The New German Constitution - 1

Transcriber’s Note: Obvious printing errors have been corrected.

The German Constitution

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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

New York Mcmxxii
Alfred·A·Knopf

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.

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]

FOREWORD

CONTENTS