The New German Constitution

by René Brunet

In addition direct government constitutes the best system of democratic control over the organs of the state. Care must be taken in a democracy to institute control over control; for democratic government is essentially the reign of trust. The destinies of a nation should not, therefore, depend exclusively on the parliament. While one may be for parliamentary government, one may still fear that a powerful majority may establish a veritable dictatorship and oppress minorities; or that a majority formed by chance combinations may show itself incapable of action and retard indefinitely the adoptions of measures impatiently awaited by the people.

There is, then, place in Germany for direct government; but to what extent? At first this place seems quite limited. Preuss, who in his draft of the Constitution made only limited use of it, presented direct government as convenient above all for small states; but he doubted that one could apply it in any considerable number of ways in a big country like Germany. In spite of this opinion direct government gained ground little by little and in the final text occupies considerable place. One finds in the Constitution not only the classic forms of constitutional and legislative initiative and referendum such as, for example, have been traditionally employed in Swiss and American democracies; but also we find there new applications of direct government.

The people express themselves not only on the text of a law. They are also the great political judges, the supreme arbiters to whom must be submitted all difficulties of vital importance to the nation. The people give to the organs chosen by them the right to legislate and to govern; but if a discord arises between these organs or if these organs once nominated do not bend to the people’s will, they intervene themselves on the appeal of one of the organs or of their own accord. Direct government expresses itself, therefore, when a conflict arises either between the organs of national representation, or between this representation and the nation itself. In these two cases it is the people who decide the conflict.

First, then, discord may arise between the organs of national representation. Being given a multiplicity of these organs the issues in which the people is thus appealed to for intervention may be of several kinds.

(1) The conflict may arise between two legislative chambers of the Reich. If the Reichstag and the Reichsrat cannot agree on the text of a law, the President of the Reich may or must, according to circumstances, order the text to be submitted to a popular referendum. The conditions under which this referendum is to take place are different according to whether the law in question is a constitutional one or an ordinary law.

If the law in question is to be an amendment of the Constitution, the presupposition is, that ([Article 76]) this change has been passed by the Reichstag and objected to by the Reichsrat. If the Reichstag does not yield to this objection and persists in its first decision, or if it modifies it but in a manner not entirely conforming to the exigencies of the Reichsrat, the latter may demand a referendum and the President must order it.

If, on the other hand, it is an ordinary law that is in question, the presupposition is again that the Reichsrat has objected to a law voted by the Reichstag and that the latter disregards this objection. The President in such a case is allowed to decide whether the situation remains as it is—that is to say, that the projected law fails of enactment; or, that the difficulty between the two Assemblies shall be submitted to a referendum. It must be noted besides that these matters referred for referendum to the people must be limited to the divergencies arising between the two assemblies, and that the people pronounce for either the text of one assembly or that of the other. If, however, the Reichstag has rallied a majority of two-thirds against the objection raised by the Reichsrat the choice on the part of the President is thereby limited. He can only either promulgate or publish the law, or refer it to the people.

(2) The conflict may arise between Parliament and the President; and this may present two quite different aspects.

The two chambers are in accord on the text of a law which the President does not approve; this is the first kind of conflict. In such a case, unless the President wants to promulgate the law adopted, he must submit the text to a referendum ([Article 73], par. 2). It is in effect a very strong right of veto given to the President and accorded to him without much difficulty. The Independents, however, in accordance with their thesis of the uselessness of the President, did not want to grant this right to appeal to the people in such a case, except to a responsible minister. Also the members of the German People’s Party opposed the granting of this power as useless, being a duplication of the President’s right to dissolve Parliament. The majority of the Assembly, however, disagreed with them.

The German Nationals saw in this measure new opportunity to strengthen the authority of the President and did not let the occasion escape them. The parties of the coalition, on the other hand, felt that in investing the President with these powers they only applied logically their democratic principles. The referendum appeared to them, in addition in this particular case, less of an increase of the President’s powers than as a corrective of the fact that he has powers too great. A democracy, according to them, can with less risk give itself a strong executive, if it also includes among them his right to call a referendum in case of conflict, which would thereby enable the people to rule on the conflict. On the other hand, the supporters of the principle of separation of powers supported this use of the referendum, which seemed to them more in conformity with their principles than the power to dissolve the Reichstag.