1.2 The History of the Constitutional System

19th Century
The concept of the rule of law (Rechtsstaat) entered the political discourse in the first half of the 19th century and has since played a key role in German legal and constitutional history. In the mid-19th century, the middle-class constitutional movement led to the introduction of constitutions pledging the rule of law in almost all the countries of Germany. They promised:
  • the recognition of civic liberties,
  • equality before the law,
  • the involvement of representatives of the people in legislation, and
  • independent courts.

Unlike the rule of law, democracy made no decisive headway in the 19th century. The middle classes proved too weak to assume the dominant role in government: the first constitution of the Germans, the "German Imperial Constitution" was adopted on 27 March 1849 by the National Assembly meeting in St. Paul's Church in Frankfurt.22 It was the product of the democratic and liberal movement, which sought to achieve the national unity of the German people by parliamentary means. The king of Prussia, Frederic William IV, was elected German emperor by the National Assembly. But he never accepted this election, since he regarded himself as a ruler by the grace of God.23 The March Revolution of 1848 failed to produce any constitution that came into force.24
The middle classes made a compromise with the traditional foundations of monarchical government. Under the system of constitutional monarchy, the middle classes waived political leadership in government, and in so doing safeguarded their economic and social interests. The political core of constitutional monarchy is the sharing of legislative power between the monarch, an upper chamber primarily representing corporative interests and the nobility, and a lower, popularly elected chamber.25 Because suffrage for the lower house was not equal but depended on property status (three class franchise), the predominance of the propertied classes was secured in parliament and legislation. By the end of the 19th century, the demand of the middle class that the monarch should be bound by the law was met. This found expression in the concept of the lawfulness of the administration.
Not until 1871 did Bismarck found the German nation-state as a federation of German princes. This German Empire, a constitutional monarchy, came to an end in the aftermath of defeat in World War I in 1918 and the revolution of 1918/19.26

Weimar Republic (1919-1933)
As a consequence of these events, government was established on the basis of a different political principle, the sovereignty of the people.27
On 31st July 1919, the empire became a parliamentary, democratic republic, the so-called Weimar Republic, by adoption of the "Constitution of the German Empire." It was given this name because the explosive situation in Berlin obliged the newly formed national assembly to meet in Weimar.28 This renewed attempt to turn Germany into a liberal and democratic country met with considerable resistance from the very outset. In many cities, workers' and soldiers' councils formed. It was a time of political radicalism and economic crisis.
Parliamentary democracy was sickly from the start. Any provision of the constitution could be amended by a two-thirds majority. Even basic rights could be abolished by this means.
The unsettled political conditions caused by, among other things, the Versailles Treaties, the Great Depression of 1929 and the consequent mass unemployment turned many people away from democracy,29 strengthening the growth of radical, extremist parties (especially the NSDAP). From 1930 onwards, the parliament (Reichstag) was dissolved a number of times, and there were only minority governments, which ruled with the aid of the Reichspresident's extraordinary powers.30

The Third Reich (1933-1945)
These developments bear a major part of the blame for the demise of the Weimar Republic and the establishment of the Third Reich on 30th January 1933. The Act to Remedy the Distress of the People and the Empire (Enabling Act) passed on 24th March 1933 by the Reichstag empowered the government to make laws without the participation of parliament (Articles 1 and 2).31 In effect, it transferred legislative power to the executive, abolishing the principle of the separation of powers.32 On the basis of the Gleichschaltung Act, federal and state governmental organisation was forcibly coordinated, the principles of the Enabling Act were extended to the states, and the "Führer principle" was imposed at all levels.33 The death of Reichspresident Hindenburg on 2nd August 1934 finally paved the way for Hitler to introduce a totalitarian regime, since the powers of the president devolved to him as chancellor.34 In the field of foreign policy, the following developments took place: in 1933 Germany left the League of Nations; in 1934 it unilaterally denounced the limitation of armaments imposed by the Treaty of Versailles. In 1936 the Rhineland was occupied, and Austria and the Sudetenland annexed in 1938.35 With the German invasion of Poland on 1st September 1939, the Second World War began. It ended with Germany's capitulation on 7th / 8th May 1945 and the fall of the National Socialist dictatorship.

After 1945
Capitulation did not lead to the extinction of the German Empire but only to the complete military defeat of Germany.36 In the Berlin Declaration and Potsdam Agreement of June / August 1945, supreme authority was transferred to the supreme commanders of the four victorious powers, the United States of America, the Soviet Union, the United Kingdom, and France over their respective zones and to the Allied Control Council, composed of the four commanders-in-chief, for the whole of Germany.37 Owing to political differences with the Western powers, the Soviet Union ceased collaboration on the Allied Control Council in the spring of 1948.38 The establishment of the West German state proceeded step by step. After the West German zones had amalgamated economically in January 1947 to form the Bi-Zone and in March 1948 to constitute a Tri-Zone, the eleven state premiers were called upon in July 1948 to convene a national assembly and draft a constitution. The constitution of the Federal Republic was to be designed to exclude any rejection of the rule of law. Binding all state authority to the law was no longer to mean solely that it was bound by statutary law: legislation itself was to be bound by certain supreme legal principles. A 65-member assembly elected by the state parliaments (Landtage), the so-called Parliamentary Council, drafted not a constitution but a Basic Law, since they feared that the division of Germany would be consolidated constitutionally if the term constitution was used. Agreement was thus reached on a provisional arrangement.39 The Basic Law was created in rejection of the Weimar constitution, drawing on tried and tested, earlier German and European constitutional traditions and introducing important new elements.40 Despite some differences of opinion, it was signed by the minister presidents of the states in the three Western zones of occupation on 23rd May 1949.41



22 Cf. Badura, Staatsrecht, A, Rn. 25, 28.
23 Cf. Katz, Staatsrecht, Rn. 79, 33 f.
24 Cf. Maurer, Staatsrecht I. Grundlagen – Verfassungsorgane – Staatsfunktionen, 26.
25 Cf. Katz, Alfred, Staatsrecht, Rn. 83, 35.
26 Cf. Badura, Staatsrecht, A, Rn. 26, 28 f.
27 Cf. Katz, Staatsrecht, Rn. 88, 37.
28 Cf. Badura, Staatsrecht, A, Rn. 27, 29 f.
29 Cf. Katz, Staatsrecht, Rn. 92, 39 f.
30 Cf. Der Brockhaus in einem Band, 976.
31 Cf. Katz, Staatsrecht, Rn. 93.
32 Cf. Katz, Staatsrecht, Rn. 93.
33 Cf. Katz, Staatsrecht, marginal no. 93.
34 Cf. Badura, Staatsrecht, A, Rn. 28, 31 f.
35 Cf. Der Brockhaus in einem Band, 617.
36 Cf. Katz, Staatsrecht, Rn. 125.
37 Cf. Katz, Staatsrecht, Rn. 125.
38 Cf. Katz, Staatsrecht, Rn. 125.
39 Cf. Katz, Staatsrecht, 69 ff.
40 Cf. details in Katz, Staatsrecht, Rn. 126.
41 Cf. Pötzsch, Die deutsche Demokratie, 10 ff.