The New German Constitution

by René Brunet

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.