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Rebuilding the German Constitution, I

Published online by Cambridge University Press:  02 September 2013

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

The hectic sequence of Germany's constitutional history led that unhappy country, following the final liquidation by Napoleon of the last remnants of medieval constitutionalism, through the confusion of Austro-Prussian rivalry, Empire, democratic Republic, and Fascist dictatorship, to the total vacuum of unconditional surrender in May, 1945. The pretense of a four-power (quadripartite) condominium by means of the Allied Control Council, which at first looked to many responsible people like a feasible stop-gap, has been revealed in this sequence as an empty façade. During the years 1945–49, Germany has been governed by a bewildering maze of conflicting and competing authorities whose legitimacy, beyond the reach of their immediate power, has been in considerable doubt. Authority, power, legitimacy; unless these are effectively combined and balanced, the existence of a true government may well be doubted. Continental Europeans, who prefer to talk about the “state” in discussing problems of government, have therefore been wondering whether the German state has continued to exist—a problem in higher semantics which is briefly discussed below.

Type
Research Article
Information
American Political Science Review , Volume 43 , Issue 3 , June 1949 , pp. 461 - 482
Copyright
Copyright © American Political Science Association 1949

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References

1 “Reform of Representation in the House of Commons,” Works (Boston, 1839), V, p. 405Google Scholar. The same persistence in national traditions is to be observed in France.

2 Considerable comment has been put forward in Germany on the subject of these constitutional solons, especially their age and background. Besides the many newspaper articles, mention may be made of Konrad Mommsen's article, “Bonn—ein Beamtenparlament,” in Die Wandlung (1949)Google Scholar. He shows the average age to be 52, with the youngest member 34 and the eldest 74. This does not seem a bad showing, considering the age composition of the American Senate. But there is a difference here between a “representative” body in a stable society and one of violent contrasts between generations. In any case, it is clear that the average member of the Bonn Parliamentary Council “belongs” to the Weimar Republic, even if he did not participate in shaping its constitution in 1919 (as several deputies did).

3 There appeared a considerable crop of articles and brochures linking 1848 with the present, concomitant with the centenary celebrations. Among these, Friedrich Meinecke's brief essay is perhaps the most representative of German democratic tradition. See also the author's “Die Forty-Eighters” in Prisma (1948)Google Scholar. The celebration of the centenary at Frankfurt in May, 1948, was held at the Pauhkirche and was marked by a striking discourse by the poet Fritz von Unruh, perhaps the most extraordinary self-critique of the German tradition ever offered by a German. It is reprinted in full in Die Neue Zeitung, May 20, 1948.

4 See for these matters Brecht, Arnold, Prelude to Silence (1944)Google Scholar, and Watkins, Frederick M., The Failure of Constitutional Emergency Powers under the German Republic (1939)CrossRefGoogle Scholar, and the literature cited there. Since 1945, only a few significant studies have appeared. Among them, one might mention Ferdinand Friedensburg's, Die Weimarer Republik (1946)Google Scholar.

5 For this background, see my Constitutional Government and Democracy (1941), Chap. X. The failure to appreciate the constitutionalist tradition linked with the monarchies is due to the propaganda line which indiscriminately talks about Prussian autocracy, whether the point refers to the true autocracy of Frederick William I, to the veiled autocracy of Frederick William IV, or to the imperfect constitutionalism of Bismarckian Germany. Political science has never produced a thorough study of the government of the German Empire, and the old and unsatisfactory book by Howard still remains the only monograph on this fascinating topic.

6 For full discussions of Allied policy developments, see the following: C. J. Friedrich and associates, American Experiences in Military Government in World War II; Friedmann, W., Allied Military Government of Germany (1947)Google Scholar; Zink, Harold, American Military Government in Germany (1947)Google Scholar; and Neumann, Robert, “New Constitutions in Germany,” in this Review, Vol. 42, No. 3 (June, 1948)Google Scholar.

7 See Axis in Defeat, Department of State, Pub. 2423, 1946, Anglo-Soviet-American Conference, 1945, p. 13.

8 For JCS 1067, see ibid., p. 40.

9 Directive Regarding the Military Government of Germany, July 11, 1947, Department of State, Pub. 2913.

10 Friedrich, Carl J., “The Peace Settlement with Germany,” Annals of the American Academy of Political and Social Science, May, 1948, pp. 119–141Google Scholar.

11 “Restatement of U.S. Policy on Germany; Address by the Secretary of State, Delivered in Stuttgart, Germany, September 6, 1946,” Department of State, Pub. 2616. See also Byrnes', James F. own account in Speaking Frankly (1948), pp. 186–191Google Scholar.

12 Text of Secretary Marshall's statement to the Council of Foreign Ministers on the political organization of Germany, New York Times, Mar. 23, 1947, p. 12.

13 London Conference Recommendations on Germany, Text of Communiqué, State Department Bulletin, Vol. XVIII, No. 468, June 20, 1948, p. 807Google Scholar.

14 See press release issued to correspondents (OMGUS-7-C-2), Berlin, Germany, July 2, 1948, Document 1.

15 For details of this discussion, see the three important German newspapers, Die Neue Zeitung (official American Military Government paper), Die Welt (official British Military Government paper), and Der Tagesspiegel (leading German-published paper) for this period.

16 Grewe, Wilhelm, Ein Besatzungsstatut für Deutschland (Stuttgart, 1948)Google Scholar. See also Strauss, Walter, “Grundgesetz und Besatzungsrecht,” Frankfurter Hefte, Sept., 1948Google Scholar. A careful analysis of the German desiderata regarding the occupation statute was prepared by the law offices of the German Bizonal Administration, dated Nov., 1948, entitled Denkschrift … zum Besatzungsstatut.

17 The German Social Democrats have since thoroughly protested this failure. See New York Times, Apr. 21, 1949, and elsewhere.

18 See Fraenkel, Ernst, Military Occupation and the Rule of Law (London 1944)Google Scholar, and, cf. also Ernst Feilchenfeld, The International Economic Law of Belligerent Occupation, Monograph Series of the Carnegie Endowment for International Peace, Division of International Law, No. 6 (Washington, 1942).

19 See his two articles, “The Legal Status of Germany According to the Declaration of Berlin,” American Journal of International Law, Vol. 39, July, 1945Google Scholar, and “Is a Peace Treaty with Germany Legally Possible and Politically Desirable?”, in this Review, Vol. 41, Dec., 1947Google Scholar. Regarding the substantive issues of a German peace settlement connected with this problem, see C. J. Friedrich, “The Peace Settlement with Germany” (cf. footnote 10 above).

20 See King's Bench Div., R v. Botril ex parte Küchenmeister. The issue has been related to the problem of unconditional surrender, which, it is asserted, affected only the German armies, since Doenitz did not have any authority to bind the government and the terms did not refer to political matters. See also Sauser-Hall, G., “L'Occupation de l'Allemagne par les Puissances Alliées,” Schweiz; Jahrbuch f. internat. Recht, Vol. III (1946), pp. 24 ffGoogle Scholar. The previous German view that the German state continued to exist was stated by the dean of German international lawyers, Erich Kaufmann, for whose opinions see Deutschlands Rechtslage unter der Besatzung (Stuttgart, 1948)Google Scholar.

21 In keeping, with this attitude, the Germans also insisted that the body drafting the basic law could not be called a constituent assembly, but must be considered a body of less exalted state for which they proposed the name “Parliamentary Council.” The Parliamentary Council was not selected by the people, but by the legislatures of the states, a device which reduces its democratic appeal to the German people.

22 For the English-German texts of these programs, see the document prepared by Civil Administration Division, OMGUS, entitled German Constitutional Proposals, particularly the Ellwangen draft proposal and the draft by Dr. Walter Menzel.

23 For the general criteria of federalism, see my Constitutional Government and Democracy (1941), Chap. XI, as well as Finer, Herman, The Theory and Practice of Modern Government (1932), Vol. I, Chap. VIIIGoogle Scholar, and Mogi, Soebei, Federalism (1931)Google Scholar.

24 See Verfassungsausschuss der Ministerpräsidenten-Konferenz der Westlichen Besatzungszonen, Bericht über den Verfassungskonvent auf Herrenchiemsee, vom 10. bis 25 August 1948.

25 These points are taken from the actual report submitted by the Minister-Presidents on the basis of the Expert Commission's work, as cited in the preceding footnote. The report is reproduced in a document published by Civil Administration Division, OMGUS, entitled German Constitutional Proposals (undated), page 139 ff., under the title “Entwur eines Grundgesetzes (Herrenchiemsee).”

26 For the full text, see Die Neue Zeitung (official American Military Government paper), Mar. 4, 1949, p. 2Google Scholar.

27 See New York Times, Apr. 26, 1949, p. 1.

28 This article will be concluded in the August issue with a discussion of the constitution as finally agreed upon. Man. Ed.

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