The New German Constitution

by René Brunet

To give the President of the Reich the authority and the independence which it deemed necessary, the National Assembly insured him a very strong personal position.

To this end the Constitution declares first of all that he shall be elected by the whole German people ([Article 41]); that is, the plebiscite. The President is elected by the same electors as Parliament itself. Thus, President and Reichstag issue from the same source, the pure popular will. Thus, there is the certitude that if one of these two organs rejects the direction desired by the people or deviates from the direction desired by the people, the other organ will immediately be able to apply the necessary corrective. The President can be the sought-for counter-balance to the authority of the Reichstag, for he is truly the man entrusted by the people, delegated by them to rule with the Reichstag.

This system is not without danger. We have seen it in Germany itself when in March, 1920, the rumour spread that Marshal Hindenburg would be a candidate for the presidency of the Reich, a candidacy expressly approved by the former Emperor, one which seemed to open the way for a monarchical restoration. The Social Democrats thereupon declared that the election of the President by the whole people was an institution republican only in appearance; that it was in reality much more monarchical than republican; that the President elected by the people could arrogate to himself a power which would weigh heavily on the functioning of the governmental machinery; that to institute the election of a President by the people would subject his person to disputes and attacks which would leave his dignity seriously compromised. They, the Social Democrats, foresaw the possibility of supporting again a proposition which they had already made during the discussion on the Constitution, but which they had withdrawn, according to which the President would have to be elected by the Reichstag. The Democrats, alarmed by the prospect of a conflict that could arise between the Reichstag and a President elected by the people, seemed ready to support such a proposition. The Centre abstained from a decision on this matter. But nothing could be done without the Centre, for since this was a matter of constitutional amendment a majority of two-thirds of the National Assembly was indispensable, and it could not be obtained without the Centre. The coup d’état of Kapp and Lüttwitz had meanwhile the effect on these discussions now well known. The Democrats concluded from it that thereafter all attempts to establish a military candidacy would be doomed to failure and that the people would never either nominate or support a dictator; and that therefore there was no longer any need to change the Constitution on this point.

Every German is eligible provided he is thirty-five years old. The proposal in committee as well as the text of the Constitution at the second reading declared for an absolute ineligibility of members of families who had ever ruled a state in the German Empire. This provision was done away with on the third reading by a majority consisting of the German Nationalists, the People’s Party and the Centre. The motive expressed by the representatives of these parties was that this measure would constitute a law of exception of the most shameful kind, contrary to the principles of the Constitution, that it was a confession of weakness and an avowal of the lack of solidity in the benefits afforded by the victories of the Revolution.

But how shall the President be elected? After long discussion the National Assembly decided that the election of the President should not be regulated by the Constitution but that the matter should be left to an ordinary law. The Assembly was not able to decide either for the proposition of the Cabinet or for that of the Committee on the Constitution. The proposal of the Cabinet provided for a general election. If in the first canvass no candidate received the majority of the votes cast, a second one would have to take place in which only the two candidates who had received the largest number of votes in the first canvass could run. Of these two candidates the one who obtained the majority would be elected.

This proposal aroused serious opposition in the Constitutional Committee. It was held that, given a multiplicity of political parties, it was probable that in the first canvass a great number of candidates would present themselves and consequently at the second ballot neither of the two surviving candidates would rally to his support any important fraction of the whole people. On the other hand, it would be difficult before the first vote to effect any union among neighbouring parties on a common candidacy, because up to that moment the various groups would not know what possibilities there were for the election of their own candidates. In any event the position of the President would be weakened, for a great number of those voting for him would not do so primarily out of sympathy with him, but in order to keep out some other person still less in their confidence. All the criticisms that were made at another time against the balloting under the former electoral law would be applicable here with added force, since it was a matter of the election of the personality who must be vested with the highest dignity in the Reich.

Having condemned this method of election, the committee adopted the proposal that seemed to them most opposed to this: that candidate should be elected who received on the first ballot the largest number of votes (a relative majority). If this system did away with some of the inconveniences of balloting, there nevertheless could be urged against it and with greater force the same objection as filed against the preceding proposition, viz., that, given the division of political parties as it was, a man could be called to the head of the nation who would have behind him a relatively small fraction of the German population.

According to a third proposition, the second balloting could be avoided in the following fashion. The elector would be permitted to indicate on the first ballot a second person to whom he would give his vote should his first candidate not obtain the necessary number of votes. This proposition had as its point of view the idea that neighbouring groups or parties could in this way and in advance effect electoral compromises in the event that none of their candidates alone should survive the first ballot. In this way there would be the advantage that a second ballot would be unnecessary. But this system was not without danger, for first of all it lacked simplicity, and again there was nothing to show that the electors would thereby abide by the agreements concluded by their parties. A well disciplined party, in which the electors held to the agreements made by the chiefs of their party would risk being put at a disadvantage by this system in relation to a party in which there was no discipline whatever. There was the danger in accepting this proposition that the elections would bring about a result that would not truly express the real wish of the people, but which would depend on the tactics and the more or less effective discipline of the parties.

None of these propositions having been accepted only one procedure remained possible. This was to have two ballots, but not to limit the second ballot to two candidates and to declare elected the candidate who has received the largest number of votes. Thus, no group is obliged to deprive itself of a candidate who might be able to win. But when the different candidates have measured their strength on the first ballot, the parties could then freely come to agreement based on precise results. Nor would it be indispensable that this agreement should be based purely and simply on the proportion of votes obtained on the first ballot. Parties could agree on a candidate who on the first ballot had not been presented. It could be hoped that the political situation, being to some degree cleared by the first vote, there would be a considerable decrease in the number of candidates, with the result that the President elected would receive the majority of all the votes; or at least that he would obtain a number of votes much larger than if he were considered elected on the first ballot by a merely relative majority. The vote which a candidate would thus obtain would be given him by the free choice of the population; he would be much more the man trusted by the people than he would be if a majority of the electors had voted for him constrained by a balloting procedure. But the doing away with the second ballot could not be accomplished without at the same time losing the clearness with which the popular will should express itself.

Such is the system which was finally adopted as law on the election of the President, on March 4, 1920. According to the terms of [Article 4] of this law, “The one who has obtained more than half of all the valid votes is elected. If no one obtains this majority a second ballot must be proceeded to, after which the candidate obtaining a plurality of the valid votes shall be considered elected. In case candidates obtain an equal number of votes election shall be decided by lot.”[41]