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.”