration of the session.
ARTICLE 38
The members of the National Assembly and the State Assemblies are
entitled to refuse to give evidence concerning persons who have given
them information in their official capacity, or to whom they have given
information in the performance of their official duties, or concerning
the information itself. In regard also to the seizure of papers their
position is the same as that of persons who have by law the right to
refuse to give evidence.
A search or seizure may be proceeded with in the precincts of the
National Assembly or of a State Assembly only with the consent of its
President.
ARTICLE 39
Civil officers and members of the armed forces need no leave to perform
their duties as members of the National Assembly or of a State Assembly.
If they become candidates for election to these bodies, the necessary
leave shall be granted them to prepare for their election.
ARTICLE 40
The members of the National Assembly shall have the right of free
transportation over all German railroads, and also compensation as fixed
by national law.
_SECTION III_
THE NATIONAL PRESIDENT AND THE NATIONAL CABINET
ARTICLE 41
The National President is chosen by the whole German People.
Every German who has completed his thirty-fifth year is eligible for
election.
The details will be regulated by a national law.
ARTICLE 42
The National President, on assuming his office, takes before the National
Assembly the following oath:
_I swear to devote all my energy to the welfare of the German
People, to increase their prosperity, to protect them from
injury, to preserve the Constitution and the laws of the
Commonwealth, to perform my duties conscientiously, and to deal
justly with all._
The addition of a religious affirmation is permitted.
ARTICLE 43
The term of the National President is seven years. He is eligible for
re-election.
The President may be removed before the end of his term by vote of the
People on proposal of the National Assembly. The act of the National
Assembly in such case requires a two-thirds majority vote. Upon such
action the President is suspended from further exercise of his office.
A refusal by the People to remove the President has the effect of a new
election and entails the dissolution of the National Assembly.
The National President shall not be subject to criminal prosecution
without the consent of the National Assembly.
ARTICLE 44
The National President may not at the same time be a member of the
National Assembly.
ARTICLE 45
The National President represents the Commonwealth in matters of
international law. He concludes in the name of the Commonwealth,
alliances and other treaties with foreign powers. He accredits and
receives ambassadors.
War is declared and peace concluded by national law.
Alliances and treaties with foreign States, relating to subjects within
the jurisdiction of the Commonwealth, require the consent of the National
Assembly.
ARTICLE 46
The President appoints and dismisses the civil and military officers of
the Commonwealth if not otherwise provided by law. He may delegate this
right of appointment or dismissal to other authorities.
ARTICLE 47
The National President has supreme command over all the armed forces of
the Commonwealth.
ARTICLE 48
If any State does not perform the duties imposed upon it by the
Constitution or by national laws, the National President may hold it to
the performance thereof by force of arms.
If public safety and order in the German Commonwealth is materially
disturbed or endangered, the National President may take the necessary
measures to restore public safety and order, and, if necessary, to
intervene by force of arms. To this end he may temporarily suspend, in
whole or in part, the fundamental rights established in Articles 114,
115, 117, 118, 123, 124 and 153.
The National President must immediately inform the National Assembly of
all measures adopted by authority of Paragraphs 1 or 2 of this Article.
These measures shall be revoked at the demand of the National Assembly.
If there is danger from delay, the State Cabinet may for its own
territory take provisional measures as specified in Paragraph 2. These
measures shall be revoked at the demand of the National President or of
the National Assembly.
The details will be regulated by a national law.
ARTICLE 49
The National President exercises the right of pardon for the Commonwealth.
National amnesties require a national law.
ARTICLE 50
All orders and directions of the National President, including
those concerning the armed forces, require for their validity the
countersignature of the National Chancellor or of the appropriate
National Minister. By the countersignature responsibility is assumed.
ARTICLE 51
The National President is represented temporarily in case of disability
by the National Chancellor. If such disability seems likely to continue
for any considerable period, he shall be represented as may be determined
by a national law.
The same procedure shall be followed in case of a premature vacancy of
the Presidency until the completion of the new election.
ARTICLE 52
The National Cabinet consists of the National Chancellor and the National
Ministers.
ARTICLE 53
The National Chancellor and, on his proposal, the National Ministers are
appointed and dismissed by the National President.
ARTICLE 54
The National Chancellor and the National Ministers require for the
administration of their offices the confidence of the National Assembly.
Each of them must resign if the National Assembly by formal resolution
withdraws its confidence.
ARTICLE 55
The National Chancellor presides over the National Cabinet and conducts
its affairs in accordance with rules of procedure, which will be framed
by the National Cabinet and approved by the National President.
ARTICLE 56
The National Chancellor determines the general course of policy and
assumes responsibility therefor to the National Assembly. In accordance
with this general policy each National Minister conducts independently
the particular affairs intrusted to him and is held individually
responsible to the National Assembly.
ARTICLE 57
The National Ministers shall submit to the National Cabinet for
consideration and decision all drafts of bills and other matters for
which this procedure is prescribed by the Constitution or by law, as well
as differences of opinion over questions which concern the departments of
several National Ministers.
ARTICLE 58
The National Cabinet will make its decisions by majority vote. In case of
a tie the vote of the presiding officer will be decisive.
ARTICLE 59
The National Assembly is empowered to impeach the National President,
the National Chancellor, and the National Ministers before the Supreme
Judicial Court of the German Commonwealth for any wrongful violation
of the Constitution or laws of the Commonwealth. The proposal to bring
an impeachment must be signed by at least one hundred members of the
National Assembly and requires the approval of the majority prescribed
for amendments to the Constitution. The details will be regulated by the
national law relating to the Supreme Judicial Court.
_SECTION IV_
THE NATIONAL COUNCIL
ARTICLE 60
A National Council will be organized to represent the German States in
national legislation and administration.
ARTICLE 61
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.
[German-Austria after its union with the German Commonwealth will
receive the right of participation in the National Council with the
number of votes corresponding to its population. Until that time the
representatives of German-Austria have a deliberate voice.][71]
The number of votes is determined anew by the National Council after
every general census.
ARTICLE 62
In committees formed by the National Council from its own members no
State will have more than one vote.
ARTICLE 63
The States will be represented in the National Council by members of
their Cabinets. Half of the Prussian votes, however, will be at the
disposal of the Prussian provincial administrations in accordance with a
State law.
The States have the right to send as many representatives to the National
Council as they have votes.
ARTICLE 64
The National Cabinet must summon the National Council on demand by
one-third of its members.
ARTICLE 65
The chairmanship of the National Council and of its committees is filled
by a member of the National Cabinet. The members of the National Cabinet
have the right and on request [of the National Council] the duty to take
part in the proceedings of the National Council and its committees. They
must at their request be heard at any time during its deliberations.
ARTICLE 66
The National Cabinet, as well as every member of the National Council, is
entitled to make proposals in the National Council.
The National Council regulates its order of business through rules of
procedure.
The plenary sittings of the National Council are public. In accordance
with the rules of procedure the public may be excluded during the
discussion of particular subjects.
Decisions are taken by a majority of those present.
ARTICLE 67
The National Council shall be kept informed by the National Departments
of the conduct of national business. At deliberations on important
subjects the appropriate committees of the National Council shall be
summoned by the National Departments.
_SECTION V_
NATIONAL LEGISLATION
ARTICLE 68
Bills are introduced by the National Cabinet or by members of the
National Assembly.
National laws are enacted by the National Assembly.
ARTICLE 69
The introduction of bills by the National Cabinet requires the
concurrence of the National Council. If an agreement between the National
Cabinet and the National Council is not reached, the National Cabinet
may nevertheless introduce the bill, but must state the dissent of the
National Council.
If the National Council resolves upon a bill to which the National
Cabinet does not assent, the latter must introduce the bill in the
National Assembly together with a statement of its attitude.
ARTICLE 70
The National President shall compile the laws which have been
constitutionally enacted and within one month publish them in the
National Bulletin of Laws.
ARTICLE 71
National laws go into effect, unless otherwise specified, on the
fourteenth day following the date of their publication in the National
Bulletin of Laws at the national capital.
ARTICLE 72
The promulgation of a national law may be deferred for two months, if
one-third of the National Assembly so demands. Laws which the National
Assembly and the National Council declare to be urgent may be promulgated
by the National President regardless of this demand.
ARTICLE 73
A law enacted by the National Assembly shall be referred to the People
before its promulgation, if the National President so orders within a
month.
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.
A popular vote shall further be resorted to on a measure initiated by
the People if one-tenth of the qualified voters so petition. A fully
elaborated bill must accompany such petition. The National Cabinet
shall lay the bill together with a statement of its attitude before the
National Assembly. The popular vote does not take place if the desired
bill is enacted without amendment by the National Assembly.
A popular vote may be taken on the budget, tax laws, and laws relating to
the classification and payment of public officers only by authority of
the National President.
The procedure in connection with the popular referendum and initiative
will be regulated by national law.
ARTICLE 74
The National Council has the right to object to laws passed by the
National Assembly.
The objection must be filed with the National Cabinet within two weeks
after the final vote in the National Assembly and must be supported by
reasons within two more weeks at the latest.
In case of objection, the law is returned to the National Assembly for
reconsideration. If an agreement between the National Assembly and the
National Council is not reached, the National President may within three
months refer the subject of the dispute to the People. If the President
makes no use of this right, the law does not go into effect. If the
National Assembly disapproves by a two-thirds majority the objection of
the National Council, the President shall promulgate the law in the form
enacted by the National Assembly within three months or refer it to the
People.
ARTICLE 75
An act of the National Assembly may be annulled by a popular vote, only
if a majority of those qualified take part in the vote.
ARTICLE 76
The Constitution may be amended by process of legislation. But acts of
the National Assembly relating to the amendment of the Constitution are
effective only if two-thirds of the legal membership are present, and at
least two-thirds of those present give their assent. Acts of the National
Council relating to the amendment of the Constitution also require
a two-thirds majority of all the votes cast. If an amendment to the
Constitution is to be adopted by the People by popular initiative, the
assent of a majority of the qualified voters is required.
If the National Assembly adopts an amendment to the Constitution against
the objection of the National Council, the President may not promulgate
this law, if the National Council within two weeks demands a popular vote.
ARTICLE 77
The National Cabinet issues the general administrative regulations
necessary for the execution of the national laws so far as the laws
do not otherwise provide. It must secure the assent of the National
Council if the execution of the national laws is assigned to the State
authorities.
_SECTION VI_
THE NATIONAL ADMINISTRATION
ARTICLE 78
The conduct of relations with foreign countries is exclusively a function
of the Commonwealth.
The States, in matters subject to their jurisdiction, may conclude
treaties with foreign countries; such treaties require the assent of the
Commonwealth.
Agreements with foreign countries regarding changes of national
boundaries will be concluded by the Commonwealth with the consent of the
State concerned. Changes of boundaries may be made only by authority of a
national law, except in cases where a mere adjustment of the boundaries
of uninhabited districts is in question.
To assure the representation of interests arising from the special
economic relations of individual States to foreign countries or from
their proximity to foreign countries, the Commonwealth determines
the requisite arrangements and measures in agreement with the States
concerned.
ARTICLE 79
The national defence is a function of the Commonwealth. The organization
of the German People for defence will be uniformly regulated by a
national law with due consideration for the peculiarities of the people
of the separate States.
ARTICLE 80
Colonial policy is exclusively a function of the Commonwealth.
ARTICLE 81
All German merchant ships constitute a unified merchant marine.
ARTICLE 82
Germany forms a customs and trade area surrounded by a common customs
boundary.
The customs boundary is identical with the international boundary. At
the seacoast the shore of the mainland and of the islands belonging to
the national territory constitutes the customs boundary. Deviations may
be made for the course of the customs boundary at the ocean and at other
bodies of water.
Foreign territories or parts of territories may be incorporated in the
customs area by international treaties or agreements.
Portions of territory may be excluded from the customs area in accordance
with special requirements. In the case of free ports this exclusion may
be discontinued only by an amendment to the Constitution.
Districts excluded from the customs area may be included within a foreign
customs area by international treaties or agreements.
All products of nature or industry, as well as works of art, which are
subjects of free commerce within the Commonwealth, may be transported
in any direction across State and municipal boundaries. Exceptions are
permissible by authority of national law.
ARTICLE 83
Customs duties and taxes on articles of consumption are administered by
the national authorities.
In connection with national tax administration by the national
authorities, arrangements shall be provided which will enable the States
to protect their special agricultural, commercial, trade and industrial
interests.
ARTICLE 84
The Commonwealth has authority to regulate by law:
1. The organization of the State tax administrations so far as is
required for the uniform and impartial execution of the national tax laws;
2. The organization and functions of the authorities charged with the
supervision of the execution of the national tax laws;
3. The accounting with the States;
4. The reimbursement of the costs of administration in connection with
the execution of the national tax laws.
ARTICLE 85
All revenues and expenditures of the Commonwealth must be estimated for
each fiscal year and entered in the budget.
The budget is adopted by law before the beginning of the fiscal year.
Appropriations are ordinarily granted for one year; in special cases
they may be granted for a longer period. Otherwise, provisions extending
beyond the fiscal year or not relating to the national revenues and
expenditures or their administration, are inadmissible in the national
budget law.
The National Assembly may not increase appropriations in the budget bill
or insert new items without the consent of the National Council.
The consent of the National Council may be dispensed with in accordance
with the provisions of Article 74.
ARTICLE 86
In the following fiscal year the National Minister of Finance will
submit to the National Council and to the National Assembly an account
concerning the disposition of all national revenue so as to discharge the
responsibility of the National Cabinet. The auditing of this account will
be regulated by national law.
ARTICLE 87
Funds may be procured by borrowing only in case of extraordinary need
and in general for expenditures for productive purposes only. Such
procurement of funds as well as the assumption by the Commonwealth of any
financial obligation is permissible only by authority of a national law.
ARTICLE 88
The postal and telegraph services, together with the telephone service,
are exclusively functions of the Commonwealth.
The postage stamps are uniform for the whole Commonwealth.
The National Cabinet, with the consent of the National Council, issues
the regulations prescribing the conditions and charges for the use of the
means of communication. With the consent of the National Council it may
delegate this authority to the Postmaster General.
The National Cabinet, with the consent of the National Council,
establishes an advisory council to co-operate in deliberations concerning
the postal, telegraph and telephone services and rates.
The Commonwealth alone concludes treaties relating to communication with
foreign countries.
ARTICLE 89
It is the duty of the Commonwealth to acquire ownership of the railroads
which serve as means of general public communication, and to operate them
as a single system of transportation.
The rights of the States to acquire private railroads shall be
transferred to the Commonwealth on its demand.
ARTICLE 90
With the taking over of the railroads the Commonwealth also acquires the
right of expropriation and the sovereign powers of the States pertaining
to railroad affairs. The Supreme Judicial Court decides controversies
relating to the extent of these rights.
ARTICLE 91
The National Cabinet, with the consent of the National Council, issues
the regulations governing the construction, operation and traffic of
railroads. With the consent of the National Council it may delegate this
authority to the appropriate national minister.
ARTICLE 92
The national railroads, irrespective of the incorporation of their budget
and accounts in the general budget and accounts of the Commonwealth,
shall be administered as an independent economic enterprise which shall
defray its own expenses, including interest and the amortization of the
railroad debt, and accumulate a railroad reserve fund. The amount of the
amortization and of the reserve fund, as well as the purpose to which the
reserve fund may be applied, shall be regulated by special law.
ARTICLE 93
The National Cabinet with the consent of the National Council establishes
advisory councils for the national railroads to co-operate in
deliberations concerning railroad service and rates.
ARTICLE 94
If the Commonwealth takes over the operation of railroads which serve
as means of general public communication in any district, additional
railroads to serve as means of general public communication within this
district may only be built by the Commonwealth or with its consent. If
new construction or the alteration of existing national railroad systems
encroaches upon the sphere of authority of the State police, the national
railroad administration, before its decision, shall grant a hearing to
the State authorities.
Where the Commonwealth has not yet taken over the operation of the
railroads, it may lay out on its own account by virtue of national
law railroads deemed necessary to serve as means of general public
communication or for the national defence, even against the opposition
of the States, whose territory they will traverse, without, however,
impairing the sovereign powers of the States, or it may turn over the
construction to another to execute, together with a grant of the right of
expropriation if necessary.
Each railroad administration must consent to connection with other roads
at the expense of the latter.
ARTICLE 95
Railroads serving as means of general public communication which are
not operated by the Commonwealth are subject to supervision by the
Commonwealth.
The railroads subject to national supervision shall be laid out and
equipped in accordance with uniform standards established by the
Commonwealth. They shall be maintained in safe operating condition and
developed according to the requirements of traffic. Facilities and
equipment for passenger and freight traffic shall be maintained and
developed in keeping with the demand.
The supervision of rates is designed to secure non-discriminatory and
moderate railroad charges.
ARTICLE 96
All railroads, including those not serving as means of general public
communication, must comply with the requirements of the Commonwealth so
far as concerns the use of the roads for purposes of national defence.
ARTICLE 97
It is the duty of the Commonwealth to acquire ownership of and to operate
all waterways serving as means of general public communication.
After they have been taken over, waterways serving as means of general
public communication may be constructed or extended only by the
Commonwealth or with its consent.
In the administration, development, or construction of such waterways
the requirements of agriculture and water-supply shall be protected in
agreement with the States. Their improvement shall also be considered.
Each waterways administration shall consent to connection with other
inland waterways at the expense of the latter. The same obligation
exists for the construction of a connection between inland waterways and
railroads.
In taking over the waterways the Commonwealth acquires the right of
expropriation, control of rates, and the police power over waterways and
navigation.
The duties of the river improvement associations in relation to the
development of natural waterways in the Rhine, Weser, and Elbe basins
shall be assumed by the Commonwealth.
ARTICLE 98
Advisory national waterways councils will be formed in accordance with
detailed regulations issued by the National Cabinet with the consent of
the National Council to co-operate in the management of the waterways.
ARTICLE 99
Charges may be imposed on natural waterways only for such works,
facilities, and other accommodations as are designed for the relief
of traffic. In the case of state and municipal public works they may
not exceed the necessary costs of construction and maintenance. The
construction and maintenance costs of works designed not exclusively
for the relief of traffic, but also for serving other purposes, may be
defrayed only to a proportionate extent by navigation tolls. Interest and
amortization charges on the invested capital are included in the costs of
construction.
The provisions of the preceding paragraph apply to the charges imposed
for artificial waterways and for accommodations in connection therewith
and in harbours.
The total costs of a waterway, a river basin, or a system of waterways
may be taken into consideration in determining navigation tolls in the
field of inland water transportation.
These provisions apply also to the floating of timber on navigable
waterways.
Only the Commonwealth imposes on foreign ships and their cargoes other or
higher charges than on German ships and their cargoes.
For the procurement of means for the maintenance and development of
the German system of waterways the Commonwealth may by law call on the
shipping interests for contributions also in other ways [than by tolls].
ARTICLE 100
To cover the cost of maintenance and construction of inland navigation
routes any person or body of persons who in other ways than through
navigation derives profit from the construction of dams may also be
called upon by national law for contributions, if several States are
involved or the Commonwealth bears the costs of construction.
ARTICLE 101
It is the duty of the Commonwealth to acquire ownership of and to operate
all aids to navigation, especially lighthouses, lightships, buoys,
floats and beacons. After they are taken over, aids to navigation may be
installed or extended only by the Commonwealth or with its consent.
_SECTION VII_
THE ADMINISTRATION OF JUSTICE
ARTICLE 102
Judges are independent and subject only to the law.
ARTICLE 103
Ordinary jurisdiction will be exercised by the National Judicial Court
and the courts of the States.
ARTICLE 104
Judges of ordinary jurisdiction are appointed for life. They may against
their wishes be permanently or temporarily removed from office, or
transferred to another position, or retired, only by virtue of a judicial
decision and for the reasons and in the forms provided by law. The law
may fix an age limit on reaching which judges may be retired.
Temporary suspension from office in accordance with law is not affected
by this Article.
If there is a reorganization of the courts or of the judicial districts,
the State department of justice may order involuntary transfers to
another court or removal from office, but only with allowance of full
salary.
These provisions do not apply to judges of commercial tribunals, lay
associates, and jurymen.
ARTICLE 105
Extraordinary courts are illegal. No one may be removed from the
jurisdiction of his lawful judge. Provisions of law relating to military
courts and courts-martial are not affected hereby. Military courts of
honour are abolished.
ARTICLE 106
Military jurisdiction is abolished except in time of war and on board
war-vessels. Details will be regulated by national law.
ARTICLE 107
There shall be administrative courts both in the Commonwealth and in the
States, in accordance with the laws, to protect the individual against
orders and decrees of administrative authorities.
ARTICLE 108
In accordance with a national law a Supreme Judicial Court will be
established for the German Commonwealth.
PART TWO
Fundamental Rights and Duties of Germans
_SECTION I_
THE INDIVIDUAL
ARTICLE 109
All Germans are equal before the law.
Men and women have fundamentally the same civil rights and duties.
Privileges or discriminations due to birth or rank and recognized by law
are abolished. Titles of nobility will be regarded merely as part of the
name and may not be granted hereafter.
Titles may be conferred only when they designate an office or profession;
academic degrees are not affected by this provision.
Orders and honorary insignia may not be conferred by the state.
No German may accept a title or order from a foreign Government.
ARTICLE 110
Citizenship in the Commonwealth and in the States will be acquired and
lost in accordance with the provisions of a national law. Every citizen
of a State is at the same time a citizen of the Commonwealth.
Every German has the same rights and duties in each State of the
Commonwealth as the citizens of that State.
ARTICLE 111
All Germans enjoy the right to travel and reside freely throughout the
whole Commonwealth. Every one has the right of sojourn and settlement
in any place within the Commonwealth, the right to acquire land and to
pursue any gainful occupation. No limitations may be imposed except by
authority of a national law.
ARTICLE 112
Every German has the right to emigrate to foreign countries. Emigration
may be limited only by national law.
All German citizens, both within and without the territory of the
Commonwealth, have a right to its protection with respect to foreign
countries.
No German may be surrendered to a foreign Government for prosecution or
punishment.
ARTICLE 113
Those elements of the People which speak a foreign language may not be
interfered with by legislative or administrative action in their free
and characteristic development, especially in the use of their mother
tongue in the schools or in matters of internal administration and the
administration of justice.
ARTICLE 114
Personal liberty is inviolable. An interference with or abridgement of
personal liberty through official action is permissible only by authority
of law.
Persons, who are deprived of their liberty, shall be informed at latest
on the following day by what authority and on what grounds they have been
deprived of liberty, and they shall without delay receive an opportunity
to present objections against such loss of liberty.
ARTICLE 115
The house of every German is his sanctuary and is inviolable. Exceptions
are permissible only by authority of law.
ARTICLE 116
An act can be punishable only if the penalty was fixed by law before the
act was committed.
ARTICLE 117
The secrecy of postal, telegraphic, and telephonic communications is
inviolable. Exceptions may be permitted only by national law.
ARTICLE 118
Every German has a right within the limits of the general laws to express
his opinion freely by word, in writing, in print, by picture, or in any
other way. No relationship arising out of his employment may hinder him
in the exercise of this right, and no one may discriminate against him if
he makes use of this right.
There is no censorship, although exceptional provisions may be made by
law in the case of moving pictures. Legal measures are also permissible
for combating obscene and indecent literature as well as for the
protection of youth at public plays and spectacles.
_SECTION II_
COMMUNITY LIFE
ARTICLE 119
Marriage, as the foundation of family life and of the maintenance
and increase of the nation, is under the special protection of the
Constitution. It is based on the equal rights of both sexes.
The maintenance of the purity, the health, and the social advancement of
the family is the task of the state and of the municipalities. Families
with numerous children have a claim to equalizing assistance.
Motherhood has a claim to the protection and care of the State.
ARTICLE 120
The physical, mental, and moral education of their offspring is the
highest duty and the natural right of parents, whose activities are
supervised by the political community.
ARTICLE 121
Illegitimate children shall be provided by law with the same
opportunities for their physical, mental, and moral development as
legitimate children.
ARTICLE 122
Youth shall be protected against exploitation as well as against neglect
of their moral, mental, or physical welfare. The necessary arrangements
shall be made by state and municipality.
Compulsory protective measures may be ordered only by authority of the
law.
ARTICLE 123
All Germans have the right of meeting peaceably and unarmed without
notice or special permission.
Previous notice may be required by national law for meetings in the open,
and such meetings may be forbidden in case of immediate danger to the
public safety.
ARTICLE 124
All Germans have the right to form associations or societies for purposes
not contrary to the criminal law. This right can not be limited by
preventive measures. The same provisions apply to religious associations
and societies.
Every association has the right of incorporation in accordance with the
civil law. No association may be denied this right on the ground that it
pursues a political, social-political, or religious object.
ARTICLE 125
The liberty and secrecy of the suffrage are guaranteed. Details will be
regulated by the election laws.
ARTICLE 126
Every German has the right to petition or to complain in writing to the
appropriate authorities or to the representatives of the People. This
right may be exercised by individuals as well as by several persons
together.
ARTICLE 127
Municipalities and unions of municipalities have the right of
self-government within the limits of the laws.
ARTICLE 128
All citizens without distinction are eligible for public office in
accordance with the laws and according to their ability and services.
All discriminations against women in the civil service are abolished.
The principles of the official relation shall be regulated by national
law.
ARTICLE 129
Civil officers are appointed for life, in so far as is not otherwise
provided by law. Pensions and provisions for surviving dependents will
be regulated by law. The duly acquired rights of the civil officers are
inviolable. Claims of civil officers based upon property rights may be
established by process of law.
Civil officers may be suspended, temporarily or permanently retired, or
transferred to other positions at a smaller salary only under the legally
prescribed conditions and forms.
A process of appeal against disciplinary sentence and opportunity for
reconsideration shall be established. Reports of an unfavorable character
concerning a civil officer shall not be entered in his official record,
until he has had the opportunity to express himself. Civil officers shall
also be permitted to inspect their official records.
The inviolability of the duly acquired rights and the benefit of legal
processes for the establishment of claims based on property rights are
also assured especially to regular soldiers. In other respects their
position is regulated by national law.
ARTICLE 130
The civil officers are servants of the whole community, not of a part of
it.
To all civil officers freedom of political opinion and of association are
assured.
The civil officers receive special representation in their official
capacity in accordance with more precise provisions of national law.
ARTICLE 131
If a civil officer in the exercise of the authority conferred upon him
by law fails to perform his official duty toward any third person, the
responsibility is assumed by the state or public corporation in whose
service the officer is. The right of redress [by the state or public
corporation] against the officer is reserved. The ordinary process of law
may not be excluded.
Detailed regulations will be made by the appropriate law-making authority.
ARTICLE 132
Every German, in accordance with the laws, has the duty of accepting
honorary offices.
ARTICLE 133
All citizens are obliged, in accordance with the laws, to render personal
services to the state and the municipality.
The duty of military service will be defined in accordance with the
provisions of the national defence law. This will determine also how far
particular fundamental rights shall be restricted in their application to
the members of the armed forces in order that the latter may fulfil their
duties and discipline may be maintained.
ARTICLE 134
All citizens, without distinction, contribute according to their means to
the support of all public burdens, as may be provided by law.
_SECTION III_
RELIGION AND RELIGIOUS SOCIETIES
ARTICLE 135
All inhabitants of the Commonwealth enjoy complete liberty of belief and
conscience. The free exercise of religion is assured by the Constitution
and is under public protection. This Article leaves the general laws
undisturbed.
ARTICLE 136
Civil and political rights and duties are neither conditioned upon nor
limited by the exercise of religious liberty.
The enjoyment of civil and political rights as well as eligibility to
public office is independent of religious belief.
No one is under any obligation to reveal his religious convictions.
The authorities have a right to inquire about religious affiliation only
so far as rights and duties are dependent thereon or in pursuance of a
statistical enumeration prescribed by law.
No one may be forced to attend any church ceremony or festivity, to take
part in any religious exercise, or to make use of any religious oath.
ARTICLE 137
There is no state church.
Freedom of association in religious societies is guaranteed. The
combination of religious societies within the Commonwealth is not subject
to any limitations.
Every religious society regulates and administers its affairs
independently within the limits of the general law. It appoints its
officers without interference by the state or the civil municipality.
Religious societies may be incorporated in accordance with the general
provisions of the civil law.
Existing religious societies remain, to the same extent as heretofore,
public bodies corporate. The same rights shall be accorded to other
religious societies if by their constitution and the number of their
members they offer a guaranty of permanence. If a number of such public
religious societies unite, this union is also a public body corporate.
The religious societies, which are recognized by law as bodies corporate,
are entitled on the basis of the civil tax rolls to raise taxes according
to the provisions of the laws of the respective States.
The associations, which have as their aim the cultivation of a system of
ethics, have the same privileges as the religious societies.
The issuance of further regulations necessary for carrying out these
provisions comes under the jurisdiction of the States.
ARTICLE 138
State contributions to religious societies authorized by law, contract,
or any special grant, will be commuted by State legislation. The general
principles of such legislation will be defined by the Commonwealth.
The property of religious societies and unions and other rights to their
cultural, educational, and charitable institutions, foundations, and
other possessions are guaranteed.
ARTICLE 139
Sundays and legal holidays remain under the protection of law as days of
rest and spiritual edification.
ARTICLE 140
The members of the armed forces shall be granted the necessary leave for
the performance of their religious duties.
ARTICLE 141
In so far as there is need for religious services and spiritual care in
hospitals, prisons or other public institutions, the religious societies
shall be permitted to perform the religious offices, but all compulsion
shall be avoided.
_SECTION IV_
EDUCATION AND SCHOOLS
ARTICLE 142
Art, science and the teaching thereof are free. The state guarantees
their protection and takes part in fostering them.
ARTICLE 143
The education of the young shall be provided for through public
institutions. In their establishment the Commonwealth, States and
municipalities co-operate.
The training of teachers shall be regulated in a uniform manner for the
Commonwealth according to the generally recognized principles of higher
education.
The teachers in the public schools have the rights and duties of state
officers.
ARTICLE 144
The entire school system is under the supervision of the state; it may
grant a share therein to the municipalities. The supervision of schools
will be exercised by technically trained officers who must devote their
time principally to this duty.
ARTICLE 145
Attendance at school is obligatory. This obligation is discharged by
attendance at the elementary schools for at least eight school years
and at the continuation schools until the completion of the eighteenth
year. Instruction and school supplies in the elementary and continuation
schools are free.
ARTICLE 146
The public school system shall be systematically organized. Upon a
foundation of common elementary schools the system of secondary and
higher education is erected. The development of secondary and higher
education shall be determined in accordance with the needs of all kinds
of occupations, and the acceptance of a child in a particular school
shall depend upon his qualifications and inclinations, not upon the
economic and social position or the religion of his parents.
Nevertheless, within the municipalities, upon the petition of those
entitled to instruction common schools shall be established of their
faith or ethical system, in so far as this does not interfere with a
system of school administration within the meaning of Paragraph 1. The
wishes of those entitled to instruction shall be considered as much as
possible. Details will be regulated by State laws in accordance with
principles to be prescribed by a national law.
To facilitate the attendance of those in poor circumstances at the
secondary and higher schools, public assistance shall be provided by the
Commonwealth, States, and municipalities, particularly, assistance to the
parents of children regarded as qualified for training in the secondary
and higher schools, until the completion of the training.
ARTICLE 147
Private schools, as a substitute for the public schools, require the
approval of the state and are subject to the laws of the States.
Approval shall be granted if the private schools do not fall below the
public schools in their educational aims and equipment as well as in
the scientific training of their teachers, and if no separation of the
pupils according to the wealth of their parents is fostered. Approval
shall be withheld if the economic and legal status of the teachers is not
sufficiently assured.
Private elementary schools shall be only permissible, if for a minority
of those entitled to instruction whose wishes are to be considered
according to Article 146, Paragraph 2, there is no public elementary
school of their faith or ethical system in the municipality, or if the
educational administration recognizes a special pedagogical interest.
Private preparatory schools shall be abolished.
The existing law remains in effect with respect to private schools which
do not serve as substitutes for public schools.
ARTICLE 148
All schools shall inculcate moral education, civic sentiment, and
personal and vocational efficiency in the spirit of German national
culture and of international conciliation.
In the instruction in public schools care shall be taken not to hurt the
feelings of those of differing opinion.
Civics and manual training are included in the school curriculum. Every
pupil receives a copy of the Constitution on completing the obligatory
course of study.
The common school system, including university extension work, shall be
cherished by the Commonwealth, States and municipalities.
ARTICLE 149
Religious instruction is included in the regular school curriculum,
except in the nonsectarian (secular) schools. The imparting of religious
instruction is regulated by the school laws. Religious instruction is
imparted in accordance with the principle of the religious society
concerned, without prejudice to the right of supervision of the state.
The imparting of religious instruction and the use of ecclesiastical
ceremonies is optional with the teachers, and the participation of
the pupils in religious studies and in ecclesiastical ceremonies and
festivities is left to the decision of those who have the right to
control the religious education of the child.
The theological faculties in the universities will be continued.
ARTICLE 150
The artistic, historical and natural monuments and scenery enjoy the
protection and care of the state.
The prevention of the removal of German art treasures from the country is
a function of the Commonwealth.
_SECTION V_
ECONOMIC LIFE
ARTICLE 151
The regulation of economic life must conform to the principles of
justice, with the object of assuring humane conditions of life for all.
Within these limits the economic liberty of the individual shall be
protected.
Legal compulsion is permissible only for safeguarding threatened rights
or in the service of predominant requirements of the common welfare.
The freedom of trade and industry is guaranteed in accordance with the
national laws.
ARTICLE 152
Freedom of contract prevails in economic relations in accordance with the
laws.
Usury is forbidden. Legal practices which conflict with good morals are
void.
ARTICLE 153
The right of private property is guaranteed by the Constitution. Its
nature and limits are defined by law.
Expropriation may be proceeded with only for the benefit of the community
and by due process of law. There shall be just compensation in so far
as is not otherwise provided by national law. If there is a dispute
over the amount of the compensation, there shall be a right of appeal
to the ordinary courts, in so far as not otherwise provided by national
law. The property of the States, municipalities, and associations of
public utility may be taken by the Commonwealth only upon payment of
compensation.
Property-rights imply property-duties. Exercise thereof shall at the same
time serve the general welfare.
ARTICLE 154
The right of inheritance is guaranteed in accordance with the civil law.
The share of the state in inheritances is determined in accordance with
the laws.
ARTICLE 155
The distribution and use of the land is supervised by the state in such
a way as to prevent its misuse and to promote the object of insuring to
every German a healthful dwelling and to all German families, especially
those with numerous children, homesteads corresponding to their needs.
War-veterans shall receive special consideration in the enactment of a
homestead law.
Landed property, the acquisition of which is necessary to satisfy the
demand for housing, to promote settlement and reclamation, or to improve
agriculture, may be expropriated. Entailments shall be dissolved.
The cultivation and utilization of the soil is a duty of the landowner
toward the community. An increase of the value of land arising without
the application of labour or capital to the property shall inure to the
benefit of the community as a whole.
All mineral resources and all economically useful forces of nature
are subject to the control of the state. Private royalties shall be
transferred to the state, as may be provided by law.
ARTICLE 156
The Commonwealth may by law, without impairment of the right to
compensation, and with a proper application of the regulations relating
to expropriation, transfer to public ownership private business
enterprises adapted for socialization. The Commonwealth itself, the
States, or the municipalities may take part in the management of business
enterprises and associations, or secure a dominating influence therein in
any other way.
Furthermore, in case of urgent necessity the Commonwealth, if it is in
the interest of collectivism, may combine by law business enterprises
and associations on the basis of administrative autonomy, in order to
insure the co-operation of all producing elements of the people, to give
to employers and employés a share in the management, and to regulate
the production, preparation, distribution, utilization and pecuniary
valuation, as well as the import and export, of economic goods upon
collectivistic principles.
The co-operative societies of producers and of consumers and associations
thereof shall be incorporated, at their request and after consideration
of their form of organization and peculiarities, into the system of
collectivism.
ARTICLE 157
Labour is under the special protection of the Commonwealth.
The Commonwealth will adopt a uniform labour law.
ARTICLE 158
Intellectual labour, the rights of the author, the inventor and the
artist enjoy the protection and care of the Commonwealth.
The products of German scholarship, art, and technical science shall also
be recognized and protected abroad through international agreement.
ARTICLE 159
The right of combination for the protection and promotion of labour and
economic conditions is guaranteed to everybody and to all professions.
All agreements and measures which attempt to limit or restrain this
liberty are unlawful.
ARTICLE 160
Any one employed on a salary or as a wage-earner has the right to the
leave necessary for the exercise of his civil rights and, so far as the
business is not substantially injured thereby, for performing the duties
of public honorary offices conferred upon him. To what extent his right
to compensation shall continue will be determined by law.
ARTICLE 161
For the purpose of conserving health and the ability to work, of
protecting motherhood, and of guarding against the economic effects of
age, invalidity and the vicissitudes of life, the Commonwealth will adopt
a comprehensive system of insurance, in the management of which the
insured shall predominate.
ARTICLE 162
The Commonwealth commits itself to an international regulation of the
legal status of the workers, which shall strive for a standard minimum of
social rights for the whole working class of the world.
ARTICLE 163
Every German has, without prejudice to his personal liberty, the moral
duty so to use his intellectual and physical powers as is demanded by the
welfare of the community.
Every German shall have the opportunity to earn his living by economic
labour. So long as suitable employment can not be procured for him, his
maintenance will be provided for. Details will be regulated by special
national laws.
ARTICLE 164
The independent agricultural, industrial, and commercial middle class
shall be fostered by legislation and administration, and shall be
protected against oppression and exploitation.
ARTICLE 165
Wage-earners and salaried employés are qualified to co-operate on
equal terms with the employers in the regulation of wages and working
conditions, as well as in the entire economic development of the
productive forces. The organizations on both sides and the agreements
between them will be recognized.
The wage-earners and salaried employés are entitled to be represented
in local workers’ councils, organized for each establishment in the
locality, as well as in district workers’ councils, organized for each
economic area, and in a National Workers’ Council, for the purpose of
looking after their social and economic interests.
The district workers’ councils and the National Workers’ Council meet
together with the representatives of the employers and with other
interested classes of people in district economic councils and in a
National Economic Council for the purpose of performing joint economic
tasks and co-operating in the execution of the laws of socialization.
The district economic councils and the National Economic Council shall
be so constituted that all substantial vocational groups are represented
therein according to their economic and social importance.
Drafts of laws of fundamental importance relating to social and economic
policy before introduction [into the National Assembly] shall be
submitted by the National Cabinet to the National Economic Council for
consideration. The National Economic Council has the right itself to
propose such measures for enactment into law. If the National Cabinet
does not approve them, it shall, nevertheless, introduce them into the
National Assembly together with a statement of its own position. The
National Economic Council may have its bill presented by one of its own
members before the National Assembly.
Supervisory and administrative functions may be delegated to the workers’
councils and to the economic councils within their respective areas.
The regulation of the organization and duties of the workers’ councils
and of the economic councils, as well as their relation to other social
bodies endowed with administrative autonomy, is exclusively a function of
the Commonwealth.
_SECTION VI_
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 166
Until the establishment of the National Administrative Court, the
National Judicial Court takes its place in the organization of the
Electoral Commission.
ARTICLE 167
The provisions of Article 18, Paragraphs 3 to 6, become effective two
years after the promulgation of the national Constitution.
ARTICLE 168
Until the adoption of the State law as provided in Article 63, but at the
most for only one year, all the Prussian votes in the National Council
may be cast by members of the State Cabinet.
ARTICLE 169
The National Cabinet will determine when the provisions of Article 83,
Paragraph 1, shall become effective.
Temporarily, for a reasonable period, the collection and administration
of customs-duties and taxes on articles of consumption may be left to the
States at their discretion.
ARTICLE 170
The Postal and Telegraphic Administrations of Bavaria and Wurtemberg will
be taken over by the Commonwealth not later than April 1, 1921.
If no understanding has been reached over the terms thereof by October 1,
1920, the matter will be decided by the Supreme Judicial Court.
The rights and duties of Bavaria and Wurtemberg remain in force as
heretofore until possession is transferred to the Commonwealth.
Nevertheless, the postal and telegraphic relations with neighbouring
foreign countries will be regulated exclusively by the Commonwealth.
ARTICLE 171
The state railroads, canals and aids to navigation will be taken over by
the Commonwealth not later than April 1, 1921.
If no understanding has been reached over the terms thereof by October 1,
1920, the matter will be decided by the Supreme Judicial Court.
ARTICLE 172
Until the national law regarding the Supreme Judicial Court becomes
effective its powers will be exercised by a Senate of seven members,
four of whom are to be elected by the National Assembly and three by the
National Judicial Court, each choosing among its own members. The Senate
will regulate its own procedure.
ARTICLE 173
Until the adoption of a national law according to Article 138, the
existing state contributions to the religious societies, whether
authorized by law, contract or special grant, will be continued.
ARTICLE 174
Until the adoption of the national law provided for in Article 146,
Paragraph 2, the existing legal situation will continue. The law shall
give special consideration to parts of the Commonwealth where provision
for separate schools of different religious faiths is not now made by law.
ARTICLE 175
The provisions of Article 109 do not apply to orders and decorations
conferred for services in the war-years 1914-1919.
ARTICLE 176
All public officers and members of the armed forces shall be sworn upon
this Constitution. Details will be regulated by order of the National
President.
ARTICLE 177
Wherever by existing laws it is provided that the oath be taken in the
form of a religious ceremony, the oath may be lawfully taken in the form
of a simple affirmation by the person to be sworn: “I swear.” Otherwise
the content of the oath provided for in the laws remains unaltered.
ARTICLE 178
The Constitution of the German Empire of April 16, 1871, and the law
of February 10, 1919, relating to the provisional government of the
Commonwealth, are repealed.
The other laws and regulations of the Empire remain in force, in so far
as they do not conflict with this Constitution. The provisions of the
Treaty of Peace signed on June 28, 1919, at Versailles, are not affected
by the Constitution.
Official regulations, legally issued on the authority of laws heretofore
in effect, retain their validity until superseded by other regulations or
legislation.
ARTICLE 179
In so far as reference is made in laws or executive orders to provisions
and institutions which are abolished by this Constitution, their places
are taken by the corresponding provisions and institutions of this
Constitution. In particular, the National Assembly takes the place of
the National Convention, the National Council that of the Committee of
the States, and the National President elected by authority of this
Constitution that of the National President elected by authority of the
law relating to the provisional government.
The power to issue executive orders, conferring upon the Committee of
the States in accordance with the provisions heretofore in effect, is
transferred to the National Cabinet; in order to issue executive orders
it requires the consent of the National Council in accordance with the
provisions of this Constitution.
ARTICLE 180
Until the convening of the first National Assembly, the National
Convention will function as the National Assembly. Until the inauguration
of the first National President the office will be filled by the National
President elected by authority of the law relating to the provisional
government.
ARTICLE 181
The German People have ordained and established this Constitution by
their National Convention. It goes into effect upon the day of its
promulgation.
SCHWARZBURG, August 11, 1919
(_Signed_)
The National President
EBERT
The National Cabinet
BAUER
ERZBERGER
HERMANN MÜLLER
DR. DAVID
NOSKE
SCHMIDT
SCHLICKE
GIESBERTS
DR. MAYER
DR. BELL
FOOTNOTES
[1] Prussia, Bavaria, Saxony, Wurtemberg, Baden, Hesse,
Mecklenburg-Schwerin, Saxe-Weimar, Mecklenburg-Strelitz, Oldenburg,
Brunswick, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Anhalt,
Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen, Waldeck, Reuss (elder
line), Reuss (younger line), Schaumburg-Lippe, Lippe, Lübeck, Bremen and
Hamburg.
[2] See Joseph-Barthelémy, _les Institutions politiques de l’Allemagne
contemporaine_, Paris, Alcan, 1915.
[3] See Laband, _Die geschichtliche Entwicklung der Reichsverfassung_ in
the _Jahrbuch des oeffentlichen Rechts_, 1907, p. 1, _et seq._
[4] Piloty, _Die Umformung der Reichsregierung und die Reichsverfassung,
Deutsche Juristen Zeitung_, 1918, p. 651, _et seq._; Stier-Somlo,
_Reichsverfassung_, p. 6.
Page 13, footnote 1. See the text of these claims in Gentizon, _la
Révolution allemande_. 1 vol. Payot, Paris, 1919, p. 222.
[5] It is interesting to note that with the exception of Barth all these
men were members of the Reichstag before the Revolution.
[6] See Jean de Granvilliers, _Essai sur le libéralisme allemand_, Paris,
1914.
[7] See page 73, _et seq._, of this book.
[8] German jurists get much pleasure in pointing out the following
constitutional curiosity: the condition necessary for a law enacted by
a parliament to become operative is that this law shall be promulgated,
that is to say, authenticated and published. But these operations suppose
a government. Now, the law of February 10, created the government;
but this law could not be promulgated by a government which this very
promulgation would create. It was decided, therefore, that the law should
become operative immediately and be authenticated by the President of the
National Assembly.
[9] These concepts of “unitarism” and “federalism” must be compared with
“centralism” and “particularism,” which correspond to them, but which,
nevertheless, also differ from them. When one speaks of “particularism”
one means, beyond the legal and political differences which may exist
between the member states of a federated state, the peculiarities
of race, special traits of culture, geographic and ethnographic
characteristics which give to populations their own stamp and a
distinct collective sentiment. Political “particularism” and federalist
tendencies may co-exist naturally; but “particularism” is not necessarily
anti-centralistic: a “particularism” inspired by the love of a little
fatherland and its individuality gives to the population a certain
national consciousness which is not necessarily antagonistic to the
establishment of a strong central power. On the other hand “unitarism,”
if it preserves for the state the character of a federated state and does
not tend to a complete fusion of the member states, may well recognize
that races and provinces wish for individual existence and may be ready
to accord them corresponding liberty.
[10] See Preuss, _Deutschlands republikanische Reichsverfassung_, p. 8.
[11] See Jacobi, _Einheitsstaat oder Bundesstaat_, Leipzig, 1919.
[12] Since the Revolution, Coburg has detached itself from
Saxe-Coburg-Gotha and become a distinct state without the decision of any
authority whatsoever sanctioning this situation.
[13] There was in this a true provisionally federated state within a
federal German state. For several months there was thus, in central
Germany, a triple superposition of states.
[14] It must be recognized nevertheless that with the exception of the
Hanseatic cities the monarchical form was implied. For Prussia it was
obligatory.
[15] See Giese, _Die Reichsverfassung, vom II, August, 1919_, p. 65;
Jacobi, _Einheitsstaat oder Bundesstaat_, p. 6, _et seq._; Poetsch,
_Handausgabe der Reichsverfassung_, p. 25, _et seq._; Wenzel, _Festgabe
für Bergbohn_, 1919, p. 159, _et seq._
[16] See Stier-Somlo, _op. cit._, p. 79, _et seq._; Walter Jellinek,
Revolution und Reichsverfassung, in Jahrbuch des öffentlichen Rechts, p.
81; Arndt, Reichsverfassung, 1919, p. 35.
[17] In reality the states still exchange ambassadors and, in the
official German language, the agreements reached either between two
states or several carry the name of Staatsverträge (international
treaties). See particularly the international treaty adopted between
the Reich on the one hand, and Prussia, Bavaria, Saxony, Wurtemberg,
Baden, Hesse, Mecklenburg-Schwerin and Oldenburg on the other, concerning
the transfer to the Reich of the railroads of these states, the treaty
approved by the National Assembly, April 30, 1920.
[18] See Heilfron, _Die deutsche Nationalversammlung im Jahre 1919_, vol.
ii, p. 1176.
[19] See Julius Kaliski, _Der Kern des Rätegedanken_, in _Welt-Echo_,
June, 1919.
[20] This is the exact text: “1. For the immediate formation of the
cabinets in the Empire and in Prussia, the questions of individual
appointments will be decided by the political parties in agreement with
the organizations of workers, salaried employés and civil servants
taking part in the general strike, and a decisive influence will be
accorded to these organizations in the new policies of economic and
social legislation, all with the view of safeguarding the rights
of popular representation. 2. Immediate disarmament and punishment
of all those guilty of participating in the _pronunciamento_ or
the overthrow of the constitutional government, as well as of all
civil servants who placed themselves at the disposal of the illegal
governments. 3. All public and industrial administrations must be
radically purged of counter-revolutionary personalities, in particular
of those who participate in the management, and these personalities
must be replaced by trusted elements. Re-employment of all the
representatives of organizations in public services who were made the
victims of disciplinary measures. 4. The earliest possible realization
of administrative reform on a democratic basis, with the co-operation
of the economic organizations of wage-workers, salaried employés and
civil servants. 5. The immediate execution of all existing laws and the
enactment of new social laws that will accord to wage-workers, salaried
employés and civil servants complete social and economic equality;
and the immediate enactment of liberal legislation in behalf of civil
servants. 6. The immediate socialization of the branches of industry
ripe for socialization on the basis of the decisions of the Committee on
Socialization, in which representatives of vocational organizations shall
take part. The immediate convocation of the Committee on Socialization.
The transfer to the Empire of the coal and potash corporations. 7. More
effective appropriation and, if need be, the expropriation of available
necessities of life; more vigorous war against usurers and profiteers in
the country districts and in the cities; guarantees that obligations of
deliveries will be executed, insured by the organization of societies
for delivery of goods, and the establishment of definite fines and
punishments for all violations of these obligations due to ill-will. 8.
The dissolution of all counter-revolutionary military organizations that
did not remain faithful to the Constitution, and their replacement with
organizations recruited from the masses of tried republican population,
in particular workers, salaried employés and organized civil servants,
without favour to any class whatever. In this reorganization the rights
of all troops and organizations that have remained faithful shall remain
intact.”
[21] Retreat of the Berlin troops to the line of the Spree; the lifting
of the state of siege; no attack on armed workers, particularly in the
Ruhr; negotiations with labour organizations with the view of recruiting
of workers in the troops of Prussian safety police.
[22] The principal of the new “Nine Points” are: 1. The troops of
_Reichswehr_ remain in their position and must not advance on the
industrial area except with the express authorization of the Cabinet.
2. The red army dissolves and gives up its arms. 3. Adequate police is
assured by the constitutional authorities, supported by “committees
on public order” and of “local armies” composed of workers, salaried
employés and civil servants of all parties. 4. The “committees of action”
and the “executive committees” are dissolved.
[23] _Deutsche Allgemeine Zeitung_, March 28, 1920.
[24] _Lokal Anzeiger_, April 8, evening.
[25] Lensch, _Erwünschte Nachwirkungen_, in _Der Tag_, No. 83.
[26] Preuss, _Deutschlands republikanische Reichsverfassung_.
[27] Session of July 2. (Heilfron, _op. cit._, vol. V, pp. 2960-2961.)
[28] There are differences of detail between these two modes, but of no
importance.
[29] The origin of this provision goes back to the “certificate” that
was given in the elections for the National Assembly to soldiers and
sailors returning from the front and to troops assigned to service for
the preservation of order in polling places.
[30] Session of July 7, 1919. (Heilfron, _op cit._, vol. V, p. 3314.)
[31] Session of July 7, 1919. (Heilfron, _op. cit._, vol. V, pp.
3299-3300.)
[32] See the analysis of this bill in the _Deutsche Juristen Zeitung_,
1920, p. 385.
[33] Heilfron, _op. cit._, vol. II, p. 969.
[34] _Reichsgesetzblatt_, 1920, p. 909.
[35] Bismarck was always against the granting of salaries to members of
the Reichstag. He hoped thereby to prevent making of politics a career.
The members of the Reichstag since 1906 have been receiving compensation
which, at first fixed at 3,000 marks a year, was increased in 1918 to
5,000. National Assembly members were paid 1,000 marks a month. The new
Reichstag in one of its first sessions decided (1) that its members are
to receive 1,500 marks a month; (2) that those of its members who, in
the intervals of the Reichstag’s sitting, worked on committees, should
receive 50 marks a day. In addition, members of the Reichstag have the
right to travel free on all railroads of the Reich.
[36] There were formerly six important permanent committees: on
procedure, petitions, commerce and industry, finance and customs,
justice, and budget. We shall see that the Constitution has added to this
list a committee on foreign affairs, and a committee on the protection of
the rights of popular representation when the Reichstag is not meeting.
It goes without saying that the Reichstag may name special committees for
such and such functions decided upon.
[37] There are thus three kinds of treaties: Those made by a law of the
Reich, those made by agreement between the President and the Reichstag,
and those made by the President alone.
[38] It must be noted that, contrary to the practice in most
parliamentary countries, there is no distinction made between ordinary
laws and fiscal laws. The latter, particularly the budget, audit laws,
loans, are subject to the same regulation as the former. This is
explained by the fact that, unlike most other parliamentary countries,
Germany does not practice, properly speaking, the two-chamber system.
[39] Heilfron, _op. cit._, vol. V, p. 3193.
[40] See in general the work of Redslob, _Die parlamentarische Regierung
in ihrer wahren und in ihrer unechten Form_, Tübingen, 1918. It is
curious to note that every argument and all the investigations of Redslob
take as their point of departure the criticisms addressed by Professor
Duguit against the French system, particularly in his _Traité de Droit
Constitutionnel_, 1911, vol. I, pp. 411-412.
[41] This law has never been applied. President Ebert, now in office,
was, it will be remembered, elected by the National Assembly.
[42] The President of the Reich has not, what is called in France, _le
pouvoir réglementaire_, that is to say, the right to issue general
ordinances obligatory on all citizens. He cannot make regulations of this
kind except in cases where the Constitution or an ordinary law gives him
special power to do so. In such a case either he issues the regulation,
naturally with the countersignature of a Minister (Articles 48, 49, 51,
59 of the Constitution, for example), or he must first obtain the consent
of the Reichstag.
[43] See particularly the decree of March 19, 1920, _Reichsgesetzblatt_,
1920, p. 467.
[44] At the meeting of the Committee on the Constitution on April 4,
1919, Preuss, then Minister of the Interior, declared that such was
already the practice in Germany and that President Ebert presided over
the most important meetings of the Council of Ministers.
[45] It includes in addition two members that do not belong to any
party--the Minister of Foreign Affairs and the Minister of Transport.
[46] Article 64 provided also that after the reunion of Austria with
the German Reich the latter would have the right to be represented in
the Reichstag numerically in proportion to the size of its population.
Until such union the representatives of German Austria would have only a
consultative voice. This provision, contrary both in letter and spirit
to Article 80 of the Peace Treaty, brought a protest from the Supreme
Council of the Allied Powers and their associates. The first note on
September 2, 1919, demanded the abolition of the offending provision
by constitutional amendment within a fortnight. On September 5, the
German government replied that no article of the Constitution could be
in contradiction with the Treaty of Peace, for Article 78, paragraph 2,
expressly provides that no constitutional provision may carry any attempt
against the treaty. This reply justly seemed to the Allies insufficient.
Article 78, paragraph 2, constitutes, it is true, on the part of the
drafters of the Constitution an excellent measure of precaution against
contradictions between the Constitution and the Treaty not provided for
in advance and revealed in practice. But the contradiction pointed out by
the note of the Allies of September 2 was too clear and evident to have
been accidental. The Allied Powers, therefore, demanded that the German
Government send by means of a diplomatic document the interpretation
contained in its note of September 5. This is the text, therefore, of a
supplementary declaration drawn up by the German Cabinet and ratified by
the National Assembly:
“The undersigned, duly authorized in the name of the German Government,
recognize and declare that all provisions of the German Constitution
of August 11, 1919, that are in contradiction with stipulations of the
Treaty of Peace signed at Versailles on June 28, 1919, are without force,
and that particularly the admission of the representatives of Austria as
members of the Reichstag cannot be effected except if, in conformance
with Article 80 of the Treaty of Peace, the League of Nations sanctions a
change in the international situation of Austria. The present declaration
must be ratified by the competent authorities within a fortnight after
the Treaty of Peace becomes operative.”
[47] The committees thus formed are eleven in number and each consists
of nine members. They are, committees on foreign affairs, political
economy, interior administration, commerce and audits, taxes and customs,
justice, the Constitution and interior regulation, the army, navy, and
the execution of the Treaty of Peace.
[48] See Koch, _Die Grundrechte in der Verfassung, Deutsche Juristen
Zeitung_, 1919, p. 609, _et seq._
[49] It should be observed that this provision has been decreed by a
law; consequently there can be no question in regard to it whether it
is a provision having the force of law or only a moral maxim. It is a
legislative provision. The fact that it was later inserted into the
Constitution has only the effect of preventing its abrogation or its
modification other than by constitutional amendment.
[50] This principle of civil law has also become now a provision of
constitutional law (Article 152).
[51] It must be also noted that up to now the States have not as yet
complied with this order of the Constitution. In Prussia in particular
it does not seem that measures have yet been enacted against the
“fideicommis.”
[52] _Reichsgesetzblatt_, 1920, p. 876.
[53] The question of the length of the working day has not been touched
by the Constitution. Up to now it has been regulated exclusively by
special decrees based on the eight-hour day. The decrees of November
23, 1918, and of December 17, 1918, introduced the eight-hour day for
workers in industries with the exception of industries which must not be
interrupted. The decree of November 23, 1918, prescribed the length of
the working day in bakeries; that of March 18, 1919, did the same for
salaried employés. A general law that provides for an eight-hour day and
regulating its application is in preparation.
[54] _Reichsgesetzblatt_, 1920, p. 98.
[55] As yet there has not been organized insurance against non-employment.
[56] The political parties interested themselves in these elections, the
platform being “for or against religious instruction.” The number of
socialists elected was less than that of bourgeois parties.
[57] See Chapter III.
[58] Max Schippel, _Schicksalstunden der Arbeitsgemeinschaft,
Sozialistische Monatshefte_, 1920, p. 328.
[59] It has been changed by a law of May 31, 1920. (_Reichsgesetzblatt_,
1920, p. 1128.)
[60] _Deutsche Allgemeine Zeitung_, April 29, evening.
[61] In the discussion that arose on this subject an expression used in
it has achieved popularity and is in current use. The strikers demanded
and obtained the “anchorage” of the Councils in the Constitution.
[62] See p. 307.
[63] It will be recalled that in order to obtain increase in authority
for the Factory Workers Councils, the Independents organized a great
manifestation in Berlin in January, 1920, in the course of which about
forty of the participants in the manifestation were killed on the steps
of the Reichstag.
[64] These enterprises are: Stock companies, limited joint-stock
companies, mutual insurance companies, and eventually limited liability
companies.
[65] See Paul Umbreit, _das Betriebsrätegesetz_, Berlin, 1920, pp. 20-21.
[66] It met for the first time on June 30, 1920.
[67] This memorandum did not represent the personal opinion of the
Minister. The ideas expressed in it were the opinions of a group that
included both socialists and bourgeois elements, men like Walter
Rathenau, von Möllendorf (under-secretary of State under Wissel),
Andreas, a banker, Georg Bernhard, editor of the _Vossiche Zeitung_, and
others.
[68] Reier, _Sozialisierungsgesetze_, Berlin, 1920, p. 14.
[69] Wissel, then Minister of Public Economy, on March 7, 1919, before
the National Assembly thus defined collective economy properly so-called:
“Collective economy means the organization and management of private
economic enterprises in the interests of the Reich, the subordination
of private interests to collective interests. The application of this
general principle to particular cases must be adapted to the special
conditions of the different branches of the economy. Nothing can be worse
than to want to make the economy rigidly uniform. Every economic group is
a different organism that demands forms appropriate to it. This seems to
be indicated in the exterior forms of union, such as capitalist economy
practiced in its associations and cartels. But the spirit that prevails
in these organizations must be raised above purely private considerations
up to a sense of responsibility toward the people as a whole, up to the
conception of a collective economy. _Collective economy does not mean
state economy, but autonomy._ The State is not the master of economy. It
can and should exercise supreme supervision and hold in equilibrium the
opposing interests with justice and wisdom.”
[70] These sixty members are divided as follows:
3 representatives of states;
15 representatives of colliers’ organizations;
15 representatives of mine workers;
1 employer and 1 worker in gasworks;
2 salaried employés of the technical service of the mines;
1 salaried employé of the commercial service of the mines;
5 coal merchants;
1 employé in the wholesale coal trade;
2 employers and 2 workers in industries using coal;
2 representatives of consumers’ societies;
1 user of coal in the cities, 1 in the country;
2 representatives of small industries using coal;
1 user of coal for railroads;
1 user of coal for maritime navigation;
1 user of coal for river navigation;
3 mine and boiler experts.
The representatives of the states are named by the Reichsrat from among
the municipal administrations and consumers of coal. The representatives
of employers and employés in the mining industries as well as the twelve
representatives of the colliers’ associations are elected by the mine
groups of the _Arbeitsgemeinschaft_. Two representatives are named by the
Prussian Minister of Commerce and Industry. The representatives of the
coal trade are named by the German Congress of Commerce and Industry. The
representatives of the employers and employés of the industries using
coal, and the representatives of the employés of gasworks are elected
by their _Arbeitsgemeinschaften_. The representatives of the small
industries using coal are elected by the German Chambers of Commerce and
Industry. The other representatives are appointed, on the advice of those
they represent, by the Minister of Public Economy of the Reich.
[71] Stricken out at the demand of the Supreme Council of the Allied and
Associated Powers. The Supreme Council addressed the following demand to
Germany on September 2, 1919:
“The Allied and Associated Powers have examined the German Constitution
of August 11, 1919. They observe that the provisions of the second
paragraph of Article 61 constitute a formal violation of Article 80 of
the Treaty of Peace signed at Versailles on June 28, 1919. This violation
is twofold:
“1. Article 61 by stipulating for the admission of Austria to the
Reichsrat assimilates that Republic to the German States composing the
German Empire--an assimilation which is incompatible with respect to the
independence of Austria.
“2. By admitting and providing for the participation of Austria in the
Council of the Empire Article 61 creates a political tie and a common
political action between Germany and Austria in absolute opposition to
the independence of the latter.
“In consequence the Allied and Associated Powers, after reminding the
German Government that Article 178 of the German Constitution declares
that ‘the provisions of the Treaty of Versailles can not be affected by
the Constitution,’ invite the German Government to take the necessary
measures to efface without delay this violation by declaring Article 61,
Paragraph 2, to be null and void.
“Without prejudice to subsequent measures in case of refusal, and in
virtue of the Treaty of Peace (and in particular Article 29), the Allied
and Associated Powers inform the German Government that this violation of
its engagements on an essential point will compel them, if satisfaction
is not given to their just demand within 15 days from the date of the
present note, immediately to order the extension of their occupation on
the right bank of the Rhine.”
Article 29 of the Treaty of Peace refers to Map No. 1 which shows the
boundaries of Germany and provides that the text of Articles 27 and 28
will be final as to those boundaries. Article 80 reads as follows:
“Germany acknowledges and will respect strictly the independence of
Austria, within the frontiers which may be fixed in a Treaty between that
State and the Principal Allied and Associated Powers; she agrees that
this independence shall be inalienable, except with the consent of the
Council of the League of Nations.”
A diplomatic act was signed at Paris on September 22, 1919, by the
representatives of the Principal Allied and Associated Powers and Germany
in the following terms:
“The undersigned, duly authorized and acting in the name of the German
Government, recognizes and declares that all the provisions of the German
Constitution of August 11, 1919, which are in contradiction of the terms
of the Treaty of Peace signed at Versailles on June 28, 1919, are null.
“The German Government declares and recognizes that in consequence
Paragraph 2 of Article 61 of the said Constitution is null, and that in
particular the admission of Austrian representatives to the Reichstag
could only take place in the event of the consent of the Council of
the League of Nations to a corresponding modification of Austria’s
international situation.
“The present declaration shall be approved by the competent German
legislative authority, within the fortnight following the entry into
force of the Peace Treaty.
“Given at Versailles, September 22, 1919, in the presence of the
undersigned representatives of the Principal Allied and Associated
Powers.”
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