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.