The New German Constitution

by René Brunet

The President commands all the armed forces of the Reich. He is from this point of view the direct successor of the Emperor. He has, therefore, the power called Reichsexecution; that is to say, that when a state does not carry out the obligations imposed upon it by the Constitution or by a law of the Reich, he has the right to compel it to do so with the aid of armed force. But, above all, he has the right to declare a state of siege.

This is a peculiar point in the German Constitution. Whereas in France, the state of siege cannot be declared except by a law, in Germany it is sufficient to declare it by means of a simple order of the President. [Article 48] gives him the right, when security and public order are seriously affected or menaced, to take necessary measures for the re-establishment of security and public order and at need to use, therefore, armed force to that end. But in order that he may be able to resort to these exceptional measures, tranquillity and public safety must be seriously affected or menaced. But he alone has the power to decide if and when this condition is fulfilled. In the same way he alone decides what measures are necessary for the re-establishment of order. He may particularly—the Constitution expressly gives him this right but only in a general way—suspend individual liberties. As to details in this matter the Constitution provided for the passing of an ordinary law which should prescribe particulars more completely; but this law has not yet been enacted. It is agreed to recognize that until such a law has been passed the authority of the President in this respect remains unlimited. He may therefore not only order all measures which seem to him necessary for this or that emergency, but he may also by an ordinance prescribe general and permanent measures. He may institute penalties or increase those provided by the penal code. He may also establish special tribunals. It is in effect a dictatorship.

This extraordinary power which has been given him, the President uses to a very large extent. Germany, it is true, is traversing a particularly troubled period and it is probable that this is responsible for the great number of ordinances issued by the President creating states of siege. There are regions that are almost constantly in a state of siege, particularly the Ruhr. In 1920 Berlin remained in a state of siege from January 13th to May 28th.

The modes of applying these high executive powers are extremely variable and, according to circumstances, the measures prescribed constitute a menace more or less grave to the rights of the individual. In serious situations all the authority goes to the Minister of War, who may exercise them himself or transmit them to his subordinates, and who is assisted in civil administration by a Commissioner of the Cabinet. Penalties are enacted; arson, the illegal use of explosives, flooding, damage done to railways, and resistance to legal officers in the course of a riot are punishable by death. Extraordinary court-martials are created and invested with broad authority. The military powers may even institute court-martials appointed by the commanders of the troops charged with suppressing the disorders and presided over by an officer of these troops.[43] In less serious situations the authority in the territory involved is given over to a commissioner of the civil government, nominated by the Minister of the Interior. The liberty of individuals is suspended, but certain guarantees are retained. Prison sentences and fines are instituted. Between these two extreme types of state of siege there is a whole gamut of provisions more or less severe; and almost daily new ordinances appear establishing the state of siege in this region, sharpening it in another, relaxing here and abolishing it there. There are territories declared in a state of siege in which this abnormal situation is not manifested by a single practical restriction; it is there only a measure of precaution on the part of the government. But there are others where repressions of a terribly brutal nature take place.

The only limit that the Constitution has provided to this omnipotence of the executive power consists in the obligation it places on the President to acquaint the Reichstag with all the measures he has taken by virtue of [Article 48]; and in the right that is given by the Constitution to the Reichstag to demand that he withdraw these measures. It is because of such a demand that the Cabinet was compelled on May 28, 1920, to abolish the then state of siege throughout the whole Reich, except in the Ruhr, to permit the elections of June 6 to be held under normal conditions.

The parties of the Right, for whom the authority given the President seems never strong enough, wanted to give him still another power, the right to prescribe a referendum or to dissolve the Reichstag without a countersignature of a Minister. The President, they held, would never be able to secure the countersignature of a Minister to a dissolution of the Reichstag, or to appeal to the people against the Reichstag, because ministers depend for their official lives on the confidence the Reichstag reposes in them. It will be necessary in such a case, therefore, for the President to form a new ministry to countersign his ordinance. But if the electors of the nation decide against a President, he will have to call back to office the former Ministry. Of what use is this roundabout method?

But Preuss vigorously defended the necessity of the countersignature, dictated by principles of a republican democracy and of parliamentarism.

He began by reviewing the hypothesis of a referendum. In such a situation, he said, one of two possibilities occurs. Either the President and the Minister are in agreement to prescribe a referendum; in which case would the Minister refuse his countersignature? That would be contrary to the normal relations which must exist between the President and his Ministry; especially, too, as a referendum is subject to certain conditions imposed by the Constitution, and these conditions have to be observed and some one must take the responsibility in case they are violated. Or in the other case, the more important, the Ministry are against the referendum; they are determined not to permit such a politically important act to be committed against their best judgment. In such a situation the Ministry will immediately resign and the President, not being able to remain without a Ministry, would have to form a new one. Whether or not, therefore, the countersignature of a Minister to such decrees is required, the situation culminates in a change of Ministry. But it is more natural that if the President wants to bring about an act against the political convictions of his Ministry, he will seek a Cabinet that will accept the responsibility for this act.

The situation is quite analogous in reference to the dissolution of a Reichstag. If the President dissolves the Reichstag and wants to prevail over its majority he can no longer retain the Ministry supported by this majority. Dissolution results from the fact that the President seeks, by a new election, to change the majority to a minority and the minority to a majority. He must therefore ask himself this question. What political combination can I use? Such a calculation must be faced if it is not permitted the President to prescribe a dissolution of the Reichstag except with the countersignature of a Minister. The President is not absolutely subject to the majority; he may attempt, in appealing to the people, to make another majority of the minority, but in that case he must take into this minority statesmen who will accept the responsibility for such an attempt.

The President may, therefore, order the referendum and dissolve the Reichstag; but these two decisions, like all the others, must be countersigned by a Minister.