The leader post for this week is unfortunately missing.
I have, instead, inserted the Germany post from last year's class.
Given the delay in setting up the post, I'm giving the entire group a 24 hour extension, i.e. till Tuesday 9AM. Please email Hyeonho and me if you have further questions.
Best,
KMM
The historical context surrounding the writing of Germany’s constitution is unique. The constitution was written in the aftermath of the most devastating war that the world has ever seen. Furthermore, Germany had just experienced the rapid rise and collapse of one of the most powerful sovereign states in history. Nazi Germany was a totalitarian state in which the majority of the aspects of life were controlled by the State, a state which practiced policies considered egregious by the Western World.
The aftermath of the war was extreme, in addition to suffering defeat to the Allied forces; Germany was decimated both economically and physically. For this reason, the German leaders had little choice but to adhere to the demands of the Allied nations. Because of this leverage, these exogenous nations were highly influential in the establishment of the Basic Law. The utilization of this leverage is illustrated by the beginning of the establishment of federalism and democracy in Germany at the London 6 Power Conference. This is not to say that Germany would have not otherwise emerged a democracy, but the influence is undeniable.
Clearly, when the Basic Law was written, one of the authors’ primary intentions was to prevent a situation in which a dictator could come into power in Germany. To achieve these goals, and in effect to “correct” the Weimar Constitution which had allowed for the rise of Adolf Hitler, the authors strove to guarantee democracy and federalism. This was cemented in Article 20, which states that “The Federal Republic of Germany is a democratic and social federal state (A20).” As an additional safeguard in protecting democracy and federalism, the Basic Law grants all German citizens the right to resist any person seeking to abolish the establishment of Germany as a democratic and social federal state (A20). This mechanism acts as a way to guarantee the continued existence of a democratic state.
Nazi Germany was also infamous for its extremely racist policies. Following the exposure of the horrors of Holocaust, it became imperative to assure that a similar situation could never again be manifested. The Basic Law can be seen as “correcting” this issue with the intense attention to human and civil rights. The importance of guaranteeing human rights to the authors of the Basic Law can be observed immediately in the document. The first article immediately resolves that “Human dignity is inviolable. To respect and protect it is the duty of all state authority (A1).”
Another provision of the Constitution that I found interesting, which further supports the authors’ dedication to human rights is declaring “The Home” as inviolable and barring search without warrant (A13). This is a departure from the previous laws when the home could be entered and searched at will (Holocaust Encyclopedia). Furthermore, to further protect human rights the authors removed that State’s emergency powers to suspend human rights, a tactic utilized Hitler in 1933 (Rabie).
Naturally, the unique historical context had a profound effect on the institutional choices that were made during the process of the constitution-writing as observed in the adherence to democracy, federalism, and human rights. Had Germany emerged from World War II victorious, it is entirely possible that the Weimar Constitution would have existed for subsequent decades.
Sources:
Taylor Gunderson
ReplyDeleteAs mentioned in the leader post, Germany’s current constitution was greatly influenced by the fact that the country had just come out of one of the largest world conflicts ever as perhaps the greatest loser. At the end of World War II, Germany was occupied by the Allied Powers: the United States, the United Kingdom, France, and the Soviet Union. The country was divided into four zones, and each of the listed occupiers was responsible for the government of its assigned zone (1). All of the zones except the Soviet controlled one decided to band together to begin the process of “creating a separate political entity in the Trizone which would be strong enough to resist Communist infiltration” (1). This “entity” however was not to be a solely German invention though; the military governors of West Germany would have a great deal of influence in shaping the new German constitution. However, despite the fact that West Germany was being controlled by foreign nations, the German people were still able to have a great deal of influence on the new constitution.
The process of creating a new constitution began at the London Conference of 1948 where the Western Allies created “provisions for convening a constituent assembly and framing the constitution of a West German state” which would then “be subject to ratification by the military governors” (2). Most important to the occupiers was that the new German government would be democratic and federal in nature and “protect the rights of the participating states, provide adequate authority, and contain guarantees of individual rights and freedoms” (2). The occupiers of West Germany wanted to ensure that the “new” Germany would spread power so that the government could not repeat the past mistakes made under the Nazi regime. These were the basic guidelines for the new drafting that the military governors would bring back to the German Lander. heads of government of the lander then decided to turn over drafting to experts on constitutional law whose job was the creation of a Basic Law (1). These experts ended up coming up with not only principles for the Basic Law but also a complete draft at Herrenchiemsee. Upon its completion, it was turned over to the Parliamentary Council which was made up of elected delegations of the various Lander. Important to note here is that these delegates were not exclusive to only one party but that the various political parties were represented proportionally making the Council very inclusive (1).
Overall, the Basic Law of 1949 was a success. It was a work greatly influenced by the occupying forces of the time. However, many of the guidelines put forth by military governors were not foreign to Germany at all. Previous German constitutions had very liberal traditions, and these had only been abandoned under the most recent Weimar Constitution. Therefore, most of the demands made upon the Germans were not far stretches or difficult to implement. It can easily be said that the Basic Law of 1949 was also a clear work of the German people.
1. Grote, Rainer. "The Federal Republic of Germany"
2. "Founding of Two States: The Federal Republic of Germany and the German Democratic Republic" http://germanhistorydocs.ghi-dc.org/sub_document.cfm?document_id=2850
While the previous commenters have argued that the German Basic Law was pluralistic, a work of the German people, evidence shows that the Basic Law was originally conceived by Allied powers occupying Germany, and written by a Parliamentary council, consisting of academics, regional ministers, and government officials.
ReplyDeleteFrom the beginning, the German people had little choice in the content of their Basic Law. The Allied powers of the three segments of West Germany, acting on the orders of “the London recommendations,” were asked to supervise the creation of a “free and democratic form of government.” (1) While the German people would have problem chosen this form of government anyway, the point is that they did not choose it. While they were beneficiaries of this system, the system was nevertheless imposed on the German people.
Eventually, the Allied powers and the eleven “minister-presidents” of the West German Länder came to an agreement to enact a parliamentary council. (2) As mentioned previously, this council consisted mainly of academics and regional government officials. Although this parliamentary council may have been meant to represent the interests of every citizen, it was elected by the governments of each of the Länder, not directly by the citizens. And when this parliamentary council had finished writing the Basic Law, there was no referendum by the German people to affirm the Basic Law. Instead the same parliamentary council that had written the constitution also voted whether or not to approve the new constitution.
We can gather from the information above that, while the German government was probably what the German people wanted anyway, it was not actually selected by them, but rather by foreign officer and regional elites. Germany has a strongly federal and consensual constitution, but the citizens were not the ones who made it that way. Therefore, I am unconvinced that the German constitutional process was truly pluralistic.
Sources:
(1) “Basic Law and Parliamentary Council” (accessed using Google Translate) - http://www.bpb.de/geschichte/deutsche-geschichte/grundgesetz-und-parlamentarischer-rat/38975/kurzueberblick?p=0
(2) “Opening Ceremony for the Parliamentary Council” http://germanhistorydocs.ghi-dc.org/sub_image.cfm?image_id=3180
Although the German Basic Law was written in order to protect the interests of German citizens and prevent another dictator from rising to power (as stated in the leader post), its conception was not entirely pluralistic. The previous commenter touched on the fact that the Basic Law was sponsored by the Allied powers, which I agree with. This limits the ability of German citizens to express their opinions about their constitution and governing principles. Essentially, their constitution becomes a work of leaders that can go home to their own country and own constitution.
ReplyDeleteBecause the Basic Law was written when Germany was split into East and West Germany, it was intended to take into the account the needs of only West Germany. As it is still in use today, it cannot be considered representative of the needs of regions that were once part of East Germany, as they had no say in the ratification (1).
Another damning principle of the Basic Law is the fact that Germany’s internal borders were redrawn by Allied powers (1). This is problematic because they did not take into account the social, political, and economic differences of regions that would soon come together to vote in elections, similarly to the drawing of country lines in Africa after European colonialism. This skews representation of the people as they cannot be represented by someone who has similar interests as. It created a source of political conflict and fragmentation due to the dissimilarity of people in the same districts. In order to create democratic and representative districts, the Allied powers should have allowed internal borders to be drawn by the German people/governing institutions.
(1) German Constitutional History: The Genesis of the Basic Law. http://edale.typepad.com/constitutional_orders/2011/07/german-constitutional-history-the-genesis-of-the-basic-law.html
Keiko Diaz-Pezua
ReplyDeleteFollowing WWII, the United States came out on top of all in the aftermath. This is clear just from comparing the United States Constitution and the German Basic Law. They both have “basic, fundamental rights; a federalist structure of government divided between federal and state authority and a federal government separated into three coordinate branches; a bicameral legislature representing the people in forms of republican democracy; and an independent judiciary with the power judicial review.” (1)
German Basic Law begins with “Basic Rights”; the first twelve articles concern the rights of the German people. These include protection of human dignity, rights of liberty, freedom of faith just to mention a few. The preamble ensure to define to whom this applies, “valid for the entire German people.”(2) Not only is this found in German Basic Law as consequence the war and the weaknesses in the previous constitution that allowed the rise of Adolf Hitler but also as a result of the influence of American presence during the writing of the Basic Law. It is no coincidence that the beginning resembles the United States’ Bill of Rights and the rest resembles the remainder of the United States’ Constitution with some exceptions. This is not surprising since the United States had a great deal in aiding the writing process of the German Basic Law.
The legislature ensures to not favor any class or type of person in particular. In Article 38 states that “deputies to the German Bundenstag are elected in universal, direct, free, equal and secret elections. They are representatives of the whole people, are not bound by orders and instructions and are subject only to their conscience.” (2) This too is an example of the presence of foreign powers, especially that of the United States, in writing this new German Constitution. In this and throughout, there are echoes of western democracies and their own perspective constitutions, making a place for themselves in the German Basic Law.
Although this ensured the protection of the German people and limited the powers of central government, it surely was not written by the German people. Though this may be true, it did lead to a consensual constitution and form of government.
The German Idea of Freedom. Edward J. Eberle. http://law.uoregon.edu/org/oril/docs/10-1/Eberle.pdf
The Federal Republic of German Law, 1949.http://www.fordham.edu/halsall/mod/CONST-DE.asp