[67] _Vide_ p. 245.

The National a.s.sembly began the second reading of the const.i.tution 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 a.s.sembly had already succeeded in freeing themselves from the hysterical mode of thinking induced by the immediate revolutionary period. All drafts of the const.i.tution 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 const.i.tution 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 const.i.tution 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 const.i.tution of April 16, 1871, several paragraphs of which were still in effect under the provisional const.i.tution of February, 1919, ceased to exist.

The Weimar const.i.tution 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 const.i.tutions indicates the different point of view from which they were approached. The const.i.tution 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 const.i.tution'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 const.i.tution."

[68] _Das Deutsche Volk, einig in seinen Stammen._ There is no adequate English translation of _Stamme_ (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 const.i.tution-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 subst.i.tutes 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 a.s.signed to them. All the old _Reservatrechte_ or special rights reserved by several states under the monarchy[71] are done away with. The federal government a.s.sumes 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, a.s.sociations, 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, ca.n.a.ls 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 a.s.sociations, 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 const.i.tute an unfair discrimination, and export premiums.

The const.i.tution 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 const.i.tutionality of legislation as has been a.s.sumed 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 const.i.tution, was considered, but was rejected, mainly because it was expected at the time the const.i.tution 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 const.i.tution, 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 a.s.sent 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 const.i.tution regarding freedom of speech and of the press, the right of a.s.sembly, 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 a.s.sent 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 a.s.sent 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 const.i.tution, 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 const.i.tution 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 const.i.tution 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 a.s.sembly and its const.i.tutional 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 const.i.tution'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 const.i.tution 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 const.i.tution, 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 const.i.tution, art. 63.

Each state is ent.i.tled to send at least one representative to the Reichsrat. The larger states are ent.i.tled to one representative for each 700,000 inhabitants, and a remainder of at least 350,000 ent.i.tles 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; Lubeck, 1; Mecklenburg-Strelitz, 1; Waldeck, 1; Schaumburg-Lippe, 1.

[74] Original drafts of the const.i.tution, as well as the provisional const.i.tution 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 const.i.tution 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 att.i.tude 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 pa.s.sed finally by the Reichstag; if it fail to do so, the act becomes law.

One is again impressed by the importance a.s.signed 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.