A democracy, above all one comprising seventy million inhabitants, no matter to what great extent it makes use of direct government, cannot nevertheless govern itself that way. It must furnish itself with representatives charged with the direction of public affairs. Democracy presupposes by definition a representative government.
But this government may assume different aspects, and the republic—for we have seen that the republic is the normal form of democratic government—may be organized according to three different principles.
There may be noted, according to the type, the presidential republic, such as the United States of America, which tends to realize a separation of powers as complete as possible and in which the President elected by the people and his ministers or secretaries nominated by the President are never responsible to the Parliament. Then there is the collegiate republic, such as Switzerland and the Hanseatic Cities, in which the President is replaced by a college which is, by the side of the Parliament, an organ of popular sovereignty and which exercises executive powers. This college is elected by the popular representative body and depends on it. Finally there is the parliamentary republic, such as exists in France.
We know what makes up parliamentary rule. Here also legislative power and executive power are separated and are to a certain measure independent. But the two cannot exercise their functions except when in co-operation. On the one hand, a certain separation; on the other, a certain co-operation, co-operation of separate and independent powers. The functioning of this system is insured by a very simple mechanism. The president names his ministers but these ministers cannot begin functioning or remain as such until they have obtained the confidence of the national representative body. The day that these ministers lose this confidence they also lose their power. Parliament does not only exercise legislative power therefore; it also controls executive action. The chief of states names his ministers, but he has not the liberty to appoint them. He must take those designated by the majority of the Chamber and reject them when they are discarded by the Chamber.
It is this last system that the German Constitution has chosen. One may express surprise thereat. For has not Germany been the classic ground for pleasantries over “parliamentary cretinism”? However, it has chosen parliamentarism. To use the words of Member of the Reichstag Koch, “The best form of expression of democracy is parliamentarism. We know of no other form superior to it and we have consequently decided to make parliamentarism one of the foundations of the new edifice.”[33]
Now, the mechanisms which the Constitution has instituted, and through which the parliamentary system must function, are—either because of the federal form of the State, or because of new ideas which it has introduced in its creation—more numerous and more complicated than in most other countries. There is a Reichstag, a President, a Cabinet, a Reichsrat, and an Economic Council.
This last will be studied in the section of this book devoted to the Economic Constitution. In the present chapter we shall study the other organs, and shall inquire in what measure they are capable of insuring and do insure in fact to Germany the parliamentary government which it has chosen.
SECTION I
THE REICHSTAG
The Reichstag already existed under the rÉgime of 1871. But its powers have become much more extensive, for it is now the principal representative of the people, from whom sovereignty is derived. It is the principal holder of popular sovereignty. In conformance with the principles of parliamentary government, it enacts laws and controls the Cabinet. The regulations that determine its composition and which specify its powers should, therefore, be such as to permit it to fulfil completely its double rÔle.
1.—THE PRIVILEGES AND GUARANTEES ACCORDED TO THE REICHSTAG.
The Reichstag, charged with the expression of the will of the sovereign people, must be able to manifest this will freely. Charged with the control of the Cabinet it must be protected against all possible counterventions of the latter. To this end the Constitution contains a number of provisions which give to the Reichstag as a body, as well as to its members as individuals, a group of guarantees designed to insure for them complete independence of the Cabinet.
(1) The Reichstag considered as a whole possesses a certain number of privileges and guarantees, much more numerous than those which were allowed the former Reichstag and analogous to those which in general the parliaments in other free countries possess. To this end the German Constitution contains several special features.
It is known that the right of political assemblies to pass on the eligibility of their members and the regularity of their elections constitutes one of their traditional prerogatives, one to which they have most strongly adhered. For they have seen in it a weapon against executive power to be used in cases where the latter is tempted to abuse its authority and exercise pressure on elections. Also most of the democratic countries confer upon their Chambers the right to investigate the election of their members and to decide in sovereign fashion on the validity of these elections. Such is the rule particularly in France; such was the rule in Germany up to 1919. But the new Constitution abandons this tradition in the sense that instead of leaving election disputes to the Reichstag itself, it entrusts them to a special tribunal working alongside of the Reichstag: the Electoral Commission (WahlprÜfungsgericht). This device, however, was not inspired by any desire to limit the rights of the Reichstag. It was dictated by political considerations. The former Reichstag, when it verified the election of its members, instead of being inspired solely by legal motives often let itself be guided by political considerations. The verification of elections is in itself an act of adjudication, and a political assembly is ill-prepared to fulfil such a function. That is why the English Parliament has already entrusted the function of judging of elections of its members to a separate tribunal. Without going as far as that, the new German Constitution refers contestants to a mixed tribunal, in which there are both members of the Reichstag, and, in order to insure the impartial applications of legal provisions, judges by profession.
The Electoral Commission includes members of the Reichstag elected to it by the whole legislature, as well as members of the Administrative Tribunal; until the creation of this body these consist of members of the National Judicial Court or Reichsgericht. These are nominated by the President of the Reich on the motion of the President of the Commission. In order to become operative the Electoral Commission must be made up as follows: five judges, of whom three must be members of the Reichstag, and two magistrates. The procedure is presided over by a commissioner named by the President of the Reich. This commissioner is particularly charged with investigation. It is hoped in Germany that in consequence of the introduction of proportional representation, election contests will be less frequent than formerly and that adjudications of elections by this Commission will have less importance for the parties than in the past.
Once elected and the elections verified, can the Reichstag freely meet and continue just as it pleases? In other words, can it be permanent, that is to say, has it the right itself to fix the date and the duration of its sessions? A double danger is here possible. To create a permanent assembly, would it not give to parliament a dangerous preponderance? But to give to the executive power unlimited right to call, adjourn, and prorogue parliament, would it not be to give a prerogative unacceptable to a democratic country and dangerous to the maintenance of its institutions?
Under the old rÉgime, the Reichstag could not meet or commence its work without having been convoked by the Emperor and expressly opened by him. However, the Constitution provided, that the Reichstag must be convoked at least once every year. But the Emperor had the right to prorogue the assembly; and the latter had not the right to sit and continue its work against the wish of the Emperor. The Emperor’s right in this respect had but one limitation: the prorogation of the Reichstag could not extend beyond thirty days without the consent of the Assembly, and it could not be renewed during the same session. On the other hand, the Reichstag could not conclude its sessions without the consent of the Emperor. It could only interrupt its meetings.
The new Constitution gives the Reichstag the right to convoke itself and to meet of its own accord. It is the Reichstag which decides as to when it is to meet and how long its session is to continue. It is neither convoked nor adjourned by the President of the Reich. According to the Constitution of Weimar the Reichstag meets for the first time no later than the thirtieth day after elections. In addition it is required to meet every year on the first Wednesday in November at the seat of the government. The Reichstag also decides for itself the conclusion of its sessions and the day of its re-assembling. However, the President is bound in two cases to convoke the Reichstag at a time prior to the annual date fixed by the Constitution, or to the date fixed by the Reichstag for its re-assembling. Such situations are (a) when the President of the Reich, (b) when at least a third of the Members of the Reichstag, demand it.
Independent as it is of the Cabinet, the Reichstag must be assured the power freely to deliberate without fear of riots and insurrections. Most governments have no special legislation in regard to this. They leave to the assembly, to which a special guard is assigned, the right to protect itself. Events, however, have demonstrated that in Berlin revolutionaries either of the extreme Left or of the extreme Right become, when they so desire, “masters of the street.” More efficacious measures had to be provided than prevail elsewhere. Accordingly a law was passed by the National Assembly, May 8, 1920, “for the protection of the Palace of the Reichstag and of the Landtag (State Assembly).”[34] This law draws about these palaces a perimeter of protection, within the limits of which no armed troops may penetrate, and it also provides different measures to make these palaces an adequate shelter against any coup de main such as may come at any time from revolutionists.
2. The Members of the Reichstag as individuals enjoy, like the Reichstag as a whole, privileges and guarantees such as are necessary to insure their independence. The situation accorded them in this respect is very analogous to that which other democratic countries assure the members of their popular legislatures. They receive compensation.[35] They are “irresponsible and inviolable.”
2.—THE RULES OF THE REICHSTAG.
Protected against the Cabinet, against insurrections, and against individuals who have designs on their independence, the deputies of the Reichstag can and must organize themselves in such a way as to assure for their labours maximum efficiency. It is imperative that the majority shall be able to impose its will without thereby sacrificing the rights of the minority. To this effect Article 26 provides, “The National Assembly chooses its President, Vice-President, and its Secretaries. It regulates its own procedure.”
The National Assembly adopted the procedure of the old Reichstag and the new Reichstag seems to have continued it also.
Meanwhile a change of considerable importance has been adopted by the National Assembly. Theretofore the members of the Reichstag were divided by lot into bureaus, and these elected the committees. There are no longer any bureaus; and the essential machinery on which the functioning of the Assembly depends is the group or fraction, each of which consists of all the members of the Reichstag belonging to the same party.
According to the procedure of the Reichstag, no party can constitute such a fraction if it does not have at least fifteen members. To-day it is these groups that nominate the various committees of the Assembly on the basis of proportional representation.[36] The group plays a rÔle in Germany much more important than, for example, in France, because of the strict party discipline that prevails in these groups. For every new question brought before the Reichstag each group assembles its members, who discuss among themselves the attitude to take and the way in which the group as a whole is to vote. When the question is most important there are held interfractional meetings. At these meetings are called together either all the members of certain groups, or only trusted men or the chiefs of these groups. Sometimes two or more related groups deliberate in common; sometimes they are the groups of the majority parties. Thus, either in single groups or in common the various political factions decide in advance their line of actions; and when the matter comes up for deliberation in the Assembly, everything is already decided. The public meetings of the Assembly are only a kind of show, in the course of which a speaker for each party generally mounts the tribune to acquaint public opinion with the motives that have determined his group in taking such and such a stand. A certain amount of dramatic interest is thereby lost, but perhaps the element of surprise is replaced by more thoroughly considered and riper decision.
The vote is then proceeded to. Voting by proxy is not recognized. Only those present can take part in the vote, which is theoretically taken “sitting” and “rising.”
In case of doubt all the members are invited to leave the hall and then to reenter, those voting “yes” coming in by one door, those voting “no” by another. There can also be a vote by name, if fifty members demand it and if the Assembly so decides. In this case ballots of different colours are distributed among the members. These ballots bear the names of the deputies and one of the following: “yes,” “no,” or “I abstain.” At the moment of the vote the leaders of the various groups hold up their ballots above their heads, this movement being immediately followed by all the members of their groups. Then the ballots are given by those voting to the Secretaries, who place them in the ballot boxes. A supervision is maintained to prevent those present from voting for absent members. This procedure presents the triple advantage of giving to the abstaining vote its precise significance, of maintaining strict discipline within the groups and of preventing absent members from voting.
3.—THE DURATION OF THE POWERS OF THE REICHSTAG.
The question of the term for which the members of political assemblies should be elected is always a delicate one. It has given rise in Germany to much lively discussion in committee as well as in plenary sessions.
Under the Empire, the Reichstag was at first elected for three years. Since 1888 it has been elected for five years. Should this term be retained?
On the Left the Independents considered that the motive which had prompted the change in 1888, that is, the fear of too frequent elections, did not deserve consideration. They held that it was necessary to give the German people quickly the political education it lacks, and that frequent elections are the best means to employ. They declared that in a true democracy the people should be given the chance to make themselves heard as often as possible.
The Right replied that in all parliaments the first year that follows general elections is, so to say, lost because of the necessary labour of preparation; and because the old and the new members must become accustomed to working together before their efforts achieve appreciable efficiency.
Preuss added that the question to find out was whether parliamentarism was wanted or not. A parliament, said he, is inefficient to the extent that the term for which it is elected is short. In America the House of Representatives is, it is true, elected for two years, but it is not the centre of power and of parliamentary authority. The Senate has more authority than the House, and it is elected for six years. In addition there is no dissolution of parliament possible in America. If a period of two years is fixed and if in addition the right of dissolution admitted, which is in itself already a remedy against too protracted a term, the development of the parliamentary system would be rendered thereby extremely difficult.
Finally on the third reading of a bill the Assembly arrived at a medium term. The duration of power for members of the Reichstag was fixed at four years.
4.—THE POWERS OF THE REICHSTAG.
The Reichstag is the principal holder of popular sovereignty; as such it is the most important organ of the national representation. Its activity is manifested under different forms and, compared to the old Constitution, its limits have been greatly broadened. Although it is above all a legislative organ, it exercises also an unceasing action on the executive power.
I.—POWERS OF THE REICHSTAG AS PRINCIPAL HOLDER OF SOVEREIGNTY.
The Reichstag being the principal representative of the sovereign people, it naturally falls to it to speak whenever it is necessary in the national or international life of the state to translate or express the will of the people. That is the rÔle which has devolved upon parliament in all the democratic countries, and it is also the mission confided to the Reichstag by the German Constitution. The situations in which this Assembly acts as spokesman for the people are of three kinds:
1. The granting of amnesty. Amnesty is a measure of a general character whereby the sovereign, with the object of general pacification, declares such and such crimes legally expiated. In the German Constitution amnesty has to be declared in the form of a law. The ordinary procedure for the enactment of law applies here.
2. Declaration of war and the conclusion of peace. These proclamations, in the same way, must be made in the forms of laws.
3. Treaties of alliance and international treaties. Each of these is theoretically concluded by the President of the Reich; but when these treaties touch questions which are regulated or can only be regulated by a law of the Reich, such settlements are not valid except with the consent of the National Assembly. (Article 45.) This hypothesis differs, therefore, from the first two just examined. In those cases there was required a law, that is to say, the Reichsrat had the right of protest, and the President could only prepare and execute the decision of the Reichstag, to the same extent that he is compelled to prepare other laws of the Reich. In the cases of treaties, however, what is required is a meeting of the wills of both the Reichstag and the President. This agreement is required even for the international validity of the treaty, but it is self-sufficient, and the Reichsrat would probably not have the right to protest against such a conclusion.[37]
II.—LEGISLATIVE POWERS.
In contrast to the terms of the Constitution of 1871, which divided the right to legislate between the Bundesrat and the Reichstag but gave the preponderance to the former, the new Constitution gives to the Reichstag the principal rÔle in legislative work. The right to legislate is expressly placed in its hands. “National laws are enacted by the National Assembly” (Article 68). But this fundamental right of the Reichstag is limited by important powers granted to the Reichsrat, to the President and to the people.
The principal co-operator with the Reichstag, from the point of view of legislation, is the Reichsrat. The Reich being, at least theoretically, a federal state, the Constitution grants to the Reichsrat, which “represents the German states in the legislation and administration of the Reich,” the right of important co-operation in legislative matters. But this right is not as extensive as that which the old Bundesrat had.
It consists first of all in this, that no bill can be submitted to the Reichstag unless it has been previously accepted by the Reichsrat. However, this provision does not constitute, as formerly, an absolute obstacle. When the Reichsrat disapproves of a bill which the Cabinet has submitted to it, this project may be, without the consent of the Reichsrat, nevertheless sent on to the Reichstag. The Cabinet is in such a case only obliged to set forth to the Reichstag, in presenting this bill, the dissent of the Reichsrat (Article 69).
The co-operation of the Reichsrat is manifested also in its right of protest against the laws enacted by the Reichstag. These laws must in theory be enacted with the express or tacit approval of the Reichsrat, but this provision is not absolute. If, in effect, after the protest of the Reichsrat, no accord is reached between this body and the Reichstag, it devolves upon the President of the Reich to decide whether the project of law will be abandoned by him, or whether he will resort to a referendum against the decision taken by the Reichsrat. If this bill gains the support at the Reichstag of a majority of two-thirds the President has then, in spite of the protest of the Reichsrat, the right to promulgate and to publish the law, without any further vote on it by the Reichstag. But he may also, instead of proceeding to this promulgation, order a referendum, if he does not want to take upon himself the responsibility of deciding this conflict of the Reichstag and the Reichsrat.
There are thus two ways of breaking the opposition of the Reichsrat: either the referendum, or else a two-thirds vote for the law on the part of the Reichstag and joined to it the approval of the President.
On the other hand, when this majority of two-thirds cannot be assembled in the Reichstag, there are two ways for the opposition in the Reichsrat to become effective. First, the President may remain passive after the protest of the Reichsrat, that is to say, he may not order the referendum. The co-operation of the Reichsrat and of the President in such case weighs more than the decision of the Reichstag which has not been able to rally a majority of two-thirds in its favour. The other way in which a protest of the Reichsrat can become effective is for the referendum to support the objection of the Reichsrat and reject the project voted by the Reichstag.
The power of the Reichstag to legislate is, in the second place, limited by powers assigned to the President in certain matters. He has the right to veto any law passed by the Reichstag, in the sense that, according to Article 73, he is not obliged to promulgate the laws voted, and may within a month submit it to a referendum. If the President is convinced that a bill voted by the Reichstag with the consent of the Reichsrat is against the welfare of the people; or if there are serious objection lodged against it of another character; or if he believes that the law does not correspond with the conceptions held by the people, his situation as an independent organ of popular sovereignty gives him the right and imposes on him the duty of submitting this project to a referendum. In addition, the Constitution (Article 72) authorizes him to disregard a demand on the part of a third of the Reichstag that the promulgation of a law passed by the Reichstag and approved by the Reichsrat be deferred. He can, therefore, promulgate the law voted and give it operative power when the Reichstag and the Reichsrat declare it to be urgent.
In the third place the legislative power of the Reichstag is limited by the right reserved by the people itself to decide, and in certain cases directly on this or that project of law. Such are the cases we have described as touching the Constitutional provisions for initiative and referendum.
We must finally note, as the fourth legislative factor, the Economic Council, whose powers, it is true, cannot be considered as constituting a limitation of the Reichstag’s powers, but which may nevertheless be called in to co-operate with the latter in the preparation of laws.
Such are the organs that participate in the legislative work. We must now see in what manner they function and how a law is passed through this intricate mechanism.
The initiation of a law can take place under any of the following conditions:
1. The Government of the Reich, that is to say, the Cabinet, has in the first instance, the initiation of laws. In theory the Cabinet is supposed to proceed with the consent of the Reichsrat; but in case this agreement is refused, the Cabinet may nevertheless submit the bill to the Reichstag together with a statement of its attitude. (Article 69.)
2. Members of the Reichstag may also introduce bills. (Article 68.)
3. The Reichsrat also has the right of initiation. In theory it is supposed to act on a bill in harmony with the Cabinet. But if the latter refuses its consent to a bill, the Reichsrat may still submit it to the Reichstag together with a statement of its point of view on it. (Article 69.)
4. The people themselves may initiate a proposal for a law. (Article 73.)
5. In matters of social and economic policy, finally, the National Economic Council has also the right to propose bills; but here, too, the agreement with these bills on the part of the Cabinet is required. If, however, the Cabinet refuses its consent to the bill, it must nevertheless present the proposition to the Reichstag at the same time presenting its opinion.
The law being proposed, how is it voted on and accepted? Here, again, several different kinds of situations must be distinguished:
1. The normal procedure is the vote on the bill by the Reichstag in agreement with the Reichsrat. The bill may be presented by the Cabinet, duly passed on by the Reichsrat in agreement and without change and accepted by the Reichstag as it stands. Or changes by the Reichsrat may be approved by the Reichstag. Or the Reichsrat may accept without a contest the changes voted by the Reichstag. Or, after a protest by the Reichsrat against a bill voted by the Reichstag, an agreement may be reached by the two assemblies after a reconsideration of the bill by the Reichstag.
2. If an agreement cannot be reached between the Reichstag and the Reichsrat, that is to say, if the Reichsrat having raised objection to a bill voted on by the Reichstag, a reconsideration by the latter has not brought about an agreement between the two bodies on the bill, the Cabinet may then follow another course. The President may decide that this agreement on the bill between the Reichstag and the Reichsrat being impossible, matters rest where they are; then the law does not become operative. If this solution does not commend itself to him, he may prescribe a referendum on the question that forms the conflict of opinion between the two assemblies and the law becomes operative when the referendum sanctions the decision of the Reichstag.
3. If, in the proceeding in case of a difference of opinion between the Reichstag and the Reichsrat, the Reichstag persists, after the protest of the Reichsrat, in its first decision and supports it with a majority of at least two-thirds of those voting, the President has the choice either of passing over the protest of the Reichsrat and promulgating the law, or else he may order a referendum. His decision must be made within three months after the decision of the Reichstag. In this case the law may become operative, either by the vote of the Reichstag together with the President’s favorable decision, or by the vote of the Reichstag together with the sanction by the referendum.
4. The President may, in the case of a bill passed by both the Reichstag and the Reichsrat in agreement, use his right of veto; that is to say, he need not promulgate the law but must refer it to a referendum. In that case the law does not become operative unless the referendum supports the vote of the Reichstag. If the referendum pronounces against it the law is definitely rejected. The Constitution does not say whether the President may, in such a case, propose a change in the bill and submit this change to another referendum. We must consequently conclude that he cannot do so.
5. If one-twentieth of the electors demand that a law already passed by the Reichstag shall be submitted to a referendum; and if, at the same time, at the demand of one-third of the Members of the Reichstag the promulgation of that law has been deferred, the latter cannot go into effect except after having been approved by a referendum. If the referendum pronounces against the bill, the latter is rejected. But this possibility does not exist in the case where both the Reichsrat and the Reichstag have declared a law to be urgent. The President may in such a case promulgate the law in spite of the demand for its postponement.
6. There remains finally the exceptional case in which a popular initiative by one-tenth of the electors proposes the project of a law. In such a case the law, if it is accepted by referendum, becomes operative, whether the bill has been passed without change by the Reichstag, or, with changes by it, or even in spite of the Reichstag’s rejection.
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.)
The means by which the Reichstag exercises its control over the Cabinet are, with some minor differences in procedure, the same in Germany as in most parliamentary governments.
The Reichstag may, first, demand the presence of the Chancellor or the Ministers at its meetings, whether in committee or in full session. The Chancellor, the Ministers, and the Commissioners have the right to be present at all the meetings of the Reichstag and its committees. The representatives of the Cabinet have the right to be heard on their own demand at the deliberations of the Reichstag even contrary to the order of the day. They are subject to the disciplinary power of the President.
The members of the Reichstag may address questions to the Cabinet. The question must be addressed in writing, and if the author of it agrees, the Cabinet may respond to it in writing. On the other hand, it must not be taken up in public session of the Reichstag except on a Tuesday or Friday at the head of the order of business. It is then read by its author. The Minister interrogated or some one commissioned by the Cabinet replies. But no discussion or motion whatsoever may thereupon at once result on this reply. Only the author of the question may take the floor after the Minister, and then only to complete or to rectify his question. There is naturally no vote taken immediately after the question and it is not permitted to transform a question into an interpellation, as it may be done, for instance, in France.
The parliamentary question seems to play a much smaller rÔle in Germany than in England or even in France, if one compares the German procedure on the written question with that of the French. During the first six months of its existence, the National Assembly addressed about 280 questions to the Cabinet, most of them in open session. Most of the Tuesday and Friday sessions commence with a series of questions; some of them with as many as fifteen to twenty questions.
The Constitution does not say one word more on interpellations than on questions; but the first form an essential practice of a parliamentary rÉgime. It existed to a lesser extent under the old rÉgime. It was of necessity retained and developed under the new.
The interpellation must be signed by thirteen members. Thus it is no longer an individual who interpellates, but a party and the individual is only the spokesman for the party. When the interpellation is made the Cabinet declares either that it is ready to answer at once, or it fixes the date of its reply in agreement with the President of the Assembly. In theory this reply must be given within a fortnight. It goes without saying that, in contrast to what the Chancellor permitted himself under the Empire, the Chancellor and the Ministers of the Reich to-day do not use the right, still granted to them by the regulations, to refuse to reply to an interpellation or to refuse to name the date on which they would be disposed to reply.
The interpellation is inscribed on the order of business for the day among the other subjects on which the Assembly is to deliberate. The spokesman of the party who interpellates and the representative of the Cabinet having spoken, no discussion ensues unless at least fifty of the members present demand it. In such a case all those present may in turn take the floor. When all the speakers have finished those present declare the discussion closed and the assembly passes automatically and without vote to the next subject on the order of business.
However, the regulations provide that in the course of the discussion and interpellation motions signed at least by thirty members present may be presented demanding that the assembly declare that the position the Cabinet has taken on the affair which has been made the subject of the interpellation does or does not correspond to the opinions of the Reichstag. The vote is then proceeded to—unless at least thirty of the members present demand that the vote be postponed to the next session, such a postponement being their right.
In practice, however, little use is made of the above provision, and interpellations rarely end with a vote; for that would have for its purpose the ousting of a ministry or a minister. Such a change takes place, as we shall see, in circumstances entirely different. The interpellations, therefore, are used only to give the parties a chance to present their points of view on this or that problem raised by the political circumstances of the hour.
From this ensues a twofold consequence. First, interpellations are much fewer than in France. During the first six months of its existence the National Assembly discussed only about ten interpellations. Second, being rarely the direct cause of the ousting of Cabinets, they provoke less excitement in political circles and in public opinion, and the Assembly may therefore discuss the problem embodied in an interpellation perhaps more objectively.
The control by the Reichstag over the Cabinet may be exercised also by means of a parliamentary investigating committee. This is a novelty in German public law. In its first draft the project of the Constitution did not permit the institution of investigating committees except in cases where the sincerity or the legality of an act of the Cabinet is questioned. But the National Assembly has gone further than that and, with the exception of a case of actual lack of confidence in the Cabinet on the part of the Reichstag, the latter assumes the right without limitation of appointing investigating committees. These committees may, for example, be created to examine economic and other questions of importance.
The Reichstag must proceed to the appointment of an investigating committee if a fifth of its members demand it. The procedure according to which these committees may operate is not at all prescribed. The Constitution says only that such a committee may take such testimony in open session as it itself or the authors of the proposal of the investigation may consider necessary. But by a majority of two-thirds the committee may decide that the meetings shall not be public. Tribunals and administrative authorities are obliged to comply with the requests of these committees, with the view of developing evidence. The files of these authorities are, on demand, open to these committees.
The Reichstag nominates in addition two permanent committees. One of them is that on Foreign Affairs. Its purpose is to submit the foreign policies of the Cabinet to a constant surveillance by the popular representation. It may after the adjournment of the Reichstag, or when the powers of the Reichstag have expired, or after a dissolution of the Reichstag remain in power until the National Assembly has reconvened. Its meetings are theoretically not public. However, a majority of two-thirds may order that they be such. It has the same powers as an investigating committee.
During the deliberations on the project of the Constitution, serious objections were raised against the institution of the Committee on Foreign Affairs. It was claimed that this committee would in advance be an expression of lack of confidence in the Cabinet and as an organ of surveillance would exercise a particularly troublesome influence on foreign policies. To this the reply was, that in the countries in which there have been appointed committees on foreign affairs there has been no evidence of unfavorable results. In addition, this committee would not be in the first instance a committee of surveillance, but an organism which, in matters of foreign policy would bring the influence of politically experienced personalities of the Reichstag to bear on the professional agencies of the diplomatic service.
The second permanent committee provided by the Constitution has as its purpose the control of the activity of the Cabinet of the Reich when the Reichstag is not in session, between the last meeting of one Reichstag and the opening of a new one.
This committee, which is formed on the model of an institution already in existence before the Revolution in the Grand Duchy of Baden, is supposed, during the period which the Reichstag is not assembled, to safeguard the right of popular representation against the Cabinet of the Reich. It must see to it in a permanent fashion that administration is conducted in conformity with laws, with the decisions of the Reichstag, and the will of the people. It may not sit except when the Reichstag is not in session. It has also the powers of an investigating committee.
When the Constitution was being discussed, prior to its adoption, this committee, too, was the subject of much lively opposition. Some held that the Cabinet, so long as it enjoyed the confidence of the Reichstag, did not require a special organ of surveillance. This committee, its opponents went on, was only an application of the conception that assumed an opposition between the Cabinet and popular representation. It was incompatible, therefore, with the principle of parliamentarism that rests on a harmony of the Cabinet and the Parliament. But the majority of the National Assembly held, on the contrary, that this committee would correspond fully in character to the Reichstag as an organ of control, and would be consistent with the confidence and the good will on which the Cabinet depends.
SECTION II
THE PRESIDENT OF THE REICH
The parliamentary system assumes, by the side of the Parliament elected by the people, a titular chief of state with executive power who, himself not responsible politically but assisted by ministers who are responsible, co-operates with Parliament in the different functions of the state. Basing itself, therefore, on the principle of parliamentary government, the German Constitution places at the head of the Reich a President whose situation corresponds generally to that of all the chiefs of state in parliamentary countries. The Constitution also attempts to create within the general framework of the parliamentary system, a new type of chief of state. It is important therefore to examine precisely the principal characteristics of these provisions.
1.—THE NEED FOR A STRONG PRESIDENT
The dominant idea, which guided the constituent assembly when they drew up the provisions relative to the President, was this: the German parliamentary republic requires that its President shall be powerful.
There must be a President. The Independents did not want one. “The President will either take his position strictly within the limits of the functions which are his according to the parliamentary principle,” said their spokesman, Haase, “in which case it will be his ministers who will exercise his powers. He will thus play a purely ornamental rÔle, therefore useless and one for which the German Republic cannot afford to pay. Or he will exceed his legal powers, and the Cabinet will be compelled to develop in the direction of a rÉgime of personal autocracy. It is enough, for the purpose of government of the country, that there should operate a Ministry in harmony with the popular representation.”[39]
These ideas had no chance to prevail. In committee Preuss fought them energetically. The President, he held, could be replaced in two ways; either by a directorate elected by the people or by one elected by Parliament. The directorate would itself name its ministers. A Cabinet thus composed would be doomed to inertia and incapable of making any decision would “cry for a Bonaparte.” The Ministers who should be responsible to the Parliament would be practically deprived of authority, and the Parliament, with control only over the Ministers, would itself be weakened. The following system could also be considered: Parliament could directly elect a college whose members would themselves administer the various ministerial departments; that is to say, instead of being appointed by the President, Ministers would be elected by Parliament. This is the Swiss system. But such a Cabinet, admissible in a small country, could not exist in Germany, for the distribution of portfolios depends not according to merely logical premises but according to the relative strength among the different parties of the Reichstag. There could be no unity of direction in a Ministry thus composed. Above all what was needed was a personage who should be in the Constitution a firm centre. The more committees there are, and the more elections, the greater also becomes the need of having a fixed point to which may be attached the various strands in the network of the Constitution. There must therefore be a President.
This President must be powerful. A powerful chief of state is necessary above all in Germany, where people like to be governed. This is particularly necessary in such a revolutionary period as the Reich is traversing. There must be a President who will be a worthy representative of the nation and who will adequately personify, with all the authority needed, a state as considerable as the Reich. The President must be powerful in order also to act as a balance to the Parliament, which without it might become omnipotent.
This is why, first of all, the President of the Reich must not resemble the President of the French Republic. The fact that in France the President is elected by the National Assembly engenders a constitutional situation full of inconveniences. The President there is only a purely representative figure, Parliament having acquired absolute omnipotence which is directly contrary to true democracy. The parliamentarism which Germany wants is a parliamentarism whose mechanism is controlled by the people; and not a parliamentarism in which the President is reduced to complete inactivity and has no other care than to remain on the best possible terms with the Chambers. The members of the Constituent Assembly in supporting this condemnation—unanimous in Germany—of the French system quoted Professor Redslob, according to whom parliamentarism in France is completely adulterated.[40]
But neither must the President of the Reich resemble the President of the United States. True, there were many in Germany at the end of 1918 and at the beginning of 1919 who wished for a chief of state a man who could act and represent the Reich with the independence and the authority of a Wilson. But this wish does not seem to have prevailed. The Constituent Assembly, in any event, wanted to inaugurate in Germany a parliamentary rÉgime; whereas in America, the House of Representatives has only legislative power and the executive power rests wholly in the hands of the President. The Assembly resolved to give the Reichstag the right to co-operate in executive action and to exercise a control over the administration. In addition the President in America himself nominates his Cabinet without concern as to whether or not his Secretaries have the confidence of the Chamber, to whom they are not responsible. He is invested with a dangerous omnipotence, incompatible with parliamentary rÉgime. The American system therefore, like the French system, must be rejected.
None of the forms of existing republican governments were entirely suitable for the German Republic; there would have to be created for its use a new type of chief of state. There would have to be created for the first time true parliamentarism, different from the imperfect parliamentarism such as exists in France. French parliamentarism consists of the omnipotence of Parliament which for four years acts free of all control on the part of the people. After each election democracy in France plays no part. In the true parliamentarism, however, Parliament is not omnipotent; but is subject to a control exercised by a democratic authority and this authority must be, in Germany, a President.
The problem is therefore to institute in a Republic what now exists only in parliamentary monarchies, that is, a chief of state sufficiently powerful to act as a balance to the Parliament and to control the latter in the name of the people without, however, giving him such a power as, in abusing it, would enable him to dominate or annihilate the rights of the Parliament and to establish an anti-democratic rule. Let us see how the German Constitution has solved this problem.
2.—THE ELECTION OF THE PRESIDENT AND THE LENGTH OF HIS TERM.
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]
The President is elected for seven years and is eligible for re-election. The choice for so long a term and the possibility of re-election corresponded closely to the prevailing idea according to which the President should constitute a fixed and permanent point in the constitutional mechanism. “Granting,” said Preuss, “that the institutions set up by our Constitution should be as profoundly as possible stamped with democratic character, it is best, for the solidity of the whole edifice, that there should be in some part of it a durable and firm framework.” The Social Democrats observed that the longer the term of the President’s powers the more difficult it would be to effect a change in the person, and consequently the greater was the danger of seeing a life President installed. They proposed to fix five years as the term for which the President could remain in power and to make re-election more than once impossible. But this proposal was rejected.
Having fixed the term of the presidential power the Constitution had to provide for the situation in which a President ceased to function before the normal expiration of his powers or found himself prevented from exercising them. It was not desired, as in the United States, to institute a Vice-President who, as permanent representative and possible successor of the President, would have the status, in the words of Preuss, of a “republican crown-prince.” The provisions which were thereupon adopted are much more supple.
In case the President ceases his functions before their normal expiration, that is to say, in case of death, resignation, or impeachment, a new election is immediately held.
In case he is prevented from filling his duties, there must be made a distinction according to whether this inability seems apparently of short or long duration. In the first case, that is, in case of slight illness or because of a short voyage abroad, or during the first days of a disability which seems likely to be prolonged, or in the interval between the death of a President and the election of his successor, the place of the President is filled by the Chancellor. In the second case, that is, in case of serious illness or insanity, or when a motion has been passed by the Reichstag to impeach the President, or there is inaugurated a penal prosecution of the President before the National Judicial Court, the Constitution decides that an ordinary law shall determine expressly by whom his place shall be filled. This law may according to circumstances either install a temporary Vice-President, or confer temporarily the functions of the President on the Chancellor until the President is able to resume office, or finishes his term.
3.—THE POWERS OF THE PRESIDENT.
The powers vested in the President of the Reich by the Constitution are in general analogous to those possessed by every chief of state in a parliamentary country. Just as the Reichstag exercises in addition to its purely legislative powers a control over the Cabinet and its administration, just so, if the principles of the parliamentary system are to be applied, the President must be invested, in addition to his strictly executive authority, with powers that permit him to co-operate in legislative work and to exercise a control over the Reichstag itself.
It is precisely this, in effect, that the Constitution provides for. The President of the Reich has executive powers. He nominates ministers, he represents the Reich in foreign relations, he appoints all the civil and military servants, he is supreme chief of the forces of the Reich by land and sea, he exercises the right of pardon and he may make regulations.[42] He has also powers of a legislative character. He alone has authority to promulgate and publish enacted laws. He exercises a kind of right of veto over these laws; and he may, according to circumstances, in the complicated conditions we have already examined, either retard the entrance of these laws into operation, or submit them to the people by means of a referendum. Finally, he exercises a certain control over the Reichstag. He may order the President of the Reichstag to convoke that Assembly earlier than the normal date of its meeting. He nominates the judicial members of the electoral commission for disputed elections to the Reichstag. He may dissolve the Reichstag, etc.
It goes without saying that in none of these cases can the President take action without securing the support and the countersignature of a Minister. That is the essential condition of a parliamentary rÉgime.
But to strengthen the action of a President and to give his position a place of real pre-eminence, which is desired for him, the Constitution entrusts him with a certain number of powers, which we must note particularly, for they are perhaps peculiar to the German Presidency, and give it a special character.
The President exercises an extremely powerful control over the legislative work of the Reichstag. When a law has been enacted he may, before promulgating it, submit it to a referendum. He may, when the Reichstag and the Reichsrat have declared urgent a law which they have enacted, promulgate it immediately even if a third of the Reichstag has demanded that its promulgation be deferred (Article 72). The aim of such a demand for postponement is to give the opponents of the law the chance to prepare a referendum and to proceed to it. The fact that the President has the right not to act on such a postponement and to give the law immediate operative power by promulgating it, offers him the chance to prevent such a referendum. It is also in his right when there is no agreement between the Reichstag and the Reichsrat on the text of a bill, either to decide that the law is not in effect and shall not enter into operation, or to decide for a referendum. He is free, finally, when a law has been passed in the Reichstag by a two-thirds majority against the protest of the Reichsrat, either to promulgate this law, or, if he does not wish to take the responsibility of that, to submit to a referendum the question on which the Reichstag and the Reichsrat disagree.
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.
In addition to the powers we have just examined, all of which are expressly provided by the Constitution, there are others which the President possesses because they logically follow from even the practice of a parliamentary rÉgime. Certainly he has the right to demand reports from Ministers and any information from them on the course of affairs. He has the right also to be present at sessions of the Cabinet; and while it is true that he has not the right to vote there, he may come there whenever he pleases and take the chair.[44]
4.—THE RESPONSIBILITY OF THE PRESIDENT.
Responsibility engenders authority and there is no authority without responsibility. Whatever powers a Constitution may give its chief of state, they will rest a dead letter if he cannot personally assume the responsibility for the exercise of these powers. The President of the United States, who is thus held responsible, really governs. In a parliamentary rÉgime the chief of state is not responsible; thence comes its weakness. But the German Constitution desires at once a parliamentary rÉgime and a strong presidency. It must therefore seek a ground for the combination of the two.
(1) Politically the President of the Reich is in theory not responsible. That is to say, that he cannot be overthrown by vote of lack of confidence on the part of the Reichstag. All his acts must be countersigned by a Minister, and it is the latter who takes the responsibility for them and who alone suffers the consequences.
There is, however, a limit to this political irresponsibility of the President. If the conflict between the President and the Reichstag is really irreconcilable he may submit the conflict to the people, who decide. It is recalled to this effect that, according to Article 42, the Reichstag by a decision taken by a majority of two-thirds may demand of the people a vote on the impeachment of the President. If the people approve, the President ceases his functions; therein operates a kind of political responsibility of the President.
(2) The President of the Reich is criminally responsible. Two hypotheses must be considered:
(a) The President may have committed some crime for which the ordinary penal law prescribes punishment. Can he be prosecuted before ordinary tribunals as an ordinary individual? This question was vigorously debated before the Committee on the Constitution. It was not desired that the President should be absolved from all criminal responsibility. But, on the other hand, it was equally undesirable that he should be placed in the same status as ordinary citizens, because this would give him a position less favorable than that which the Constitution grants members of the Reichstag. It was decided finally that, like the latter, he cannot be criminally prosecuted during the term of his powers, except with the authorization of the Reichstag.
(b) Or the President may be guilty of a violation of the Constitution or a law of the Reich. In this case Article 59 provides that he may be prosecuted by the Reichstag in the Supreme Judicial Court. The proposal to bring an impeachment must be signed by at least one hundred members and supported by a two-thirds majority. But it must be specified here that this is a matter of legal procedure and that therefore this prosecution can be based only on the violation of a definite provision of the Constitution or of a law. In the case of a simple political divergence of opinion between the Reichstag and the President, only the political responsibility for the matter can be called into the question, and the one way open to the Reichstag is that of an impeachment approved by the people.
What penalty can the Supreme Judicial Court pronounce against the President in case of a verdict of guilty? The Constituent Assembly at first adopted a provision according to which the Court could simply declare the President removed, or to declare him incapable of exercising any public function whatever. Finally, however, it was decided to leave this question to the law organizing the Court of Justice.
But the situation may arise in which an act committed by the President constitutes both an infraction of the penal law as well as a violation of the Constitution. Which shall pass first upon this, the ordinary tribunal or the Supreme Judicial Court? After long hesitation, the Constituent Assembly decided to leave this question also to the future law dealing with the Supreme Judicial Court.
(3) The President is finally civilly responsible for any acts of damage he may commit. Although he is not really a civil servant, in the actual sense of the word, he is on this point subject to the same regulations as the civil servants of the Reich. (The law on the responsibilities of civil servants, March 22, 1910.)
SECTION III
THE CABINET OF THE REICH
The Cabinet in a parliamentary government constitutes a bond of union between the parliament and the chief of state. In Germany it must play a still more important rÔle, since both the Reichstag and the President are directly elected by the people and have theoretically the same equal powers. It is therefore indispensable that an organism of co-operation and equilibrium exist between them.
But this mechanism is extremely delicate. The rÔle of the Ministry, always very complex, depends above all on the traditions and the circumstances of the men in question. What relations should subsist between the President and the Prime Minister; between the Prime Minister and the other members of the Cabinet; and in what measure should one be subordinated to the others? What is the exact position of the Cabinet in regard to the Chamber? Is it its guide, or must it be limited to the execution of the Chamber’s decisions? These are questions of degree that require or may require different solutions in each country for each Ministry.
It is difficult, if not impossible, to decide on these in advance in a complete and detailed manner. In England there is no written provision on the manner in which the mechanism of the Cabinet must function. In France there are a few vague and insufficient provisions in the Constitution. But the German Constitution has attempted to formulate the general rules according to which the government of the Cabinet should operate.
The project by Preuss contained not a single detail on this point; it confined itself to stating the principle of parliamentary government. Against this reserve criticisms were raised in committee as well as in plenary sessions of the Assembly. Former Minister von DelbrÜck criticized Preuss’ project for its lack of a sufficient guarantee that the organism of the government would develop in a specific manner and in the direction desired for it. He held that the evolution of an organism as important as the Ministry should not be left to chance, and that there must be fixed at least the general lines according to which it should develop. He then indicated some of these directing principles and they were incorporated in the Constitution.
The National Assembly has certainly made therein an important attempt and we shall study the regulations which it has thus established. We shall then examine how these regulations work out in practice.
1.—THE CHANCELLOR AND THE MINISTERS ACCORDING TO THE CONSTITUTION.
In the terminology of Weimar, the Ministry is called the “National Cabinet.” Article 52 says, “The National Cabinet consists of the National Chancellor and the National Ministers.” There is thus stated a difference—fundamental in the German system—between the Chancellor and the Ministers.
It will be recalled how the Cabinet of the old Empire was organized. The Chancellor, properly speaking, was the only Minister; and the Secretaries of State, by whom he was assisted or represented, were simply high civil servants absolutely subordinate to the Chancellor. These Secretaries of State never met together to deliberate on public affairs; each of them freely decided on the affairs of his department and executed them. But the Secretaries of State had to refer to the Chancellor every time that a difference of opinion arose between their departments over any contemplated law or any administrative measure whatever. Such a discussion was often prolonged for months, because the Chancellor was not in a situation to express an opinion, nor to pronounce on the very complex problem. This was the bureaucratic system.
For this system, with its obvious inconveniences, von DelbrÜck proposed to substitute a collegiate one. The Ministers form a Cabinet, to which all questions concerning general policy or involving the province of their several departments are submitted. The Prime Minister is only the first among them, primus inter pares; the decision is made by the whole Cabinet, which naturally assumes the whole burden of responsibility.
The Constituent Assembly supported an intermediate solution, which partook both of the bureaucratic system and the collegiate. It adopted a sort of limited collegiate system. The Chancellor is not as formerly the only Minister of the Reich; he is Minister by the same title as the other members of the Cabinet, but he has a character distinct from those of the other Ministers. Without being a hierarchic superior over these he is on another plane and enjoys certain rights in comparison to the others.
This distinction established by the Constituent Assembly, between the two elements of the government, the Chancellor on the one hand and the Ministers on the other, is manifested in the three respects in the nomination of the ministers, their prerogatives and their responsibility.
(1) They are nominated in a different manner. The Chancellor is nominated by the President of the Reich who naturally must be guided therein by the political situation. According to circumstances, the President is obliged to nominate some party leader of the group forming the majority of the Reichstag; or his choice may be exercised among several political figures according to the combination possible among the parties of the majority. It is true that the Ministers are also appointed by the President of the Reich, but on the nomination by the Chancellor, and it seems that in practice the President is always bound by this consideration. The Chancellor may not be recalled; his functions cease only through resignation or because he is unseated by the majority of the Reichstag. The Ministers, on the other hand, may be recalled and the decision may be taken here, too, by the President of the Reich on the proposal by the Chancellor.
(2) In regard to powers there exists a still more profound difference between the Chancellor and the Ministers. The principle is this: the Chancellor determines and alone determines the general course of the Cabinet’s policy. The other Ministers direct the affairs of their respective departments along the lines fixed by the Chancellor in his general policy. (Article 56.) In other words, it seems that the German Constitution, without expressly saying so, wants to establish the classic distinction between “governing” and “administering.” The Chancellor governs, the other members of the Cabinet administer. This essential distinction recurs more or less clearly enunciated in all the provisions relative to the powers of the Ministers.
The latter have as their most important function the exercise of those powers of which the President of the Reich is the chief holder. They prepare and countersign the ordinances of the President. But do they all indiscriminately countersign all decrees and may each Minister countersign any of the decisions of the President? Not in the least. The Chancellor countersigns all decisions touching the general policy of the Cabinet, but he is also authorized to sign other decrees. The Ministers countersign only the decrees that effect their respective departments. From this results the following: When a decree of the President is countersigned by a Minister it may be considered that the Cabinet holds it to be a purely administrative matter. Every decision presenting a certain political importance is either countersigned by the Chancellor only or by both the Chancellor and the Minister whose department is affected. The Ministers have in the second place their own powers. They make general or individual decisions which they sign themselves. These decisions are of two kinds: some of them must be deliberated on and decreed in the Council of Ministers; other decisions are taken by the Ministers individually.
There are above all powers which the Ministers exercise in the Council of Ministers, and it is here that the mixed character of the regulations provided by the Constitution is revealed still more clearly. The predominant position accorded the Chancellor comes from the fact that he presides over the Council of Ministers—when the President of the Reich is not present; and the fact that in case of a tie he decides. It may be asked if the Chancellor can be put in the minority and what would result from such a situation. Theoretically, according to the collegiate principle, a decision adopted by the majority must always be executed. But it seems that the Ministry cannot go against the opinion of the Chancellor, who alone has the right to fix the general lines of policy and who in addition can always exercise the threat of resigning, which would thereby involve the fall of the whole Ministry. The Council of Ministers has its own order of procedure which must be approved by the President.
On the other hand, the collegiate system is found to be very widely applied in the ensemble of the provisions vesting in the Council of Ministers some of the most important powers that properly belong to Ministers. The Chancellor fixes the general course of the policy to be pursued by the government; but the Ministers must see to it that in their various departments the policies practised conform to this general course, as well as that their individual policies do not conflict with the interests or the policies of other departments. Also the Constitution itself enumerates a certain number of matters which cannot be dealt with except in the Council of Ministers; and it provides that ordinary laws may extend the number and character of these matters. They are as follows:
(1) All projects of law. In contrast to what occurs in France, it is not the chief of state who has the initiative in laws but the Council of Ministers. All projects of laws emanating from the Cabinet must be discussed and drawn up in the Council before being sent to the Reichstag.
(2) All matters that touch the domains of the authority of the various Ministers, and on which the latter cannot privately come to an agreement.
(3) The power to issue ordinances. In Germany there is no organ that has general authority to make all ordinances. A particular organ can only prescribe ordinances within its own limits and to the end assigned to it by the Constitution or ordinary laws. We have seen that such is the case for the President; and such is also the case for the Cabinet. The Cabinet of the Reich may prescribe regulations of three kinds:
(a) Sometimes the Cabinet of the Reich has authority to prescribe only a regulation. This is particularly the case when it has to prescribe administrative measures of the general character necessary for the execution of a law. (Article 77.)
(b) Sometimes the Cabinet cannot prescribe a regulation except with the approval of the Reichsrat. This is particularly the case in the circumstances aimed at in Articles 88, 91, 77, par. 2 of the Constitution.
(c) Finally, the law of April 17, 1919, “On a simplified form of legislation relative to economy during the period of transition,” gives to the Cabinet of the Reich the power under certain conditions to enact by means of decrees what amount to veritable laws. According to this law, the Cabinet may prescribe regulations having the force of law, and consequently may even modify laws previously made on condition that it has the consent of the Reichsrat and of a committee of twenty-eight members named by the National Assembly. The Ministers finally have powers which they exercise individually. They are in theory purely administrative powers.
(3) The distinction established by the Constitution between the Chancellor and the Ministers recurs in the matter of their political responsibility. Their rÔles being different, it is logical that their responsibility operate under different conditions.
The Chancellor and the Ministers are equally responsible before the Reichstag. They “require for the administration of their offices the confidence of the National Assembly. Each of them must resign if the National Assembly by formal resolution withdraws its confidence,” says Article 54. To follow the letter of this article it may be believed that there is not a collective responsibility and that only those Ministers must resign against whom a vote of want of confidence is passed. However, that does not seem to be the real meaning of Article 54. This becomes more clear when one compares it with Article 56. These two articles together indicate the following. The Chancellor and the Ministers are responsible to the Reichstag in the same way, but the provinces of their responsibilities are different. The Chancellor is responsible for the general course of policies, that is to say, for principles and plans of great scope, to the exclusion of administrative measures. On the other hand, the Ministers are responsible not for the general course of policies but for the manner in which they direct their departments. In addition the political responsibility of all the Ministers is involved in decisions taken by them in the Council.
As for criminal and civil responsibility the Chancellor and the Minister are placed on the same footing, and are answerable for criminal and civil offences under the same conditions as the President of the Reich.
2.—THE WORKING OF CONSTITUTIONAL RULES; HOW A MINISTRY IS FORMED, WORKS, AND IS DISSOLVED.
It is observed that the Constitution has attempted a kind of codification of rules for a parliamentary rÉgime, such as its authors have conceived it. It attempts to give thus a guarantee that this rÉgime, new in Germany, will develop along the fixed course it has traced for it. It is interesting to inquire how up to now German statesmen have observed these rules. To this end it seems that the best thing to do is to describe how a Ministry actually is formed, works and is dissolved.
(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.
When the necessary agreements are concluded, the Ministry appears before the Reichstag. It reads its declaration and programme and a grand political discussion commences. But the programme having been in advance submitted to the groups, sometimes even corrected and redrawn at inter-group meetings, the Ministry is sure of a majority and the discourses are only manifestos by which each party explains why it is for or against the Ministry.
(2) Parliamentary government, in practice, may take one of two different forms: government by the Cabinet or government by the Assembly. In a government by a Cabinet, it is the Council of Ministers that governs and it is they who give the direction of general policy. It is the guide and the superior of the Assembly whose confidence supports it. On the other hand, one calls it government by the Assembly when the Ministry is limited to executing the decisions of the Parliament and to following the initiative of the latter.
In Germany, while it cannot be said that the Reichstag exercises considerable authority over them, it seems that the Ministers take little initiative and that they content themselves most often with following the direction given them by the Assembly. It is the agreement that prevailed at the formation of the Cabinet that continues as a policy. The Ministers are either the presidents of the respective political groups, or else have been nominated by these groups. How, therefore, can they be completely independent? There are here some factors analogous to what one called in France “the bloc of the Left” under Minister Combes. All the important measures are first discussed between the government and the groups and the Ministry does not act except in agreement with the groups of the majority. Instead of placing itself at the head of the majority and assuming the responsibility for the measures which it feels necessary to take, the Cabinet comes to an understanding with it. Perhaps it cannot be said that it follows the directions given it by the majority. But it does not act, in any event, unless it is first assured of the majority’s support. Perhaps, also, in the critical circumstances which Germany is traversing and given the manner in which its groups are organized, it is impossible to do otherwise. The head of a Cabinet appointed by the chief of the executive power on a programme given him for the realization of this programme, may act with independence, if this programme creates its own majority. Even if it cannot command a stable majority, it can lean on some of the minority groups and, according to circumstances, may create different majorities. There are acts which no one can criticize and there are successes which nullify opposition. But such is not the case in Germany, where the Ministry has to abide by the contract which prevailed at its organization.
(3) The preceding remarks suffice to explain the following fact: since the establishment of the parliamentary rÉgime in Germany no Ministry has ever been overturned by the Reichstag. How can it be, if it conforms to the condition of its agreement and if, before each hazardous decision, it assures itself the approval of the majority? On the other hand, if it cannot obtain this approval, or if it does not want to accept the policy desired by the majority groups, why should it go before the Assembly and engage in a battle lost in advance? It resigns.
The Ministry, therefore, is never overthrown; it retreats, or more correctly, it does not retreat, but changes. The number of men available for a Ministry is very limited and the groups present almost always the same men. There is in advance a certain knowledge as to who the men are who will enter a Cabinet as soon as one knows what groups will participate in the formation. Further, the possibilities of combinations within a given Chamber are limited enough. From the beginning of February, 1919, only four groups have participated in power, of these the People’s Party participated only after June, 1920. It is inevitable, therefore, that in each new combination there remain at least two groups which already belonged to the preceding one. Quite naturally these groups leave, without exception, the same men in power. Why change? An important part of the preceding Ministry, therefore, is maintained in each new Ministry.
In June, 1919, Scheidemann’s Cabinet, which consisted of Social Democrats, Democrats and members of the Centre, was replaced by Bauer’s Cabinet, in which only the Centre and the Social Democrats entered. The members of these two groups which were in the Scheidemann Cabinet remained in the Bauer Cabinet and it was sufficient to replace with members of these two groups the vacancies left by Scheidemann and the Democrats. In March, 1920, Bauer’s Cabinet, into which the Democrats entered in October, 1919, attempted a new change after the coup d’État of Kapp. Conferences took place, in which took part the President of the Reich, the Ministers and representatives of parties, in which was discussed the question as to which Ministers should remain and which must go.
The more the discussion was prolonged, the greater grew the number of Ministers to remain. But the unions intervened and demanded the resignation of the whole Cabinet. Bauer acceded. Nevertheless the Cabinet, which was thereupon constituted by Hermann MÜller, retained several members of the preceding Cabinet, notably Hermann MÜller himself, who from Minister of Foreign Affairs became Chancellor, and Bauer, who from Chancellor became Minister of the Treasury. The same procedure took place in the constitution of the Fehrenbach Cabinet. It was expected that a Ministry coming after elections that expressed a considerable change in the political situation, and after the Social Democrats withdrew from power and the People’s Party arrived, would translate this change by a more profound modification than usual of the Cabinet. But out of thirteen members five had been members of the preceding Cabinet.
It does not seem, therefore, that the attempt made by the Constitution to regulate as precisely as it may be done the functioning of the government of the Cabinet has had up to now any appreciable effect on the practice of parliamentarism. Germany begins at a point that other countries, in which parliamentary government has operated for years, have hardly attained, if they have at all attained it. A concentrated Cabinet, a Cabinet of republican defence, a Cabinet of transition, a bloc of the Centre—are these accidental deformities of the parliamentary rÉgime, or are they forms toward which it must necessarily tend? We are told in Germany that these practices, obviously little compatible with the conception of parliamentarism or with the regulations provided in their Constitution, are to be explained by the state of revolution in which the country still finds itself; and that they will disappear if some day Germany recovers its equilibrium, and make place for a correct and complete application of constitutional rule.
SECTION IV
THE REICHSRAT
The Reichsrat is placed by the Constitution by the side of the Reichstag, the President and the Cabinet, and has as its rÔle the representation, after these, of the States of the Reich in legislative and administrative matters.
1.—GENERAL FEATURES OF THE REICHSRAT.
The Reichsrat constitutes a bond of co-operation between the Reich and the States. Whereas the will of the whole German people taken together is manifested through the Reichstag, the Reichsrat translates the will of the States, such as it is conceived by the governments or cabinets of these States.
The Reichsrat is the representative in the Reich of the federalist principle. It is the federalist organ of the Reich. In this rÔle it joins the unitary organs and completes them.
The Reichsrat is the successor of the Commission of States of the Provisional Constitution and of the Bundesrat of the old Constitution. But as the unitary idea made important progress, the Reichstag was endowed with powers considerably less extensive than those of the Bundesrat. The latter, which represented the confederated governments collectively, was the holder of sovereignty under the Empire. The Reichsrat, on the other hand, since the new Constitution placed sovereignty in the German people, is only an organ by which the governments of the states participate in the legislative and administrative powers of the Reich. Instead of being endowed, as compared to the Reichstag, with powers equal or superior to it, as the former Bundesrat was, it has received but very limited rights.
The question whether it would not have been better to organize instead of the Reichsrat a Chamber of States, which would represent, not the various cabinets, but the populations of the states, was vigorously debated. It may be recalled that it was this solution Preuss proposed: a Chamber of States composed of delegates of German republics. These delegates would be elected by the Diets of the republics and would be selected from among the citizens of these republics. In principle, each state would have a delegate for each million inhabitants.
Such an organism would constitute a very characteristic application of the centralist idea. But it was thought that this would create, by the side of the Reichstag, a new popular representation, and that this would not take into account the necessity of organizing a representation of states. What was needed actually was the creation of an organ, within which would be realized an equilibrium between the voices and the needs of the Reich on the one hand and the voices and the needs of the states on the other; if it was not wished to suppress completely the federal structure of the Reich and make of it simply a unitary state. This organism would have to include technical and vocational representatives of the interests of the states, leaving aside the idea of parties and all the programmes of parties. That is to say, there would have to be representatives of the governments of the states, not merely political representatives. The National Assembly decided on a Reichsrat organized on the model of the former Bundesrat, representing the governments of the states and endowed with less extensive powers.
The Reichsrat differs profoundly as to authority from the old Bundesrat. It has lost completely the sovereign character of the Bundesrat. It has not even the right to issue administrative regulations, this right having been taken away from it and given to the Cabinet. It has ceased to be, in comparison with the Reichstag, a legislative organ invested with rights equal to those of the Reichstag; and it has no more than a very limited right to co-operate with it in legislative work.
This institution, therefore, comprehends both historic tradition and the actual situation of the Reich. But it marks at the same time a progress in the sense of a stronger unity of the Reich, and it should in the future facilitate a new development of the unitary idea.
2.—THE COMPOSITION AND THE FUNCTIONING OF THE REICHSRAT.
“In the National Council each State has at least one vote. In the case of the larger States one vote is accorded for every million inhabitants. Any excess equal at least to the population of the smallest State is reckoned as equivalent to a full million. No State shall be accredited with more than two-fifths of all votes.” (Article 61.)
The original proposal provided that three years after the Constitution had entered into effect, small States having less than a million inhabitants would lose their right to be represented in the Reichsrat. The obvious purpose of this provision was to compel, by indirect means, the small States to join together, as well as to prevent the unnecessary parcelling out of territories with the view of creating new States. This measure, however, was not accepted by the committee. We know that in its place the committee and the National Assembly accepted a resolution inviting the government to interpose in the hope of realizing a union of small States.[46]
An early distribution of seats, after the adoption of the Constitution, on the basis of Article 61, gave to Prussia twenty-five votes out of the total of sixty-three in the Reichsrat. But, as we know, after May, 1920, seven small states of Central Germany formed the State of Thuringia, which had 1,584,324 inhabitants and was entitled to two votes. By this the number of non-Prussian votes in the Reichsrat was reduced by five, which also diminished the number of votes coming from Prussia from its former twenty-five to twenty-two. So long as no new changes in the interior geographic configuration of the Reich are made, the distribution of votes in the Reichsrat will be as follows: Prussia, twenty-two; Bavaria, seven; Saxony, five; Wurtemberg, three; Baden, three; Hesse, two; Thuringia, two; other States, one each. Total, fifty-five.
The States are represented by members of their Cabinets. So it was under the old rÉgime. There is, however, an essential difference, for the Cabinets now depend on the confidence in them of the Diets elected by universal suffrage. It is public opinion that governs in the States now and no longer the will of an autocratic government, independent of this opinion. The government of a state is responsible before the Diet for the manner in which its representatives exercise their mandates in the Reichsrat, whether the members of the Cabinet are themselves present there or whether they are represented by civil servants. The former provisions relating to instructions given by Cabinets of States to their plenipotentiaries in the Reichsrat, as well as measures to insure that the representatives of each state shall join in a common vote, have become useless and have not been incorporated into the Constitution.
The provision according to which the states are all represented by their Cabinets has been changed, however, in one respect. Article 63 specifies that only half of the Prussian votes will be at the disposal of the Prussian Cabinet, the other half being at the disposal of the Prussian provincial administrations. Thus the National Assembly, which has not had the force to effect directly a dismemberment of the Prussian state, and which has deferred for over two years every effort to be made toward this end, has nevertheless attempted to anticipate this reform. It seems in effect that if the Prussian provinces receive progressively more and more autonomy, if the powers granted to them become comparable to the more and more diminishing powers of the states, the assimilation of these provinces to states other than Prussia will be facilitated and hastened by the fact that these provinces, like states, are directly represented in the Reichsrat. Each of them will be able to defend its own particular interest, different, perhaps, from those of other provinces. Each province, above all, will be able to defend its rights and make its interests prevail when in conflict with those of the Prussian State, whose dominant centralization will thus be broken.
This solution is not entirely satisfactory, for the regrouping which must be proceeded to in the Reich must be inspired above all by social and economic considerations. And it must have as its aim the creation of an autonomous body capable of self-development and productivity. Above all in this work, the historic frontiers of the States must be disregarded since these frontiers have been drawn to satisfy dynastic interests or to conclude victorious wars. What is true of the interior of the Reich is also true of Prussia. The Prussian provinces are not natural organisms in whose interests there should be created and developed a political life.
Still, Article 63, for lack of other provision, constitutes progress, which, however, does not seem as yet to be near realization. This Article provides, in effect, that the manner in which Prussian votes at the disposal of the provinces shall be distributed must be regulated by a Prussian State Law; and Article 168 provides that until the adoption of this law but, at the most for only a year, all the Prussian votes in the Reichsrat may be cast by members of the State Cabinet. This law should already have been adopted and applied. This has not been done, however, and the Prussian government has asked and obtained a modification of Article 168, which prolongs the delay accorded to Prussia and gives it till July 1, 1921, to pass this law. In support of this request Prussia claimed that the reduction of its total number of votes in the Reichsrat to twenty-two made the distribution of this number among the provinces more difficult. In reality, however, the Prussian government under the Republic remains true to its traditional tactics, which consist in opposing all development and progress by means of the most obstinate passivity. Until the new state of representation is adopted the twenty-two Prussian votes will be cast by the members of the Prussian Cabinet or by delegates named by it.
The Reichsrat has the right to create its own committees.[47] But the privileges which certain states, particularly Prussia, enjoyed in the committees of the old Bundesrat are suppressed; particularly as no state may hereafter have more than one vote on any committee. (Article 62.) The Reichsrat, in contrast to the Reichstag, has not the right freely to convene. It must be convoked by the Cabinet of the Reich. Nevertheless, it has a right to convoke itself if the demand is made by a third of its members. It is the Cabinet that presides over the Reichsrat and its committees; but the Cabinet has not the right to vote in either of these. The Reichsrat has the right and the power to demand that the members of the Cabinet be present at its meetings or at the meetings of its committees. It may invite there the Chancellor and the Ministers and the latter are obliged to attend. Those invited have the right at all times to be heard in the deliberations. By this means the Reichsrat has the possibility of participating in the policies of the Reich. It is true that no fixed influence is guaranteed to it by the Constitution. What authority it will be able to exercise in the future will depend on the quality of its work and on the personalities by which the states will be represented. The Cabinet of the Reich, like all the members of the Reichsrat, is authorized to propose measures in the Reichsrat. The plenary sessions of the latter, in contrast to those of the Bundesrat, are theoretically public; its committee meetings are not. Decisions are made by a simple majority of those voting.
3.—POWERS OF THE REICHSRAT.
The former Bundesrat was an organ which had in legislative matters the same rights as the Reichstag. It exercised in addition important executive functions; in particular it had the right to promulgate general administrative regulations for executing the laws of the Reich. It was the central administrative authority in matters relating to customs and taxes. It decided conflicts of a constitutional character as well as miscarriages of justice. Of all these powers few have descended to the Reichsrat. In order to emphasize the idea of the unity of the Reich and of the sovereignty of the whole German people in the Reich, the new Constitution limits to a considerable extent the powers of the Reichsrat. However, it has left it a certain right to participate in the making of laws and in the exercise of executive power.
In legislative matters, it will be recalled, that all proposals of laws on the part of the Cabinet must be presented at first to the Reichsrat; in theory, must be accepted by it before being submitted to the Reichstag. But as we know this consent is not indispensable and the government may disregard it. It will be recalled also that the Reichsrat has the right to protest against any law voted by the Reichstag; but that it may have its protest disregarded under certain conditions.
Already the Reichsrat has made use of its right of protest. That was done in connection with a bill that raised postal taxes. The National Assembly, acting in the character of the Reichstag, had voted a provision according to the terms of which the sending by mail of official documents would have to be paid for, no longer by him who received them, but by the sender. The representatives of Prussia, Bavaria and of Saxony criticized in the Reichsrat this measure, and found support in the Assembly to the extent of a majority of thirty-eight votes. Whereupon the Reichsrat raised a protest against this measure, April 29, 1920. The bill then returned to the National Assembly; but the conflict ended with a compromise, without recourse to the procedure provided by the Constitution for such a case.
The Reichsrat still possesses some executive powers. On the one hand, the Constitution and the law frequently stipulate that a regulation by the Cabinet of the Reich must be authorized by the Reichsrat. On the other hand, the law of April 17, 1919, “for a simplified form of legislation on economic matters” provides that regulations decreed by the Cabinet in this matter must be approved both by the Reichsrat and by a committee of twenty-eight members of the Assembly. The Reichsrat and the Committee have in this case absolutely equal rights. Finally Article 67 provides that the Reichsrat must be kept informed by the national departments of the conduct of national business.
