Weimar Constitution (1919)
- Weimar Constitution (1919) — Constitutional interpretation — Constitutional processes — Principles and objectives of constitutions
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. General Introduction
1. ‘Weimar Constitution’ is the abbreviated name for the Constitution of the German Reich of 11 August 1919 (hereinafter ‘Weimar Constitution’ or ‘Constitution’). It was the first republican and democratic constitution of Germany. It entered into force on 14 August 1919. Never formally repealed, the Weimar Constitution lost its governing force with its de facto suspension following Hitler’s rise to power.
B. Historical Background
2. The Weimar Constitution was drafted during an extraordinarily difficult time politically, amidst Germany’s defeat in the First World War, separatist movements in the Rhineland and South Germany, and mass protests in late 1918 ignited by Navy soldiers’ protests against orders to continue fighting (Novemberrevolution) (Schneider 96–98; Mußgnug 346–347). Hurried constitutional reforms in October 1918, particularly a parliamentarization of the monarchy to appease the people, failed (monarchical constitutions). Due to the pressure, including from the United States (‘US’) that made his abdication a pre-condition to peace, Wilhelm II resigned on 9 November 1918 by a public declaration of Chancellor Prince Max of Baden. Ignoring the procedures outlined in the Constitution of the German Empire of 16 April 1871 (hereinafter ‘Constitution of 1871’), Max of Baden further transferred his chancellorship to socialist democrat Ebert and ordered that a National Assembly be elected that was to determine the new state order (Willoweit 312–314). On the same day, democrat Scheidemann declared the Reich to be a republic, abruptly ending the monarchy. The pronouncement of a socialist republic shortly after by socialist Liebknecht had no effect, but it showcased the different powers at play.
3. Ebert immediately established the Rat der Volksbeauftragten, composed of three representatives respectively of the Social Democratic Party (‘SPD’) and the Independent Social Democratic Party of Germany (‘USPD’), to replace the chancellor. After intense debates over the future form of government, a concession by the Länder to keep their territorial statuses and remain part of the Reich until after the elections, and despite an initially strong opposition to a democratic republic by the revolutionary workers’ and soldiers’ councils and violent protests by the socialist USPD (Spartakusaufstand), National Assembly elections were held in January 1919. The parties in favour of a parliamentarian democracy (SPD, Zentrum and German Democratic Party (‘DDP’)) obtained 72.6 per cent of the votes (Weimar Coalition).
C. Drafting History
4. The National Assembly convened in January 1919 in Weimar. Berlin had been deemed too unsafe due to clashes between socialist and democratic socialist factions (Schneider 90). The National Assembly faced momentous tasks, including passing laws necessary to ensure the legitimacy and functioning of the new republic, drafting a new constitution, and negotiating the conditions of the Versailles Peace Treaty (1919) (Treaty of Peace between the Allied and Associated Powers and Germany). Expectations were high, as this was the first constitution developed by an elected organ (Lehnert 103), and the drafters of the constitution had to find compromise between competing visions for the country: the revolutionary, heterogeneous democratic and socialist factions that pushed for a strong, modern (socialist) democratic republic, on the one hand, and the monarchist, conservative factions that sought to preserve the status quo (Willoweit 313).
5. The constitution was drafted in several stages. In November 1918, Reichspräsident Ebert appointed Hugo Preuß, a mainstream social democrat, to prepare a first draft. Following criticism by state governments a state committee was formed to participate in the drafting process. The committee negotiated substantial changes to the draft, particularly concerning representation of the Länder at the federal level (representation of component federal units in federal systems). In February 1919, the government sent the revised draft to the National Assembly. As is typical in German legislative tradition, the draft was reviewed in three plenary sessions in the National Assembly.
6. The text of the Constitution was formally voted on by the National Assembly on 31 July 1919, with 262 ‘yes’ to 75 ‘no’ votes, and one abstention. The ‘no’ votes stemmed from the rightwing and monarchist German People’s Party (‘DVP’) and German National People’s Party (‘DNVP’). They fully rejected the new state form. Reichspräsident Ebert signed the Constitution on 11 August 1919. It entered into force on 14 August 1919 with its publication in Reichsgesetzblatt No 152, replacing the Constitution of 1871. Notably, the Versailles Peace Treaty limited the constitutional powers of the National Assembly. Among other, it forbade the consensual annexation of Austria (Art. 80), imposed demilitarization and the loss of territory, and required the unification of the financial administration due to the declaration of Germany as debtor of the occupation costs and of reparations in an unknown amount (Schneider 98).
1. Organization of the Reich
(a) Democratic Republicanism
9. Art. 1 proclaimed the new identity of the state and, as such, served as the basis for the new state order (Gusy (1997) 82). The Reich was defined as a republic and state power was declared to emanate from the people. Beyond an explicit rejection of monarchy, Art. 1 related the republic to the rule of the people. Legal scholars at the time interpreted the statement as a preference for democratic republicanism (Gusy (1997) 85; republicanism). Rather than opting for a pure parliamentarian democracy, the Constitution established a dualistic power-sharing system between the Reichstag and the Reichspräsident (Pauly 9), and relied on elements of direct democracy in Arts 73–76 and the direct election of both state organs (Arts 22–23, 41).
(b) State Organs
11. The Reichstag was designed as the central representative organ of the people. The modern electoral principles that had already been applied in the National Assembly elections—general, equal, direct and secret vote, as well as a right to vote for women—were enshrined in Art. 22 (universal suffrage). Votes were counted on the basis of proportional representation and there was no minimum threshold for parties to enter the Reichstag. This is often considered as having favoured splinter parties (Gusy (2009) 38; political parties or fractions in legislative body). Parties were not further addressed in the Constitution despite their importance in a parliamentarian democracy (Schneider 99), though this was in accordance with general constitutional practices at the time. Parliamentarians had the same legal status as under the Constitution of 1871: they represented all people, not their party, and were subject only to their conscience (Art. 21). The conferral of immunity ensured that they could carry out their tasks (Arts 36–38; immunity of legislative body members). The main function of the Reichstag was legislation. Further, it served as an important check on the executive; the Reichskanzler and Reichsminister were to resign upon a negative vote of confidence by the Reichstag (Art. 54; no confidence vote). The Reichstag could also remove the Reichspräsident (Art. 43, para. 2). However, the required two-third majority rendered this a theoretical option only.
12. The Reichsrat was to represent the states’ interests in the law-making process and in the administration of the Reich (Art. 60). Initially designed as a second legislative chamber with elected members, following protests by the Länder it was composed of representatives of each state government (Art. 61). Representatives were generally bound by the orders of their state government (Art. 63, para. 1). Overall, the Reichsrat was weak. Its powers consisted mostly of a right to object to legislative proposals and new laws. This marked a significant shift from the Constitution of 1871. There, the Bundesrat had been the highest organ of state (Arts 1, 7, 8 Constitution of 1871).
13. The Constitution assigned the Reichspräsident the role of the highest representative of the Reich. He was to be impartial and embody the continuity previously reflected by the monarch (Gusy (1997) 101). In addition, the Reichspräsident was to provide a counterbalance to the Reichstag. The drafters were concerned that the Reichstag might become too powerful (Pauly 9). To avoid this, significant powers were conferred upon the Reichspräsident, including as external representative of the Reich, the power to issue declarations of war (Art. 45), the right to call referenda over parliamentarian laws (Art. 73), the supreme command over the military (Art. 47), and the appointment and dismissal of Reichministers (Art. 53). Further, Art. 48, para. 1 granted him the right to use military force to ensure states’ compliance with the federal constitution and laws. Above all, Art. 48, para. 2 furnished the Reichspräsident with the right to use all necessary means, also against the government and the Reichstag, to restore public security and order if they were significantly threatened or disturbed. In such cases, he could also temporarily suspend the basic rights enshrined in Arts 114, 115, 117, 118, 124, and 153. The Reichstag was to be informed of such measures and could request their suspension (Art. 48, para. 3), but the president could easily circumvent this protective measure by dissolving the Reichstag and ordering new elections (Art. 25). This right was subject to few requirements, rendering it possible for the president to use it as a means of political pressure.
14. The government of the Reich was established as an independent state organ in deviation from the Constitution of 1871. It consisted of the Reichskanzler as the head of government (Art. 55) and the Reichministers (Art. 52). The chancellor and the ministers depended on the trust of parliament (Art. 54). The government’s executive powers complemented those of the Reichspräsident. The chancellor determined the general policies of the country (Art. 56), and represented the president (Art. 51). All presidential orders and regulations had to be countersigned by him or the competent minister to be valid (Art. 50).
15. The Constitution also created a new judicial body at the federal level, the Staatsgerichtshof (Art. 108 and Gesetz über den Staatsgerichtshof (1921) (Law on the Staatsgerichtshof) (Ger). The Staatsgerichtshof had jurisdiction over federal disputes and disputes between states or the state and the federal government (Art. 15), and claims by parliament that the president, the chancellor or a minister had intentionally violated the Constitution (Art. 59). Ordinary jurisdiction was exercised through the Reichsgericht and state courts (Art. 103).
(c) Unitarism or Federalism?
16. The Constitution also addressed the relationship between the Reich and the states, one of the most pressing issues at the time. Preuß’ vision of a unitary state with equally sized Länder (component federal units) that could arrange their own affairs but were not represented at the governmental level was rejected early on by the states. Ultimately, the federal structure established in the Constitution of 1871 was adopted with unitarist modifications (Pauly 17). Art. 2 determined that the territory of the Reich consisted of state territories, and Art. 13 stipulated that Reich laws superseded state laws, thereby establishing formal sovereignty over the states. Further, states’ constitutional autonomy was limited by a homogeneity clause in Art. 17, a usual constitutional practice at the time. The clause prescribed republicanism and a parliamentarian democracy to prevent a return to monarchy in the states (Schneider 101). Legislative and administrative competences were reorganized. As a basic rule states were in charge, except where the Constitution assigned competences to the Reich (Arts 5–12, 14–16). In comparison to the Constitution of 1871, the legislative and administrative competences of the Reich were expanded significantly. The characterization of this system was disputed throughout the Weimar Republic. Some argued that the Reich was a federation, because the Länder were states with original constitutional power recognized in Arts 5 and 17 (Anschütz 71; Thoma (1930) 169–186; Schneider 103), whereas others deduced from Arts 1, 5 and 17 that the Reich was a unitary state (Poetsch-Heffter 77–78; Wittmayer 131).
17. A much requested territorial reorganization of the states was not achieved. The states were acknowledged as they were. However, they were not enumerated in the constitution to allow for territorial reform pursuant to Art. 18 (Anschütz 42–43). During the Weimar Republic, the number of states was reduced from 26 to 17 (Schneider 100). Significantly, Prussia remained intact, and efforts to increase equality among states were limited, largely to a system of capped proportionate representation in the Bundesrat and a special representation system for Prussia in Art. 61, which accounted for approximately 62 per cent of the Reich’s territory and population (Frotscher and Pieroth 261; Schneider 100).
2. Basic Rights and Duties
18. The second main part of the Constitution, Arts 109–165, established a system of rights and duties of Germans. It was only included in Preuß’ second draft of the Constitution upon external advice (Schneider 106). The section went beyond comparable instruments of the time, as it aimed not only at ensuring certain fundamental rights, but sought to create a comprehensive social order and to address some of the most disputed societal issues at the time. The preamble stipulated that the Constitution should contribute to societal progress (Eichenhofer (2009) 192). This part was divided into five subcategories: individuals (Arts 109–118), communal life (Arts 119–134), religion and religious associations (Arts 135–141), education and school (Arts 142–150), and economic life (Arts 151–165).
19. A central theme, and the first article in this part, was the right to equality. Art. 109 stipulated several facets of equality: equality before the law, gender equality, and a denouncement of noble titles and state privileges attached to them. This focus on equality pronounced a clear rupture with the monarchic system. Throughout the Weimar Republic it remained controversial whether Art. 9, para. 1 covered only formal equality in the application of the law (Anschütz 521) or also substantive equality (Jellinek 163). The latter view prevailed towards the late 1920s (Anschütz 521). Further, this section enshrined classical civil and political rights that had largely been guaranteed in Länder constitutions, such as freedom of movement and right to property (Art. 111), personal freedom (Art. 114), nulla poena sine lege (Art. 116), and freedom of expression and freedom of the press (both Art. 118).
(b) Communal Life
20. This section contained classical civil and political rights, such as freedom of assembly (Art. 123), freedom of association (Art. 124), and right to vote (Art. 125). It further stipulated several social and welfare oriented guarantees and duties, including protection of marriage and motherhood (Art. 119), equality for children born out of wedlock (Art. 121; rights of children), a duty of the state to protect the youth from exploitation and neglect (Art. 122), a duty for all Germans to engage in community service (Art. 132), and the basic principles of civil service (Arts 128–131).
(c) Religion and Religious Associations
21. This subsection reflects a delicate compromise. No strict separation between the state and the church was agreed (Willoweit 320). Instead, religious communities formally obtained autonomy from the state (Art. 137), and were to possess legal personality based on general civil law rules (Art. 137, para. 4). However, if they had acquired the status of a corporation under public law—like the catholic and the protestant churches—they were allowed to retain it (and request church taxes), and other religious communities were also allowed to claim it (Schneider 110). Freedom of conscience and religion or belief, including freedom to create religious communities, were guaranteed in Arts 135–137, in continuation of the General Land Laws for the Prussian States of 1794 and the Constitution for the Prussian State of 5 December 1848 (Schneider 110). Art. 138 guaranteed property and other rights of religious groups and determined that state benefits were to be replaced by a new federal framework and state laws. As the federal law was never passed, the transitional arrangement remained in force. Considering the continuing links to the state, constitutional scholars at the time argued that the state had retained supervision over the churches (Anschütz 637; Prussian Higher Administrative Court, VIII A 10/23 (29 April 1924) PrOVGE 79, 104; opposing Schmitt (1932) 90).
(d) Education and School
22. In this section the drafters succeeded in establishing state supervision of education, including over private and confessional schools (Arts 144, 146, 147), a general obligation to attend school (Art. 145), and a uniform basic school education (Art. 146, para. 1), thereby for the first time guaranteeing equal educational opportunities.
(e) Economic Life
23. The Constitution sought to establish an economic order based on social security and assurances (Willoweit 319). A hybrid model unifying socialist and liberal theories was agreed on (Anschütz 26; socialism; liberalism). Entrepreneurial freedom (Art. 151), contractual freedom (Art. 152) and freedom of inheritance (Art. 154) and property were guaranteed, but were to be further elaborated by law, and could be limited by social considerations. The right to property was expanded to include intangible assets and other rights, and a broader concept of expropriation was adopted (Arts 153, 156; state interference with private property) (Schneider 108). Other provisions, too, sought to realize socialist aims, like a programme for the distribution and cultivation of land (Art. 155) or the general freedom of unionization (Art. 159; unions), a commitment to create a general social security system (Art. 161) and a labour law (Art. 157).
24. Many of the newly created rights (and duties), particularly those concerning economic life, were abstract in nature and required further concretization by law, such as the duty to contribute to public levies (Art. 134) or to attend school (Art. 145). Consequently, the majority of legal scholars and the Staatsgerichtshof regarded these provisions as programmatic legislative guidelines or state objectives rather than enforceable rights (Eichenhofer (2009) 203). Many of the intended reforms of the social order could not be realized during the Weimar Republic. For instance, a general labour law was not passed despite the terms of Art. 157 and efforts to draft such a law between 1919 and 1926 (Düwell 215–216).
25. In addition, at least in the early years, the prevailing view was that the fundamental rights bound only courts and the administration, but not the legislature (Schneider 107).
3. Final Provisions
26. The Constitution concluded with final and transitional provisions (Arts 166–181). Art. 178, para. 1 repealed the Constitution of 1871 to the extent that it was still in force, and Article 178, para. 2 provided that the regulations of the Treaty of Versailles superseded the Constitution.
E. The Constitution in Practice
27. Shortly before the adoption of the Weimar Constitution, the National Assembly had agreed to the draconian conditions of the Treaty of Versailles for lack of a better alternative. The Treaty of Versailles was signed under formal protest on 28 June 1919 and entered into force on 31 July 1919. Key political figures resigned. In the following Reichstag elections in 1920, the Weimar Coalition lost 30 per cent of its electorate (Frotscher and Pieroth 272). Rightwing parties and monarchists convinced the public that the Weimar Coalition was responsible for losing the war and its consequences (Dolchstoßlegende, Willoweit 323). The reparation obligations imposed by the Treaty of Versailles caused severe economic and political difficulties. The Weimar parties with their varied political agendas failed to form stable governments to counter the crisis. Over the course of the Weimar Republic, 21 governments were formed. Civil unrest culminated in the Kapp-Putsch in 1920, the murder of liberal democrat Walther Rathenau and the Hitler-Putsch in 1923 (Frotscher and Pieroth 271–272). National debt increased until in 1922 inflation could no longer be averted (Gusy (1997) 9–17). In January 1923, France occupied the Rhineland arguing that Germany had violated its reparation obligations. Extremist activities by left and rightwing factions threatened to disintegrate the Reich (Willoweit 325). The crisis was contained with presidential emergency measures under Art. 48 against some of the states, and economic measures, in particular a currency reform in 1923 (Frotscher and Pieroth 273; history and concepts of emergency).
28. Between 1924 and 1929, the Weimar Republic experienced a period of stability. Economic recovery and foreign policy aimed at a revision of the Treaty of Versailles through a policy of accommodation were successful: reparation conditions were reduced, in the Locarno Treaties on Arbitration (Arbitration Convention between Germany and Belgium (signed 16 October 1925, entered into force 14 September 1926) 54 LNTS 305, Arbitration Treaty between Germany and Czechoslovakia (signed 16 October 1925, entered into force 14 September 1926) 54 LNTS 343, Arbitration Convention between Germany and France (signed 16 October 1925, entered into force 14 September 1926) 54 LNTS 317, Arbitration Treaty between Germany and Poland (signed 16 October 1925, entered into force 14 September 1926) 54 LNTS 329) and in the Treaty of Friendship Between Germany and the Union of Soviet Socialist Republics (signed 24 April 1926) 53 LNTS 387 its Eastern frontier were recognized, and in 1926 it joined the League of Nations (Frotscher and Pieroth 274–275). Following the death of Reichspräsident Ebert, in 1925 the first presidential elections were held. Hindenburg, an anti-republican conservative and the candidate of the rightwing parties, won in the second ballot (Frotscher and Pieroth 275).
29. The stock market crash of 1929 drew the German economy into another deep crisis (Frotscher and Pieroth 276). Reichspräsident Hindenburg in 1930, after the fall of a moderate government coalition over political disagreement, called into office a presidential government on the basis of Art. 48, para. 2 in clear circumvention of the powers of parliament. He appointed Brüning, an open opponent of democracy, as chancellor (Frotscher and Pieroth 275). From then on, Art. 48, para. 2 became the main governing tool of an autocratic executive (Willoweit 318). By means of illustration, the Reichstag passed only five laws in 1932 compared to 98 in 1930, while the president in 1932 passed 60 emergency regulations compared to five in 1930 (Frotscher and Pieroth 279). Attempts by the Reichstag to block the use of Art. 48, para. 2 via Art. 48, para. 3 led to the dissolution of the Reichstag by the Reichspräsident pursuant to Art. 25 (Frotscher and Pieroth 278; dissolution of the legislative body).
30. In the following years, the national socialist party gradually took over the state. The National Socialist German Workers' Party (‘NSDAP’ or more commonly referred to as the Nazi Party) became the second strongest party in the Reichstag elections of September 1930. Hitler lost the presidential elections to Hindenburg in early 1932 (Frotscher and Pieroth 280), but Hindenburg appointed von Papen, an anti-republican, as the new chancellor of the second presidential government. In the summer of 1932, he used his emergency powers to appoint von Papen commissary leader of Prussia, therewith ousting the last strong socialist democrat opposition in the Reich. Further measures against Prussia were adopted under Art. 48, including a suspension of basic rights to ‘clean’ the police and administration (Preussenschlag, Frotscher and Pieroth 280). Reichstagelections held immediately after the event resulted in a landslide win of 37.4 per cent for the NSDAP. Efforts by the Reichspräsident to keep Hitler from chancellorship failed. Hitler was appointed on 30 January 1933.
31. The Constitution was never formally repealed, but it lost its substantive validity gradually. Historians disagree over whether this had already occurred with Hitler’s appointment as chancellor, with the passing of the Gesetz zur Behebung der Not von Volk und Reich (1933) (Enabling Act) (Ger) by the Reichstag which changed the constitution by abolishing the basic elements of parliamentarian democracy (Schneider 135–136), with the Gesetz über das Staatsoberhaupt des Deutschen Reichs und Erlass des Reichskanzlers zum Vollzug des Gesetzes über das Staatsoberhaupt des Deutschen Reichs (1934) (Law concerning the Head of State of the German Reich) (Ger), which merged the powers of president and chancellor and declared a transfer of the powers of the president upon Hindenburg’s death to Hitler (Mußgnug 346), or with the passing of the Basic Law for the Federal Republic of Germany (hereinafter ‘Basic Law’) on 23 May 1949 (Constitution of the Federal Republic of Germany: 23 May 1949 (Ger)).
32. Today, scholars attribute the downfall of the Weimar Republic and Constitution to several factors: the financial, political and social burdens of the Treaty of Versailles; the world economic crisis; political instability created by democratically inexperienced parties and a strong constitutional position for the president, which made it easier for parties to avoid their constitutional responsibilities (Frotscher and Pieroth 279, 285); the German electorate that increasingly voted for anti-democratic and anti-republican parties (Schneider 136–137); and, in particular, an unwillingness to support the new state form by an increasingly anti-republican and anti-democratic elite (Dreyer 163, 179, 187). The democratically legitimized political elite was gradually removed and parliament was steadily marginalized through presidential measures (Dreyer 184). While the Weimar Constitution is no longer regarded as a deficient instrument unable to counter extremist tendencies (see, however, KPD-Verbot (17 August 1956) 134–138 (Ger)), several provisions facilitated the rise to power of the NSDAP and resulted in its eventual abolishment.
33. The presidential emergency powers under Art. 48 together with the negative vote of confidence in Art. 25 allowed the president to successfully undermine parliamentarian democracy as enshrined in Arts 1, 54, 69, para. 2 (Eichenhofer (1999) IX–X). At the same time, however, the Weimar Republic might not have survived its initial years without the flexibility granted by these provisions (Schneider 136–137). Thus, many scholars today attribute the problem to the anti-republican elites that were willing to overexpand the provisions, as well as a positivist and formalistic judiciary and legal scholarship (Zypries 22; Willoweit 330) that refused to limit the misuses of the Constitution, as witnessed in the judgments of the Staatsgerichtshof concerning the Preussenschlag or the toleration of constant negative votes of confidence (Schneider 137). Influential scholars argued that based on Art. 76 the Constitution could be amended without limitation, and implicitly (Anschütz 403; arguing that Art. 76 did not permit changes to fundamental constitutional principles, Thoma (1932) 153–157; Schmitt (1932) 575–577, 586–587). Further, the Constitution pursued a model of parliamentarianism that allowed anti-parliamentarian and democratic parties to collude to block and overthrow the government (Frotscher and Pieroth 285). A considerable number of instruments were in place to protect the constitution, including the Republikschutzgesetz (1922) (law to protect the republic) (Ger) (see further Dreyer 165). They were used extensively to protect the state, also against the NSDAP until 1932 (Dreyer 166; Gusy (2009) 40).
G. Comparative Analysis and Impact on German Constitutionalism
34. The impact and relevance of the Weimar Constitution for German constitutionalism cannot be underestimated. The Constitution was the first constitution developed on a democratically legitimized basis. Its drafters ensured continuity with earlier German constitutions and state constitutions, in particular the Constitution of the German Empire of 28 March 1849, the first complete draft of a German national-liberal constitution (Frotscher and Pieroth 163, 258). Parallels are visible throughout the document, including the provisions on state organization and fundamental rights.
35. The National Assembly went beyond existing documents and created a modern framework for a comprehensive new state order that encapsulated the thinking of its time and, in some areas, such as democratic electoral principles and social rights, was ahead of constitutional processes in other European nations. The Constitution for the first time enshrined a set of fundamental principles that still form the constitutional framework of Germany, including republicanism, sovereignty of the people, and parliamentarism (Zypries 19). The Weimar Constitution was the first German constitution to establish a broad catalogue of citizens’ rights, a universal right to vote, and gender equality (Zypries 18; Gusy (1997) 78), though most of the rights concerning individual, communal and religious rights were classical liberal rights that had already been enshrined in national laws and state constitutions (Kloepfer 45). Still, with its programmatic provisions, visions for a social economic order and an emphasis on equality and citizens’ obligations, the second part of the Constitution showed a marked deviation from the liberal rights thinking of the 19th century towards a social rights-based constitutional order that was internationally novel (Eichenhofer (2009) 194; Frotscher and Pieroth 268–270; Zypries 20). Some provisions, such as the reference to international law and international peace in the preamble and Art. 4, signalled a clear deviation from the imperial aspirations of the monarchy (Kloepfer 44).
36. The drafters sought to create a cohesive constitution in the tradition of German constitutionalism. However, several foreign (Western) constitutions informed their discussions (Giese 15–16). The Swiss Constitution of 29 May 1874 and the Constitution of the United States of America: 17 September 1787 (US) offered insights into how to integrate federalism and republicanism (Giese 16), and the rules on committees of enquiry (Art. 34), modelled on the British system (Gusy (1997) 138), and those on referenda (Arts 73–76), modelled on the Swiss Constitution, are examples of successful legal transplants. The most prominent, albeit less successful example of foreign influence are the rules regulating the relationship between the president and parliament. While using as a basis the French parliamentary system of the French Constitutions of 25 February 1875 and 16 July 1875, the drafters added elements of the presidential system of the US Constitution in an effort to strengthen the role of the president. Having disregarded the checks and balances of the US system, particularly the independence of congress from the US president (Gusy (1997) 104), this constructual deficit ultimately enabled the ‘hegemonial’ president under the Weimar Constitution with control over both government and parliament (Gusy (1997) 63, 66, 104).
37. The Weimar Constitution heavily influenced the Basic Law, and has had some, albeit limited impact on foreign constitutions. The intention to avoid repetition of regulatory mistakes in the Constitution was a leitmotif in the drafting of the Basic Law (Alternativenthese, Gusy (1997) 78). This is notable in several provisions: Art. 67 of the Basic Law establishes that a vote of no confidence is valid only if the majority of Parliament votes a new chancellor (constructive vote of no confidence), thereby seeking to avoid the political instability created by the negative votes of confidence during the Weimar Republic. Further, the president was largely reduced to a ceremonial position in exchange for a powerful parliament and chancellor (chancellor-democracy, Kloepfer 57). The position of chancellor is dependent on the confidence of parliament, and is only formally called into office by the president. Presidential emergency legislation was replaced with a parliament-bound system (Art. 81 Basic Law). Several mechanisms were established to stabilize the government. The presidential right to dissolve parliament was limited to two instances (Art. 63, para. 4 and Art. 68, para. 1 Basic Law), measures were adopted to avoid minority-chancellorships (Art. 63, para. 4 Basic Law), a prohibition of self-dissolution by parliament was established, and plebiscites were abolished. Furthermore, contrary to Art. 76 which allowed (any) changes to the Constitution, including in statutory laws, by a qualified majority, the Basic Law requires that constitutional amendments must be made by a law which cites the text to be changed, and that amendments require a two-thirds majority in parliament and the Bundesrat (Art. 79, paras 1 and 2). Art. 79, para. 3 of the Basic Law prohibits the abolishment of the federal structure, the participation of states in law-making, and the basic principles of the state (Ewigkeitsgarantie; see also entrenched clauses). Further protections against a ‘quasi-constitutional’ transformation to a dictatorship include Art. 18 of the Basic Law, which allows for the suspension of certain basic rights, and the possibility of prohibiting anti-constitutional parties (Art. 21 Basic Law) and associations (Art. 9 Basic Law).
38. The Basic Law also takes a decidedly different approach to fundamental rights. It establishes the social state principle (Arts 20, 28, social or welfare state), but it does not include social rights or guarantees (critical Eichenhofer (2009) 207). There is a decisive focus on individuals’ rights, which are designed as defensive mechanisms against state action. Art. 1, para. 3 of the Basic Law clarifies that all state branches are bound to respect the fundamental rights.
39. Parallels with the Weimar Constitution include the rules on the Bundesrat, the law-making process, and the election principles (Gusy (1997) 32). Provisions of the Weimar Constitution have been copied in Länder constitutions (eg regarding referenda, see Gusy (1997) 48) and in foreign constitutions (across Latin America the social rights model was relied on, see Martínez 272). Conceptual parallels to the social and economic guarantees of the Weimar Constitution can be detected in the Charter of Fundamental Rights of the European Union (2000) (Gusy (1997) 48).
40. The Weimar Constitution has only rarely served as a point of reference for the interpretation of the Basic Law by the Federal Constitutional Court of Germany (Bundesverfassungsgericht) (Gusy (1997) 44–45, eg Bundestagsauflösung I (16 February 1983) (Ger); FDP-Sendezeit (30 May 1962) (Ger)).
41. The Basic Law did not formally repeal the Weimar Constitution. It determines that the latter continues to apply like regular law as long as it is not in contravention of the Basic Law. Art. 140 of the Basic Law stipulates that Arts 136–139 and 141 concerning the relationship between the state and religious communities form part of the Basic Law. Following numerous reforms, only Art. 109, para. 3, sent. 2, concerning the use of noble titles, continues to apply.
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