The New Germany

FOOTNOTES:

CHAPTER VIIToC

THE CONSTITUTION

Looking at the new German Constitution, without troubling about its inner meanings, and comparing it with the Constitution of 1871, we are struck at once by the very considerable advance it represents in democratic development. One need not be a constitutional lawyer to assert with confidence that this is the most democratic Constitution possessed by any of the principal European peoples, and to add that it seems to have avoided many of the mistakes that have been marked in other Republican Constitutions, whether American, French, Portuguese or Russian. The President's powers, for example, and the relation of the Ministry to Parliament suggest that Dr. Preuss, the constitutional jurist responsible for its drafting and elaboration, had studied foreign constitutional history with a Prussian thoroughness and a Hebrew perspicacity.

But a closer study of this Constitution will give us a different view of it. And this view will depend on whether we study it in the light of its development from the Revolution or of its difference from the ancien régime. If we compare it with the principles of the revolution we shall be tempted to condemn and reject it, like the German Revolution, as mere camouflaged reaction. It would certainly have been a very different document had it been produced in the first weeks of November. The Revolution, in so far as it had a constitutional conception at all, contemplated a "Räte system" (that is a Council Government), which should secure political power to the proletariat under a Central Committee, on the Russian model. If it had admitted Parliamentary institutions at all they would only have been subordinate to Council control. As to any survival of the old State sovereignties, they were looked on as having disappeared with the State dynasties from which they had originated. Thus the Erfurt proclamation of the Thuringian States on December 10th, 1918, proposed that the motley medley of those petty principalities be unified into one administrative department of a centralised Republic.

But this revolutionary impetus did not last. As power relapsed to the upper and middle classes particularism reappeared. As the flood tide of revolution drained back, the old channels and watersheds appeared again. Every crisis in modern German history, 1848, 1866 and 1870, had been in the main a movement towards national unity that eventually failed in great measure owing to peculiarities of German character and of Germany's circumstances. And this last Revolution of 1918 was to a large extent the same; but whereas the previous movements had been thwarted by Conservative ideals and institutions, and by the citadels of the past, this movement was most embarrassed by its association with Communist ideals and innovations, like the Councils. So much indeed was this national and centralising factor of the Revolution obscured by the international and socialising feature of it that, at the election of the Constitutional Assembly, such questions as to whether the Constitution should be that of a centralised Republic, like France, or a coalition of Republics, like Switzerland, never came before the public at all.

Public opinion was too much occupied with the Revolution in its effect on private life and property, on food and peace, to consider it in its character as another chapter in the history of German unity. The result of the election, however, temporarily settled the issue against centralisation by splitting the Socialist party, and making the moderate Socialist Government dependent on the support of clerical and sectional interests. The constructive impetus of the Revolution was lost and Constitution-making became once more, as on previous occasions, a complicated negotiation with the lesser States.

But the Revolution had at least succeeded in giving the Constitution a good start towards centralisation by having a draft prepared, by a Committee under Dr. Preuss, then Secretary of State for the Interior in the provisional Government. This first draft—a shapeless makeshift affair—nevertheless established certain principles of national unity which eventually survived all attacks on them. And a tactical success was scored at once by publishing this draft simultaneously with the decision of the Constituent Assembly, on the 21st of January. But that was as far as the matter could be carried without calling the States into consultation, and a conference of their representatives met in Berlin on January 24th. At this Conference, or rather in the special train on the way to it, the particularist opposition declared itself. And this, not only where it might have been expected, in the clerical, liberal and conservative parties, but among socialists themselves. This opposition of southern socialists followed the line of an old factious schism in the Social Democratic party that had declared itself at the Nürnberg Conference, and was headed by Kurt Eisner, the leading revolutionary and real ruler of Bavaria. Kurt Eisner was not only opposed to Prussia on political but on personal grounds, having shaken the dust of Berlin off his feet some years before. Under his leadership the centralised Republic of Preuss was gradually remodelled into a decentralised Federation of Republics. And it looked, at one time, as though the failure of the Paulskirche Assembly was to be repeated, and a movement towards German unity and social liberty was to relapse and recoil into reaction. Fortunately there has been to-day no Bismarck to profit by the opportunity given by the Southern particularists.[11]

It is curious to note how the resignation of the Constituent States changes in the successive drafts of the Constitution. First they appear as "Member States" (glied Staaten), then as "Free States," finally as "Countries" (Lander). Again, we find the Federal Body or Senate, representing these States, as States, appearing first as a State Committee (Staaten Auschuss), then as a State House (Staaten Haus) sharing sovereignty with a Volks Haus or Commons and combining with it to form the Reichstag, and finally as a Council of the Realm (Reichsrat) with merely a suspensory veto over the Reichstag. These changes of nomenclature suggest a reaction into decentralisation followed by a recoil back into centralisation. The successive drafts of this Constitution are indeed documents of intense interest to a student of German political development and of revolution in general. They mark stages in a historic movement that is scarcely elsewhere recorded; if only because its course was so rapid that it accomplished in weeks what would normally have taken years, and because post-war conditions cut it off from competent observation. But, by comparing the various drafts of the Constitution, we see how a proletarian revolution starting in Prussia in favour of a centralised consolidated Republic gradually yielded to a reaction favouring Southern particularism, which converted the Constitution into a decentralised federation of Republics. Then, with the capture of the Saxon and Bavarian States, by the revolutionary Council movement and their collapse under Prussian military occupation, came the final phase in which centralisation recovered most of its lost ground. The question is whether this ground has been recovered for reaction or for revolution.

This raises the question, all important for our purpose, as to the position of Prussian reaction under the new Constitution. Prussia as a political Power stands to us for Prussianism, and Prussianism represents the political point of view that we have been fighting in this war.

In the past Prussia dominated Germany through the Dynasty and the ruling class. Prussia was a force making for reaction, owing to its antiquated suffrage and constitution and to the activities of its upper and middle classes. Prussia still dominates the German Republic much as England would dominate in a British Federation. But it is not the same Prussia. If Prussia is still the citadel of reaction it is also the centre of revolution. The fight between the two is not yet fought out, but if, as seems probable, neither wins, the result will be that the Prussian influence in new Germany will be a somewhat colourless compromise, what we should call Liberalism.

If this is so, and the course of recent events tends to confirm a conjecture made soon after my arrival in Germany, then a centralisation that tends to maintain Prussian hegemony in Germany is not in principle objectionable. It remains to be seen whether the Constitution as now recentralised offers opportunities to a recrudescence of Prussianism in the bad sense.

The position of Prussia, having four-sevenths of the population, an even larger proportion of the ruling class and of the military caste, also the capital and the civil service, was the main difficulty of the Constitution-makers. The revolutionary solution was at first the partition of Prussia, and it seemed feasible enough. Prussian unity had centred more than that of any other German State in the Crown; and as the Prussian Revolution had three main distinct regions, not very different from the old racial divisions, a division of the State into three seemed as easy as expedient. Dr. Preuss and constitutional jurists of all parties stood in favour of such partition. At the same time, if Prussia were to be partitioned, obviously a rearrangement of the other States might be attempted, so as to give the new German Constitution that uniformity and precision so precious to the German mind. Accordingly, all manner of fancy schemes were put forward by which the Reich was divided geographically, racially, religiously, economically, and even industrially. But all the time the Revolution, that alone could have carried through any such reconstruction, was being thwarted and throttled, so that none of these schemes became practical politics. The revolutionary impetus that the Constitution-makers could use for the realisation of their reconstructive ideals proved far too weak. There were, however, plenty of interested efforts to abolish the anomalies and absurdities of the old dynastic frontiers. Thus Hamburg merchants wished to annex Bremen; Brunswick revolutionaries wished to annex Anhalt; Coburg councils declared their independence of Gotha councils; Waldeck burghers clamoured for release from the tyranny of Pyrmont. But when it came to effecting any such change, in no case was there sufficient support. It would indeed have been easier to redivide Germany on altogether new lines than to partition up and patch together the old States. Dr. Preuss was, at a very early stage, obliged to restrict himself to laying down principles for procedure which should make subsequent rearrangements as easy as possible; and he was eventually obliged to content himself with putting, as he himself said, the least possible obstacle in the way of change.

The whole policy of partitioning Prussia very soon broke down before a Prussian, national unity that was the growth of centuries. This national sentiment expressed itself in violent opposition not only from the Prussian ruling class, to whom Prussian unity was a necessary condition for a monarchical and militarist reaction, but also to the Prussian proletariat, who considered it a necessary condition for the success of the Revolution. Nor, oddly enough, was it favoured even by the Southern and Catholic interest who in the past had been most jealous of Prussia. For they argued that if Prussia were reduced to provincial departments, their own State rights would not remain unrestricted. And State right had become all the more precious to the clerical parties since revolution had threatened them both from above and below, from a Socialist Central Government above and from Communist Council Governments below. Partition had therefore to be abandoned and the difficulty of Prussian preponderance was solved by an arbitrary reduction of Prussian representation, as in the Constitution of 1871. In the old Bundesrat Prussia was represented by 17 votes out of 61 (counting Alsace-Lorraine). Art. 61 of the present Constitution restricts Prussia to two-fifths of the total votes, having raised the proportion from one-third in the previous drafts. That is, Prussia used to have rather more than a quarter, and now has rather more than a third of the votes in the Federal body.

This might look like a reaction into Prussianism; but only until the functions of this Federal Body are examined. Sovereignty, under the old Constitution, resided in the dynasties, and the old Bundesrat was a council of diplomatic delegates, comparable to the Supreme Council at Paris. These delegates, as representatives of the Crown, intervened, not only in legislative but even in administrative matters, such as appointments. Moreover, in this Council, the Prussian representatives had a privileged position, as they received their instructions from the Prussian Government in which the Imperial Chancellor was Premier. In the first drafts of the Constitution we find the sovereignty divided between representatives of the State and representatives of the people. Thus the Staatenhaus and Volkshaus combine to make the sovereign Reichstag. But in the present Constitution, all sovereignty expressly resides in the popular Chamber, the Reichstag. The Reichsrat becomes no more than a sort of Imperial Conference with defined and carefully delimited constitutional powers; and, in the Reichsrat, Prussia has no privileged position whatever.

The great strength of Prussianism was in the Prussian Constitution and in the Crown. But Art. 17 now prescribes that every State must have a Constitution as a Free State of a democratic character. And as to the Crown, Prussia has not the same relations to the President as it had to the Emperor. The Kaiser was primarily King of Prussia by right divine, the President is primarily executive of Germany by popular election.[12] Moreover, under the old régime, the Kaiser's Chancellor was also Prussian Premier. The Republic's Chancellor has nothing to say to Prussia; he and the Ministers form a Federal Cabinet responsible to the Reichstag.

And, if we carry this comparison into other political regions, we find the same result; that Prussianism and Junkerism have lost their vantage grounds and have been put under democratic control.

In Foreign Affairs the influence of Prussia was, as we have cause to know, especially fatal to Germany and to Europe. But that is now at an end. The German Constitution not only affords the usual guarantees of Parliamentary Government for a democratic foreign policy, but guards the nation against defects in those guarantees that have been found dangerous even in our own Constitution. Two innovations have for years been urged by reformers in our own country, the institution of a permanent parliamentary committee on foreign affairs, and the submission of important treaties, as well as of declaration of war, to Parliament. Had Germany had these safeguards at the time of the war there would have been no war. Had we had them then we should now have peace. Articles 35 and 45 of the German Constitution are worthy of our careful consideration.

The financial relationship between States and the Central Government is always a difficult matter to arrange. If the Federal Government is dependent on subsidies from the States, it can have no strength, nor even any real democratic basis. If the States depend on the Central Government, they have no vitality and become in time mere administrative departments. Under the old Constitution there was no clear principle, but the fiscal authority resided nominally in the States, while the Reich really by all manner of devices encroached on this autonomy. Now there is a clear general principle that the States must content themselves with such sources of revenue as are left to them by the Reich. And we certainly cannot criticise a centralisation which is indispensable to Germany in the enormous effort it must make to meet the financial obligations imposed on it by the Treaty of Versailles. Moreover, Prussia can no longer dominate Germany financially and economically as before. Prussia's economic preponderance has been greatly reduced by the loss of Lorraine, the Saar, and Silesia. In communications, too, Prussia can no longer give the lead and lay down the law to the lesser States; for communications come under federal control. Within two years railroads, posts and telegraphs and canals are transferred to the Reich.

In the region of public welfare we find that the new German Constitution is more satisfactory than might have been expected from the conditions of its genesis. It meets adequately two main requisites for progress; the formulation of the general principles inspiring the practical provisions of recent progressive legislation, and the attribution of responsibility for further legislative development of such principles. Thus, besides establishment of equality of sexes, we find such principles as that "Marriage is established on the equality of the sexes." "Families with numerous children are entitled to equitable and equalising treatment." "Motherhood is entitled to protection of and provision by the State" (Art. 19). Illegitimate children are to have "similar conditions for their corporal, spiritual and social development" (Art. 121), "Childhood is to be protected against exploitation" (Art. 122), and so forth. While all these questions are attributed to the Reichstag (Art. 7, § 7).

The same approbation can safely be accorded to the chapter on public work. The economic purpose of society is to "guarantee to all an existence proper to men." "Property has its obligations, and its use must also serve the common good." While these vœux pieux are given more definite application in provisions for housing and contributory insurance, and in recognition of "nationalisation" in Art. 156. Moreover, these principles are, to some extent, guaranteed by the previously discussed recognition of Industrial Councils in Art. 165, which provides a measure of "socialisation," and by the specific recognition of socialisation as a principle in Art. 7, § 13.

When we come to the all-important region of education, the conditions of compromise in which the Constitution took shape have prevented the establishment of any very clear principle or very cut and dried procedure. This was indeed one of the most contentious chapters of which 'clericalism' contested every inch. The Democrats and Dr. Preuss had originally introduced a uniform and secular system; but they and the Social-Democrats, in the abstention of the Independents, were unable to carry this through against the Clerical Centrum. The resultant compromise is not unlike that now prevailing in England. It may work but it satisfies nobody.

And finally coming to the army the effect of the success secured by the centralising party is even more questionable. The Revolution originally contemplated merely a militia on the Swiss model, under Federal control. The first result of reaction was to substitute a professional and highly paid force, the Frei-Corps, under Prussian command and control. The consequence of this was that the Southern States insisted on retaining their separate military systems, and these were duly recognised in the early drafts of the Constitution, to the great disgust of nationalists and militarists. But then came the proclamation of Räte-Republics in Saxony and Bavaria, and their suppression by Prussian Frei-Corps with some assistance from Würtemberg and Baden. This re-established, de facto, a military predominance of Prussia which enabled the Prussian jurists to replace military matters under the Federal Government. Art. 79 now gives complete authority to the Minister of Defence; and the special military autonomies of Bavaria and other States, reserved in previous drafts, disappear. But, so long as the Frei-Corps continue, with their Prussian organisation and officers, a Federal army is, for the present, at least, nothing else than a Prussian army. Though Noske is the Minister of Defence, not Minister of War, as he is sometimes called, and is a member of a Federal Cabinet and not, as before, a Prussian Minister, and though the Eden Hotel clique has been transferred to the Ministry of Defence—yet the armed forces of the Republic are, for the present, the armed forces of Prussia.

This is, however, a transition stage. The Prussian officer is the creation of conditions that no longer exist to-day, and the Frei-Corps a creation of conditions that will not exist to-morrow. When Germany again gets peace, Prussia will lose a predominance that it owes to past conditions, but not to the Constitution.

It is indeed in its efficiency as a bond between the past and the future that the Constitution must be judged; as a bond that will reduce revolution to rapid evolution. Dr. Preuss, its author, claims no more for it than that it will not act as a bar to any normal and natural growth. But it will have to do more than this. It must serve as a bridge by which Germany can safely pass over the immense gulf that separates the Germany of yesterday from the Germany of to-morrow; the Germany of the Courts of Potsdam and of Pumpernickel, from the Germany of the Executive Councils of Berlin and Brunswick. It is a formidable span for any bridge, and, when we look at this Constitution and find one abutment of it in Article 65 consecrating an ultra-mediæval particularism, and the other abutment in Article 165 "anchoring" the ultra-modern forms of industrial councils, we may wonder whether the intervening structure will ever stand the strain. Can the constitutional compromise of Dr. Preuss ever safely convey seventy million people from government by the divine right of princes to government by industrial representation? Even if it does not, and this Constitution is swept away by a second flood-tide of revolution, it will have served a purpose. It will have finally exorcised the constitutional incubus of northern Prussianism and southern particularism. The vague and dangerous powers of Prussian imperial sovereignty and the less dangerous but equally disabling national sovereignties of the Principalities have been swept away. Art. 11 of the Constitution establishes the Commonwealth as a Republic and assigns its sovereignty to the people.[13] Moreover, Art. 178 repeals the Constitution of 1871, while Art. 181 puts the Constitution in force on the authority of the National Assembly alone, thereby finally ending the claim put forward at first by Bavaria that it should be ratified by the Landtag.

The difference between the Constitution of 1919 and that of 1871 can indeed best be seen at a glance by comparing their preambles. Here is that of 1871. "H.M. the King of Prussia in the name of the North German Confederation, H.M. the King of Bavaria, H.M. the King of Würtemberg, H.R.H. the Grand Duke of Baden and H.R.H. the Grand Duke of Hesse and by Rhine, for those parts of the Grand Dukedom of Hesse South of the Rhine, conclude a perpetual confederation."

Compare that with the preamble of this Constitution. "The German people, united in its races, and inspired by the will to restore and reinforce its Realm in liberty and equity, to ensure peace, both inward and outward, and to further social progress, has accorded itself this Constitution."

It only remains therefore, for Europe and England to recognise this new departure and to ratify it by admitting Germany to the League of Nations. And even if this new Constitution be held to be no more than new wine in old bottles and new patches on an old garment, that is no reason why Germany should not be included in the League as at present conceived and constituted.

FOOTNOTES:

APPENDIXToC

THE GERMAN CONSTITUTION

Introductory Note

Before the revolution of 9 November, 1918, the Constitution in force was that of 16 April, 1871—the "Constitution of the German Reich," which had replaced the "Constitution of the German Bund" of November, 1870. But the following Constitution has less in common with these later Constitutions, based on alliances between Sovereign Princes, than with the abortive "Constitution of the German Reich" of 28 March, 1849, which embodied the nationalist and democratic revolution of 1848.

The November revolution brought to power a provisional Government—the Council of People's Commissaries—which in its first proclamation of 12 November, 1918, announced that the future Constitution would be framed by a National Assembly elected by universal suffrage and proportional representation. Under electoral regulations of 30 November, 1918, elections were held on 19 January, 1919.

The National Assembly met in Weimar on 6 February, 1919, and on 10 February voted the Provisional Constitution; whereupon the Council of Commissaries resigned their authority to the Assembly. This Constitution gave the Assembly sole power to vote the Constitution; but its provisions could only be submitted with consent of a "State Committee" of representatives of the "Free States." This provisional Constitution was supplemented by an "Interim Act" of 4 March, which maintained in force previous legislation of the Reich and decrees of the Provisional Government.

The drafting of the Constitution was entrusted to Dr. Hugo Preuss, Professor of Public Law in the Commercial University of Berlin, Secretary of the Interior in the Provisional Government, and Minister of the Interior in the first Coalition Government. The Democratic Party, of which he is a member, having left the Coalition on the question of signature of the Treaty of Versailles, Dr. Preuss retained responsibility for the passage of the Constitution as Special Commissioner.

The first draft of the Constitution was published in January and was submitted to the Assembly on 21 February. It was introduced by Preuss with lengthy expositions in sessions on 28 February and 3 and 4 March, and thereafter submitted to a Committee of twenty-eight under the Presidency of the deputy Conrad Haussmann. After being completely recast in Committee it was debated in second reading 2-22 July; when the status of the Free States, the education question, and the recognition of industrial Councils were especially contested and eventually compromised. The third reading, 29-31 July, ended in its being voted by 262 to 75, the minority consisting of the Conservatives and the Independent Socialists.