¹ 1943–45.

² It was clear from the outset that this principle could not apply to Prussia, which, because of its size, importance, and location, would have given overwhelming superiority to any zone in which it might have been located. Since then, Prussia has been abolished as a state by order of the Allied Control Council.

³ The former Rhine Province, an administrative part of Prussia, was divided into a British-occupied state, North Rhine-Westphalia, and a French-occupied state, Rhineland-Palatinate. In a similar manner, both Wuerttemberg and Baden were divided between the French and the American zones, and the Prussian Province of Erfurt became part of Thuringia.

⁴ The new Land of Hesse was formed out of all or parts of the former Land Hesse, the Province of Hesse-Nassau, and the Province of Kurhesse.

⁵ Apart from the quadripartite-controlled city of Berlin, there are now the following Laender and autonomous regions: U. S.: Bavaria, Hesse, Wuerttemberg-Baden, Bremen, Enclave. British: North-Rhine-Westphalia, Schleswig-Holstein, Lower Saxony, Hamburg. Soviet: Thuringia, Saxony, Saxony-Anhalt, Mecklen burg-Vorpommern, Brandenburg. French: Rhineland-Palatinate, Wuerttemberg, Baden, and the partly separated Saarland.

⁶ Cf. German constitution of August 11, 1919, Arts. 6–15.

⁷ Neither the Council of Prime Ministers of the American Zone (Laenderrat) nor the new bi-zonal agencies for the British and American zones are full governments. Nor is the Central Administration (Zentralverwaltung) in the Soviet area a true zonal administration.

⁸ Constitutions have now been adopted by all German Laender with the exception of the British zone of occupation where the drafting process is still in its earlier stages. The recently drafted constitution considered for the Saarland, which had not been ratified as these lines were written, was made with that area's special relations to France in mind and is not considered here.

⁹ Preamble to the constitution of Hesse (October 29, 1946); Art. 1 of the constitution of Thuringia (January 23, 1947). Cf. also Art. 41 of the latter document: “All-German law invalidates Land law” (Gesamtdeutsches Recht bricht Landesrecht). This provision follows the almost identical wording of Art. 13, Weimar constitution (Reichsrecht bricht Landrecht.)

¹⁰ The Bavarian constitution of October 26, 1946, has a preamble and 188 articles. Most of the others have well over 100 articles, but the constitution of Thuringia is content with 81.

¹¹ The perpetuation of the proportional system of representation. Cf. Bavarian constitution, Art. 14; constitution of Hesse, Art. 75; constitution of Wüerttemberg-Baden, Art. 52.

¹² Cf. the minute directives to public school teachers (Bavarian constitution, Arts. 131–137; Wuerttemberg-Baden, Art. 36; Hesse, Arts. 55–58; Thuringia, Art. 72), including even such trivia as the provision that “girls are to be trained in babycare, education of children, and household management.” (Art. 131, Sec. 4, Bavarian constitution.)

One well might wonder why the following provisions were elevated to the undeserved dignity of constitutional articles: “Schools shall not merely convey knowledge and ability, but shall also develop sympathetic hearts and character. The highest objectives of education are reverence for God, respect for religious convictions and human dignity, self-control, a keen sense for and ready acceptance of responsibility (Verantwortungsgefühl und Verantwortungsfreudigkeit), a willingness to help others, and receptiveness for all that is true, good, and beautiful.” (Art. 131, Secs. 1 and 2, Bavarian constitution.) The Hessian constitution (Art. 56, Par. 4) admonishes teachers as follows: “The teaching of history must bo directed towards a true, unvarnished presentation of the past. Special attention is to be paid to the great benefactors of mankind, to the development of the State, economics, civilization, and culture, rather than to warlords, wars, and battles. Concepts which endanger the foundations of the democratic state must not be tolerated.”

¹³ Cf. Bavarian constitution, Art. 166, sec. 2: “Everyone has a right to make an adequate living by means of his labor” and the “right to adequate housing” (Art. 106, Sec. 1). Many other constitutions contain similar provisions. Since these “rights” are of course completely devoid of any legal enforceability, they belong in the realm of propaganda and have therefore been excluded from further consideration.

¹⁴ Cf. the succinct observations of Brunet, René, in The New German Constitution (English translation by Gollomb, J., New York, 1922), p. 197.Google Scholar

¹⁵ OMGUS (Office of Military Government for Germany, U. S.) directive of September 30, 1946, entitled: “Relationships Between Military and Civil Government (U. S. Zone) subsequent to Adoption of Land Constitutions.”

¹⁶ Order No. 332 of November 11, 1946, Soviet Military Administration.

¹⁷ Purely provisional constitutions, such as the constitution for Hamburg (of May 15, 1946, as amended October 8, 1946) have not been considered.

¹⁸ The Communist-dominated Socialist Unity Party.

¹⁹ In Thuringia, for example, the SED group in the Landtag submitted its draft to the Judiciary Committee on December 4, 1946. The Committee reported to the Landtag two weeks later, on December 18. The Landtag approved the constitution unanimously two days later, on December 20, 1947—the time from which that constitution is dated.

²⁰ Cf. Constitutions of Bavaria, Hesse, and Wuerttemberg-Baden, issued by OMGUS, Berlin, February 15, 1947, p. 2.

²¹ Roughly translated as “republic,” but without the sovereign connotation of the English expression.

²² That the omission of the word Freistaat was intentional is evidenced by the semi-official commentary of Dr.Schultes, Karl. Cf. Die Verfassung des Landes Thüringen (Weimar, 1947), p. 5.Google Scholar

²³ Constitution of March 11, 1921, as amended December 21, 1926.

²⁴ “Wuerttemberg-Baden ist ein demokratischer und sozialer Volksstaat.”

²⁵ No such compunction appears to have prevailed in the Saarland, whose Landtag adopted a frankly separatist constitution on November 8, 1947.

²⁶ The question of what constitutes all-German law is not quite so clear as it may appear. Ordinarily one might presume that this means the national law of a future German Republic. However, there are some indications that many believe in the existence of a Reich law, although there is no Reich, and that the Laender, acting as if in lieu of the lacking all-German legislature, should abrogate this “law” only when necessary. Such a viewpoint is vaguely indicated by Schultes, op. cit., pp. 5–6. In this connection, it may be of some interest to note that the Soviet Military Administration found it necessary (Order No. 110, October 26, 1945) to empower the Laender specifically to amend Reich law.

²⁷ The German term is staatsrechtliches Eigenleben.

²⁸ The creation of a state president was widely discussed in Bavaria, but eventually discarded.

²⁹ The interstate council (Laenderrat) of the U. S. zone came into effect on October 17, 1945.

³⁰ The agreement for the economic merger of the British and U. S. zones was signed December 2, 1946, by Secretaries Bevin and Byrnes.

³¹ Art. 106, constitution of Wuerttemberg-Baden, provides that the constitution shall not hamper the government's work in interstate agencies. However, the government remains responsible to the Landtag for its actions.

³² Unless the ex post facto law is more favorable to the accused than the statute under which the offense was committed. Cf. Baden constitution, Art. 116.

³³ Arts. 111–118, 123–126, 135–137, 153.

³⁴ One month.

³⁵ Art. 98, Bavarian constitution, reads as follows: “The fundamental rights guaranteed by the Constitution may, on principle, not be restricted. Restrictions by law are permissible only if public safety, morality, health, and welfare compel it (zwingend erfordern). Other [italics mine] limitations are permissible only under the conditions of Article 48. The Supreme Constitutional Court must declare laws and ordinances void which restrict a fundamental law contrary to the constitution [italics mine].

³⁶ Thuringian constitution, Art. 3, Sec. 3.

³⁷ Art. 18, Sec. 2.

³⁸ The institution of a permanent committee was known to the Weimar constitution (Art. 35, sec. 2). Its legislative power, however, is an innovation.

³⁹ See below.

⁴⁰ Wuerttemberg-Baden, January 1, 1949 (Art. 104); Baden, December, 1948 (Art. 128); Hesse, December 31, 1950 (Art. 157).

⁴¹ On December 24, 1946, General Joseph T. McNarney proclaimed an amnesty for former Nazis belonging to class 3 (minor offenders) and 4 (followers) under the classification of Art. 4 of the “Law for Liberation from National Socialism and Militarism” of March 5, 1946, enacted by the Laenderrat and promulgated for Bavaria, Hesse, and Wuerttemberg-Baden. Cf. Pollock, James K. and Meisel, James H., Germany under Occupation (Ann Arbor, 1947), pp. 179–196.Google Scholar

⁴² The members (60) of the Senate are elected by 10 different professional and interest groups representing: agriculture (11), industry and trade (5), craftsmen (5), labor unions (11), professional men (4), coöperatives (5), religious groups (5), welfare organizations (5), universities (3), and local government (6). Art. 35.

⁴³ In case the Landtag declares a bill “urgent,” the Senate must make up its mind within one week. Art. 41.

⁴⁴ Constitution of Thuringia, Art. 8, Sec. 1.

⁴⁵ Ibid., Sec. 4.

⁴⁶ Constitution of Wuerttemberg-Baden, Art. 48.

⁴⁷ Constitution of Bavaria, Art. 44, Sec. 1; see discussion below under “The Executive Branch.”

⁴⁸ Art. 45 of the French constitution of September 28, 1946, provides that the prime minister-designate must receive a formal vote of confidence in the National Assembly before he can proceed with the formation of his cabinet. Since the German Laender have no equivalent to the French President of the Republic, there is no person who can “designate” the prime minister to be. Presumably, direct contacts between party leaders or caucus decisions will produce the persons most likely to form a government.

⁴⁹ Usually one-fifth.

⁵⁰ Not in Wuerttemberg-Baden.

⁵¹ Not in Hesse.

⁵² “Law for the Relief of Distress of Nation and Reich,” March 24, 1933, Reichsgesetzblatt, I, p. 141.

⁵³ Cf. Art. 73, Weimar constitution.

⁵⁴ However, the electoral laws of Baden have also introduced the proportional list system.

⁵⁵ The Bavarian constitution specifies that parties which fail to receive at least one-tenth of the total vote shall not be represented in the Legislature (Art. 14, Sec. 4). Wuerttemberg-Baden does the same, but leaves it to legislation whether such a condition shall be imposed or not (Art. 52). Hesse takes a similar stand, but limits the minimum vote which may be required to five per cent (Art. 75).

⁵⁶ In Baden, Staatspraesident.

⁵⁷ But usually need the consent of the Landtag. In Wuerttemberg-Baden, the prime minister may also dismiss a minister (Art. 70). In Bavaria (Art. 45) and Hesse (Art. 112), the prime minister needs the consent of the Landtag for the dismissal of ministers.

⁵⁸ In view of the present emergency, there are coalition governments in most German states, even though certain individual parties could command a majority in the Landtag without entering into any combination with other groups. Cf. Neumann, Robert G., “The New Political Parties of Germany,” in this Review, Vol. 40, p. 749 (1946).Google Scholar

⁵⁹ On September 15, 1947, the four Social Democratic ministers in the Bavarian cabinet were forced to resign against their will by a decision of the state committee of their party.

⁶⁰ Art. 44, Sec. 1: “Der Ministerpraesident kann jederzeit von seinem Amt zuruecktreten. Er muss zuruecktreten, wenn die politischen Verhaeltnisse ein vertrauensvolles Zusammenarbeiten zwischen ihm und dem Landtag unmoeglich machen.”

⁶¹ The terms of all prime ministers expire automatically at the beginning of the first session of a newly elected Landtag.

⁶² The emergency powers of the Governments have been discussed under the heading “Civil Liberties and Fundamental Rights.”

⁶³ Cf. Law on the Imposition and Execution of the Death Penalty (lex van der Lubbe), March 29, 1933, Reichsgesetzblatt, I, p. 151; Law of June 28, 1935, Reichsgesetzblatt, I, p. 839, amending Section 2 of the German Criminal Code.

⁶⁴ Decree of November, 20, 1938, concerning the establishment of the Sondergerichte, Reichsgesetzblatt, I, p. 1632.

⁶⁵ Law concerning the People's Court (Volksgerichtshof) of April 18, 1936Google Scholar, Reichsgesetzblatt, I, p. 369.

⁶⁶ Law on the Reëstablishment of the Professional Civil Service, April 7, 1933, Reichsgesetzblatt, I, p. 175, later replaced by the German Civil Service Act, January 26, 1937, Reichsgesetzblatt, I, p. 39. Decree on the Coöordination of the Judiciary, August 20, 1942, Reichsgesetzblatt, I, p. 535. For the practice of issuing periodic directives to judges, cf. speech by Minister of Justice Otto Thierack, Deutsche Justiz, October 26, 1942Google Scholar; for a brief description of this unique method of telling the judges what and how to decide, cf. Herz, John, “German Administration Under the Nazi Régime,” in this Review, Vol. 40, p. 701 (1946).Google Scholar

⁶⁷ This is to prevent the return of “Protective Custody” and “Judgments by the Good Sense of the German People.” Cf. law of June 28, 1935, loc. cit.

⁶⁸ However, a judge may still be dismissed for cause by ordinary judicial decision. (Art. 128). Frequently this is accomplished by a special “In-Service Court” (Dienststrafhof); cf. Art. 88, constitution of Wuerttemberg-Baden.

⁶⁹ “Die Richter sind in ihrer Rechtsprechung unabhaengig und nur dem Gesetz unterworfen.”

⁷⁰ Cf. Bavaria, Art. 87; Hesse, Art. 127; Wuerttemberg-Baden, Art. 88.

⁷¹ Schultes, op. cit., p. 16.

⁷² This argumentation is quite reminiscent of Nazi ideas propagated for the similar purpose of making the bench pliable. Cf. Huber, E. R., Verfassungsrecht des Gross deutschen Reiches (Hamburg, 1937/1939), pp. 276–281.Google Scholar

⁷³ Op. cit., p. 15.

⁷⁴ Esmein, A., Éléments de Droit Constitutionnel Français et Comparé (8th ed., by Nézard, H., Paris, 1927–1928), Vol. I, p. 638.Google Scholar

⁷⁵ Constitution of 1946, Arts. 91–93.

⁷⁶ One might also question the effectiveness of review based on general rationalization rather than on a concrete case.

⁷⁷ Not to be confused with the Hohe Staatsgerichtshof (Baden constitution, Art. 112), which is a court for the trial of impeachments. It is differently composed.

⁷⁸ The Supreme Constitutional Court, in turn, will concern itself only with the constitutional question involved. Final disposition of the case lies with the regular courts.

⁷⁹ The Weimar constitution envisaged a Staatsgerichtshof (Art. 108; also Arts. 15, 18, 170, 171), which was established by law of July 9, 1921, Reichsgesetzblatt, p. 905. The Staatsgerichtshof was actually a court of conflicts and arbitration rather than a constitutional court in the American sense. It exercised no judicial review. The Supreme Court (Reichsgericht) did decide on November 4, 1925, that it was competent to pass on the constitutionality of a Reich law (Entscheidungen des Reichsgerichts in Zivilsachen, III, p. 320), but that decision remained without practical consequences.

⁸⁰ During the lifetime of the Wiemar Republic, the courts showed great leniency toward the Rightist enemies of the democratic state. In those days, more courage was needed to uphold the state than to oppose it.

⁸¹ One of the presidents of the Oberlandesgerichte and eight judges, three of whom must be from the Administrative Court.

⁸² Only for purposes of judicial review. For the purpose of impeachment trials (Art. 61), or consideration of unconstitutional abridgment of civil rights by the executive branch (Art. 66), the court has a different composition. This unnecessarily complicated system has been faithfully copied from the law of July 9, 1921, loc. cit.

⁸³ Cf. Article 140 of the Austrian constitution of 1920.

⁸⁴ This is not true of legal scholarship. Men like Otto von Gierke or Rudolf von Ihering have not been found lacking in breadth of vision.

⁸⁵ Holmes, Oliver W., The Common Law (Boston, 1881), p. 1.Google Scholar

⁸⁶ Cf. Friedrich, Carl J., Constitutional Government and Democracy (rev. ed., Boston, 1946), p. 230.Google Scholar

⁸⁷ Hesse (Art. 130) and Wuerttemberg-Baden (Art. 91) have their respective Landtage elect the judges of the Supreme Constitutional Court for certain periods with the right of reëlection.

⁸⁸ “Within the confines of the law” as usual.

⁸⁹ Mining, iron and steel, power, rail transportation (including street-car lines and electric buses powered by overhead lines).

⁹⁰ All big banks and insurance companies, as well as those industries mentioned in note 89 above whose seat is not in Hesse (Art. 41, Sec. 2).

⁹¹ Art. 39, Par. 4: “Die Entschaedigung fuer das in Gemeineigentum ueberfuehrte Vermoegen wird durch das Gesetz nach sozialen Gesichtspunkten geregelt. Bei festgestelltem Missbrauch wirtschaftlicher Macht ist in der Regel die Entschaedigung zu versagen.”

⁹² Constitution of Hesse, Art. 29.

⁹³ Through shop stewards.

⁹⁴ However, the Thuringian constitution (Art. 39) allows amendment by referendum as well.

⁹⁵ Cf. Loewenstein, Karl, “Government and Politics in Germany,” in Governments of Continental Europe (ed. by Shotwell, James T., New York, 1940), p. 391.Google Scholar Cf. also a searching study by the same author: Erscheinungsformen der Verfassungsaenderung (Tuebingen, 1931).

⁹⁶ Except that of Bavaria.

⁹⁷ The Hessian constitution (Art. 150) is especially emphatic on this point: “Proposals for amendments violating [the democratic spirit of the constitution] shall not be brought to a vote. If passed nevertheless, they shall not be promulgated. If promulgated nevertheless, they shall not be observed.”

⁹⁸ Especially in the Bavarian constitution.

⁹⁹ According to reliable reports, this may be partly due to pressure for speed exerted by Military Government in the U. S. zone.