This last will be studied in the section of this book devoted to the Economic Constitution. In the present chapter we shall study the other organs, and shall inquire in what measure they are capable of insuring and do insure in fact to Germany the parliamentary government which it has chosen.
SECTION I
THE REICHSTAG
The Reichstag already existed under the régime of 1871. But its powers have become much more extensive, for it is now the principal representative of the people, from whom sovereignty is derived. It is the principal holder of popular sovereignty. In conformance with the principles of parliamentary government, it enacts laws and controls the Cabinet. The regulations that determine its composition and which specify its powers should, therefore, be such as to permit it to fulfil completely its double rôle.
1.—THE PRIVILEGES AND GUARANTEES ACCORDED TO THE REICHSTAG.
The Reichstag, charged with the expression of the will of the sovereign people, must be able to manifest this will freely. Charged with the control of the Cabinet it must be protected against all possible counterventions of the latter. To this end the Constitution contains a number of provisions which give to the Reichstag as a body, as well as to its members as individuals, a group of guarantees designed to insure for them complete independence of the Cabinet.
(1) The Reichstag considered as a whole possesses a certain number of privileges and guarantees, much more numerous than those which were allowed the former Reichstag and analogous to those which in general the parliaments in other free countries possess. To this end the German Constitution contains several special features.
It is known that the right of political assemblies to pass on the eligibility of their members and the regularity of their elections constitutes one of their traditional prerogatives, one to which they have most strongly adhered. For they have seen in it a weapon against executive power to be used in cases where the latter is tempted to abuse its authority and exercise pressure on elections. Also most of the democratic countries confer upon their Chambers the right to investigate the election of their members and to decide in sovereign fashion on the validity of these elections. Such is the rule particularly in France; such was the rule in Germany up to 1919. But the new Constitution abandons this tradition in the sense that instead of leaving election disputes to the Reichstag itself, it entrusts them to a special tribunal working alongside of the Reichstag: the Electoral Commission (Wahlprüfungsgericht). This device, however, was not inspired by any desire to limit the rights of the Reichstag. It was dictated by political considerations. The former Reichstag, when it verified the election of its members, instead of being inspired solely by legal motives often let itself be guided by political considerations. The verification of elections is in itself an act of adjudication, and a political assembly is ill-prepared to fulfil such a function. That is why the English Parliament has already entrusted the function of judging of elections of its members to a separate tribunal. Without going as far as that, the new German Constitution refers contestants to a mixed tribunal, in which there are both members of the Reichstag, and, in order to insure the impartial applications of legal provisions, judges by profession.
The Electoral Commission includes members of the Reichstag elected to it by the whole legislature, as well as members of the Administrative Tribunal; until the creation of this body these consist of members of the National Judicial Court or Reichsgericht. These are nominated by the President of the Reich on the motion of the President of the Commission. In order to become operative the Electoral Commission must be made up as follows: five judges, of whom three must be members of the Reichstag, and two magistrates. The procedure is presided over by a commissioner named by the President of the Reich. This commissioner is particularly charged with investigation. It is hoped in Germany that in consequence of the introduction of proportional representation, election contests will be less frequent than formerly and that adjudications of elections by this Commission will have less importance for the parties than in the past.
Once elected and the elections verified, can the Reichstag freely meet and continue just as it pleases? In other words, can it be permanent, that is to say, has it the right itself to fix the date and the duration of its sessions? A double danger is here possible. To create a permanent assembly, would it not give to parliament a dangerous preponderance? But to give to the executive power unlimited right to call, adjourn, and prorogue parliament, would it not be to give a prerogative unacceptable to a democratic country and dangerous to the maintenance of its institutions?