It is thus seen that a referendum is never resorted to, unless the Reichstag has first taken a vote on the subject. The decisions of the people appear, therefore, as a kind of control over, and check on, the Reichstag’s decisions.
The procedure just described is that followed for all ordinary laws.[38]
In theory it holds also for constitutional laws, that is, laws which, according to the Constitution, must be enacted in the form of constitutional laws; but there are certain modifications in the procedure in such cases.
Under the old Constitution, changes in it could be brought about by the same means as ordinary laws. The new Constitution places constitutional law under special protection, and demands that a certain fixed majority be obtained for any change in the Constitution. Decisions of the Reichstag tending to such a change are not valid unless two-thirds of the legal number of members are present and of those present at least two-thirds vote for such change. In the same way decisions of the Reichsrat tending to a change of the Constitution must obtain a majority of two-thirds of all the votes cast in their favour.
The Constitution contains a special provision in case a constitutional change is to be realized on the initiative of the people. In such a case, at least one-half of the electors must approve of the change. This particular majority was introduced as a condition for the following reason; the situation had to be met in which the Reichstag rejects a constitutional change proposed by popular initiative. Against such a vote on the part of the Reichstag, which may not be in favour of the constitutional change proposed, the decision of the people in favour of the change, to become operative must be supported by at least half of the people. Where, however, the Reichstag votes in favour of a constitutional change it is enough for the referendum to secure a majority of those voting, provided that a majority of the electors have participated in the vote. Consequently if the Reichstag has voted a constitutional amendment by a vote of two-thirds and if this amendment has been submitted by the President to a referendum, it is sufficient to nullify the favourable vote by the Reichstag, if half of the electors of the Reich participate in the vote and the majority of those voting pronounce against the amendment. In other words, to effect a constitutional amendment by means of a referendum a simple majority is sufficient if the Reichstag has voted for such an amendment; but if the Reichstag’s approval is to be nullified in such a case a specified majority is required.
Another provision of the Constitution deals with the case where a divergence of opinion arises between the Reichstag and the Reichsrat on a constitutional matter. In general when the Reichstag, over the protest of the Reichsrat, maintains its stand by a majority of two-thirds, the President has the option either of promulgating the law voted by the Reichstag over the protest of the Reichsrat, or of prescribing a referendum. In the matter of a constitutional amendment, to strengthen the position of the Reichsrat, the President’s choice is limited. In such a case, if the Reichsrat demands a referendum the President cannot promulgate the law, even though it has been passed by two-thirds of the Reichstag. This demand must take place within two weeks of the passage of the bill by the Reichstag. If within that time, the Reichsrat has not made use of its right just described, the President recovers his right to choose between promulgation and referendum.
III.—POWER OF CONTROL.
In the parliamentary system, the parliament exercises an incessant control over the acts of the Cabinet, such control consisting of the responsibility of the ministers. How is this organized in Germany and in what manner is it actually exercised?
It must be noted first that the Constitution does not give control over the Cabinet to any but the Reichstag. It is to the Reichstag only that the Ministers are politically responsible. The other assemblies that the Constitution has created, in particular, the Reichsrat, have in this respect no power. On the other hand, the confidence of the Reichstag is absolutely indispensable to the Cabinet. If the Reichstag withdraws its confidence in a Ministry or in a Minister, especially if the Reichstag expresses its lack of confidence, the Ministry or the Minister must resign. ([Article 54].) To give to the vote of the National Assembly a complete guarantee of execution the Constitution provides that the Reichstag may prosecute the President and the Cabinet before the National Judicial Court and demand that the people pronounce on the removal of the President. ([Article 43].)