The New German Constitution

by René Brunet

Finally legislative initiative by the people has been included in the Constitution ([Article 73], par. 3), but under certain conditions. It is required that a detailed bill be submitted, to avoid the possibility that the people may be called to decide merely on a general principle, about which it is very easy to create an artificial disturbance. It provides that one-tenth of the electors of the nation must support this bill. This approval given, the Cabinet is obliged to submit the text to the Reichstag after stating its own attitude on it. The Assembly then either accepts the bill, thus satisfying the people; or it changes or rejects it; in which case a referendum is then resorted to, in which the people decides as the final resource.

(2) A second hypothesis is that in which a conflict between its people and its representatives, or a part of its representatives, occurs as in the case we have already described, where a third of the members of the Reichstag demand that the promulgation of a law be deferred. It is recalled that in such a case a referendum is obligatory if one-twentieth of the electors of the nation support the demand of these deputies. There is in this a combination of the initiative and the referendum. The action of the deputies of the minority of the Reichstag in order to achieve a referendum must be supported by an already considerable number of the country’s electors.

But it must be noted—and this applies equally to the two kinds of initiative we refer to—that according to the terms of [Article 73], par. 4, certain laws are not open to popular initiative, and consequently to referendum. These are the laws which because of their financial character offer to electors a very strong temptation to profit by their sovereignty to make their personal interest prevail. Such laws are those on the budgets and taxes and those relating to the salaries of civil servants.

(3) There is finally a last instance in which popular initiative may operate. It is that provided by [Article 18], par. 4, whereby a population wishes the government of its state and the government of the Reich to proceed to a change in the territory of the state or to the creation of a new one. If one-third of the inhabitants demand it the Cabinet of the Reich is obliged to order a referendum.

Such are the conditions and the limits within which the Constitution provides for direct government within the Reich. It prescribes that a law shall be enacted regulating the details of the application of the principles it puts forward; but up to the present time this law has not yet been enacted. The Cabinet has, however, proposed a bill concerning it.[32]

In the case of discord between the organs of the state, that is to say, in the case where the people are called in by one of the organs in conflict, the government proposes to apply, mutatis mutandis, the procedure prescribed by the electoral law.

For the initiative, the procedure is naturally more complicated, for it consists of two phases. One part of the people takes the initiative and collects support for it. If this support attains the numbers prescribed by the Constitution, a referendum is called. The initiative, therefore, is always followed by a referendum, unless in the interim the authors of the initiative have been satisfied otherwise.

The difficulty is to organize effectively the first phase of this procedure, to launch the initiative properly so-called, in a country comprising on the average thirty million electors who vote. In the Swiss cantons, and in the United States of America, the initiative comes into being by the gathering of signatures to a petition. In Switzerland such signatures of electors often require authentification; but this leads to considerable difficulty, for, frequently the electors have their names signed by others whom they delegate to do so. In certain of the United States the conditions for the exercise of the right of initiative are variable. Often it is sufficient that the individuals who gather the signatures to such petitions give assurance that the signers are qualified electors.

In Germany it is believed that such a system could not be accepted and a procedure has been considered in which the electors would inscribe themselves on lists placed at their disposal by district authorities. In addition the formality of inscription on these lists would be preceded by an examination whose purpose would be to see if the conditions provided by the Constitution for the inauguration of a popular initiative have been complied with. This provision has for its purpose the elimination of initiatives doomed obviously to failure. This would permit the public authorities, once the principle of the initiative is accepted, to announce such a possibility officially in order to give the people a chance to take a position on the matter.

A demand that an initiative be admitted must be made by at least five thousand electors. When the proposal for the inauguration of an initiative has been admitted, all the electors can vote on it within a period, which usually is about thirty days. This voting is done under the auspices of the district authorities, to whom the task of gathering and counting the signatures is thus confided as one of their official duties.