Having seen that the allied powers made remarkably few formal demands of the parliamentary council responsible for drafting the Basic Law, it is necessary to move on to look at the content of the Basic Law itself. The issue with which this part of the essay will deal is the source of inspiration for this content; whether it was drawn primarily from the examples of federalism espoused by the Americans as the most influential of the allied powers, or from the history of Germany.
It was specified by the allies that the Basic Law should provide for a federal system of government, although exactly which powers should be reserved to the states was not made clear. However, this is not necessarily an example of the parliamentary council being forced to adopt a foreign system. There is a strong tradition of federalism in Germany, dating back to unification in the 1870’s, and indeed beyond. The German Confederation of 1815 to 1866 was a collection of separate monarchies and principalities, with the Confederation itself possessing very few, and very weak, powers. The Second Reich, finally established in 1871, gave the central power, represented by the Kaiser as the executive and the Reichstag as the legislature, much more power, but retained for the individual states many powers through the Bundesrat. Further, the states were still responsible for almost all administration.
Even under the Weimar Republic, which certainly did move in the direction of further centralisation, the newly renamed Länder retained control over “the administration of justice, police, education, and local government” This gave them an extensive remit, although they did lose their financial autonomy. Nevertheless, the Länder were still represented in government, via the Reichsrat, the second chamber of the legislature, to which each Land sent representatives. It was not until the Nazis took power that federalism disappeared altogether from Germany. There is no room in a totalitarian regime for any degree of regional autonomy. However, this move to centralised government must be viewed in the light of previous German history as something of an aberration, federalism being the norm from which Nazism was a deviation.
Further evidence exists that the federalism adopted by the parliamentary assembly was a German phenomenon, and this can be seen most clearly by underlining the huge differences that there are between American federalism, surely the pattern which the allies (dominated by America) would have wished to impose on Germany, and the federalism adopted in Basic Law.
American federalism was brought into being in order to unite the various states. The states retain considerable control over themselves and their own affairs. However, in Germany the Länder could not be described as separate states. They possessed very little in the way of state sovereignty, and most of them were new creations, since the Nazis had done everything in their power to eliminate the original Länder. Added to this is the historic form of German government, which generally has concentrated executive power at the centre while leaving administrative functions to the Länder. Consequently, the federal arrangement in Germany results in the Länder sending representatives to the Bundesrat, which is the guardian of the rights of the Länder, and which has direct involvement in the making of federal law. The contrast with the American Supreme Court is obvious, since that court has no role to play in the formulation of federal law.
As well as federalism, other aspects of Basic Law point clearly to German history as the source of their inspiration. Article 67, which restricts the ability of the Bundestag to overthrow the government, is a clear reaction against the chaotic days of the Weimar Republic and the characteristic high government turnover of that period. However, the fact that it is possible to overthrow the government in the Bundestag shows that the framers of the Basic Law were well aware of the need to avoid both the extreme of totalitarianism on the one hand and the weakness of the Weimar Republic on the other. Article 68 also shows an acute awareness of the need for stability, as it makes it very difficult to dissolve the Bundesrat.
The role of the President in the Weimar Republic had been instrumental in the breakdown of democracy in that system. Determined to avoid a repeat of this mistake, the framers of the Basic Law were very careful to outline the powers of the President in Articles 54 to 56. It was decided that the President would be elected by an electoral college made up of members of the Bundestag and delegates of the Länder. A popularly elected Presidency, it was felt, would be open to the demagogue, and Germany had experience of what such a person could do once elected. Further, a directly elected President might be felt to have the legitimacy to act against the Bundestag. This clearly had to be avoided if a repeat of the Hindenburg crisis was not to be suffered.
In conclusion, then, the Basic Law of Germany has its origins primarily in the history of Germany, albeit in a negative way. The Basic Law was a reaction to that history, and an attempt to avoid a repetition of it. The role of the allied powers was very limited, and they allowed themselves to a great extent to be guided by the parliamentary assembly which they had requested be called.
ecision in Germany, Lucius D. Clay p 399
he Founding of the Federal Republic of Germany, John Golay, p 36
On 1st September 1948, the Parliamentary Assembly met for the first time, called by the German Landtage, but ultimately demanded by the occupying allied powers, Britain, France and America. They were charged with the creation of a stable constitutional system for the three west German zones that later became the Federal Republic of Germany. Some restrictions were placed on this assembly by the allies, but in this essay hope to show the extent of the freedom of the Assembly, and the fact that the Basic Law which emerged from it was largely the product of German history and not allied coercion.
The first area to examine is the historical sequence of events which led to the drafting of the Basic Law. One important thing to notice is that the three governments involved in the occupation of western Germany after the Second World War - the French, British and Americans - were far from agreed about the way to proceed with the rebuilding of a German government. Aside from the fact that they had been forced to accept the inevitability of the division of Germany following the Soviet withdrawal from the Control Council responsible for Germany, there were disagreements between the democratic allies as to what sort of government would be suitable for the three occupied zones over which they still had control. The French were of the opinion that the governments of the individual Länder should be the central element of German government and should retain almost all power. Rather than a true federal system, the French envisaged something of a confederation of Länder. The British, on the other hand, wanted to give Germany a relatively strong central government, drawing on the British tradition of strong central government. The Americans took up a position somewhere between the two.
This disagreement between the allies was important at the outset, because it meant that only very broad guidelines were given to the Germans when they were required to draft the Basic Law. General Clay, the military governor of the American zone, cites in his memoirs the decision to avoid confrontation with the French over “details which might not necessarily develop in the German draft”. The intention was, he said, to “concentrate on establishing the broad principles to be given the German assembly for its guidance” Thus the disunity of the allies prevented them from giving any more specific instructions to the constituent assembly, even if some of them had wished to do so.
The actual call to the ministers-president of the German Länder was issued after a French, British and American conference in London, and was decidedly vague. The ministers-president were authorised (by which was meant, required) to call an assembly which would have the task of drafting “a democratic constitution which will establish for the participating states a governmental structure of federal type” which would “provide adequate central authority, and contain guarantees of individual rights and freedoms”. Doubtless the lack of precision in this document was partly due to the fact that the London conference had not succeeded in completely removing French difficulties with the proposed federal system. However, it was also due to a desire on the part of the allies to allow the creation of a genuinely German solution to the problem of drafting a constitution.
Although the allies did later provide a further document setting out the conditions which must be met by the new constitution, this document too was somewhat vague. For example, it was specified that there should be a bicameral legislature, and that one of the houses of this legislature should represent the Länder, but no restriction or guidance was placed on the constituent assembly as to the other house. Likewise, it was decided that a federal administration should be allowed, although the power of this administration was limited to areas where government by the Länder would be “impracticable”. Clearly, these rather general terms left a great deal of scope for interpretation by the German assembly.
In fact, the level of scope was wider than this, since even the first document which authorised the calling of an assembly was open to negotiation. In the event, the ministers-president of the Länder objected to the idea that they were creating a constitution, because they thought that making the three western zones into a state would imply an acceptance of the division of Germany. They proposed instead to create a “Basic Law”, which would allow for the government of the three western zones without conferring statehood on these zones as a country distinct from the eastern zone. Further, they could not countenance ratification of the Basic Law by a referendum, since this would give it far too much of a constitutional character. The fact that the allies were prepared, after some deliberation and discussion, to accept these changes shows the extent to which they were prepared to give the Germans a free hand in the process of drawing up the document which was now to be known as “Basic Law (Provisional Constitution)”.
Having seen that the allied powers made remarkably few formal demands of the parliamentary council responsible for drafting the Basic Law, it is necessary to move on to look at the content of the Basic Law itself. The issue with which this part of the essay will deal is the source of inspiration for this content; whether it was drawn primarily from the examples of federalism espoused by the Americans as the most influential of the allied powers, or from the history of Germany.
It was specified by the allies that the Basic Law should provide for a federal system of government, although exactly which powers should be reserved to the states was not made clear. However, this is not necessarily an example of the parliamentary council being forced to adopt a foreign system. There is a strong tradition of federalism in Germany, dating back to unification in the 1870’s, and indeed beyond. The German Confederation of 1815 to 1866 was a collection of separate monarchies and principalities, with the Confederation itself possessing very few, and very weak, powers. The Second Reich, finally established in 1871, gave the central power, represented by the Kaiser as the executive and the Reichstag as the legislature, much more power, but retained for the individual states many powers through the Bundesrat. Further, the states were still responsible for almost all administration.
Even under the Weimar Republic, which certainly did move in the direction of further centralisation, the newly renamed Länder retained control over “the administration of justice, police, education, and local government” This gave them an extensive remit, although they did lose their financial autonomy. Nevertheless, the Länder were still represented in government, via the Reichsrat, the second chamber of the legislature, to which each Land sent representatives. It was not until the Nazis took power that federalism disappeared altogether from Germany. There is no room in a totalitarian regime for any degree of regional autonomy. However, this move to centralised government must be viewed in the light of previous German history as something of an aberration, federalism being the norm from which Nazism was a deviation.
Further evidence exists that the federalism adopted by the parliamentary assembly was a German phenomenon, and this can be seen most clearly by underlining the huge differences that there are between American federalism, surely the pattern which the allies (dominated by America) would have wished to impose on Germany, and the federalism adopted in Basic Law.
American federalism was brought into being in order to unite the various states. The states retain considerable control over themselves and their own affairs. However, in Germany the Länder could not be described as separate states. They possessed very little in the way of state sovereignty, and most of them were new creations, since the Nazis had done everything in their power to eliminate the original Länder. Added to this is the historic form of German government, which generally has concentrated executive power at the centre while leaving administrative functions to the Länder. Consequently, the federal arrangement in Germany results in the Länder sending representatives to the Bundesrat, which is the guardian of the rights of the Länder, and which has direct involvement in the making of federal law. The contrast with the American Supreme Court is obvious, since that court has no role to play in the formulation of federal law.
As well as federalism, other aspects of Basic Law point clearly to German history as the source of their inspiration. Article 67, which restricts the ability of the Bundestag to overthrow the government, is a clear reaction against the chaotic days of the Weimar Republic and the characteristic high government turnover of that period. However, the fact that it is possible to overthrow the government in the Bundestag shows that the framers of the Basic Law were well aware of the need to avoid both the extreme of totalitarianism on the one hand and the weakness of the Weimar Republic on the other. Article 68 also shows an acute awareness of the need for stability, as it makes it very difficult to dissolve the Bundesrat.
The role of the President in the Weimar Republic had been instrumental in the breakdown of democracy in that system. Determined to avoid a repeat of this mistake, the framers of the Basic Law were very careful to outline the powers of the President in Articles 54 to 56. It was decided that the President would be elected by an electoral college made up of members of the Bundestag and delegates of the Länder. A popularly elected Presidency, it was felt, would be open to the demagogue, and Germany had experience of what such a person could do once elected. Further, a directly elected President might be felt to have the legitimacy to act against the Bundestag. This clearly had to be avoided if a repeat of the Hindenburg crisis was not to be suffered.
In conclusion, then, the Basic Law of Germany has its origins primarily in the history of Germany, albeit in a negative way. The Basic Law was a reaction to that history, and an attempt to avoid a repetition of it. The role of the allied powers was very limited, and they allowed themselves to a great extent to be guided by the parliamentary assembly which they had requested be called.
ecision in Germany, Lucius D. Clay p 399
he Founding of the Federal Republic of Germany, John Golay, p 36
