The first question with which the National Assembly found itself confronted and which had to be decided was whether the German Reich was to remain a federated state or whether it was to become a unitary state; or, supposing that an intermediate solution were obtainable, to what extent it could partake of the characteristics of one or the other type of state.
The unitary state possesses an undivided and exclusive sovereignty. There is unity of law, of power and of will with one Constitution, one administration and one authority. The type of such a unitary state is France. To the unitary state is opposed the composite state in which co-exist several sovereignties, those of the member states as well as that of the central government.
For, there are two principal types of federated states: the confederation of states, which has as its basis an international treaty and the expression of whose will is only the sum total of the wishes of its member states; each component state retains its sovereignty, but certain attributes of that sovereignty are exercised in common through the confederate organs. The other type is the federal state, which has as its basis a constitution and which possesses a sovereignty necessary for the performance of its duties, the exercise of its rights and its independent will.
But it goes without saying that these concepts are essentially relative. Between the unitary state and the confederation of states lies a whole series of state types, one merging by imperceptible nuances into the other, types which differ one from another according to the extent to which the member states are called upon to collaborate in the formation of the common will. Further, the federal state is never static, in the sense that its institutions never cease to change, tending either toward unitarism—that is to say, toward the tightening of the federating bonds or even toward their disappearance through the complete fusion of the component states; or tending toward federalism, that is to say, toward a loosening of the bonds, or even their disappearance by the dissolution of the composite state.
There are undoubtedly in every composite state at the same time tendencies of both kinds. Theoretically they may even act as balances to one another. But this equilibrium is never completely realized and according as one of these tendencies gains over the other, the composite state tends more or less rapidly toward unitarism or toward federalism.[9]
Before the war the German Empire was a federated state with unitary tendencies. Since the war these tendencies have strengthened. For, the downfall of the Empire and its army, the economic catastrophe which followed the war and aggravated the revolution, the separatist tendencies which have shown themselves here and there on German soil, and the financial burdens which have weighed on Germany all have convinced its leaders that to save Germany and to build it up there was but one means possible—to concentrate all the powers in the hands of those at the helm of the Empire, and as a consequence, to diminish to the greatest possible measure the powers of the member states (if not actually to suppress them completely) in order to give all efforts available a single direction and to utilize them to the maximum, avoiding at the same time all unproductive energy and all scattering of forces.
By what means did this evolution manifest itself? How far did the Constituent Assembly go toward unitarization of the Reich? Will the German Reich remain a federated state?
To answer these questions we must successively examine: (a) whether the states still exercise self-determination and particularly whether they remain masters of their territory; (b) whether the states retain the right to give themselves their individual constitutions and laws and to govern themselves; (c) and finally whether the states participate, as such, in the formation of the will of the Reich. This last problem will be examined in studying the organization of the public powers, particularly those of the Reichsrat. The present chapter will be devoted to the study of the first two considerations.
SECTION I
TERRITORIAL STATUS OF THE STATES
Territory is one of the essential elements of a state. In a confederated state the central government cannot force on the member states changes or exchanges of territory, fusions or parceling of their respective holdings. Such was in principle the rÉgime prevailing in the old German Empire. The historic composition of the individual states as they were when their princes signed the federal pact in 1871 was guaranteed, and the territories of individual states were protected by the Constitution in the geographic integrity they had when they entered the Empire.
The Constitution of Weimar on the other hand put forward the principle of the mobility of frontiers. But it was not until after the most violent and passionate discussions that this was adopted, and not without modifications that peculiarly limited its operation. For, what was foremost in the deliberations and constantly dominated them was neither more nor less than the question of the dismemberment of Prussia. The cardinal consideration was this: legally the majority of the problems of organization that the Constitution had to solve would depend for their solution according to whether Prussia would or would not retain its territorial integrity. But the political problem was also grave. Prussia remaining as such, would it not exercise again its former hegemony over Germany with all the attendant dangers to the domestic and foreign policies of the Reich, dangers of an obstinate reaction at home and of an insatiable pan-Germanism abroad?
1.—THE PROBLEM OF THE DISMEMBERMENT OF PRUSSIA.
In November, 1918, there was felt throughout Germany a very powerful centrifugal movement. The masses of the people saw in the Reich nothing more than an alliance of princes and Prussian domination. It was to the princes and to Prussia that they attributed the inexpiable fault of having begun the war and lost it. During several weeks of limitless despair, two cries were raised, “Down with the Princes!” and above that, “Separation from Prussia!” It must be added that behind these cries was partly the unavowed hope that by abandoning the Reich one could more or less escape the menacing consequences of defeat. The Reich seemed on the point of dissolution.[10]
But some men at once realized that if Germany was to be saved the one efficacious remedy was to revive in the people the sentiment of national unity and to reconstruct the Reich on new bases. A unitary republic would have to be created and the domination of Prussia overturned.
These two fundamental objectives were self-explanatory and mutually compulsory. For, given the disproportion in power that existed between Prussia and the other states, the more one increased the power of the Reich to the detriment of the states the more one strengthened the domination of Prussia, for thereby Prussia was made all powerful within the Reich. If, therefore, the centralizing character of the Constitution was to be accentuated, the following dilemma would have to be confronted. Either Prussia as it was would have to be accepted by the Reich, in which case the German Republic would in reality become a unitary Prussian Republic in which non-Prussian parties would be subjected to the will of Prussia. Or, if this state of affairs was to be avoided and a unitary state with central will was desired, Prussia would have to be suppressed, either by a partition of her own accord or one imposed upon it by the Reich.[11] It was this latter alternative that Under-Secretary of State Preuss chose when he was put in charge of the drafting of the Constitution.
The individual states, he pointed out, were the products of purely dynastic politics which almost everywhere ran counter to the natural relations of populations and races, separating what should have been united and uniting elements that had nothing in common. Only the republic has the possibility—it is also its duty—to reunite what belonged together. The fundamental question of the internal organization of Germany is, can a centralized Prussian State be maintained within the future German Republic? This question Preuss, after philosophical, historical considerations, answered in the negative. He demanded the territorial redistribution of the states on the basis of the right of populations to self-determination, according to their needs and their political and economic inclinations, with the intervention, by the sanction and under the direction of the Reich. Preuss insisted throughout on the fact that Prussia is not a nation, but that she constitutes an artificial formation, due to the political hazards of a reigning house, purchases, marriages, conquests, etc. The Prussian state does not form an organic whole and is bound together neither by economic nor cultural relations. It is an incomplete German state, “an edifice of fortune.” Even admitting that it had been for a time indispensable, in that it constituted to a certain measure an internal bond, it has now outlived its usefulness as a state. The national unity of Germany as a whole is a vital question for the German people and therefore for the German Republic. It is imperative that the diverse races who lived in forced unity in Prussia should be at once placed under the sovereignty of the Reich instead of being “mediatized” by a state that interposes itself between them and the Reich. It is only by the suppression of Prussia that these populations can secure that equality which is their right by the side of the other German states. It is only by the dismemberment of Prussia that the small states of North and Central Germany can make themselves communities able to survive. That an incompletely unified state of forty million Germans, that is to say, Prussia, could co-exist with a more complete unity of seventy million Germans, is contrary to nature and is a political contradiction. The German people, therefore, must be free to erect within the Reich new German republics without regarding the actual boundaries of the existing German states, as far as economic conditions and historical considerations permit the formation of new states. Newly created states will have to have at least two million inhabitants each. The fusion of several member states into a new state can be effected by an interstate treaty drawn up by the states in question, and approved by their parliaments as well as the government of the Reich. If the population of a territory wishes to separate itself from the state to which it belonged in order to unite with one or more other German Republics, or to form for itself an independent republic within the Reich, a plebiscite must be resorted to.
These proposals aroused most violent opposition. In the meetings of the committees as well as in plenary sessions of the Assembly two declarations were constantly emphasized. On the one hand, matters could not remain as they were, for the interior boundaries of the country were too entangled and there were states too small and powerless to discharge conveniently their obligations. On the other hand, it was impossible to conceive a radical transformation and to hope to see realized a completely new regrouping if this had to be done on purely rational principles. Revolution could perhaps effect this transformation, but the Republic was not yet strong enough to undertake this task, particularly as it was so preoccupied with the problem of a constitution. Insistence on the complete solution of this problem, even if it did not invite complete failure, would mean too much loss of time. A compromise had to be found.
The terms of such a compromise were extremely difficult to find. For no change in the territories of the various states could be effected without encroaching on the territory of Prussia, which has “enclaves” or domains in most of the states whose transformation was contemplated. If even one were to content oneself with the fusing of several small states—which it was unanimously agreed was highly desirable—it could be done only by taking from Prussia such and such piece of its territory. No matter from what side, therefore, the problem was attacked one came to the question of the dismemberment of Prussia. And over this question came conflict.
Some of the members followed the lines of the proposal submitted by Preuss on the partition of Prussia; but they went much further and indicated precisely what territory they found necessary to take away from it.
It was above all the question of the Rhineland. Through Trimborn, spokesman of the Centre, deputies of Cologne and Aix-la-Chapelle, the inhabitants of the Rhine country presented their claims. Prussia, product of a political dynasty, is an aggregation of different races, for there is no Prussian nation. The people who live on the banks of the Rhine feel themselves handicapped in comparison with the other German races, since they are not in direct contact with the Reich, and are represented in it only through the medium of Prussia. It follows from this that the people of the Rhine cannot have free expression of their native tendencies nor develop their own culture. They suffer in every way by not having their own administration and by having to endure Prussian functionaries over them.
The objections which came from the Prussian side to the formation of a Rhine state were not valid, insisted the partisans of the latter. The separation of the Rhineland from Prussia need not entail in itself a separation from the Reich. On the contrary, the Rhineland would be more solidly and intimately welded to the Reich if they belonged to it directly instead of being only part of Prussia. Nor would they admit the argument that the Rhineland should belong to Prussia to supplement economically the relatively poor Eastern provinces of Prussia. “The old cry of the poor East and the rich West is to-day dead,” the Rhinelanders insisted. War and revolution have done infinitely more damage to industrial Rhine than to the rural Eastern provinces. Finally, while it is possible that for a certain period, undoubtedly short, there might be disturbances in Germany caused by the creation of a new state, these would be less harmful than leaving on the Rhine a situation that would remain a permanent source of trouble. In conclusion, the representatives of the Rhineland demanded the creation of a Republic of the West, which should take in the provinces of the Rhine, a part of Westphalia and the territories of Oldenburg and Bremen.
On the other hand, the representatives of Hanover demanded justice against the violent annexation to which it had been subjected in 1866. There was formed in the Assembly a “German-Hanoverian” group which demanded “a free Hanover within a new Germany.” It involved the fusion of Lower Saxony with Hanover and Brunswick.
In the same way the small states of Central Germany wanted to fuse into a single state which would take in also part of the territory of Prussia and the region of Erfurt, and would form the state of Thuringia.
To these claims the representatives of Prussia, particularly the Prussian Minister of Justice, Heinze, and the German Nationalist, DÜringer, replied, that the separatists were rats who were deserting a sinking ship; and they presented a vigorous defence of Prussia.
Firstly, they insisted, Prussia is no longer what it was before the Revolution. Formerly it was a powerful state enjoying all the advantages of hegemony and all the privileges which came from the fact that the German Emperor was the King of Prussia. To-day, said they, Prussia, whose military backbone is broken, finds itself economically and financially ruined and all its ancient prerogatives taken away. Furthermore, its former electoral system based on a class suffrage is gone and all the elements, including those of the Rhine, can make themselves equally felt thereafter.
Prussia as it now exists should be maintained, they went on. Its dismemberment would hurt the Reich more than it would serve it. Only powerful states, in command of important financial resources, can discharge the innumerable duties that to-day are incumbent on public organisms. Not only is Prussian culture necessary for the development of German culture, but the downfall of Prussia would involve the downfall of Germany; for Prussia is the cement that holds together the unity of the Reich, and renders services proportional to its greatness. Then, too, what would be the result of a dismemberment of Prussia? Aside from the fact that the advocates of dismemberment are absolutely unable to indicate the number and extent of the states into which they would carve Prussia, its parcelling out would involve a considerable loss in power and spirit, in time and in money. For each new state will want to have new administrative apparatus complete in every respect, a separate constitution, a separate parliament, a separate legislature, and so on. These states by reason of their weakness will be unable to discharge the obligations that would fall upon them. Still further, nothing was more illogical than to create new states if one wants to realize some day or other the unity of the Reich; for, each of these states will constitute later on just one more obstacle to such a unity.
Finally, said the Prussians, Prussia, which has already given all and sacrificed all to the greatness of the Empire, is ready to renounce still more, for the benefit of the Reich, what still remains of its independence, provided, that the other states do as much.
But it was precisely this demand that made the proposition impossible of acceptance by the others. In “sacrificing to the Reich all that remained” of the ancient rights of Prussia, the latter in reality sacrificed nothing; on the contrary, it gained a great deal. For, mistress of the Reich as it would be, it would secure thereby not only everything it brought to it, but also all that the other states contributed to it. It was thus, therefore, that Preuss always came back to the same dilemma: either a Germany under Prussian hegemony or a Prussia dissolved into the Reich.
Following the position which they took on this question, the members of the Committee on the Constitution supported either the text adopted by the conference of States or the project put forward by the government.
It became indispensable to know who in the last instance would decide on the territorial distribution. The conference of states replied, that only the states concerned should have the decision, otherwise there remains no such thing as states. The government insisted that it alone should be the deciding power, for it was the natural arbiter between the states, and only it controlled the situation sufficiently to resolve the problem in accordance with the political and economic considerations that were involved. Only the Reich can accomplish the necessary redistribution according to a consistent plan. Such a redistribution would have to be regulated by a law. A third current of opinion in this question came particularly from the champions of the creation of a Rhine republic, who pressed for the submission of the question of territorial redistribution to popular referendum and insisted that the will of the population thus expressed should be the ultimate guide for territorial redistribution.
After a preliminary examination of the question the committee to which it had been submitted presented a project according to which territorial changes would be regulated by a law, which, however, would have to be demanded either by the people involved or by a predominant general interest. It would be the Reich that would decide this in the last instance. Against this first project of the committee, objections were raised on March 29 by the states of south Germany; and negotiations began between the government, the representatives of these states and those of the majority parties. On May 29, a compromise was signed which, after slight alterations on June 5 by the Committee on the Constitution, provided that territorial changes must be accepted in principle by the states involved, and approved by the Reich. If the states refused their consent these changes could not be effected except by a law that took the form of a Constitutional provision; but this law could not be enacted unless the populations affected demanded it or unless the preponderant general interest required it. This new version increased the rÔle of the states but also augmented the difficulty of procedure in any dismemberment whatsoever. It did not, however, exclude the hypothesis of a dismemberment effected in opposition to the wishes of the interested states.
The debate came back again and again to this version; and when the question reached the second reading before the National Assembly there was presented an amendment drawn up by LÖbe of the Social Democrats, Trimborn of the Centre, and Heile of the Democrats, which after very much discussion among the government and the representatives of the states modified considerably the version of the Committee on the Constitution. On the one hand, territorial modifications were facilitated in the sense that new states could thereafter be created, even against the desires of the interested states, by a simple law; for they wanted to avoid, for example, the situation in which Prussia or another state could completely prevent all territorial modification by rendering impossible the necessary majority for the vote needed to enact a constitutional law. On the other hand, the creation of such a new state was rendered more difficult in the sense that it considerably complicated the conditions according to which the populations affected could express their desires. But most important of all—and that was the principal provision of the amendment—it was specified that no territorial change could be effected against the wish of the states concerned before a period of two years after the formal adoption of the Constitution.
Thus Prussia was guaranteed for at least two years against dismemberment.
This last provision was aimed at the Rhineland whose situation, as it was clearly indicated at the Assembly, was at the bottom of all the discussion. It was declared that the Rhineland needed above all tranquillity in the particular circumstances in which it found itself; that occupied by foreign troops it could decide its territorial needs only with difficulty; and that, above all, the creation of a state on the banks of the Rhine would be considered abroad as a preliminary to the complete independence of this state from the German Reich; and that it was “necessary to maintain a unity of front against French imperialism.” Along this line of argument it was further insisted that the dismemberment of Prussia has been the chief aim of the war waged by the enemies of Germany and the creation of a Rhenish Republic would be exploited by them as an additional victory. This resulted in the deputies from the Rhenish provinces declaring in the tribune of the Assembly their loyalty to the Reich and that whatever were their desires to see the Rhineland organized into a state, they would support the LÖbe-Trimborn-Heile amendment including the postponement for two years of their justifiable claims.
The amendment was adopted by vote of 169 to 71, with 10 abstentions.
This version could not yet be considered as definitive, since when it came up for the third reading before the Assembly a new version was presented in the form of a new amendment by LÖbe, Trimborn and Heile, which modified the original version. The changes proposed dealt with the method of calculating the majorities necessary in a popular vote to determine territorial changes. The Prussian Minister of the Interior Heine complained that the compromise previously adopted after such long debate had been modified at the last moment in the course of conferences to which the representatives of the states concerned had not been summoned. He preferred the original version; nevertheless he accepted the new one since he was convinced that the Constitution would have to be revised in several of its parts. He added several interesting declarations. It would be dangerous, he said, to seek to realize unity within the Reich by creating new states, which would almost immediately after have to abandon their newly won sovereignty and dissolve themselves into the Reich as a whole. That would be a useless detour. Heine pledged himself to facilitate the creation of the state of Thuringia and to give up to it a part of Prussian territory on the condition that prior to this a treaty would be enacted between that state and Prussia regulating the administrative and economic relations between the two. But he opposed with vigor the proposition to create the state of Upper Silesia and above all opposed the creation of a Rhenish Republic. This Republic, he pointed out, would unite the territories of the left bank of the Rhine occupied by the enemy and the territories of the right bank administered by Prussia. Such a union far from safeguarding the German spirit on the left bank would incur the risk of submitting the right bank to the same influences that prevailed on the other, and thus create a considerable danger of infection to the right bank.
Finally the LÖbe-Trimborn-Heile amendment in its new version was adopted by the Assembly.
At the same time the Assembly passed a resolution which invited the Government to institute a central office where the different states would be represented; one which would have as its function to prepare programmes for regrouping the territory in accordance with a general plan. In July, 1920, a commission was formed in the Reichsrat with the consent of the states to devote itself to this task. The Minister of the Interior for the Reich, Koch, summed up its programme as “federation and decentralization.”
2.—CHANGES IN STATE TERRITORIES.
The territorial status of states is regulated by Article 18 of the Constitution.
This, as we have said, is a compromise; its leading idea is to fortify and draw closer the bonds of unity within the Reich on the basis of a new redistribution of territory according to economic and social interests and taking into account the wishes of the population. It is true that this has the value only of a programme without positive legislative force; nevertheless it has its importance; it presents the principle of a progressive revision of the territories of the states, a revision whose new unities would form organic divisions of the Reich such as would serve to a maximum degree the interest of the whole German people. The idea which should direct this territorial regrouping must be exclusively the interest of the German nation in its ensemble. The territorial status of the states no longer has as formerly a value absolute in itself, but is thereafter subjected to the condition that it assures in the largest measure possible the highest well-being of the Reich as a whole. There is in this undoubtedly a victory for the unitary idea.
Frontiers, therefore, will be “mobile” and their modification will have to serve the development of the general welfare. It will have to be the Reich that will be called upon to preside over the question of new repartition of territories, because it alone is the holder of sovereignty in Germany, and because it alone is in position to maintain an equal balance between the varied and particular interests of the states. No territorial change whatsoever, whether a fusion, a separation, or the creation of a state, will be possible or operative no matter what conditions exist for its consummation, without a law enacted by the Reich.
In addition—and this general rule must be followed every time that a change is envisaged which does not constitute an exception expressly provided for—such a law of the Reich must be enacted in the form of a constitutional law.
This rule has three exceptions in which an ordinary law of the Reich suffices, provided that a certain number of other conditions are realized.
(1) An ordinary law is sufficient when the change, the separation or the union of territories takes place with the consent of the interested states. This consent manifests itself in the form of a declaration of the governments of the states; for these governments by virtue of the constitution enjoy the confidence of the people, since they are supposed to be both democratic and republican; in which case a plebiscite is superfluous.
(2) But cases may present themselves in which populations wish to separate from a state to which they belong, against the desires of the government of the state. The Constitution provides that the wish of these populations must be followed. According to Article 18 an ordinary law is sufficient to permit territorial changes or the creation of states if the interested states do not consent to it, but if the wish of the population demands it and at the same time the preponderant interest of the Reich requires it. This provision is evidently directed against Prussia; for should in such a case a constitutional law be demanded Prussia would command a sufficient number of votes in the Assemblies to prevent changes it did not wish. The dismemberment of Prussia is thus rendered theoretically possible by this provision. But we know that this provision is not applicable before August 12, 1921.
It remains to be seen how the wish of a population can manifest itself in the operation of the latter provision.
The population may either be consulted by the government of the Reich, which can order an immediate plebiscite; or the population can take the initiative and impose on the government of the Reich the obligation of ordering the plebiscite. This initiative must be signed by a third of the inhabitants of the territory whose separation is asked for. The plebiscite in such a case must be ordered by the government of the Reich.
Whether the plebiscite is ordered by the government or results from popular initiative, it must, to be effective, satisfy the following conditions of majority. They must obtain (a) three-fifths of the total number of votes cast; (b) a majority of the votes of the inhabitants entitled to suffrage; (c) and finally when the question is one of dividing a territory which wishes to separate from its state, the population of the whole district or administrative division of which it was a part must be consulted; this in order to avoid break-ups due to parochial quarrels. In other words, the plebiscite must extend to the whole district even if the part that wishes to separate forms only a fraction of this district. Nevertheless Article 18 provides for practical purposes one exception to this third condition. This refers to exceptional districts, that is to say, sections of territory that have no geographical kinship with the district to which they belong. In such a case a special law of the Reich could decide that the wish of the population of this special district is sufficient and that the entire population of the district to which it belongs need not be consulted.
The plebiscite having rendered an affirmative verdict the government of the Reich must submit to the Reichstag the project of law necessary to effect the changes in territory desired by the population.
(3) An ordinary law is sufficient to modify the outer boundaries of the state, that is to say, the frontiers of the Reich itself, when these are necessitated by a treaty of peace. When these modifications are to be effected otherwise than by the special case of a treaty of peace, the consent of the state affected must be obtained (Article 78).
Such are the provisions of the Constitution relative to the territorial status of the states, but it must be recalled that certain of these provisions—those which aim at territorial change based on the desires of the population but against the wishes of their state government—do not become operative until two years after the adoption of the constitution. Thus up to August 12, 1921, no parcel of the territory of Prussia, Bavaria, Hesse, Oldenburg, occupied by foreign armies, could be constitutionally taken away from their states without their wish. The aim pursued by the constituent Assembly in adopting this provision was to combat separatist attempts of powers whose armies occupy German soil, and to avoid all appearances and possibilities of dismemberment until revolutionary effervescence and political disorders shall have come to an end.
3.—THE CREATION OF A STATE—THURINGIA.
The provisions which we have elucidated have already been put into operation. A new state has appeared in the Reich created by the fusion of several former states.
Almost immediately after the revolution of November, 1918, a project was born in central Germany to fuse several states there and to form of their territories the state of “Thuringia.”
First the two states of Reuss reunited. On December 21, 1918, they organized an administration in common and the fusion became operative on April 4, 1919. This new state appeared thereafter as a sort of centre for crystallization. The first state to join this movement was the Republic of Altenburg, with which Reuss had many interests in common.
But this development toward the federation of states of central Germany was soon interrupted and seemed for a time even definitely arrested. The men who were pushing the project of extending this movement conceived the idea of the creation of a “Great Thuringia,” which would comprise important parts of Prussian territory and which would have as the economic and political centre and as capital the Prussian city of Erfurt.
The execution of this plan aroused violent opposition on the part of the government of Prussia, such as it manifested whenever the question came up of the separation from it of any part of its territory. It encountered also the strong objection on the part of the authorities and the population of Erfurt who preferred the present advantage of belonging to the most powerful German state rather than the possible benefit of becoming an important element in a new state. The project of a “Great Thuringia” was abandoned and the effort continued as before to form a state which should comprise all the states of Thuringia without appropriating any Prussian territory.
Of the eight republics of central Germany included in this plan of fusion one, that of Coburg,[12] refused to join the movement. This republic, having on October 30 inaugurated a plebiscite to find out whether the population wished to belong to Bavaria or to the future “Thuringia,” obtained 3,460 votes for Thuringia and 16,102 votes for Bavaria. This reunion with Bavaria was then consummated, with the consent of Bavaria, by a law of the Reich of April 30, 1920.
As for seven other republics—Saxe-Weimar-Eisenach, Saxe-Altenburg, Reuss, Saxe-Gotha, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen and Saxe-Meiningen—they concluded a “treaty” by which they combined in a “community” to prepare their complete fusion.
To this effect the treaty provided two organs:
(a) A popular Council, the legislative organ of the “Community,” composed of representatives of each of the seven Diets;
(b) A Council of States, the executive organ, consisting of representatives of each of the seven governments.
These organs had as their mission to study and take all preliminary measures necessary for the fusion. To permit the accomplishment of this mission the states transferred to them all their legislative and administrative powers necessary. The laws voted by the popular Council were therefore compulsory in the territory of all the seven states. They were particularly operative over the governments and the administrative authorities of these states.[13]
The common organs were in addition instructed to prepare the Constitution of their future state.
When all these necessary preliminary provisions had been taken the Reich declared the fusion in being. All the interested states being in agreement with this step an ordinary law sufficed; and it carries the date of April 30, 1920.
SECTION II
THE DIVISION OF POWER BETWEEN THE REICH AND THE STATES
The unitary character of the Constitution appeared not only in the fact that it recognized in principle the right of the Reich to regulate the territorial status of the states. It appeared also in the clauses relating to the division of authority between the Reich and the States, provisions that took from the latter and gave to the Reich a considerable quantity of powers of a constitutional character as well as legislative and administrative.
1.—THE CONSTITUTION OF THE STATES.
The Constitution of the German Empire of 1871 recognized the right of the member states to choose whatever constitutions they desired.[14] The Empire never concerned itself with the form of government chosen by any of its states nor with the different provisions they inserted in their constitutions.
Germany was thereby the only federated state which thus left, theoretically at least, such a latitude to its member states. The United States and Switzerland, for instance, impose certain fundamental provisions on the constitutions of their component states, relating to the form of their State.
This latitude could not exist in the new Germany for the Reich, having adopted a democratic and republican constitution, could not, without condemning the very principles on which it had been built, agree that such and such of the member states should remain monarchical. Proscribed in the Reich, monarchy would also have to be barred in the states. Also the co-existence of both monarchies and republics within the Reich would have something so inconsistent within itself that it would run particularly counter to the centralizing tendency which was being so eagerly promoted.
Article 17 therefore indicates to the states the bases on which they must erect their future constitutions, in order to insure a harmony of principles between the Constitution of the Reich and the constitutions of the states. These bases would have to be analogous to those serving as the foundation of the Constitution of the Reich. One can group these principles under three heads:
1. The democratic principle.—All power springs from the people; as a consequence national representatives must be elected by popular vote; that is to say, they must be elected by all the Germans, men and women, by universal, equal, direct and secret suffrage following the rules of proportional representation. The same applies for municipal councils. On the other hand the states remain free to provide different modes of suffrage in elections in wards, districts and provinces.
2. The republican form of the government.—All monarchical restoration is forbidden.
3. Parliamentary government.—But this provision was only desired by the Constituent Assembly; it is not strictly imperative. Preuss formally declared in committee meeting that any constitution, for example such as that existing in Switzerland, which provided for a council elected by popular vote, would be admissible; but there would be excluded a rÉgime of despotism in which the government was completely independent of the popular Assembly. It mattered little otherwise whether the state adopted the one-chamber system or that of two chambers.
These three principles were accepted without serious difficulty. A twofold point must, however, be noted. First that all Germans could vote in all the states for the election of the popular Chamber, that is to say, for example, a Bavarian could vote at the election of the Prussian Diet. This provision is one of the principles that suppressed almost entirely the nationalistic motive of the individual states; it is clearly characteristic of the unitary tendency of the constitution. In addition to this, Article 17 adds to the general conditions a special condition in the case of local elections: a year’s residence in the district is necessary for the right to vote.
In the National Assembly the speakers for the parties of the Right insisted at great length on the difference that exists between political elections and purely local elections. In the latter it was necessary above all that the elector choose men known to be familiar with local needs and competent to satisfy them. These propositions are undisputable, but the conclusion which the German Nationalists drew from them was that to be an elector in a district one must be a holder of property in it. These conclusions were rejected by the Assembly as contrary to the democratic principle, and a year’s residence was the only condition finally adopted.
2.—THE LEGISLATIVE POWER OF THE REICH.
The states are limited not only in their right to adopt whatever constitution they desire; they are also limited considerably in legislative power by that of the Reich.
I.—FUNDAMENTAL LIMITS OF POWER.
Already the Constitution of 1871 had reserved to the Reich a certain number of matters on which only it had the right to legislate. It was thus that foreign affairs, citizenship, customs, indirect taxes, railroads, post and telegraph, legislation, civil, penal and commercial, the army, the navy, the police and regulation of the press, all were included in the legislative authority of the Reich. In the memorandum submitted by Preuss in his draft of the Constitution, he insisted on the necessity of revising this division of authority. He submitted as a principle that all state functions belonging naturally to the national collectivity as such should be concentrated in the hands of the Reich more strongly, more exclusively and more clearly than in the preceding constitution. On the other hand, the autonomy and free administration of the smaller collectivities, from the communes up, would find their consummation and their most complete development in the republics, which should be constituted in united groups according to the nature of their populations and their economic structure.
In the course of this work two tendencies clashed: the necessity for the development and strengthening of the unity of the Reich; and the necessity, on the other hand, of assuring the states a sufficiently individual existence. A compromise was effected; but more than ever before perhaps the centralizing tendency was accentuated; and it has gone as far as possible without completely suppressing the reason for the existence of the states.
The authority of the Reich is more or less extended according to circumstances. It can be, to use the technical expressions employed in Germany, exclusive, concurrent, and normative.
1. The competence of the Reich is exclusive, when it alone has the right to legislate, in the respect that the states cannot pass laws on the matters touching this authority of the Reich, even if the Reich abstains from using that right. These matters are enumerated in Article 6, which contains, as compared with the former constitution, important innovations.
The relations with foreign nations are hereafter the exclusive province of the Reich. The states lose the active and passive rights of legation, and they cannot enter into relations with foreign states except through the intermediacy of the Reich. However, Article 78 gives them the right to conclude treaties with foreign powers on matters which belong to their own proper legislative domains, policing of the frontier problems, for example. But these treaties must secure in addition the consent of the Reich.
Another novelty is the unification of the army. In place of the former contingents there is hereafter an army of the Reich in the hands of which is concentrated all the means of defence of Germany. The army is hereafter from this point of view placed on the same basis as the navy.
In the same way there is an increase in the authority of the Reich over the interior situation, the provisions according to which the Reich only has the power to legislate on posts, telegraphs, and telephones. It is true that the former constitution had put forward the principle that the posts and telegraphs of the German Empire should be organized and administered in a uniformed manner; but this provision and principle was nullified by the fact that it was not applied in Bavaria and in Wurtemberg, these states having in virtue of special treaties “particular” rights. But these rights were annulled by the present constitution.
Finally it must be noted that Articles 89 and 97 of the Constitution granted the Reich the right to administer the railroads and the waterways that served the general commerce. This right the Reich made use of in appropriating in April, 1920, the railroads belonging to the various states.
2. The second group of subjects entering the province of the Reich’s authority consisted of matters on which the Constitution gave to the Reich the right to legislate by priority, without thereby excluding the legislative authorities of the various states, so that there could exist concurrent legislation in the Reich and in the States, the states retaining the right to legislate as long as the Reich does not use its own right to legislate on these matters.
This group is defined in the Constitution by Articles 7, 8 and 9.
Article 7 sums up briefly, as did Article 4 of the old Constitution, the province of concurrent legislation, but adds considerably to the enumeration strengthening here the unity of the Reich and adding to the subjects which enter into the concurrent legislative competence of the Reich all such important matters as assistance and care to be given to mothers, infants, children and youths; also questions relating to professional representation, to the socialization of natural wealth, to economic enterprises as well as the organization of collective enterprises. To this, strengthening still further the competence of the Reich, Article 12, Section 2, adds that the government of the Reich has the right to veto laws passed by the states dealing with socialization, if these laws touch the well-being of the whole population of the Reich.
Article 8 introduces in the Constitution, in spite of the violent opposition of the states, the principle of financial sovereignty of the Reich and fiscal centralization therein. This article gives to the Reich the right to take possession of all sources of revenue, stipulating, however, that it must leave to the states resources sufficient for their existence. This provision constitutes an important advance along the road to the unity of the Reich and strengthens considerably the financial competence of the Reich compared to its former situation.
Article 9 also deals with the concurrent authority of the Reich in matters concerning the public weal and the protection of order and public security; but under this head there is the limitation, “to the extent that it shall become necessary to pass uniform legislation.” This limitation, however, is of no particular importance, for as with the matters dealt with in Article 7 the Reich does not make use of its right of legislation except as it feels the need for it. The restriction provided by Article 9 is explained by the fact that the authority of the Reich in these matters naturally met resistance on the part of the states and that a compromise had to be effected; they came to the agreement that the Reich would not take up these questions in advance and in the first instance.
3. Besides “exclusive” and “concurrent” legislation there is also “normative” legislation. This is provided by Articles 10 and 11 and consists in the right of the Reich to “lay down principles simply leaving the details to be enacted and carried out by the legislators of the state.”
According to Article 10 in this kind of legislation are included matters of vital importance from the points of view of culture and of social considerations. Already in its second part the Constitution enacts a certain number of principles to which both the legislators of the Reich and of the states are subjected.
Article 11 deals with the “normative” competence of the Reich over financial legislation of the states. It was necessary that the Reich legislate on this question for otherwise there was the fear that the states, in attending to their own financial needs, would drain sources of revenue needed by the Reich.
II.—AUTHORITY OF NATIONAL OVER STATE LAWS.
However precise and rigorous may be the division of the authority between the Reich and the states, conflicts may nevertheless arise between the two. In such cases it was natural that the Reich should claim for its laws, “the authority of Empire surpasses the authority of states.”
3.—THE ADMINISTRATIVE SERVICES OF THE REICH.
Before the Revolution the Reich did not have in principle an administration proper to it; the execution of the laws of the Empire were as a general rule assured by the functionaries of the member-states under the control of the Reich. The new Constitution continued, it is true, the same principle but it provided exceptions of the first importance. Three hypotheses must be noted here:
1. Certain powers belong exclusively to the Reich. They are those which we have enumerated as contained in Article 6. The Reich has the exclusive right to legislate on these matters, but in addition it has also the sole right to execute these laws; that is to say, it creates and directs the administrative services necessary to assure the application of the provisions which it has the exclusive right to promulgate. Foreign affairs, the army, the navy, etc., are administered directly by the Reich. But in addition in matters that belong concurrently both to the Reich and to the State and which have been placed in the hands of the Reich the latter has created a special administration which it directs itself, that of finances.
2. In other cases in which the Reich has the right to legislate and uses it, it yet leaves the care of the execution of these laws to the functionaries of the State. Although these public services are instituted and organized according to the laws of the Reich the functioning is assured exclusively by the officials of the state. There was formerly, and there still is to-day, the hypothesis of authority in common in matters of public security, assistance and the Reich.
3. In a third series of cases, finally, the states have exclusive competence. They may both legislate and administer.
Of these three hypotheses the one most important from our present point of view is the first. The recognized right of the Reich to have public services designed to apply its laws and acts, permits it to organize public administrations and to have functionaries subordinate directly to the Reich throughout the whole German territory. The unity of the Reich is greatly strengthened by the fact that the principal public services—the army, finances, diplomatic corps, postal telegraphs, railroads—are hereafter completely concentrated in its hands.
In addition when the Reich fails to organize its own administration or when it has left to the states the task of legislating on subjects that are contained in the legislative competence of the Reich, the latter is far from being weakened in its power therein. For it possesses in such cases the Right of Control over the administrative authorities of these states, and this right was notably strengthened by the Constitution of 1919 as compared to its former power.
According to the terms of Article 15, paragraph 2, control by the Reich may be exercised by the government of the Reich in matters on which the latter has the right to legislate. That means that control on the part of the Reich extends not only to the domains which have been already assigned to it by the legislation of the Reich, but also to matters in which it has the right to legislate even though it has not yet made use of such right.
The means by which these rights of control are exercised are the following:
(a) General instructions addressed to the authorities of the states for the execution of the laws of the Reich. These instructions of the government of the Reich are compulsory on the different authorities of the states. But instructions to subordinate authorities of these states must not be given in particular applications of these laws, for otherwise these authorities might receive contradictory orders from different sources; and in that way the governments of the state might lose all authority.
(b) The control of the Reich is exercised in addition by sending to the governments of the states commissioners charged with the supervising of the execution of the laws of the Reich. Such commissioners may even be sent, with the consent of the governments of the states, to subordinate authorities. In the latter case it must be admitted even that the Reich has the right to demand that the files of the state authorities be opened to it and with the consent of the governments of the states the Reich may examine witnesses, take testimony and make surveys within the provinces of the state.
(c) Finally the Reich may demand that lapses observed in the execution of its laws be corrected.
The ensemble of all these measures constitutes a strengthening of the right of control by the Reich as compared to the former rÉgime. On the one hand, the recognized right of the Reich to send commissioners to subordinate authorities with, it is true, the consent of the governments of the states, is new. Formerly such imperial commissioners were received only by the governments of the states themselves, instead of allowing immediate access to subordinates as to-day. In addition and above all when difficulties arise especially from the insufficiency of the measures taken by the authorities of the states, the power to settle these difficulties no longer belongs as formerly to a college constituted by the representatives of states, such as was the Bundesrat; but is now the function of the independent organs of the Reich, such as the government of the Reich or the High Court of Justice of the Reich.
4.—JUSTICE AND THE HIGH COURT OF JUSTICE.
The centralizing influence of the Constituent Assembly is manifested, finally, in the provisions which it adopted relating to the organization of justice. We know that in Germany justice, particularly such as is regulated by the laws on the organization of justice, the Code of Civil Procedure, the Code of Criminal Procedure, is administered by the tribunals of the states. The Reich had only one judicial organism, the Reichsgericht, whose powers are in principle similar to those of the Cour de Cassation (the highest court of appeal in France). The new Constitution has changed nothing in this system. A proposal submitted in committee for the purpose of giving the Reich full control over the administration of justice and making all judges functionaries of the Reich, was defeated. Now as before the sole authority of the Reich in this domain lies in the Reichsgericht.
But the Constitution has introduced a new judicial organism whose authority extends over all important cases of a national scope, and constitutes thereby a powerful element in centralization: that is the High Court of Justice. The task of organizing this Court is left by the Constitution to a special law. Until this law enters into effect the powers of this Court are entrusted to a senate of seven members, of which four are nominated by the Reichstag and two by the Reichsgericht.
The authority of the High Court of Justice is regulated by the Constitution. It is this Court that passes on the difficulties that may arise between states in the cases of division of patrimony where changes or separations of territories are involved. It is this Court also that decides constitutional difficulties within a state when there is no competent tribunal within the state to deal with such a question. It is this Court that adjudicates disputes as to public rights that arise between different states or between a state and the Reich, when there is no other tribunal of the Reich that has jurisdiction over such a dispute. This Court in addition presides over actions instituted by the Reichstag against the President, the Chancellor and the Ministers of the Reich for culpable violation of the Constitution or the laws of the Reich.
SECTION III
THE JURIDICAL AND POLITICAL STRUCTURE OF THE REICH
Having described the provisions which regulate the distribution of authority and territory and mark the reciprocal relations of the Reich and the States we may now attempt to define the Reich and to give precision to its relation to the States, politically and juridically.
1.—IS THE REICH A FEDERAL STATE?
Formerly when one spoke of the German Constitution the question was, “Is the German Empire a federal state or a confederation of states?” To-day when speaking of the Constitution of Weimar the question is asked, “Is the Reich a federal state or a single state?”
Nearly all the German jurists have attempted to answer this question and are almost equally divided in the answer. Some of them observe that the states have no longer the power to fix the form of their governments and that they can no longer change the organic provisions of their Constitutions; that the Reich can prescribe changes in territory against their will and even order new formations of the country. The Reich is in control of sovereignty and of the life and death of German states. It may against their will deprive them of their sovereignty. The new financial constitution of the Reich, which entered into operation on October 1, 1919, has taken away finally whatever had remained of their state rights, and all financial powers of the states have passed into the hands of the Reich. The states are no longer independent states, they are only autonomous administrative bodies within the Reich. The Reich has become a single decentralized state.[15]
The other jurists emphasize the characteristics of the States which bring them nearer in nature to states properly so called. The Constitution has recognised that if sovereignty in the Reich emanates from all the people, sovereignty in the states also emanates directly from the people of those states. From this it follows as a logical consequence that this power is exercised within the states, in the matters within their jurisdiction and through the organs of the states on the basis of their Constitution. The Constitution has admitted that the states have their own proper territory since the territory of the Reich is composed of the territories of the state. The latter have also their own individual legislative and administrative organizations. It need only be added that if the Reich disappeared the states could still subsist and continue to live according to their Constitutions, which proves that their sovereignty belongs to them and is not surrendered to the Reich. Finally, and this is the essential argument, in the Reichstag the states are represented as such and as such they participate in the formation of the will of the Reich. This makes it, therefore, a federated state.[16]
The National Assembly did not want to take a position on this question and of its own accord adopted an entirely colourless declaration on it which left the doors open to all opinions. While the individual states were called in the Constitution of 1871 “federated states,” they were thereafter called “republics” in the Preuss draft, “member-states” in the draft submitted by the government and finally “lÄnder” in the draft of the constitutional commission and in the definitive text.
Actually, however, it is difficult to understand the interest in this question. What difference does it make whether the states are states or provinces, so long as their powers and obligations are strictly defined by the Constitution? From their names alone we can deduce nothing practically informative about their nature. It is an academic question which has not progressed one step in three generations, which one studies but does nothing about, for there is no reality in it.
In fact it is not possible to indicate a precise and material criterion according to which one should differentiate between a state and an autonomous province which is not entitled to the name of state.
There are no clearly defined categories which one can label once for all and among which one can distribute the different state and provincial collectivities.
There are only collectivities that are according to different circumstances more or less broad in power. They differ one from another not in quality or in nature but in the quantity, in the total powers which they may exercise. Here all one can ask is, whether the states, as they are defined by the Constitution, resemble more the type generally called a state, or the type generally called autonomous province; and one can say, if one wishes, that they are more the former than the latter.[17]
2.—PRUSSIA AND THE REICH.
There is a second question of more immediate interest; and that is to know how the political forces in the Reich are divided and in what relation they find themselves one to another.
The Constitution has increased the power of the central state already great under the old rÉgime as compared with the individual states; the states have lost considerably in their importance and this in the measure that the Reich has gained. They have undoubtedly the theoretical right to legislate; but the Reich legislates on all matters of any importance and the legislative domain of the states is thereby reduced almost to nothing.
They have in principle judiciary and administrative services, but in all important respects such as relations with foreign states, military administration, railroads, waterways, posts and telegraphs, their authority has been taken away; the whole domain of financial legislation has also passed to the Reich and they can no longer exist except through subsidies from the Reich.
They have a territorial sovereignty; but a constitutional law, and in certain cases even an ordinary law may modify that territory against their will.
They still have their citizens; but every German may exercise in every state of the Reich the same rights and duties as those exercised by a citizen of his own state.
In reality the states no longer count and the Reich is all powerful. Such is the situation in which the centralizing tendencies of the Constituent Assembly have culminated. But we come back to it in a problem that presents itself as follows: Has Prussia retained the hegemony which it exercised actually under the Empire and has it kept it to the extent that any increase in the centralizing character of the republic will only increase the power of Prussia in the Germany of to-day? Professor SchÜcking said one day to the National Assembly that all history of Germany past and future can be summed up with, “Up to 1867 Prussia was against the Reich; from 1867 to 1918 Prussia was above the Reich; the Reich must hereafter be above Prussia.”[18] Will this consummation ever be attained? To what extent has the Prussian hegemony been diminished since November, 1918?
The Constitution embodies several important provisions affecting this question. Prussia has lost all the advantages it derived from the fact that the German Emperor was the King of Prussia; the privileges it enjoyed in the legislative initiative, in military matters and in fiscal affairs have disappeared; the Bundesrat, in which it played a preponderant rÔle, and which was in itself the most powerful organ of the Empire, is now reduced to a Reichsrat which can no longer prevent anything. There is no longer a Chancellor nominated by an Emperor-King and chief of all the politique of the Empire and of the entire administration; the powers of the Emperor have been transferred to the President of the Reich elected by all the people; Prussia may even against its will—though not for two years, it is true—be deprived of several sections of its territory and see them erected into new states or attached to still other states. All these diminutions of right have been consented to by Prussia itself. Are they sufficient to suppress totally the political domination which Prussia exercised over the German states, small and great? It does not seem so, for there still remains this paramount fact: Prussia represents four-sevenths of the total population of the Reich; that is to say, Prussia alone has the majority. The Reich being a democracy wherein the majority is sovereign Prussia is assured in important questions of the opportunity to impose its will always on Germany.
The remedy is evidently to divide Prussia into several states. But the Constituent Assembly did not have the desire—or the force—to resort to this; so that to-day Prussia is still above the Reich.
Perhaps another remedy is possible; and it is on this that those who wish to place the Reich above Prussia base all their hope. That is to give to Prussian provinces a very broad autonomy in such a way that their powers being progressively increased, they will join little by little the states whose powers are diminishing. There must be effected a decentralization as complete as possible, in such a way that these provinces while still remaining in the state of Prussia will have sufficient means to be able to live individual lives and to impress their special temperaments on the different acts of their political life. It would be necessary—and it is there that the problem is most difficult—to maintain in these provinces Prussian legislation and at the same time give them the right also to legislate and assure them a sufficiently independent administration.
These are only projects and one cannot tell to what extent they are realizable. We shall see, however, that the Constitution of Weimar has timidly commenced an effort to realize them.
