The Weimar Constitution

12 Key excerpts on "The Weimar Constitution"

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  German Political Philosophy

  • Chris Thornhill(Author)
  • 2007(Publication Date)
  • Routledge

    (Publisher)

  The Weimar Constitution, therefore, reflected a number of diverse and often contradictory legal ideas and ideals. It did not mark a full break with the basic principles of positivism. However, it based its idea of legitimacy in the state on a fuller and more integrative conception of state power and citizenship than that normally countenanced by positivism, and it defined itself as a programmatic document enabling the state to act as an agent of social unity, collaboration and community. Under The Weimar Constitution, the state obtained powers enabling it to intervene in processes of economic distribution and dispute, to regulate questions of ownership, to draw disparate sectors of society together in bargaining processes or in plebiscites and to integrate citizens into experiences of constitutional identity through a popular catalogue of rights. Indeed, the constitution enunciated the rights that it enshrined as programmatic rights, not as formal rights, and these rights contained active socio-economic provisions and prescriptions. In these respects, The Weimar Constitution clearly hoped to found itself, albeit in rather confused and tentative manner, in a paradigm of the integrated citizen, of the citizen not (in Kelsen’s sense) as a fictional person under law, nor (in Laband’s sense) as a formal person under law, but as an actively constitutive agent, both in civil society and the state.

  Heller: The Material will of the State

  Despite these ambitions, however, The Weimar Constitution soon came under fire from critics at various points in the political spectrum, and it was widely argued that it did not break thoroughly enough with positivist political conceptions. Naturally, not all influential political theorists in the Weimar Republic sought to overthrow or fundamentally to correct the constitution of the republic. Its authors, predictably, remained pledged to its defence, although Naumann and Weber did not survive long enough to see the problems that the constitution created, and Preuß also died, in 1925, long before the final crises of the republic and of its constitutional apparatus. Eminent liberal lawyers, such as Gerhard Anschütz, also wrote favourably of its importance in the broader evolution of statehood in Germany, and so promoted its widespread acceptance.31

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  The Weimar Republic

  • Stephen J. Lee(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  The Republic ran into difficulties under the impact of the Depression from 1929. Muller and the SPD withdrew from the coalition in 1930, leaving a minority cabinet comprising mainly Centre Party ministers. The new Chancellor, Bruning, lacked the necessary majority in the Reichstag and became increasingly dependent on the use of the President’s emergency powers under Article 48 of the constitution. In 1932 the Republic slid towards authoritarian dictatorship as two Chancellors in succession, Papen and Schleicher, governed without a party base at all, bypassing the Reichstag by intensifying the use of Presidential decrees. It was in this atmosphere that Hitler was appointed Chancellor in January 1933.

  ANALYSIS 1: HOW DEMOCRATIC WAS THE WEIMAR REPUBLIC?

  The constitution and political system of the Weimar Republic reveal a major contradiction between theory and practice. In theory they comprised the most advanced democracy in Europe, enshrining a wide range of liberal principles while retaining a degree of stability and continuity with the past. In practice, however, the relationship between the individual components of the constitution was fundamentally flawed. The result was that what started out as a parliamentary regime was captured by the conservative right and converted into an authoritarian one.

  The theoretical framework of The Weimar Constitution was impeccably democratic. The document, drafted by the liberal jurist Hugo Preuss, aimed to combine the principles of the first Ten Amendments of the Constitution of the United States, the French Declaration of the Rights of Man, and twentieth-century refinements. Hence, by Article 1, ‘Political authority emanates from the people’.1 The electoral system was as advanced as anywhere in Europe, based on ‘universal, equal, direct, and secret suffrage by men and women over twenty years of age, according to the principle of proportional representation’.2

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  Constitutional Dictatorship

  Crisis Government in the Modern Democracies

  • Clinton Rossiter(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  3

  It was under these conditions that the German National Assembly, chosen by the most democratic suffrage the world had ever known, met in Weimar on February 6, 1919.4 One of the chief reasons for the selection of the town of Goethe and Schiller was the comparative quiet which it offered, in contrast to the turbulent extremities into which other and larger German cities had been plunged. Like the American fathers of 1787, the German fathers of 1919 did their work in peace, but it was the peace that exists in the middle of the maelstrom. The country was in an uproar, and it was thus inevitable that the problem of emergency powers should have received particular attention in the Assembly. The keynote of the debates was the hazardous state of the times, and therewith the necessity of government not only democratic, but strong. Not the least element of this democratic strength was to be a powerful executive. From the revolution of November 1918 until the establishment of the provisional constitution on February 11, 1919, Fritz Ebert and a small coterie of Social Democrats, attempting to fill the political vacuum left by the departure of the imperial government, had been forced in crisis situations to exercise dictatorial power without firm basis in the law. Now it became the purpose of the delegates at Weimar to provide a crisis dictatorship of a legal nature, and this was to be done in behalf of democracy and the Constitution. Despite the embittered opposition of the extreme left wing, a presidency was instituted which, although not the equal of the office of President of the United States, outstripped the French presidency in prestige and competence.5

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  The Rise and Fall of Weimar Democracy

  • Hans Mommsen, Elborg Forster, Larry Eugene Jones, Elborg Forster, Larry Eugene Jones(Authors)
  • 2017(Publication Date)
  • The University of North Carolina Press

    (Publisher)

  All in all, the powers of the Federal Council were considerably weaker than those of its counterpart in the Second Empire. The legislative competencies of the Reich and individual states were readjusted in favor of the former, which greatly expanded its powers in the areas of taxation, finance, education, and transportation and which no longer had to respect the fiscal sovereignty of the states. The reform of national finances, which the Reich finance minister Matthias Erzberger pursued in an energetic, sober, and thoroughly competent manner in the last half of 1919, was based on a modern income tax that distributed the burden of running the government more equitably among the various sectors of German society than the archaic tax system of the Second Empire. Erzberger’s reforms represented a milestone on the road to a modern fiscal system. At the same time, however, it produced a fundamental change in relations between the Reich, the states, and the municipalities that henceforth required the states to direct their fiscal claims to the national government.

  With the support of the three parties that belonged to the Weimar Coalition, the government’s constitutional draft was preserved in an essentially liberal form. In view of the growing strength of Germany’s antirepublican forces, this was the most that could be achieved in the summer of 1919. From the outset, the national constitution was consistent with the liberal principle that parliament would determine what was best for the welfare of the nation as a whole through free debates between deputies who were not bound by the instructions of their constituents. According to the prevailing theory of democracy on which The Weimar Constitution was based, the composition of parliament should reflect the various social interest groups that constituted the nation as accurately as possible. Compared with this maxim, the idea that parliament was also responsible for creating viable governmental majorities receded into the background.

  The possibility that the constitutional system could be destroyed by manipulation of the democratic process never occurred to the members of the National Assembly, particularly since protection of the constitution seemed to be secured through exceptional powers, such as the right to declare a state of emergency and to assume special executive power, that were granted to the president. At the same time, it proved impossible to reach a consensus on other guarantees, such as the Social Democratic demand for the exclusion of members of dynastic houses from being elected to the presidency. Only on the basis of a purely formalistic interpretation of the constitution could the fundamental opposition between Left and Right be overcome. Those who criticize the republic for having failed to develop a concept of a “combative democracy” (streitbare Demokratie)

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  The Problem of Federalism

  A Study in the History of Political Theory - Volume Two

  • Sobei Mogi(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  4

  An attempt at the revision of the constitution in a monarchical sense was to Anschütz even more undesirable than one in a federative direction. For a democratic Empire there was no room in Germany, and even its advocates must admit that there was no time for constitutional debates about it. Anschütz believed that the work of Weimar was as difficult, but the compromise reached at Weimar by a commanding majority between two great forces in the building of the state, between the middle class and the workmen, must be honoured for the sake of the national unity which must be safeguarded at home and abroad. The state form which Germany wanted and the only one she could want was the one having the support of the wills of the greatest possible majority of the people, and that was the democracy in the form of the republic.1 Therefore he pointed out that in a conflict on the question of republic or monarchy the real issue would be not “republic or monarchy” but “republic or anarchy.”2

  1 G. Anschütz: Drei Leitgedanken der Weimarer Reichsverfassung, 1923, p. 19.

  2 Ibid., p. 20.

  3 Ibid., pp. 20–21.

  4 Ibid., pp. 22, 23.

  Anschütz, therefore, as the unitarist, declared that the principle of democracy must be maintained.

  Some people asserted that democracy meant a weak state power, monarchy a strong one. Anschütz answered this by pointing out that the Great War was lost by monarchies and won by democracies, and contended that the weakness of the new democratic government of Germany was due to the loss of the war by the monarchy.

  He also attacked the theory that democracy is anti-national, and pointed to the identification of democracy with nationalism in the times of American Independence and the French Revolution. With the progressive democratisation of the world the strengthening and deepening of the state conception based on the principle of nationality—that is, nationalism has advanced hand in hand, so that it has become difficult to say whether the democratisation has worked on nationalist lines or the national consciousness on democratic lines.

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  A Traveller's History of Germany

  • Robert Cole(Author)
  • 2014(Publication Date)
  • Interlink Books

    (Publisher)

  Law professor and liberal Hugo Preuss was assigned to get things started. He did, emphasizing democracy and parliamentary representation ‘with a high degree of centralization.’ This did not suit everyone, and the debates were fierce and divisive. The particularism that had been part of German history for more than a thousand years was far from dead, and the constitution finally agreed upon and ratified on 11 August 1919 combined a unitary state with recognition of at least the existence of individual states. The unitary principle was central to the first clause, titled ‘Reich and States,’ which opened with a line that to Herwig sounded like ‘a formula worthy of Alice in Wonderland’ It read: ‘The German Reich is a Republic. Political authority emanates from the people.’ The clause went on to specify that the German States (twenty-five in number and referred to as Länder) were required to submit to the authority of the Reich, to institute republican state governments, to recognize that sovereignty was concentrated in the nationally elected parliament, and to accept direct taxation being in the hands of the Reich. The States would retain control over the administration of local education, police, the church and indirect taxation. The Weimar Constitution The constitution also established the governmental system, and certain rights for the people. It called for a president and two-house legislature, the former to be elected by popular vote for a term of seven years with the power to represent the Reich in foreign affairs, and to appoint and dismiss military and civil servants including the cabinet and chancellor. Both of these were responsible to the Reichstag but not required to be members of it. The legislature was the Reichstag and Reichsrat, delegates to the former elected by popular vote every four years, and to the latter appointed by state governments

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  A History of Germany, 1800 to the Present

  • William Carr, David Wetzel(Authors)
  • 2023(Publication Date)
  • Bloomsbury Academic

    (Publisher)

  More flagrant in the way they used their positions were the judges. Article 54 of the constitution guaranteed their position. Not surprisingly, the leniency of this provision was taken as license to express their deep-seated preferences for the Monarchy without any fear of losing their jobs. In many German court rooms after 1918 libelous attacks on Republican ministers and defamation were not only the order of the day but celebrated, and almost never punished. In May 1919, for example, the initial death sentence handed out by a Bavarian court to the murderers of Kurt Eisner was commuted to a brief term of fortress imprisonment; the soldier who killed Eisner’s colleague Gustav Landauer got off with five weeks of fortress detention, while their commander, a Major von Gagern, received a fine of 300 RM. This is one example of the travesty of justice in the new Republic. Hundreds, maybe thousands, of others could be given.

  Education

  Nor did any provisions of the constitution do anything to reform the foundation of Germany’s educational system, which continued to be the bulwark of existing social order as it had been before the war. Particularly troubling was the system of recruitment and promotion in the universities. There was no lack of social reformers in the Germany of 1918 and 1919 who wanted to equalize opportunity in secondary education and remodel school curricula in the hope of inculcating democratic ideals. Their plans were defeated not only by the forces of particularism and religious differentiation, but also by the widespread belief that since Germany was being treated as a pariah by the victorious democracies, its self-respect demanded that it scorn their values and proclaim its own traditional ones. At bottom the framers of The Weimar Constitution yielded to the forces of traditionalism and decided to attempt no significant innovation.

  The result was a triumph for the forces of the status quo. There was paucity of reform at every level. In the universities the most notable changes were the increase in the number of women students (no doubt due to women’s suffrage). But the mandarins of the academic establishment fought implacably against any and all changes in the governance or curriculum of their institutions. Colleagues like the young Berlin scholar Eckart Kehr, who wanted to investigate the economic and social history of the recent past, were cold-shouldered, whereas unbridled praise was heaped upon those like Adalbert Wahl, whose German History

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  Germany's Dual Constitution

  Parliamentary Democracy in the Federal Republic

  • Florian Meinel(Author)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  Staatsorgane). To the extent that constitutional law engages in theorising democracy at all, it prefers to do so via the classic authors of the Weimar Republic – who did not have a fully developed system of parliamentary government in the modern sense to consider – or via the importation of American theory. Only there does the separation of powers truly apply, and the legislature hence has a completely different task to fulfil than the German.

  III. 1949: Parliamentarianism and the Basic Law

  A. The Point of Departure

  The Basic Law of the Federal Republic responded to the problems of Weimar-era parliamentary government by raising the status of the federal chancellor, who was henceforth to be elected by and fully responsible to parliament, with no plebiscitary president beside and above him (Articles 63 and 65(1) GG).22 The ‘Parliamentary Council’ (Parlamentarischer Rat), Bonn’s constituent assembly, was guided by the notion – which historians have since disproved many times over – that one reason for the instability of the Weimar Republic’s coalition governments had been the overly strong position of parliament vis-a-vis the executive. Parliament was no longer to be entitled to topple individual ministers by votes of no confidence. A vote of no confidence in a chancellor was henceforth only to be possible in a constructive manner, that is, by simultaneously electing a new chancellor (Article 67 GG). The government was to depend as little as possible on stable parliamentary majorities, since nobody in 1948/49 thought them likely to come about. The experience of a parliament incapable of forming a majority from the last years of the Weimar Republic dominated the deliberations of the Parliamentary Council.

  The old institutional separation of parliament and government, however – the constitutional dualism that Weimar had not done away with – was left untouched in the Basic Law too. This is why the Basic Law failed, and continues to fail, to give any full account of how the parliamentary system of government was supposed to function.23 It is only in the emergency provisions of Article 81 GG that the leading role of government in parliament is expressed by the constitution – in a reference to the Bundesrat as a substitute legislature.24 But the Basic Law contains no mention of the special treatment in parliamentary procedure usually accorded to government bills in parliamentary systems. On the contrary, Article 76(2) GG makes government bills subject to a more complicated process of prior consultation in the Bundesrat. Nor does the Basic Law provide for parliamentary interpellations. The senior offices of the Bundestag, its ‘speaker’ or president (Article 40(1), sentence 1 GG) and the council of elders – the powerful non-partisan body tasked with managing the internal affairs and setting the agenda of the Bundestag – were not developed into institutions that might sustain such a connection. Rather, they were left in a state that had already been outlined in 1915 by the liberal constitutional lawyer Julius Hatschek, author of the first German account of parliamentary law: the ‘senior convent’ (Seniorenkonvent), the Reichstag’s equivalent of the modern council of elders, was already an institution stuck halfway to being a cabinet government, partly substituting for it by setting the parliamentary agenda.25 Unlike the office of the speaker in its US form, impartiality remains a key aspect of the Bundestag president’s office. Besides his immediate tasks in running parliamentary business, his role in the German system is similar to that of a second federal president. Questions of procedure are dealt with, in the council of elders, not by majority, but by consensus, according to parliamentary tradition.26 This impartiality does not, however, go as far as it does in the United Kingdom, where the opposition traditionally does not put up a candidate to oppose the Speaker of the House of Commons in his constituency, where he does not run under the flag of his party but as ‘the Speaker seeking re-election’.27

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  Law, Violence and Constituent Power

  The Law, Politics And History Of Constitution Making

  • Héctor López Bofill(Author)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  15 and that the stubborn stand of some German politicians transformed the Basic Law into something different from what the Allies ideally wished (Grabbe, 1978, pp. 393–418; Benz, 1984, pp. 212–226), it is historically hardly undeniable that the Allies remained the main actors in setting the entire framework of the Western German State.

  The Allies and the majority of the German domestic actors, nevertheless, shared similar conceptions on the rule of law and constitutional supremacy as constraints on democracy. The Weimar experience, as I have outlined, had shown to what extremes an omnipotent democracy may lead and, accordingly, the basic aim of the drafters was to achieve an order grounded in law, but shielded from the potential disruptions that the democratically empowered masses may cause (Preuss, 2006–2007, p. 480). Gottfried Dietze (1960, p. 123) captured such a point when he wrote that one of the main motivations in the German constituent process was:

  to prevent the creation of a type of democracy under which the individual would be in danger of being absorbed by the volonté générale and subdued by the majority. Therefore, a system was established under which the democratic principle, while recognized as an ideal, was, as a mere means, subordinated to the liberal principle of the protection of individual freedom, as an end.

  One watchful eye was kept towards the Nazis’ immediate totalitarian past. But the other, more concerning issue, was the socialist world that was being organized in the backyard. The fear that an unrestrained democracy would derive into socialism was acute for actors as diverse as the Americans or Adenauer [who was a vehement anticommunist (Stadelmann, 1995, p. 2)]. But in order to place some principles beyond democratic accountability (as happened with the clause that prohibited the core of the constitutional system from being amended, the so-called “eternity clause,” die Ewigkeitsklausel

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  Citation and Precedent

  Conjunctions and Disjunctions of German Law and Literature

  • Thomas Oliver Beebee(Author)
  • 2011(Publication Date)
  • Continuum

    (Publisher)

  The main drafter of the document, Hugo Preuss, was himself a compromise, in that he was a left-leaning liberal appointed by Friedrich Ebert of the Social Democratic Party. Industry and unions came to another such compromise. Many of the delegates to the constitutional convention in Weimar abstained from a vote on the final document due to the ‘character of compromise’ (Kompromisscharakter) that they felt inhered in the final draft. The time between Germany’s capitulation and the creation of the constitutional convention in 1919, after all, had been taken up with generalized violence between political factions interested in the imposition of their idea of law, tout court and without compromise, ranging from the maintenance of feudal conditions to the imposition of workers’ soviets. In his affirmation that the foreclosure of the violent, abject origins of institutions of political compromise such as parliaments eats away at the fabric of society, Benjamin is in full agreement with the sovereignty theory of Carl Schmitt. The marriage of Eduard and Charlotte is, then, a microcosm of the Reichstag of Weimar Germany, their marriage contract a summary of The Weimar Constitution that resulted not from a decision, but a compromise. In bringing Kant’s definition into dialogue with Goethe’s text, and in citing in this work of literary criticism concepts of natural versus positive law developed both in ‘Towards a Critique of Force’ and also in his treatment of the Baroque tyrant, Benjamin creates a constellation of ideas – philosophical, novelistic, and critical – that ‘redeem’ Goethe’s by making it speak about law’s relation to the fragile hopes of Germany’s political future. Like Goethe’s novel, that future ended tragically and fatefully. Notes 50 I have allowed myself a liberty in translating the nominal part of the adjective ‘ge bietsmässig ’

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  The Many Constitutions of Europe

  • Suvi Sankari, Kaarlo Tuori(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  58 If this statement of Sinzheimer is read in the context of Heller’s critique of The Weimar Constitution, it then becomes clear how subtle but also pertinent and significant their differences in outlook were.

  56 See Dyzenhaus 2000 : 26, 31.

  57 See Sinzheimer and Fraenkel 1968 : 356.

  58 See Sinzheimer and Fraenkel 1968 : 245.

  In criticizing The Weimar Constitution, Hermann Heller was also alert to the deep social divisions and tensions which he considered to be a threat to the functioning of the democratic political regime. However, he did admit that tensions and contradictions are constant elements of constitutionalism, which are connected with the conventions of a particular society. In order to cope with this threat, Heller argued that the liberal Rechtsstaat could and should be transformed into a social Rechtsstaat, a ‘social rule of law’, which would strengthen social homogeneity and unity by promoting equality.59 Since Heller presumed that this transformation could only succeed if it were based on general ethical principles of law (Rechtsgrundsätze) embedded in culture – in a similar fashion as constitutional law was rooted in values60 – Heller himself could be claimed to argue in circles. This seems to have been Sinzheimer’s conclusion in spite of Heller’s emphasis on the democratic process of collective judgements about morality being constitutive of the moral quality of the legal order.61 Figuring out how Sinzheimer perceived this argument to be inadequate or wanting provides a crucial clue to his own conception of the social constitution. The answer was also Sinzheimer’s response to the challenge that, in circumstances of international economy and growing complexity, the state was unable to resolve all the problems on the agenda.62

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  Social Ontology of Whoness

  Rethinking Core Phenomena of Political Philosophy

  • Michael Eldred(Author)
  • 2018(Publication Date)
  • De Gruyter

    (Publisher)

  Der außerordentliche Gesetzgeber dagegen kann beides und ist [...] auf eigenartige Weise vor dem ordentlichen Gesetzgeber ausgezeichnet und ihm überlegen, LuL. p. 77) That The Weimar Constitution was shaky and not “safe from dictatorship” (diktaturfest, p. 79) was certainly a well-founded cause for alarm at the time, but this anomaly has to be compared with the other lawmaker, the sovereign people itself, envisaged by the constitution that at first glance seems to offer a very appealing, irresistible prospect. It would seem to be the highest form of legitimacy of the state and its laws when the people itself presents itself as law-maker. Then it is the will of the people itself in a direct vote that lays down the law. Law becomes a product of will, the will of those themselves who are to be ruled by the law. In Hegelian terms, das Allgemeine (the universal) degenerates to that which is allen gemeinsam (common to all) in a common will, albeit a common will ascertained merely empirically by majority votes. Schmitt points out that the democratic plebiscitary elements of The Weimar Constitution clash with and contradict its primary, formally procedural, representative parliamentary law-making part. Be that as it may, here I consider only the thought or idea (ἰδέα, a ‘look’ of being) of direct plebiscitary democracy as the ultimate legitimate form of state for the government of a free people. The “legality system of the parliamentary lawmaking state” (das Legalitätssystem des parlamentarischen Gesetzgebungs-staates, LuL. p. 92) competes with “a plebiscitary-democratic legitimacy” (einer plebiszitär-demokratischen Legitimität, LuL

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