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 pa.s.sage, 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 const.i.tution and was introduced at a late period in the deliberations.

The provisions regulating the amendment of the const.i.tution are more definite than those of the United States const.i.tution, 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 const.i.tutional 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 const.i.tutional amendments; they are confined to indirect representation through their legislatures.

[78] Every European people regards its const.i.tution 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 const.i.tution, 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 const.i.tution, 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 const.i.tution deals with the "fundamental rights and fundamental duties of the Germans." Excluding fifteen "transitional and concluding decrees," the const.i.tution contains 165 articles. No less than 56 of these, or more than one-third, are devoted to sections bearing the following t.i.tles:

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 t.i.tles of n.o.bility 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 t.i.tles 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 const.i.tution 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 const.i.tution, 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 t.i.tle from a foreign power. (Art. I, sect. 9, par. 8.)

"Freedom to a.s.sociate 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 a.s.semble 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 a.s.semblages 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 const.i.tutional right to the protection of his government while he is without the country.

Up to this point the Weimar const.i.tution does not present any marked evidence of the circ.u.mstances under which it came into being. In comparison with the imperial const.i.tution 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 _Fraulein_ (Miss). This, too, was defeated.

Other articles due to Socialist advocacy, some of a princ.i.p.al nature, others merely doctrinaire, are:

Providing that legal rights may not be refused to any a.s.sociation 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 const.i.tution 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 const.i.tution, 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 partic.i.p.ate, or cause the lands or munic.i.p.alities to partic.i.p.ate, in the administration of economic undertakings and a.s.sociations, 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 a.s.sociations 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 const.i.tution. 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 const.i.tution. The other article calling for particular mention is No. 165, the last article of the const.i.tution 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 _Raterepublik_ 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 "anch.o.r.ed" in the const.i.tution. The framers of that doc.u.ment did not take the demand seriously, and the draft prepared for presentation to the National a.s.sembly after the adoption of the provisional const.i.tution 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 (_Betriebsarbeiterrate_), as well as in district workmen's councils (_Bezirksarbeiterrate_), 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 (_Bezirkswirtschaftsrate_), and a national economic council (_Reichswirtschaftsrat_). "The district economic councils and the national economic council are to be so const.i.tuted 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 att.i.tude. 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 const.i.tution.

It is difficult to find in it the importance a.s.signed to it by the Socialists. The national council has, in the last a.n.a.lysis, 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 circ.u.mstance, article 165 did not bring any really revolutionary change.

The foregoing is a brief outline of the more important features of the const.i.tution of the German Republic. Considering all the attendant circ.u.mstances 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 const.i.tution 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 a.s.sert 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 const.i.tutional commissions and for interpretations of the const.i.tution, 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.)