The New German Constitution

by René Brunet

(1) Normally, and it must be so according to the German Constitution, when it is a matter of forming a new Ministry, the chief of state charges some political leader with the task of constituting a Cabinet and assuming the direction of its affairs. This man chooses collaborators with whom he agrees or can come to an agreement to the effect that they work in common for the realization of a specific programme. The Ministry thus formed is submitted to the Parliament and presents to it its programme. If the Parliament accepts, the Ministry goes to work. Otherwise it is withdrawn. In any event a ministerial crisis resolves itself in a few days.

In Germany the formation of a Ministry is always an extremely complicated affair. Instead of only two great parties—which seems the ideal condition or at any rate the traditional situation in the normal functioning of a parliamentary régime—there are in Germany five or six parties, none of which consists of a sufficient number of members to have in itself a majority. In addition the Cabinet’s difficulties are almost inextricable and the party that accepts a part in the ruling power realizes the risk it immediately incurs in exercising it. Likewise the different parties do not always lend themselves with good grace to this risk and often prefer the egoistic attitude and the convenient rôle of an opposition rather than the heavy and perilous task of governing. Whereas any political party worthy of the name should have an excellent programme in which it believes and should want nothing better than to come into power in order to realize such a programme, the political parties in Germany, little sure of their programmes, prefer, before attempting to apply them, to wait until the insufficiency of the programmes of the other parties has been previously demonstrated.

When a ministerial crisis opens there commences at the same time a period of difficult negotiations. Each political group meets and discusses the position it will take, deciding whether or not it will accept participation in the Cabinet. The answer to this latter question depends most often upon whether certain other groups will participate themselves in power. Then the trusted men or the leaders of the different parties meet together to find a basis for agreement. The President of the Reich naturally keeps in touch with these negotiations; sometimes they are held in his presence. The programme of the future Cabinet is discussed and above all the choice of future Ministers. When an agreement is reached the President of the Reich makes his nominations. There was one occasion, however, when the task of forming the Cabinet was extremely difficult. It was after the elections of June 6, 1920, which gave to the various parties such a distribution of numerical strength that no majority was practically possible no matter what combination was tried. The various groups met and quarrelled but were not able to come to agreement. Then the President charged a member of the Centre, not to make up a Cabinet, but to serve as an intermediary between the various parties and to bring them to an agreement. It is from this preparation that there issued the Ministry of Fehrenbach. Thus the Cabinet is constituted not by an act, a free decision of the President, but by an agreement reached by the parties.

From this ensue two consequences:

First, these crises are very long. The one in which the Fehrenbach Cabinet was formed lasted nineteen days. In a country whose situation is as difficult in every respect as that of Germany, such a lapse of time without a Cabinet, entirely taken up in deliberations and discussions between politicians, is obviously a deplorable state of affairs.

Another consequence is, that not only the Ministries are not homogeneous, which is the necessary consequence of the fact that no party has a majority in the Reichstag, but also they are heterogeneous in a fixed and invariable manner. To constitute a Cabinet there must be observed a triple rule. First, Ministers must be taken from the various political parties that enter the Cabinet; those individuals who are not members of the Reichstag being chosen from among the members of the party represented in the National Assembly. Secondly, each party has the right to a number of Ministers proportional to the number of its members in the Reichstag. The only exception to this rule is that the number of members in a Cabinet belonging to the same party must remain the same as in the just discarded Ministry; and if a Minister is withdrawn, the party to which he belongs designates his successor. If because of special circumstances another political group is called upon to fill the vacancy, this group in return as compensation to the other group cedes one of the ministerial seats held by it. Thirdly, the composition of a Ministry must remain unchanged for the whole session of the legislature.

The first Ministry constituted after the meeting of the Constituent Assembly in February, 1919, consisted of Scheidemann, its President, eleven members as department chiefs and three Ministers without portfolio. The parties that assumed government in coalition were, the Social Democrats, who had 163 members in the Assembly, the Democrats with 74 members, and the Centre with 89. The Social Democrats had exactly as many as the other two groups combined. In the Cabinet of fourteen members, therefore, they had seven seats, among them that of the President. The other seats were distributed, four to the Democrats and three to the Centre. During the entire period of the Constituent Assembly—with the exception of three months of the Summer of 1919, when the Democrats, who did not want to sign the treaty of peace, remained voluntarily aloof—the Ministry and the Ministers could change, but the composition of the Ministry rested practically identical. The last Cabinet formed under this Assembly, that of Hermann Müller, comprised at the time of its constitution, March, 1920, eleven Ministers, of whom one was without portfolio. And it was understood that it would later be completed by the addition of three other Ministers then not yet designated. Among the eleven members at first, there were five Social Democrats, three Democrats and three members of the Centre. As for the first Ministry constituted after the elections of 1920, that consisted of five members of the Centre, among them Fehrenbach, three members of the People’s Party and two Democrats; which corresponded approximately to the respective strengths of the groups in the Reichstag, viz., 68, 62, 45 members.[45]

Generally the number of Ministers is variable. Instead of having a fixed number of departments corresponding to a rational distribution of affairs, there are created or abolished Ministries according to the needs that have to be met to satisfy the demands of this or that political group. The Scheidemann Ministry had a Minister of Finance. But the Bauer, Hermann Müller, and the Fehrenbach Ministries had, in addition to a Minister of Finance, also a Minister of the Treasury. On the other hand, there was in the Scheidemann Cabinet a Minister of Economy, Wissel, and a Minister of Food Supply, Robert Schmidt. These two Ministers kept their portfolios in Bauer’s Cabinet formed in June, 1919. Then dissensions arising between Wissel and the other members of the Cabinet, Wissel resigned. But he was not replaced and the two Cabinet posts were made one. They were again made two, however, and provided with distinct titles in the Cabinets of Hermann Müller and Fehrenbach. A similar situation exists in the case of Ministers without portfolio, whose number, when there are any, is variable.

Sometimes in spite of all possible negotiations and combinations the various groups necessary for a coalition commanding a majority cannot arrive at an agreement. As a government must nevertheless be finally constituted, this or that group, which has refused to enter into the combination, promises nevertheless either its support or its neutrality to those who have had the imprudence to participate in the Cabinet. When the Fehrenbach Cabinet was constituted it could only count on the vote of the groups represented in it and, therefore, commanded only 200 votes in an Assembly of 466 members. But the Social Democrats promised not to overthrow the Ministry until the new elections. The consequence of this is that a Cabinet so placed is really not its own master, and this one had to yield to a certain degree to the injunctions of the Social Democrats. But on the other hand the latter, although they had refused to enter the combination, were indirectly responsible for the acts of the Ministry so long as they tolerated them in power.