The New German Constitution

by René Brunet

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.