The New Germany

[1] Art. 1.—The whole character of this Constitution is contained in this provision that the "Reich" is a republic. It was introduced in order to convey that new Germany, while retaining the ancient title and tradition of "Reich," had given it a new significance, and that thereby no concession was intended either to Monarchists or Imperialists or Militarists.

Therefore "Reich" is not to be translated Empire. Commonwealth would perhaps be the best rendering, but Realm will be used here as more convenient.

[2] This clause is of crucial importance. Henceforward all sovereignty is of the German people and not of the princes or principalities. The German Bund of 1815 was a mere confederation between sovereigns or Staaten Bund. The North German Bund of 1866 was a federation of semi-sovereigns, or Bundes Staat. The present German Republic is still a Federal State, but sovereignty is inherent in the people, not in the constituent governments.

[3] Art. 2.—The transformation of this Constitution from a centralised republic into a confederation and back to a federation has been reviewed already. The word "lander" is literally translated for this and other reasons.

[4] Art. 3.—"Whether these colours black-red-gold, are really the colours of the ancient Reich, which historians dispute, or are those of the Lutzow Free Company, we look rather to the political ideals and aims associated with them during the nineteenth century. It was the idea of political freedom and of national unity that kept the black-red-gold, an honoured symbol in German Austria long after the black-white-red had flown over the German Empire. As the historian Constantine Franz has said, in mediæval times there was an Austro-Germany, in modern times a Prusso-Germany, and now there must be a German Germany."—Dr. Preuss, introductory speech, 24th February, 1919.

The clause as it stands is a compromise between the "Right," who wished to retain the black, white, and red, and the "Left," who wanted the red flag. A compromise in which the Right have as elsewhere had the best of it—as the red flag is not allowed.

[5] Art. 4.—"German Democracy can only welcome a League of Nations that has itself a really democratic constitution and that recognises without reserve or restriction the liberty and equality of all its members. We shall have no members of inferior status in our commonwealth, but neither will we be of inferior status in the League of Nations."—Dr. Preuss, speech introducing the Draft Constitution, February, 1919. The phases of this clause have been reviewed above, see p. 236.

[6] Art. 6.—See Art. 78 as to the rights in foreign relations retained by the Lands.

[7] See Art. 80.

[8] This simple attribution of military matters to the Reich replaces the complicated recognitions of the "reserved rights" of the southern States in the early drafts. See p. 257 for the importance of this clause.

[9] The first draft gave the Reich exclusive jurisdiction over railways, canals, and air traffic, which it now shares with the Lands.—See Art. 7, § 19.

[10] Art. 7.—This, with § 12, represents a gain to Socialism, as the transfer of "Socialisation" to the Reich prevents indefinite obstruction by a Conservative Landtag. See Art. 153.

[11] See Art. 171.

[12] Art. 8.—See Art. 85 for rights retained by a Landtag; also p. 254 for the general effect of this provision.

[13] Art. 10.—The earlier drafts formulated such principles as an integral part of the Constitution.

[14] Art. 17.—What a "free State" Constitution means was not defined by the authors of the Constitution. Its opponents argued that it might admit of a monarchist restoration in Prussia, but this has since been barred constitutionally by the provision that the Reich is a Republic (Art. 1).

[15] The first draft established a single chamber legislation in the Lands.

[16] This sentence was added apparently to bar the setting up of further unparliamentary Räte republics in opposition to the Chambers, as in Bavaria, Brunswick, etc.

[17] This residential qualification was added to meet objections that otherwise Landtag elections might be influenced by an influx of outside voters.

[18] Art. 18.—This, the most contentious article in the Constitution, embodies the concessions made by the centralising purists—its authors—to the federalising particularists—its critics. The history of its phases has been given above, see p. 243. Its form in the first draft follows:—

"It is open to the German people to establish new Free States within the Realm, irrespective of the previous frontiers, in so far as the racial character of the population, economic conditions, and historical traditions favour their formation. Such new Free States should have at least two million inhabitants.

"The union of two or more constituent States into a new Free State is effected by governmental convention between them, subject to the approval of the Legislatures and the Government of the Realm.

"If the population of a district wish to secede from their allegiance and join one or more German Free States, or form a Free State, a plebiscite is necessary. The plebiscite will be initiated by the Government of the Land or of one or more autonomous bodies comprising at least a quarter of the population concerned. It will be instituted by the Government of the Realm and enforced by the local authority."

The general effect of the Constitution combined with present political conditions is that there will be no change of any importance in the composition of the countries constituting the Realm. See also Art. 167 suspending operation of pars. 3 to 6 of this article for two years.

[19] Art. 20.—In the first draft the Sovereign Reichstag consisted, not, as here, of the popular Chamber only, but of the Volkshaus—the popular Chamber, and the Staatenhaus—the representatives of the States. The latter, now known as the Reichsrat (see Art. 60), is no longer part of the sovereign body and has merely a suspensory veto against it (see Art. 74).

[20] Art. 25.—The President's power of dissolution was unrestricted in the early drafts.

[21] Art. 34.—This article, a late addition, constitutionalises a procedure that strengthens democracy as against bureaucracy.

[22] Art. 35.—The institution of a permanent Committee on Foreign Affairs for which our advocates of democratic diplomacy have laboured in vain for twenty years has been commented on above, see p. 253.

[23] Art. 48.—It was in virtue of the article corresponding to this in the provisional constitution that Berlin attacked and suppressed the Council Governments set up in Munich, Brunswick, Bremen, and elsewhere.

[24] Art. 55.—The Chancellor is consequently no longer the sole responsible Minister, but merely as elsewhere in democratic constitutions primus inter pares, the Premier. Moreover, he has, of course, lost his special authority from the Crown and his special association with Prussia. It would have been better in the circumstances to have dropped the title of Chancellor.

[25] Art. 60.—The Reichsrat is the much reduced remains of the Bundesrat. (See p. 252 and Arts. 1 and 20.)

[26] Art. 61.—For the importance of this restriction in respect of Prussia, see p. 251.

[27] This clause as to German Austria was objected to by the Supreme Council at Paris as contrary to Art. 80 of the Treaty of Versailles: "Germany acknowledges and will respect strictly the independence of Austria.... She agrees that this independence shall be inalienable except with the consent of the Council of the League of Nations." The exchange of notes on the subject is not worth appending, as it expresses an ephemeral phase of diplomacy and not any essential principle of international law. In so far as the German Constitution is concerned, the objection seems unimportant in view of Art. 178, par. 2.

[28] Art. 63.—A compromise between the former Bundesrat, where the delegates were plenipotentiaries representing semi-sovereign States, and the centralising draft of Preuss, where they were no more than politicians chosen on party, not on particularist, grounds.

[29] Art. 71.—A curious little example of provincial jealousy, which substituted "capital" for "Berlin."

[30] Art. 76.—"It is an essential of democratic constitutions that they be difficult of amendment" (Preuss). On the other hand, such difficulties have their danger, as in 1851, when Louis Napoleon obtained a simple majority but not a two-thirds majority for an amendment; which led eventually to a coup d'etat and a complete overthrow of the Constitution.

[31] See Art. 169.

[32] See Art. 170.

[33] See Art. 171.

[34] These principles were formerly mostly provided for in the German Code; though some, and they the most important, were previously only guaranteed by State Law.

[35] See Art. 175.

[36] Art. 109.—Equality of the sexes and abolition of titles, is of course, an innovation.

[37] Art. 112.—This has no effect as against demands for extradition made under the Treaty of Versailles, in view of Art. 178, § 3.

[38] Art. 124.—This repeals a provision of the Prussian Constitution that religious associations can only be incorporated by special legislation.

[39] Art. 137.—This article is a much-contested compromise in which the Socialists have secured in the end a striking success over the Roman Catholic Centrum and Right. The latter entered the fight with the full intention of maintaining State Churches everywhere. Probably the set-back suffered in the South from the Communist capture of Munich reconciled them to disestablishment without disendowment. That par. 7 would give "Bolshevism" a claim to equal treatment with Protestantism is not of immediate importance.

[40] See Art. 173.

[41] Art. 146.—The separation of church and school effected in this and preceding articles was bitterly opposed by the Roman Catholics. Defeated in this article, they secured a respite in Art. 174 which postpones its application until further legislation. See Art. 174.

[42] This chapter breaks new ground, as might be inferred from the abstract character of its provisions and constant reference to special legislation.

[43] Art. 165.—An Act regulating these councils has already been introduced (Aug., 1919). For the importance of this article, see above, pp. 69, 172, 184.

[44] On the strength of this clause the Government have transformed the National or Constituent Assembly into a Reichstag, without the election certainly contemplated when it was first convoked.