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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 L?nder 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 L?nder.? 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?[1].? 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 L?nder 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 L?nder, 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 L?nder 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 L?nder 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 L?nder retained control over ?the administration of justice,
police,
education, and local government?[2]. This gave
them an
extensive remit, although they did lose their financial autonomy.?
Nevertheless, the L?nder 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 L?nder 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 L?nder.? 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 L?nder.? Consequently, the federal
arrangement in Germany results in the
L?nder sending
representatives to the Bundesrat, which is the guardian of the
rights of the
L?nder, 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
L?nder.? 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. [1]Decision in Germany,
Lucius D. Clay p 399 [2]The 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 L?nder 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 L?nder.? 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?[1].? 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 L?nder 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 L?nder, 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 L?nder 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 L?nder 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 L?nder retained control over ?the administration of justice,
police,
education, and local government?[2]. This gave
them an
extensive remit, although they did lose their financial autonomy.?
Nevertheless, the L?nder 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 L?nder 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 L?nder.? 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 L?nder.? Consequently, the federal
arrangement in Germany results in the
L?nder sending
representatives to the Bundesrat, which is the guardian of the
rights of the
L?nder, 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
L?nder.? 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. [1]Decision in Germany,
Lucius D. Clay p 399 [2]The Founding of the Federal Republic of
Germany, John Golay, p 36
... to lay fertilized eggs years after a single mating. The female green sea ... turtle will lay her eggs on land ... (November 5, 2000) (3) Encyclopedia Britannica. (2000). ?Green Turtle?. http://www.britannica.com ...
... he would be breaking Germanlaw. He would be doing ... he would be breaking Germanlaw. He would be doing ... he would be breaking Germanlaw. He would be doing ... he would be breaking Germanlaw. He would be doing ... he would be breaking Germanlaw. He would be doing ...
... Games, Olympia. Most popular German films were apolitical entertainment, as ... Wife). He probed contemporary German life in the psychological drama ... Richard Wagner's daughter-in-law, an admirer of Hitler ... von Bismarck, daughter-in-law of the Iron Chancellor, ...
... was also patterned on German universities. The German practice of research was ... was Eddie Richenbacher, who was German. German Americans make up the largest ... as Babe Ruth, and Lou Gehrig. German Americans have worked hard to ...
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