“The state is there for the sake of people, not people for the sake of the state.”
Lately I’ve been thinking a lot about the Constitution, and how it compares to German Basic Law. Until the Grundgesetz (Basic Law) went into effect on May 23rd , 1949 Germany was still a divided occupied country under martial law. How much did the occupying forces influence this document that not only set up the structure of German Government, but also insured basic human rights to all citizens? The Federal Republic of Germany was born on May 24, 1949, after the ratification of Basic Law. It is not and was never meant to be, in the strictest sense, a constitution, rather, it is a living document, a provisional framework that changes and adjusts with time and need. Basic Law is a foundation for Democracy in Germany, designed to uphold rights and insure good governance. And interestingly enough, it was never meant to be permanent. Let me share with you what I learned.
Setting the Stage… German Self Rule
At the end of World War II in May of 1945, Germany was left occupied by Allied powers, the United States, the USSR, the United Kingdom, and France, who divided the country into 4 sectors (plus a divided Berlin) that they controlled. Three years later, the US, UK, and France were ready to let Germany stand on their own, but the Cold War was kicking into high gear, and the USSR didn’t want to surrender East German Territory. The western Allied nations met at the London Conference, and worked up a set of guidelines to return Germany to a self-governing nation. These guidelines, the Frankfurt Documents (called that because they handed the list over in Frankfurt) stipulated that Germans must convene a constitutional convention to form a federal government in Germany that included rights of people. The Allies also insisted that the new constitution be approved by the occupying military governors before passed along to the Federal states for ratification, and that they approve all amendments and foreign policy decisions. (At the time, the Allies weren’t 100% ready to let Germany self-govern. The French were especially nervous about the Ruhr… Germany’s industrial powerhouse.)
German Basic Law
A “Council of Experts on Constitutional Matters” was set up by the 11 Minister Presidents of each German State, and on Sept. 1, 1948, 65 voting representatives (61 men and 4 women) along with 5 non-voting representatives from West Berlin gathered at the Herrenchiemsee Convention to hammer out a new government. The Frankfurt documents and occupying powers demanded that the new constitution contained a “guarantee of individual rights and freedoms”, and since many of them had suffered human rights atrocities under the Nazi Government, the council took it seriously. The representatives carefully studied history, reviewing the Paulskirche Constitution (written during the unsuccessful 1849 attempt to unify Germany), and the inadequacies of the Weimar Constitution (1919-1933). The German representatives looked to the Fundamental Rights born from the French Revolution, and the three part system set up by the United States Constitution.
Personal experiences during and before the war made the delegates well aware of the need for Human Rights. Carlo Schmid, chairman of the main committee, insisted that the Council create fundamental rights “are not just declarations, declarations and directives” he insisted that there be “directly applicable federal law, on the basis of which everyone individual Germans, every resident of our country should be able to file suit before the courts.” And furthermore, these rights should never be revoked.
Still, it wasn’t smooth sailing for those involved. Questions arose about what equality between men and women should look like. (Elisabeth Selbert fought hard to include the sentence: “Men and women have equal rights” in Article 3, Paragraph 2 of the Basic Law). There were arguments about the church’s role in the state. Did equal rights and freedoms mean that the death penalty should be abolished?
Because the Nazi party arose in Germany due to the weakness of the Weimar Constitution, the Frankfurt documents also included a few other stipulations-
-Changes to the new Constitution would now require a 2/3 vote
-There would be a strict separation of powers
-A Federal Constitutional Court would be responsible for interpreting Law.
-The multi-party system would be strengthened, and anti-constitutional political parties could be banned.
The German Grundgesetz was accepted by the council on May 8, 1949. (Initially, the State of Bavaria voted against the Document, claiming that it didn’t give enough power to individual states. But in the end they agreed to go along with things if everyone else was ok with it).
After gaining approval from occupying powers, Basic Law (the name is a nod to the code of laws under the Holy Roman Empire) was confirmed in Bonn on the 23rd of May. Beginning May 24th, 1949, the country was called the Federal Republic of Germany.
Grundgesetz a Foundation for Democracy
The German State is a Democratic and Social Federal Republic. This means that elections are held, and people vote for both parties and representatives. The State has a strong commitment to social solidarity. In order to insure this, the Grundgesetz or Basic Law consists of two major parts.
Articles 1-19 This first section describes fundamental rights as humans. Including equality before the law, freedom of religion, freedom of expression, and it grants rights and privileges. Essentially, no single person or group holds all the power. Everyone is entitled to express and opinion (from personal experience, I can certify that Germans do use this right…frequently). Everyone has the same rights. And most importantly, everyone has value. (This is why immigration is such a difficult topic. At the time the Basic Law was written, assylum was a right granted to anyone who came into the country. Remember, German Nationals and others were streaming in from the East because of resettlement by the Soviets with the backing of the other Allied nations. Today circumstances have changed, but that’s a topic for another time…)
What’s important to know about this section of the Grundgesetz is that it comes FIRST. Compare this to the United States Constitution where the LAWS come first, and the Bill of Rights come after, as amendments. Another important part, while the rest of the German Basic Law can change, the Fundamental Rights are in stone.
Articles 20-141 Describe the setup and function of the Government. All of it. From the Federal level to the State. These are broken down into groups.
2. The Federation and States
3. The Bundestag- The government body elected by the German People to represent them on a Federal Level (Similar to House of Representatives)
4. The Bundesrat- The legislative body that represents the Sixteen Federal States
5. The Federal President (click here for more information about the German President)
6. The Federal Government- consisting of the Chancellor and Federal Ministers (Click here to learn more about the Chancellor)
7. Legislative Powers of the Federation
8. The Execution of the Federal Laws and the Federal Administration
9. The Judiciary (The Federal Constitutional Court oversees and reviews legislation. ANYONE may bring a complaint to them AT NO COST)
12. Transitional and concluding provisions
Click here to read the whole document. (I’d pour a cup of coffee and get comfortable first…)
Grundgesetz Never Meant to Be Permanent
What I found most fascinating about the German Basic Law/ Grundgesetz is that it was never meant to be a permanent constitution. Members of the Herrenchiemsee Convention originally wanted to create a framework for a provisional or temporary government that would hold things together until Germany reunified. Remember, in 1948 Germans presumed that the temporary occupation would end, and Germany would be a single country. No one wanted a permanent West Germany, and establishing a constitution would solidify East and West as separate countries.
(I learned a new word… Irredentist... a political movement where members claim a territory based on history or legend. In the case of Germany, they knew that eventually Germany would come back together, so room was left for the East)
Interestingly, when the Unification Treaty of Aug 31, 1990 was signed, both East and West decided to keep the existing Basic Law. (You will find that codified in Article 23). Thanks to my friend Roland, for explaining how that worked. “How to include former East Germany? The constitution didn’t have provisions for adding new states, and on top of that East Germany had abolished the old German states (Mecklenburg-Vorpommern, Brandenburg, Sachsen-Anhalt, Sachsen, and THüringen). East Germany agreed by treaty to adopt the Grundgesetz, too, but also had to rush to reconstitute the old states so that on reunification the former east looked legally like the west: it was not just east joining west, but five new states joining eleven old ones, and the Grundgesetz was simply amended to include the names of the new states right in with the old ones, as if East Germany had never existed. ” Solved that little constitutional wrinkle pretty nicely, I think…
After 1955, when the Occupation Statute was repealed, Germany no longer had to seek approval for changes, and since 1949 there have been over 60 amendments or revisions to the Basic Law. (Remember, it only takes a 2/3 vote in the Bundestag and Bundesrat to pass changes). Unlike the United States Constitution, these changes aren’t tacked on at the end, they actually go in and change the wording of the Basic Law document. The only thing that never changes, “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
Today, the original copy of the Grundgesetz für die Bundesrepublik Deutschland is stored in the Bundestag. This special copy is used to administer the oath of office to the new German Chancellor and President.