CHAPTER XIX

The Weimar Constitution

The provisional constitution adopted at Weimar in February, 1919, was naturally only a makeshift. It contained but ten paragraphs, furnishing the barest outline for the organization of the new state. Its basis was a draft of a proposed constitution made by Dr. Hugo Preuss, a leading authority on constitutional law, who had been appointed Minister of the Interior. This draft was published on January 20th. More than a hundred representatives of the various German states met in the Department of the Interior at Berlin on January 25th to consider it. This conference appointed a commission from its number, which was in session for the next five days in Berlin and then adjourned to Weimar, where it finished the draft of the provisional constitution.

Even the short period intervening between the first publication of the Preuss draft and its submission to the National Assembly had sufficed to bring about one important and significant development. Preuss himself was an advocate of the so-called _Einheitsstaat_, a single state on the French plan, divided into departments merely for administrative purposes. Many of his friends of the German Democratic Party and all Socialists also wanted to do away with the separate states, both for doctrinal and selfish partisan reasons. Preuss realized from the beginning the impossibility of attaining his ideal completely, but he endeavored to pave the way by a dismemberment of Prussia, the largest and dominant German state, and by doing away completely with several of the smaller states, such as Anhalt, Oldenburg, etc. His constitutional draft of January proposed the creation of sixteen "territories of the state" (_Gebiete des Reichs_): Prussia (consisting of East Prussia, West Prussia, and Bromberg), Silesia, Brandenburg, Berlin, Lower Saxony, the three Hansa cities (Hamburg, Bremen, Luebeck), Upper Saxony, Thuringia, Westphalia, Hesse, the Rhineland, Bavaria, Baden, Wurtemberg, German-Austria, and Vienna.

It became quickly apparent that Preuss and his followers had underestimated the strength of the particularistic, localized patriotism and respect for tradition cherished by a great part of the Germans. Not only were the South Germans aroused to opposition by the implied threat of a possible eventual onslaught on their own state boundaries, but the great majority of the Prussians as well protested mightily against the proposed dismemberment of Prussia. The unitarians saw themselves compelled to yield even in the temporary constitution by inserting a provision that "the territory of the free states can be altered only with their consent." The plan to reduce the states to mere governmental departments was thus already defeated.

With the erection by the National Assembly of the _Staatenausschuss_, or Committee of the States,[67] the draft of the constitution was laid before that body for further consideration. On February 21st the committee submitted the result of its deliberations to the National Assembly, which referred it in turn to a special committee of twenty-eight members, whose chairman was Conrad Haussmann, a member of the German Democratic Party.

[67] _Vide_ p. 245.

The National Assembly began the second reading of the constitution on July 2d and finished it on July 22d. The third reading began on July 29th. This brought a number of important changes, one of which is of deep significance as indicating the extent to which the members of the National Assembly had already succeeded in freeing themselves from the hysterical mode of thinking induced by the immediate revolutionary period. All drafts of the constitution up to that date had provided that no member of a former reigning house in Germany should be eligible to the Presidency. This provision was stricken out on third reading.

The constitution was finally adopted on July 31, 1919, by a vote of 262 ayes to 75 nayes. The negative votes were cast by the German National People's Party, the German People's Party, the Bavarian Peasants' League, and one member of the Bavarian People's Party (Dr. Heim). The constitution was signed by President Ebert and the ministry at Schwarzburg on August 11th, and went into effect three days later. On this date the imperial constitution of April 16, 1871, several paragraphs of which were still in effect under the provisional constitution of February, 1919, ceased to exist.

The Weimar constitution consists of two "main divisions." The first, dealing with the construction of the state, is divided into seven sections, which are subdivided into 108 articles. The second main division, dealing with "fundamental rights and fundamental duties of the Germans," has five sections, with 57 articles.

A comparison of the preambles of the old and new constitutions indicates the different point of view from which they were approached. The constitution of 1871 began:

"His Majesty the King of Prussia, in the name of the North German Federation, His Majesty the King of Bavaria, His Majesty the King of Wurtemberg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and on the Rhine, for those parts of the Grand Duchy of Hesse situated south of the Main, form an everlasting federation for the protection of the territory of the federation and of the right prevailing within its borders, as well as for the furtherance of the welfare of the German people."

The new constitution's preamble reads:

"The German people, united in its races[68] and inspired by the desire to renew and establish more firmly its state in freedom and justice, to serve the ends of peace at home and abroad and to further social progress, has given itself this constitution."

[68] _Das Deutsche Volk, einig in seinen Staemmen._ There is no adequate English translation of _Staemme_ (plural of _Stamm_), except the word "tribes," which, of course, is in place only when speaking of uncivilized peoples.

Article 1 reads:

"The German state[69] is a republic. The power of the state comes from the people."

[69] _Das Deutsche Reich ist eine Republik._ Revolutionary though they were, the constitution-makers could not bring themselves to discard the old name _Reich_, although it really means empire. Hence "state" is an inadequate translation, but it is also impossible to say that "the German Empire is a republic." The only solution appears to be the adoption of the German word _Reich_--a solution generally accepted in Europe.

The revolutionary nature of the change is further emphasized in article 3, which substitutes black-red-gold for the black-white-red of the old imperial flag.[70]

[70] Black-white-red were retained as the colors of the merchant-flag, but with the addition of the colors of the Reich in the upper inner corner.

Outwardly the most striking and apparent change of structure of the government is, of course, the fact that a president takes the place of the Kaiser, and that the various federated states are also required to have a republican form of government, with legislatures chosen by the direct, secret ballot of all male and female Germans, after the proportional election system. In fact, however, these are by no means the most important changes. "Republic" is, after all, more or less a shibboleth; the actual form and representative character of governments depend less on whether their head is a president or a hereditary monarch than on the extent to which they make it possible for the people themselves to make their will prevail quickly and effectively.

The changes wrought by the other seventeen articles of the first section are fundamental and sweeping. Their general nature is indicated at the outset, in article 2, which declares that "the territory of the Reich consists of the territories of the German lands." The choice of the name "lands" instead of states, as formerly, shows the smaller importance and lesser degree of self-government assigned to them. All the old _Reservatrechte_ or special rights reserved by several states under the monarchy[71] are done away with. The federal government assumes the exclusive right of legislation concerning foreign relations, post, telegraphs, and telephones, coinage, immigration and emigration, and customs duties.

[71] _Vide_ p. 21.

It reserves to itself further the right to enact uniform civil and criminal codes and procedure, and to legislate regarding the press, associations, the public health, workmen and their protection, expropriation, socialization, trade, commerce, weights and measures, the issue of paper currency, banks and bourses, mining, insurance, shipping, railways, canals and other internal waterways, theaters and cinematographs. "In so far as there is necessity for uniform regulations," the Reich may legislate concerning the public welfare and for the protection of the public order and security.

The Reich reserves further the right to establish basic principles of legislation affecting religious associations, schools, manufacture, real estate, burial and cremation. It can also prescribe the limits and nature of the laws of the lands (states) affecting taxation, in so far as this may be necessary to prevent a reduction of the national income or a prejudicing of the Reich in its commercial relations, double taxation, the imposition of excessive fees which burden traffic, import taxes against the products of other states when such taxes constitute an unfair discrimination, and export premiums.

The constitution takes from the states the power to collect customs and excises. The federal government is empowered to exercise a direct control in the various lands over all matters falling under its competence. Not only are all the things enumerated above, and many more, reserved to the Reich, but there is no provision conferring expressly any powers whatever on the lands. Nor is there any provision reserving to the states powers not expressly reserved to the Reich or expressly prohibited to the states. Article 12, the only provision along this line, states merely that "so long and in so far as the Reich makes no use of its law-giving powers, the lands retain the right of legislating. This does not apply to legislation reserved exclusively to the Reich."

Article 13 provides that "the law of the Reich takes precedence over the law of the lands." In case of a disagreement between state and federal government as to whether a state law is in conflict with a federal law, an issue can be framed and placed before a federal supreme court. Preuss and some of his supporters wanted a provision expressly conferring upon the Supreme Court at Leipsic such power to rule on the constitutionality of legislation as has been assumed by the United States Supreme Court, but their views did not prevail.

The President of the Reich is elected by the direct vote of all Germans, male and female, who have attained the age of twenty. The term of office is seven years, and there is no limit to the number of terms for which the same President may be elected. Every German who has reached the age of thirty-five is eligible for the Presidency. There is no requirement that he be a natural born citizen, nor even as to the length of time that he must have been a citizen. A limitation of eligibility to natural born citizens, as in the United States constitution, was considered, but was rejected, mainly because it was expected at the time the constitution was adopted that Austria would become a German land, and such a provision would have barred all living Austrians from the Presidency. There was also opposition on general principles from the internationalists of the Left, the most extreme of whom would as soon see a Russian or a Frenchman in the President's chair as a German.

Articles 45 and 46, defining the powers of the President, take over almost bodily articles 11 and 18 of the imperial constitution, which defined the powers of the Kaiser. Like the Kaiser, the President "represents the Reich internationally"; receives and accredits diplomatic representatives; concludes treaties with foreign powers; appoints civil servants and officers of the army and navy, and is commander-in-chief of the country's military and naval forces. In only one important respect are the President's apparent powers less than the Kaiser's were: war can be declared and peace concluded only by act of the Reichstag and Reichsrat. Under the monarchy, a declaration of war required only the assent of the Federal Council and even this was not required if the country had been actually invaded by an enemy. The President has no power of veto over legislation, but he can order that any law be submitted to the people by referendum before it can go into effect. He can dissolve the Reichstag at any time, as could the Kaiser, but only once for the same reason--a limitation to which the Kaiser was not subject. He has the general power to pardon criminals. He can, if public safety and order be threatened, temporarily suspend most of the provisions of the constitution regarding freedom of speech and of the press, the right of assembly, the secrecy of postal and wire communications, freedom of organization, security against search and seizure in one's own dwelling, etc.

All these provisions appear to confer very extensive powers upon the President. His appointments of diplomatic representatives do not require the assent of a legislative body. He appoints his own Chancellor and, upon the latter's recommendation, the ministers of the various departments, also without requiring the assent of the legislative body. By referring a legislative enactment to a referendum vote he exercises what is in effect a suspensive veto.

Two articles of the constitution, however, render all these powers more or less illusory. Article 50 provides:

"All orders and decrees of the President, including those affecting the country's armed forces, require for their validity to be countersigned by the Chancellor or the competent minister. The official who countersigns accepts thereby the responsibility for the order or decree in question."

A similar provision in the American constitution would be of no importance, for the members of the cabinet are not responsible to either the people or the Congress for their acts. Once appointed, there is no way of getting rid of them against the will of the President, no matter how inefficient or even harmful they may be to the best interests of the country. The German constitution confers much more effective power upon the people and the people's representatives. Its article 54 provides:

"The Chancellor and the ministers of the Reich require the confidence of the Reichstag for the conduct of their offices. Any one of them must resign if the Reichstag, by express decision, withdraws its confidence from him."

It is readily apparent that the President's powers are greatly limited by these two articles. As against a hostile Reichstag he is all but powerless. The Chancellor or other member of the government required to countersign orders or decrees knows in advance that such countersigning means his own official suicide if the matter be one in which a majority of the Reichstag is at odds with the President. It is apparent from a study of the proceedings of the National Assembly and its constitutional committee that it was intended to give the President independent powers in respect of two important matters--the dissolution of the Reichstag and the suspensive veto by appeal to the people--but article 50 says unqualifiedly that "all" orders and decrees must be countersigned.

The legislative functions of the Reich are vested in the Reichstag and the Reichsrat, or Council of the Reich, which succeeds the Federal Council of the monarchy. The members of the Reichstag are elected by direct vote of the people for a term of four years, after the proportional election system. The Reichstag must convene for the first time not later than thirty days after the election, which must be held on a Sunday or a public holiday, and the election for the succeeding Reichstag must be held within sixty days from the date of the expiration or dissolution of the preceding one. It convenes regularly on the first Wednesday of every November. The President of the Reichstag must call an extraordinary session at the demand of the President of the Reich or when a third of the members of the Reichstag itself demand it.

All the constitution's provisions regarding the Reichstag indicate the determination of the framers of the instrument to make it a thoroughly representative, independent body of great dignity. The deputies are clothed with more far-reaching immunities than is the case in most countries, and in addition to that there is a specific provision extending to them the right to refuse to reveal, even in court proceedings, any matters communicated to them in their capacity as members of the Reichstag.

There is a provision for a standing committee on foreign affairs, which may hold sessions at any time and holds office after the expiration of the members' terms or after dissolution of the Reichstag until the succeeding Reichstag convenes. It is expressly provided that the sessions of this committee shall not be public unless two-thirds of the members vote at any particular time to hold a public session. This provision, adopted by a body, the majority of whose members were outspoken opponents of secret diplomacy, is not without interest. It would seem to be a tacit admission that preliminary negotiations between nations cannot always be carried on advantageously in public.

The Federal Council was, under the monarchy, the chief bulwark of the princes, whose representatives, not the people's, its members were.[72] In the new Reichsrat, the successor of the Federal Council, the various lands are represented "by members of their governments."[73] These are the cabinet ministers of the respective states. The Weimar constitution provides that such ministers shall be directly responsible to the diets of their respective lands, in like manner as the members of the federal government are responsible to the Reichstag. Hence, although chosen indirectly, being named, as under the imperial constitution, by their respective state governments, they are nevertheless subject to constant, effective control by the people's representatives, who can remove them at any time by a simple vote of lack of confidence.

[72] _Vide_ p. 22.

[73] Weimar constitution, art. 63.

Each state is entitled to send at least one representative to the Reichsrat. The larger states are entitled to one representative for each 700,000 inhabitants, and a remainder of at least 350,000 entitles them to one additional member. It is provided, however, that Prussia may not have more than two-fifths of the entire number of representatives.[74] The Reichsrat consists of sixty-six members, apportioned as follows:

Prussia, 26; Bavaria, 10; Saxony, 7; Wurtemberg, 4; Baden, 3; Thuringia, 2; Hesse, 2; Hamburg, 2; Mecklenburg-Schwerin, 1; Oldenburg, 1; Brunswick, 1; Anhalt, 1; Bremen, 1; Lippe, 1; Luebeck, 1; Mecklenburg-Strelitz, 1; Waldeck, 1; Schaumburg-Lippe, 1.

[74] Original drafts of the constitution, as well as the provisional constitution adopted in February, provided that no state should have more than one-third of the total number. Prussia, with four-sevenths of the total population of Germany, successfully opposed this attempt to reduce her representation so disproportionately. She was, however, compelled to accept a provision that half her representatives should be appointed by the state government and the other half by the provincial governments. In the other lands the state government appoints all the representatives.

The fifth section of the constitution containing articles 68 to 77 inclusive, is devoted to the legislative functions of the Reich. Article 68 reads:

"Bills are proposed by the government of the Reich[75] or by the members of the Reichstag.

[75] "The government of the Reich" or "the Reich government" means the Chancellor and all the ministers of his cabinet.

"The laws of the Reich are enacted by the Reichstag."

While the Reichsrat cannot directly propose legislative measures, however, it can compel the government to submit to the Reichstag measures drafted by it. If the government be in disagreement with the Reichsrat, it must accompany its submission with a statement of its attitude toward the measure in question. The Reichsrat, while it cannot take any positive part in enacting legislation, has the right to vote disapproval of any measure enacted by the Reichstag, and such disapproval acts as a suspensive veto. In such case, the measure goes back to the Reichstag. If the Reichstag reenacts it by a two-thirds majority, the President of the Reich must duly proclaim the law within three months or else order a popular referendum. If a smaller majority than two-thirds again votes in favor of the measure, the President may order a referendum within three months thereafter. If he fail to do this, the measure is lost.[76]

[76] This seems to be the sole instance in which the President possesses any real, independent power. In such a case it would be possible for him to ally himself with the Reichsrat against both Reichstag and government, for he cannot be compelled to order a referendum.

The express approval by the Reichsrat of proposed legislation is not required for its enactment. It must express its disapproval within two weeks after an act has been passed finally by the Reichstag; if it fail to do so, the act becomes law.

One is again impressed by the importance assigned to the Reichstag, the direct creation of the people. The national government is responsible to it, as is also the President through the provision that all his decrees must be countersigned by a member of the government. A two-thirds majority of the Reichstag can overrule the Reichsrat, and the same number can impeach the President or any member of the government, or even submit directly to the people the question as to whether the President shall be recalled. Its decision to hold such a referendum automatically inhibits the President from exercising any of the functions of his office.

It is the people themselves, however, to whom the supreme power is given, or, perhaps better expressed, who have reserved the supreme power for themselves by extensive provisions for referendum and initiative. In addition to the provisions for referendum already referred to, the President can decree, within one month after its passage, that any law enacted by the Reichstag shall be referred to the people.

The law-giving powers delegated to the Reichstag can also be exercised directly by the people. One-twentieth of the registered voters can require that a referendum be held on any Reichstag enactment against whose formal proclamation as law at least one-third of the Reichstag members shall have protested. One-tenth of the registered voters can present the draft of a legislative measure and demand that it be referred to a general election. The Reichstag can prevent the holding of such a referendum only by adopting the proposed measure unchanged. Enactments of the Reichstag can be declared invalid by referendum only by the vote of a majority of a majority of all registered voters. Only the President can order that a referendum be held on the national budgets, customs and taxation, and salaries of officials and civil servants. No initiative is possible as to these things.

The people's initiative was one of the various concessions to the Socialists of which more will be said later. It was not contemplated by the framers of the original drafts of the constitution and was introduced at a late period in the deliberations.

The provisions regulating the amendment of the constitution are more definite than those of the United States constitution, and they also make it possible for the voters to make their will known by the democratic method of the direct ballot.[77] Amendments originating with the Reichstag or government may be adopted by the same procedure as is prescribed for ordinary legislative measures, except that two-thirds of two-thirds of all members, i.e., four-ninths of the whole house, must vote for them.[78] A tenth of the registered voters of the country may present a draft of a proposed amendment, as is provided for ordinary bills, and this amendment must be referred to a vote of the people unless the Reichstag adopt it unchanged. For the adoption of an amendment by referendum the affirmative vote of a majority of the registered voters is required.[79]

[77] The United States Supreme Court has decided that the constitutional requirement of a vote of "two-thirds of both houses" (art. v) for amendments does not mean two-thirds of both houses, but merely two-thirds of a quorum of both houses. It has further decided that the people of the various states have no right to vote directly upon constitutional amendments; they are confined to indirect representation through their legislatures.

[78] Every European people regards its constitution merely as a fundamental law, and ascribes no sacrosanct character to it. Hence the departure from the American requirement of an affirmative vote of three-fourths of the states. On the other hand, the framers of the Weimar constitution, by providing for a direct vote of the people, rendered it impossible for an aggressive and unscrupulous minority to force through an amendment against the wishes of a majority of the people.

[79] The question of the return of the monarchy in some form is and will be for some years chiefly of academic interest, but it will be noted that, from a purely juristic viewpoint, a monarchy can be re-established at any time by a bare majority of all German men and women twenty years of age or over, and that one-tenth of the voters, or somewhat less than four millions, could at any time force a vote on the question.

Seven articles deal with the judicial department of the government. They make no important changes from the old constitution, except that courts-martial are forbidden except in time of war or aboard warships. An attempt by the parties of the Left to do away with state courts and place the dispensing of justice solely in the hands of the federal courts failed.

The second "main division" of the constitution deals with the "fundamental rights and fundamental duties of the Germans." Excluding fifteen "transitional and concluding decrees," the constitution contains 165 articles. No less than 56 of these, or more than one-third, are devoted to sections bearing the following titles:

The individual; social life; religion and religious societies; education and school; economic life.

The first ten articles, dealing with the individual, begin by declaring the equality of all Germans before the law. All titles of nobility are abolished, but they may be borne hereafter as parts of a name. Orders and decorations may not be conferred by the state, and "no German may accept titles or orders from a foreign government."[80] That part of the Bill of Rights contained in amendments i, iv, vi, and xiv of the American constitution is taken over in effect, but with much enlargement of the rights of the individual. Thus, to the provision for freedom of speech and the press is added the declaration that "no employment or salaried relation shall deprive any person of this right, and no person may prejudice him for making use of this right." Later, in the articles dealing with economic life, it is further provided:

[80] This goes even farther than the American constitution, which provides merely that "no person holding any office of profit or trust" under the federal government shall, without the consent of Congress, accept any present or title from a foreign power. (Art. I, sect. 9, par. 8.)

"Freedom to associate for the protection and furthering of labor and economic conditions is guaranteed to every person and for all callings. All agreements and measures which endeavor to restrict or prevent the exercise of this freedom are illegal.[81]

[81] Under this provision workmen cannot be required to sign contracts binding them not to join labor-unions, nor can employers contract with each other not to hire members of such unions.

A right to the protection of the Reich as against foreign countries is expressly granted "to all nationals of the Reich both within and without the territory of the Reich."[82] Nor may any German be delivered up to a foreign nation for prosecution or punishment. It is expressly provided that men and women "have, in principle, the same rights and duties." The right to assemble peaceably without previous notification or permission is granted--a flat contrast to the situation under the monarchy--but the Reichstag is empowered to enact a law requiring previous notification of such assemblages if they are to be held outdoors, and may prohibit them in case the public safety be threatened.

[82] This, too, is a departure from the American model. An American citizen has no constitutional right to the protection of his government while he is without the country.

Up to this point the Weimar constitution does not present any marked evidence of the circumstances under which it came into being. In comparison with the imperial constitution it may fairly be regarded as revolutionary, but considered by itself it is merely an advancedly democratic instrument with provisions insuring thoroughly parliamentary government in the best sense of the word. It is not until one reaches the articles dealing with social and economic life, the church and the school that the traces of Socialist influence become unmistakable. There, however, they are found on every page, beginning with the declaration that "motherhood has a right to the protection and care of the state," followed by an article providing that "illegitimate children are to be granted by legislation the same conditions for their bodily, mental and social development as are granted to legitimate children."

Essentially, of course, neither provision is especially Socialistic, but both really represent a compromise with the parties of the Left. The Majority Socialists tried to have an article inserted giving to illegitimate children full rights of inheritance with legitimate children of their father's estate, and the right to bear his name. The motion was defeated, 167 to 129 votes. The Independent Socialists wanted a provision protecting women civil servants who become mothers of illegitimate children, and granting them the right to be addressed as _Frau_ (Mrs.) instead of _Fraeulein_ (Miss). This, too, was defeated.

Other articles due to Socialist advocacy, some of a principal nature, others merely doctrinaire, are:

Providing that legal rights may not be refused to any association because it has a political, politico-social or religious aim;

Providing that "no person is obliged to state his religious belief";

Disestablishing the state church;

Providing for secular (non-religious) schools, freeing teachers from the duty to give religious instruction, and permitting parents or guardians to free their children from religious instruction;

Providing that "the cultivation and use of land is a duty which the owner owes to the community.[83] Increase in value of the land which is not due to labor or the investment of capital in it is to be utilized for the good of the people";

[83] This is an interesting novelty as to real estate, but the principle is by no means new, being well established in patent law. Failure to exploit a patent right may lead to its loss.

"Property imposes obligations. Its enjoyment shall be at the same time a service for the common weal";

Directing the dissolution of entailed estates;

Declaring that civil servants "are servants of the whole people, not of a party."

The anti-Christian and anti-religious sentiments of the Socialists did not find as complete expression in the constitution as those parties had desired. The church is disestablished, but it retains the right to tax its members and have legal process for the collection of the taxes. The property of the church is left untouched. Subsidies formerly paid from public funds are discontinued. Sunday is protected as "a day of rest and spiritual elevation." Religious bodies may hold services in hospitals, prisons, army barracks, etc., "in so far as need for divine services and ministerial offices exists," but no person can be compelled to attend.

All these provisions are, of course, of comparatively minor importance--except that dissolving the entailed estates--and many are mere doctrinarianism, but the final section of the constitution, dealing with economic affairs, brings principles which, if the combined Socialist parties should ever succeed in getting a bare majority of the country's voters under their banner, would make possible far-reaching changes along Marxian lines. Article 153 reads:

"Property can be expropriated only for the common welfare and by legal methods. Expropriation is to be made upon just compensation, _so far as a law of the Reich does not prescribe otherwise_." (Italics by the author.)

Article 156 reads:

"The Reich can, by law, without prejudice to the question of compensation, with due employment of the regulations governing expropriations, transfer to the ownership of the people private economic undertakings which are adapted for socialization. It can itself participate, or cause the lands or municipalities to participate, in the administration of economic undertakings and associations, or can in other manner secure to itself a deciding influence therein.

"The Reich can also, in case of urgent necessity and in the interests of the public, consolidate by law economic undertakings and associations on the basis of self-administration, for the purpose of securing the cooperation of all creative factors of the people, employers and employees, in the administration, and of regulating production, manufacture, distribution, utilization and prices, as well as import and export, of the economic properties upon principles serving the interests of the people."

"Labor enjoys the especial protection of the Reich." gained by the revolutionary parties in framing the constitution. They not only make sweeping socialization possible, in the event of the Socialists coming into power, but also, as the italicized sentence in article 153 indicates, socialization without compensation to the former private owners.

There are still two Socialistic articles to be considered. One, article 157, says:

"Labor enjoys the especial protection of the Reich."

_Die Arbeitskraft_, translated above by labor, means the whole body of workmen. The provision is another bit of doctrinarianism without any particular value, but it is nevertheless at variance with the equal-rights-to-all and all-Germans-equal-before-the-law spirit that is so carefully emphasized elsewhere in the constitution. The other article calling for particular mention is No. 165, the last article of the constitution proper. This is a direct heritage of November, 1918.

From the very outset, as has been pointed out repeatedly in this work, the Spartacans were determined to impose the soviet form of government upon Germany. Later on the Independent Socialists also threw off their parliamentary mask and joined in the demand for the _Raeterepublik_ on the Bolshevist model. There were some leaders of the Majority Socialist Party who were willing to consider a combination of parliamentarism and sovietism, but most of the older leaders, including Ebert, had no sympathy with the idea. They were Socialists, but also democrats. When it began to become apparent to the advocates of the soviet system that they were in the minority, they raised a demand that the workmen's council should be "anchored" in the constitution. The framers of that document did not take the demand seriously, and the draft prepared for presentation to the National Assembly after the adoption of the provisional constitution made no reference to the councils.

The extremer Socialists, however, renewed their original demand, and even the more conservative leaders of the parent party, much against their will, saw themselves compelled for partisan political reasons to support the demand. The result was article 165, inserted in the draft in June.

This article begins by declaring that workmen and other wage-earners have equal rights with their employers in determining wage and working conditions and in cooperating "in the entire economic development of productive powers." It provides that they shall, for the protection of their social and economic interests, have the right to be represented through workmen's shop councils (_Betriebsarbeiterraete_), as well as in district workmen's councils (_Bezirksarbeiterraete_), and in a national workmen's council (_Reichsarbeiterrat_). The district and national councils combine with the representatives of the employers "and other interested circles of the people" to form district economic councils (_Bezirkswirtschaftsraete_), and a national economic council (_Reichswirtschaftsrat_). "The district economic councils and the national economic council are to be so constituted that all important groups of interests are represented in proportion to their economic and social importance."

Article 165 continues:

"Politico-social and politico-economic bills of fundamental importance shall, before their introduction, be laid by the government of the Reich before the national economic council for its consideration and report. The national economic council has the right to propose such bills itself. If the government does not approve of them, it must nevertheless lay them before the Reichstag, together with a statement of its attitude. The national economic council is empowered to have the bill advocated before the Reichstag by one of its members.

"Powers of control and administration can be conferred upon the workmen's and economic councils over matters lying in their sphere of action."

Thus the "anchor" of the workmen's councils in the German constitution. It is difficult to find in it the importance assigned to it by the Socialists. The national council has, in the last analysis, only such power as the Reichstag may choose to confer upon it. There was no sharp opposition to the article from the _bourgeois_ parties, doubtless due in large part to the fact that, even long before the revolution, the right of workmen to combine and negotiate as organizations with their employers was recognized by everybody, and that Germany, with less than two-thirds of the population of the United States, has roundly three times as many organized workmen. In the circumstance, article 165 did not bring any really revolutionary change.

The foregoing is a brief outline of the more important features of the constitution of the German Republic. Considering all the attendant circumstances of its birth--the apathy of the people, the weakness of the government, the disruption of the Germans into factions which bitterly hated and opposed each other, the savage conditions of the peace, following the crushing conditions of the armistice, the disappearance from the political field of most of the trained minds of the old empire, the strength of the elements inspired by purely materialistic and egoistic aims or by a naive trust in the internationalists of other lands, the constant pressure from the enemy--the framers and proponents of the constitution accomplished a national deed of dignity and worth. They might easily have done much worse; it is impossible for one who watched the developments of those trying days to assert that they could have done much better.

(The author's acknowledgments are due as to this chapter to Dr. Hugo Preuss, for valuable information as to the course of the deliberations of the various constitutional commissions and for interpretations of the constitution, and to Dr. Fremont A. Higgins, A.M., LL.B. (Columbia), J.U.D. (University of Kiel), who generously gave the benefit of his wide knowledge of German law and bibliography.)

_Through the courtesy of the World Peace Foundation the Yale University Press is enabled to reprint "The Constitution of the German Commonwealth" as it appeared in the_ League of Nations _for December, 1919. The following note on "The Terminology of the Constitution" by the translators, William Bennett Munro and Arthur Norman Holcombe, appeared in the introduction to the translation_:

A word should be added in explanation of the way in which certain technical terms have been translated.

It is no longer fitting, for example, to translate _Reich_ as empire. Yet it is not clear to what extent the old spirit as well as the old forms have changed. Certainly the "strange trappings and primitive authority" of the imperial government are gone. How far has the spirit as well as the form of government of, by, and for the People taken its place? It is too soon to say. Whatever the event may be, it seems best for Americans at this time to substitute for empire the less specialized expression, commonwealth.

Another difficulty arises when _Reichs_- is used as a qualifier. Is the _Reichsrat_, for example, a federal council or a national council? This raises a fundamental question concerning the effect of the Revolution. Is the German Commonwealth a unified state or does it remain a confederation? Apparently the former federal States have not yet surrendered all their sovereign powers. The residue of sovereignty left to the States, however, is slight and unsubstantial. Recently, indeed (December, 1919), the Assembly of the principal State, Prussia, is reported to have adopted a resolution in favor of further centralization. As the Constitution stands, the Commonwealth appears to be a federation in which the rights of the States are subordinated to those of the Union to a far greater extent than in our own United States. It has seemed proper, therefore, to use the term "national" rather than "federal."

The term _Reichsregierung_ might be translated National Government, or Administration, or Cabinet. We have adopted the term Cabinet because of its greater precision. Both the other expressions have a more general as well as a specialized meaning and would ordinarily be understood by Americans to include the President as well as the Chancellor and Ministers, who alone are the members of the Cabinet in the strict sense of the term. The _Regierung_ must be distinguished from the _Ministerium_. The latter term may designate either the whole body of ministers or the department of any one minister. In the text of the German Constitution it is used only in the latter sense.

The translations adopted for the principal political terms of the new Constitution are indicated in the glossary. In general the purpose has been to adhere as closely to a literal rendering of the German as was compatible with an intelligible English version. Preference has been given throughout the translation to the terminology of republican government as developed in the United States. For a correct understanding of a foreign constitution, no translation can however suffice; the original text with a commentary must be carefully studied by anyone who wishes to obtain a thorough comprehension of such a document.

The translators are glad to acknowledge their indebtedness to Professor John A. Walz and Dr. F. W. C. Lieder of the Department of German in Harvard University, and to Dean Roscoe Pound of the Harvard Law School for careful scrutiny of the proofs and many helpful suggestions on difficult passages.

W. B. M. A. N. H.

January 5, 1920.

Glossary.

GERMAN TRANSLATION

Reich _Commonwealth_ Reichs- _of the Commonwealth, national_ Reichsarbeiterrat _National Workers' Council_ Reichsgericht _National Judicial Court_ Reichskanzler _National Chancellor_ Reichsminister _National Minister_ Reichsministerium, pl.,-ien _National Department_ Reichsprasident _President of the Commonwealth,_ _National President_ Reichsrat _National Council_ Reichsregierung _National Cabinet_ Reichstag _National Assembly_ Reichsverwaltungsgericht _National Administration Court_ Reichswirtschaftsrat _National Economic Council_ Land _State (as integral part of the_ _Commonwealth)_ Landes- _of the State, State_ Landesregierung _State Cabinet_ Landtag _State Assembly_ Wahlprufungsgericht _Electoral Commission_ Staat _country, state (one of the family of nations); referring to Germany, it designates the Commonwealth and separate States as a single political entity._ Staatsgerichtshof _Supreme Judicial Court_ staatlich _political_ freistaatlich _republican_

The Constitution of the German Commonwealth

_PREAMBLE_

The German People, united in all their branches, and inspired by the determination to renew and strengthen their Commonwealth in liberty and justice, to preserve peace both at home and abroad, and to foster social progress, have adopted the following Constitution.