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Rebuilding the German Constitution, II

Published online by Cambridge University Press:  02 September 2013

Carl J. Friedrich
Carl J. Friedrich
Affiliation:
Harvard University
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Extract

On May 8, 1949—the fourth anniversary of unconditional surrender—the Parliamentary Council adopted at Bonn the Basic Law for the Federal Republic of Germany. This date was chosen intentionally to remind the German people that this provisional constitution is a way-station on the road out of the chaos which the collapsing Hitler régime left behind it. Any consideration of this Basic Law should start from the fact that the charter is not the creation of a free people, and that it will have to function within limits, both territorial and functional, which severely handicap its chance of becoming a genuine constitution, securely anchored in the basic convictions of the people. Its limits territorially are imposed by the refusal of the Soviet Union to permit the Germans living in their Zone of Occupation to express themselves freely concerning the charter. This raises the presumption, confirmed by other evidence, that these Germans would, by a considerable majority, accept the Basic Law if given a chance to do so. The charter's functional limits are imposed by the Western Allies, who decreed three basic limitations upon the German people's autonomy and independence: (1) the Occupation Statute, (2) the Ruhr Statute, and (3) the Inter-Allied Security Board. Of these, the Occupation Statute is much the most important, and encompasses the other two by its provisions. This is shown by the fact that the Letter of Approval, issued by the Military Governors on May 12, 1949, notes that acceptance of the constitution is premised upon the understanding that all governmental power in Germany, federal, state, and local, is “subject to the provisions of the Occupation Statute.”

Type
Research Article
Information
American Political Science Review , Volume 43 , Issue 4 , August 1949 , pp. 704 - 720
Copyright
Copyright © American Political Science Association 1949

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References

1 See for this Statute and its background the previous instalment of this article. Its text is contained in Dept. of State Press Release No. 235 (Apr. 8, 1949).

2 This translation is based upon the official German text; it deviates slightly from the “agreed” translation of the occupying authorities. Legally, the German text will be “official,” in accordance with international custom, just as (one assumes) the English and French texts of the Occupation Statute will be “official.”

3 The official text entitled Grundgesetz für die Bundesrepublik Deuischland beschlossen vom. Parlamentarischen Rat in Bonn am 8 Mai 1949, Bonner Universitaets-Buchdruckerei (571 V. 49), has been used throughout. The “official” translation in “agreed text” has been compared, but from time to time it has seemed necessary to deviate from this translation. The Draft Basic Law as adopted by the Main Committee of the Parliamentary Council in December, 1948, was published together with an English translation by Civil Administration Division, OMGUS, on January 15, 1949; it contains also very valuable references to German party positions, tripartite agreements and disagreements, and corresponding provisions of the Weimar constitution. For the Land constitutions, the most authoritative source is a document prepared also by CAD, OMGUS, entitled Constitutions of the German Laender (1947).

4 For these terms, see my Constitutional Government and Democracy (1941), Chap. XI, and the literature cited there at length.

5 For the Italian constitution, see Einaudi, Mario, “The Constitution of the Italian Republic,” in this Review, Vol. 42, pp. 661–676 Google Scholar.

6 A remarkable study of this idea was presented recently by Baker, Herschel in The Dignity of Man (1947)CrossRefGoogle Scholar.

7 See for this my Inevitable Peace (1948), passim.

8 The “official” translation obscures the meaning by calling Wesensgehalt “basic content,” and rendering angetasted as “affected.” One suspects that the translator did not realize the historical background of this article.

9 See Brecht, Arnold, Federalism and Regionalism in Germany—The Division of Prussia (1945)Google Scholar and the documents cited.

10 See Anschütz, Gerhardt, Die Verfassung des Deutschen Reichs (4th ed., 1932), pp. 109 ff.Google Scholar, concerning Arts. 14 and 15 of the Weimar constitution and the extensive literature cited, esp. Peters, Hans, “Reichsauftragsangelegenheiten,” in Reich und Länder (1929)Google Scholar. For the general problem, see my Constitutional Government and Democracy (1941), Chap. XI, where the Swiss practice is briefly discussed also.

11 Constitution of November 10, 1946, Arts. 83–84. Cf. Wright, Gordon, The Reshaping of French Democracy (1948), pp. 200–201, 236, 239–240 Google Scholar, and elsewhere.

12 One does not have to go as far as Beradt, Martin, Der Deutsche Richter (1930)Google Scholar, or the Communist Brecht, Bertold, Furcht und Elend des Dritten Reiches (1945)Google Scholar, in order to appreciate these problems. The Justices' Case was skillfully analyzed by its American prosecutor, Mr. Charles M. LaFollette, in five issues of the U. S. Military Government's Information Bulletin, Nos. 138–142 (1948). Cf. also Chaps. VI and XII of the author's op. cit. for the general problem.

13 The fiscal experts at Chiemsee estimated that in 1948 the largest possible revenue to be secured for the Bund would be around eight billion DM, and that occupation costs were running about seven. Without accepting these figures, one can take them as indicating the range of the difficulty.

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