Constitutional history of Germany

Background

Located in Western and Central Europe and sharing borders with Denmark to the north, Poland and Czech Republic to the east, Austria and Switzerland to the south, France and Luxembourg to the southwest, and Belgium and the Netherlands to the northwest, the Federal Republic of Germany consists of sixteen federal states, or Länder. Divided following into East and West Germany after World War II, the country became the central stage for the Cold War between US-led Western powers and the Soviet Union until 1990 when the two divided territories where reunited.

Although the Germany has a long history, unlike France and the United Kingdom, a unified nation-state Germany is relatively recent. Until the nineteenth century, Germany consisted of a variegated collection of kingdoms, duchies, city-states, and other principalities. These various entities were loosely held together in the political league of the Holy Roman Empire. This lasted until the end of the Napoleonic wars in the early nineteenth century. Following the defeat of Napoleon in 1815, the German Confederation, composed of thirty-nine sovereign states, emerged to take the place of the Holy Roman Empire. However, the German Confederation resembled a treaty community more so than a political union.

The 1848 March Revolution and the 1849 Constitution

In March 1848, uprisings in many Germanic states began calling for fundamental rights and a unified German nation. This became known as the March revolution. In 1848, the Frankfurt Parliament passed the Imperial Act guaranteeing the Basic Rights of the German People. This marked the first instance in German history where human and civil rights became legally binding. The core elements of those rights, such as equality before the law, freedom of expression, and the abolition of the death penalty, influenced Germany’s subsequent constitutions. One year later in 1849, the Parliament also adopted the Frankfurt Constitution which eventually became the Constitution of the German Empire. The Constitution created a bicameral parliament, consisting of a directly elected Volkshaus (House of Commons) and a Staatenhause (House of States) comprised of representatives sent by the individual confederate states. While the Constitution attempted to create unified German nation, most Princes of German soil refused to relinquish their sovereignty, and the Confederation was restored a year later.

Establishment of the North German confederation and the 1867 Constitution

The Austro-Prussian War of 1866 resulted in the dissolution of the German Confederation and the formation of the North German Confederation in 1867 under Otto von Bismarck as well as a new Constitution. The Constitution established the Federal Council or Bundesraat, comprised of representatives of the various states, and a Reichstag elected by male universal suffrage. In 1871, the German Empire was established, following the defeat of France in the Franco Prussian War—the last of Germany’s unification wars of which the first two were fought against Denmark and Prussia, This did not however result in a new Constitution as that of the North German Confederation was maintained. The German Empire lasted from 1871, through the First World War, until the German Revolution of 1918, which declared Germany a Republic.

The Weimar Constitution (1919)

After the 1918 revolution, the Constitution of the German Empire was replaced by the Weimar Constitution drafted by lawyer and liberal politician Hugo Preuss. The constitutional process was overseen by the German National Assembly in the state of Weimar. Delegates disagreed over issues such as the national flag, religious education for youths, and the rights of the states (Länder). It maintained the bicameral parliament of previous constitutions, comprised of the Reichstag elected through a proportional representation system and a regionally representative Reichstrat. It also decreased the minimum age for universal suffrage from 25 to 20. The Constitution ushered in a decade of increased national confidence, liberal cultural life, and economic prosperity. A combination of the Great Depression, the severe peace conditions of the Treaty of Versailles, and a long succession of unstable governments led to the weakening of the Weimar Constitution. Fueled by discontent with the Weimar government, the Nazi Party came into power in the 1930s. After a series of unsuccessful cabinets, President Paul von Hindenburg appointed Adolf Hitler as Chancellor of Germany on January 30, 1933. After a Dutch Communist set fire to the Reichstag building in February 1933, the Reichstag issued the Enabling Act on March 23, giving Hitler unrestricted legislative power. Hitler used this new power to form a centralized totalitarian government. Although three Reichstag elections were held under Hitler, voting was not anonymous, and candidates were limited to a single list of Nazis and “guest candidates.” Under the Nazi rule, Germany instigated World War II, which ended with Germany’s unconditional surrender on May 8, 1945.

On June 5, 1945, the victorious Allied Powers (United States, United Kingdom, USSR, and France) declared that they had “supreme authority with respect to Germany.” German officials with no independent political power were appointed to local and communal levels (councilors and mayors). As tension between the Soviet Union and Western powers intensified, the country was divided, with the Federal Republic of Germany in the west and the German Democratic Republic (GDR) in the east.

Constitutional Development in the GDR

Immediately after the war, both the East and the West felt that the separate German states were temporary. The ultimate goal of both states was unification, but as the East formed a closer relationship with the Soviet Union, reunification seemed more and more unlikely. Tension between East and the West increased in the 1950s and 60s, leading to the construction of the Berlin Wall, dividing the two states. The first GDR Constitution, passed in 1949, sought to be an all-German Constitution and contained many passages similar to the 1919 Weimar Constitution. It was amended in 1968 and 1974 to emphasize both the socialist political organization of the East and its closed, irrevocable relationship with the Soviet Union. Because the 1949 document was meant to govern a future, united Germany, it struck a compromise between the liberal-democratic and Marxist-Leninist factions. Though the Constitution declared the GDR a democracy, the government was controlled by a member of the communist-controlled Socialist Unity Party. The state had a single-house parliament (the Volkskammer) and two executive organs (the Council of State and the Council of Ministers). The Constitution established an independent judiciary—a Supreme Court and lower courts. Undermining the independence of the judiciary was the Volkskammer’s authority to appoint and remove judges at will. By the fall of 1989, it was clear that GDR’s Constitution could not adequately meet the challenges facing the country. The Soviet Union was in decline, as were the other Eastern Bloc states. A constitutional drafting committee, the Round Table, was formed to draft a new democratic constitution. Advising the committee were constitutional experts from within the country, as well as western experts. However, as the committee began forming small working groups, it became increasing clear that German unification was imminent and that unification would involve the adoption of West Germany’s constitution. The unification process culminated in the Two Plus Four Treaty on September12, 1990, under which the Allies renounced any rights under the Instrument of Surrender, and Germany regained full sovereignty. On October 3, 1990, Germany officially reunited, and the five eastern states joined the Federal Republic of Germany.

1949 Constitution

Key Country Documents Index

The 1949 Constitution, which today governs Germany, is a slightly amended version of West Germany’s 1949 Constitution. The history of the German Basic Law is unique as it originated after WWII and was based on the influence of occupying foreign nations. While the Reich government still existed in theory after the war, the institutions of the German government were completely destroyed. The framers of the Constitution sought to create a provisional or temporary document that would guide West Germany until unification. Germany’s recent past played a significant role in the formation of the Basic Law. The Framers sought to create a constitution that would safeguard against the emergence of either the Weimar Republic’s overly fragmented, multiparty democracy or the Third Reich’s authoritarianism. In 1948, at the direction of the Western Powers, the ministers-presidents of the West-German states formed a Parliamentary Council to begin drafting a constitution, with the caveat that any document produced be provisional. The Parliaments of the Landers appointed sixty-one men and four women who were members of political parties licensed by the occupying powers as delegates. Most were veterans of the Weimar Republic. All but eleven were Social or Christian Democrats. The Council passed a draft in Bonn on May 8, 1949, which was approved by the occupiers on May 12. All the Landers, with the exception of Bavaria, also approved, and the Constitution became law on May 24, 1949, creating the Federal Republic of Germany.

The Executive

The executive branch is comprised of the President, the Chancellor, and the Federal Ministers. The President is the Head of State and the Chancellor is the Head of the Government. According to Article 54(1), the Federal Convention elects the President for a five year term and no one may serve as President for more than two terms. Half the Convention are members of the Bundestag, and the other members are elected by the parliaments of the Länder through a proportional representation system. All candidates for the presidency must be at least forty years old and eligible to vote in the Bundestag elections. Article 55(1) stipulates that the Federal President may not be a member of the government or of a legislative body of the Federation or of a Land. The role of the President is mainly ceremonial. Orders and directions of the President require signatures of the Chancellor or a competent minister. The Federal President appoints and dismisses federal judges, federal civil servants, and commissioned and non-commissioned officers of the Armed Forces, except as may otherwise be provided by a law. The President proposes the candidate for the office of the Chancellor to the Bundestag. However, if the person proposed by the Federal President is not elected, a majority of the Bundestag may elect a Federal Chancellor within fourteen days. The President appoints and removes ministers on proposal of the Chancellor. The Chancellor and the ministers set the policies and guidelines for the federal government.

The Legislature

The legislature is split between the Bundesrat and the Bundestag. The Bundestag, or lower house, is universally elected and represents the whole of Germany. Any person who has attained the age of majority may be elected to the Bundestag and serves a four year term. The Bundesrat, or upper house, is comprised of members of the Lander governments and represents state interests. Depending on the population, each Lander may have between three and six votes in the Bundestag. The votes of each Lander are counted as a block, and members must be present in order to vote. Federal laws are adopted by the Bundestag and are then submitted to the Bundesrat. The Bundesrat may call for a joint committee. A bill adopted by the Bundestag may require Bundesrat consent. If the bill does not require the consent of the Bundesrat, the body may still enter an objection, but the Bundestag may override those objections.

The Judiciary

The independent judiciary consists of the Federal Constitutional Court, Supreme Federal Courts, and other Federal Courts. The Federal Constitutional Court rules on issues dealing with the Basic Law, disputes between the Landers, disputes between the Landers and the Federation and other matters as shall be assigned by a federal law. The Federal Constitutional Court shall consist of federal judges and other members, half elected by the Bundestag and half by the Bundesrat. Members of the Constitutional Court may not be members of the Bundestag, the Bundesrat, the Federal Government, or any of the corresponding bodies of a Lander. The Federation establishes the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labor Court, and the Federal Social Court as supreme courts of ordinary, administrative, financial, labor, and social jurisdiction. The judges of each of these courts are chosen jointly by the competent Federal Minister and a committee for the selection of judges, consisting of the competent Lander ministers and an equal number of members elected by the Bundestag. The Federation may establish a federal court for matters concerning industrial property rights and federal military criminal courts for the Armed Forces. These courts may exercise criminal jurisdiction only during a state of defense or over members of the Armed Forces serving abroad or onboard warships.

Constitutional Challenges

During its early stages, the Constitution faced the critical challenge of indifference from the German people. Many had lived through the weaknesses of Weimar Constitution. Additionally, this Constitution was birthed from the orders of occupiers and never submitted to a public referendum. Many political leaders were also against the Basic Law, fearing that a West German state would impede German reunification. The uncertainty of the Basic Law was compounded by Art.146, which defined it as a provisional document until a more formal constitution could be put in place upon reunification. However, when the two Germanys united, they decided to simply make a few modifications to the Basic Law as it had proved an asset to the West.

The Basic Law brought stability and order to the German government, with the Federal Constitutional Court upholding the validity and legitimacy of the document. Despite economic slowdowns and changing social conditions, the political system continues to work as the founders intended. All social, economic and political changes have occurred within the context of the constitutional agreement, and the document has experienced widespread support.

System of Government

Timeline

   
800

Charlemagne crowned as Roman Emperor

870

The duchies of Franconia, Saxony, Bavaria and Lorraine are formed

962

German King Otto I crowned as emperor of what would become known as the Holy Roman Empire

1517

Martin Luther’s 95 Thesis against the Catholic Church initiates the reformation

1555

Peace of Augsburg: he who rules the land determines the religion.

1618-1648

Thirty Years War ending with the Treaty of Westphalia confirming near total independence for the territorial states

1806

The Holy Roman Empire comes to an end

1815

Rise of the German Confederacy

1848

Revolutions take place in Germany: The March Revolution

27 March 1849

Frankfurt Constitution signed by the Frankfurt Parliament

29 March 1849

Frankfurt Constitution goes into effect.

1850

German Confederacy restored

1866

Austro-Prussian War ends the German Confederacy

1867

Formation of the Northern German Confederacy

1871

French defeat in the Franco-Prussian leads to the proclamation of the German Empire and a new constitution is established.

1918

Germany declared a Republic upon the end of the German Revolution

11 August 1919

Weimar Constitution Replaces the Constitution of the German Empire

30 January 1933

Adolph Hitler is appointed Chancellor of Germany.

27 February 1933

Emergency decree abrogates the basic rights of the German citizens

23 March 1933

Enabling Act gives Hitler unrestrictive legislative power

7 and 8 March 1945

Germany declares unconditional surrender and WWII comes to an end. Control of Germany is split between the Allied Powers.

1949

Eastern and Western Germany both ratify new constitutions

1968 and 1974

Eastern German Constitution is amended to emphasize the socialist political organization of the East and its closed, irrevocable relationship with the Soviet Union

1989

Roundtable Committee formed to Amend East Germany’s constitution, but it becomes clear that reunification is inevitable.

12 September 1990

Two Plus Four Treaty is signed, in which the Allies renounce all claims to Germany and Germany regains full sovereignty.

3 October 1990

Germany is officially reunited

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