Another kind of conflict which can arise between the Reichstag and the President is not merely a question of legislation but of general policy. According to the terms of [Article 43], par. 2, “the President may be removed by the vote of the people on proposal of the National Assembly.” This provision was adopted without discussion and its presence in the German Constitution is quite understandable. The National Assembly wished to create a strong president; in fact, it has given him almost absolute power. He is the man entrusted by the people along with the Reichstag and the Cabinet. If he betrays this trust who other than the people themselves should decide that? But if he has retained the confidence of the people, what is there to fear from his being brought before it as a tribunal? In addition to this [Article 43] specifies wisely that the vote, whereby the Reichstag decides to place the question of removal of the President before the public, must be a majority of two-thirds. Finally the same Article logically provides that if the people pronounce against the removal of the President in such an instance, the Reichstag is thereby dissolved, for it is the latter in such a situation that has ceased to be in contact with the people.
(3) A conflict can also arise within the Reichstag itself. The hypothesis is provided by [Article 73], par. 2, thus: “A law whose promulgation is deferred at the demand of at least one-third of the National Assembly shall be submitted to the people, if one-twentieth of the qualified voters so petition.”
This procedure complicates the work of the legislator. Dr. Heinze, member of the German People’s party, has developed the following argument with much force: A project of law has been sent by the Cabinet, with the approval of the National Council, to the Reichstag, which, however, votes a different text for it. This text comes back to the Reichsrat, which raises objection to it. The Reichstag on a reconsideration of the text adopts a compromise, as in the great majority of actual instances. But there is always in the Reichstag a minority opposed to this compromise, one which proposes to postpone the promulgation of the law and to submit it to a referendum. For this proposal to become operative, it is required that one-twentieth of the electors of the Reich support it, which, if obtained, compels a popular referendum on this matter. This procedure is extremely complicated and can often become dangerous. For one-third of the Reichstag, forced by the party or the group that is behind it, can feel itself obliged to propose a referendum to the people even when the Reichstag and the Reichsrat have concluded happily a precise agreement. Into this agreement there becomes injected a referendum with all its hazards.[31]
In spite of this criticism the text was adopted because in Germany cabinets are most often formed by temporary coalition of parties; and the provision in question has the effect of giving an existing coalition longer life and permitting the solution of disputes, thereby avoiding the break-up of the coalition or a dissolution of the Reichstag.
(4) A conflict, finally, may arise between the government of the Reich and that of a state over the question which is perhaps the most serious one that can arise in a federal state—the territorial constitution of member states. Suppose the question comes up of either changing the territorial boundaries of a state or forming a new state. If one of the states in question refuses to give its consent the population is then consulted and it decides.
There is another kind of conflict, more serious perhaps than those just examined. These are the conflicts that arise between the people and its representatives. Let us suppose that the latter do not carry out the provisions or the orders given them by the people. The latter in such a case take matters into their own hands, with or without the collaboration of the representatives, and impose their will upon them. Such a procedure is popular initiative.
But here, too, several hypotheses must be distinguished:
(1) The people, for example, want a law which its representatives do not give it. Shall the people be given the right themselves to bring that law into being?
The parties of the Right of the Assembly supported the negative to this question with considerable force. They held that to give the people such a right to initiate legislation is to set up a rule of mistrust against the qualified organs of national representation. Once these organs are elected, they bear the responsibility of their decisions in the eyes of the nation, and the latter must give them freedom to act. But to submit representatives to the incessant control on the part of the people is an exaggerated democratization. Further, if the Reichstag does not pass the law demanded by the people, the President, the man in whom trust has been placed by the nation, has only to dissolve the Reichstag. Modern laws, also, are too complicated for the people to be able to give qualified decision on everything they feel like deciding.
The supporters of such initiative replied that a control of this kind over Parliament could not be instituted by leaving it all to the President of the Reich alone. Occasions may arise in which both the President and the Reichstag have lost contact with public opinion; in which case it would be necessary for the people to make its voice heard. It is also a truth born of experience that all great political and social thoughts are at first the product of very small groups, and it is only little by little that these become impressed on the masses. The initiative is only a particular form of this evolution, and it presents also this advantage, that it gives the popular movement the chance to concentrate on a particular and important question, instead of, as in ordinary elections, becoming dissipated among a large number of questions of unequal interest. Finally, the example of Switzerland is very encouraging. The proof is found there that the people often see more clearly than their government, and that the initiative is the most solid bulwark against the impositions of extremists. In the last analysis the possibility of a popular initiative makes the political activity of the government more living, and influences public agencies democratically in a very desirable sense.