An Examination of Significant Aspects of Postwar Public Law with Particular Reference to the New Constitutions of Western Europe
EDITED BY ARNOLD J. ZURCHER NEW YORK UNIVERSITY
NEW YORK UNIVERSITY PRESS
WASHINGTON SQUARE · NEW YORK · LONDON: GEOFFREY CUMBERLEGE · OXFORD UNIVERSITY PRESS
COPYRIGHT 1951 BY NEW YORK UNIVERSITY
Printed in the United States of America
TABLE OF CONTENTS
1 Introduction - ARNOLD J. ZURCHER
2 The Political Theory of the New Democratic Constitutions - CARL J. FRIEDRICH
3 Electoral Changes after World War II - EDWARD G. LEWIS
4 The Position of the Representative Legislature in the Postwar Constitutions - EDWARD G. LEWIS
5 Stabilization of the Cabinet System in Western Europe - JOSEPH DUNNER
6 Local Autonomy in France and Italy - FERDINAND A. HERMENS
7 Functional Autonomy after World War II - FERDINAND A. HERMENS
8 Federalism -- The Bonn Model - JOHN BROWN MASON
9 The British Commonwealth as an Example of a Multinational State System - ADAM B. ULAM
10 Constitutional Documents of East-Central Europe - ROBERT G. NEUMANN
11 Reflections on the Value of Constitutions in Our Revolutionary Age - KARL LOEWENSTEIN
A. Constitution of the French Republic
B. Constitution of the Italian Republic
C. Basic Law of the Federal Republic of Germany
D. Statute of Westminster, 1931
E. Communique and Declaration of the Commonwealth Prime Ministers' Conference
F. Statute of the Council of Europe
THIS Book consists of a series of essays on the postwar constitutions written by eight of America's outstanding specialists in comparative public law. The essays are an outgrowth of papers that were prepared for a two-day round-table discussion group on the postwar constitutions at the Annual Meeting of the American Political Science Association recently held in New York City. Subsequently the papers were entirely rewritten and greatly elaborated. Much new material was incorporated, and the various authors developed their respective topics more systematically and also more comprehensively than was possible in the forum which originally inspired their efforts. In order to enhance the reference value of the book, the texts of the more representative new constitutions and public documents have been incorporated in the Appendix. The result, although hardly a systematic legal or philosophic commentary on the new postwar documents, will nevertheless furnish the student with a satisfactory comparative introduction to such a commentary and provide him with significant interpretations and analyses of at least the more novel institutional aspects of the governmental and administrative patterns that have emerged since World War II.
All involved in this project owe a debt of gratitude to New York University Press for its entrepreneurship in undertaking production of this volume. Much of that debt is owed to the Secretary of the Press Committee on Management and Supervisor of Printing at New York University, Miss Jean B. Barr, for her careful editing of the manuscript and for planning and designing this book. Grateful acknowledgment is also made of the work of her colleague, Miss Anne Koreny. The French Embassy in the United States kindly permitted use of the official English translation of the French Constitution and provided the editor with copies. The English translation of the Italian Constitution is that provided by Messrs. Howard McGaw Smyth and Kent Roberts Greenfield and is reprinted from pages 46 ff. of Documents and State Papers, I, No. I ( April 1948), published by the United States Department of State. The text of the Bonn Charter comes from the official translation of the Military Government. Finally, the editor wishes to thank his secretary, Mrs. Muriel P. Gaines, for assistance given without stint in the physical preparation of the manuscript for the printers.
It is perhaps unnecessary to add that neither New York University nor the American Political Science Association bears any responsibility for the views expressed in the subsequent pages. Neither is there any corporate responsibility on the part of editor and authors for views expressed therein. Each author is solely responsible for what he has contributed; and for the views expressed in that personal contribution he, and none other, receives whatever censure or praise those views may elicit from the public.
ARNOLD J. ZURCHER
New York, 1951
By Arnold J. Zurcher NEW YORK UNIVERSITY
IN the period between the two World Wars, written constitutions had apparently declined in popular esteem and lost much of their erstwhile significance as symbols of political unity or as instruments of political discipline. Faith in the efficacy of such instruments, which attained a high point in the nineteenth century, had by no means been entirely dissipated; nevertheless there were few who shared the belief of a Paine, a Condorcet, or some other late eighteenth-century intellectual that written constitutions might be used to codify a rational and progressive political order or to discourage the abuse of political power. Such a belief, if exhibited in contemporary juristic or philosophic writing, would probably have been diagnosed as a form of nostalgia for outmoded ideas or as rather pronounced naïveté. And if the interbellum generation was not quite ready to take up the extreme views of Edmund Burke and dismiss written constitutions as digests of anarchy or the outpourings of impractical and disgruntled revolutionaries, it included many jurists and politicians who were even more contemptuous than Burke and who displayed that contempt by dismissing the latest imitation of the art of the Abbé Sieyès as a document possessing little more significance than a political platform or a "public-relations handout" of the party or coalition in power.
Reasons for this decline of faith in constitutions are not far to seek. Much of the explanation resides in the impact of the various international and domestic crises that afflicted the past generation, especially the two world conflagrations and the social and economic convulsions attributable in whole or part to the great depression of the 1930's. In nation after nation the accepted constitutional pattern proved to be inadequate -- or at least appeared to be inadequate -- to meet the political needs of so parlous a period. People became acquainted with various kinds of "crisis" or "emergency" regimes; they became conditioned to the exercise of governmental powers not warranted by traditional conceptions of constitutional authority. Often the provisions of a nation's fundamental statute, when not ignored altogether, underwent tortured interpretations and, by a violation of every canon of construction, were made to sanction unprecedented exertions of political power. Not only did this aggravate the semantic confusion so characteristic of current political thought and action on both the Western and Eastern sides of the Iron Curtain; it also brought into contempt the idea that the written constitution established standards for political action and placed limitations upon political discretion. Where the written constitution enjoyed the status of a judicially enforceable limitation upon the political departments of the government, as in the United States, the document sometimes was alleged to be an instrument for frustrating the aspirations for social reform which popular majorities regarded as legitimate. As Professor Neumann makes clear on a subsequent page, contemporary authoritarian states, by prostituting both the symbolism and the text of written constitutions, contributed significantly toward the declining reputation of such documents and their loss of public respect. Cumulatively, the effect of this interbellum experience, when added to the somewhat questionable record of stability enjoyed by some written constitutions in the nineteenth century, notably in France, goes far to explain the low estate to which such instruments had fallen in recent years.
Against this backdrop, events since World War II present something of a paradox. For at precisely the time when faith in written constitutions appeared to have reached its nadir, the world witnessed an outpouring of such documents that is without parallel. Not even the periods of most violent revolutionary upheaval, like those of 1789, 1850, or 1919, witnessed a greater number of efforts to reduce the basic concepts of national polity to written form. Revival of constitution-writing has, moreover, not been limited to Europe. On the contrary, many of the documents have come from the peoples of Asia and Indonesia. Having struck off the shackles of Western political control and become masters in their own house, these peoples have followed Western precedent, even as Japan and China did earlier, and reduced the principles of their newly established statehood to the confines of a single organic statute. Eastern pursuit of Western precedent in this respect has, indeed, been almost too faithful; for the Eastern constitution-writers appear to have absorbed also the Western penchant for prolixity and constitutional "gobbledegook." As a result of this too faithful imitation, India has acquired the unenviable reputation of having formulated what is probably the longest written constitution in history. Its printed English version covers some two hundred pages exclusive of supplementary schedules which account for some fifty additional pages.
At first glance, this extraordinary contemporary outpouring of the product of constituent assemblies might imply a renascence of faith in constitutions. Many supporters of free government, particularly those who interpret free government as limited government, fervently hope that such is the case. That hope, however, ought not to be taken too seriously. The fact is that both the circumstances attending the drafting of the new public documents and much of their content suggest they are in great measure the product of habit -- a kind of tacit response to historical conditioning. With the exception of Britain, which is already surfeited with the symbols of statehood, most contemporary states appear to regard possession of a written constitution as a kind of necessary part of the formal impedimenta of statehood. Especially is this true of states that have just acquired their sovereignty. For them it is almost an indispensable symbol: it is the sign of their independence and political maturity; a necessary part of the lares and penates of their newly found statehood.
That habit bears considerable responsibility for this most recent deluge of constitutions, and not a renewal of faith in such documents, seems confirmed by the relative lack of enthusiasm with which various peoples have greeted the labors of their constituent as- semblies. On a subsequent page, Professor Loewenstein testifies to this absence of enthusiasm. He emphasizes the allegedly "fading importance" of written constitutions among Western European societies which he characterizes as "tired, neurotic, cynical, and disenchanted." Among Western peoples, he suggests, constitutionwriting after World War II was a business that was attended to as a matter of duty and without enthusiasm. Professor Friedrich, who also comments, is somewhat more optimistic, or perhaps less pessimistic, in his appraisal of the significance of the new documents. For him the solons of the postwar constituent assemblies are restrained revolutionaries. They represent a so-called "third force" who do have aspirations; but those aspirations are such eminently conservative ones as peace and security. For these conservative revolutionaries of Professor Friedrich, fashioning the refurbished constitutional structures of the postwar world is undoubtedly a process more significant than a mere ritual, but it is apparently not much more significant.
The relative indifference of the postwar constitution-makers is reflected in their work. These new constitutions may be "new" in a chronological sense, but their substance rarely justifies that adjective. Some "advances" have been made. Suffrage has been extended to women in certain Romance states of Europe. Judicial enforcement of the constitution against legislatures has gained ground in Italy and Germany; and even France has tried to set up nonjudicial machinery to enforce her organic law against a legislature that, under previous republican dispensations, has always been regarded as omnipotent. Here and there an alleged "strengthening" of the executive has occurred, use of the popular referendum has been extended, and some further experimentation with second chambers and advisory "economic" councils has taken place. Also, as we shall note later, some new efforts have been made, on paper at least, to exploit federal and regional principles in the interests of a greater degree of local political responsibility and to assimilate erstwhile colonial territory to a municipal constitutional system. In general, however, the post-1945 documents remind the reader of those that made their début in 1919 or thereabouts. These later documents abound in the clichés of nineteenth-century constitutionalism; they recapitulate with boring fidelity the orthodox formulas descriptive of the representative parliamentary system of government; they are full of vacuous injunctions to public authority to practice benevolence toward the individual. These latter sentiments sound as noble as when they were first expressed a century ago or when they were systematically catalogued in the Weimar Constitution a generation ago. Everyone applauds them as everyone applauds the ideal of a sinless world, but of their precise meaning there is more than a little doubt.
What is especially noteworthy is the almost complete absence of any solutions or prescriptions for the solution of the difficult issues posed by some of the currently favored policies of government. Virtually nothing, for example, appears concerning the administrative and economic problems of contemporary "welfare" politics. Bills of rights may be replete with promises of public beneficence, but they remain curiously silent about how such promises are to be fulfilled. They say little if anything about the standards to be observed in rendering public assistance, nothing about the economic problem of ways and means, and next to nothing about the problem of administration. Related problems resulting from the collectivistic revolution and public economic intervention are likewise passed over in silence. The managerial responsibilities of state enterprise; problems of administrative and budgetary autonomy of such enterprise; the extension of democratic control over vast new areas of public responsibility; the limitations inherent in public planning; the direction and management of economic life which flow from direct public controls over finance, production, and distribution -these are the substance of some of the great constitutional problems of the day. Yet reference to them in the new documents is only sporadic. By and large they are passed over in silence.
Equally ineffective has been the constitution-maker's effort to cope with the problem of concentration of power in the state, again because the problem has been largely ignored. Those efforts that have been made seem largely artificial. At any rate the treatment of this major problem in the postwar documents, reviewed in Professor Hermens' papers on functional and local autonomy and Professor Mason's discussion of German federalism, is not reassuring. It is possible that Italian efforts to promote a new level of local government called the "Region" betokens a direct attack upon the contemporary evil of bureaucratic centralism that is slowly sapping the integrity of political amateurism at the local level. But, again, it remains to be seen whether this Italian reform is more than a paper gesture. As for German federalism, no honest observer can assert that this represents a bona fide German formula of governmental deconcentration; at least he can make no such assertion until Allied control is removed and Germans are masters in their own house. At the moment the West German Federal Republic looks suspiciously like a form of government dictated by the Allied, and especially the French, foreign offices and hardly a genuine expression of the kind of state that the Germans themselves would erect.
Inadequate solutions, or the lack of solutions, for problems like the foregoing, are undoubtedly also due to the popular apathy toward constitutions and the general lack of faith in their significance to which reference was made earlier. But there is another, and an even more alarming, explanation. Stated most succinctly, it is a lack of social consensus. It is the absence of any underlying agreement among social groups about the scope and purpose of government and the relation of government to society.
It is true, of course, that in the existing free societies of Western Europe and other parts of the world the very formation of these new constitutions, and their ratification after discussion and debate, suggest that social compromises have been secured and unity of a sort established. Nevertheless that unity is basically a false one; it is an illusion. In many instances the constitutions are masterpieces of semantic tact; they are compendiums of formulas, principles, and generalities that obscure the absence of agreement on significant detail or that, at best, provide only tentative solutions for bitterly contested issues. Too often the constitutions consist of words and phrases that divide men least; of brittle formulas that sound well but offer little in the way of concrete guides to action. To many -f these formulas parties of the extreme right and left may have given their formal assent. But like the Communist support of the special position of the Roman Catholic Church in Italy's Constitution, the assent represents a purely tactical step. It is an expression of political opportunism, not of constitutional conviction.
Nor is the situation much better among the parties of the so-called "center." In the political lists they may tolerate one another with some decorum and they may agree on what might be termed the processes of free government, but on the goals of the contemporary state they are often as far apart as the more extreme groups. Political clericals, secular, procapitalist liberals, conservative agrarians, Marxian socialists whose color ranges from claretlike red to pastel pink, and miscellaneous groups whose primary aim seems to be their own aggrandizement at the expense of society -- these constitute an alleged "center." But they constitute a center chiefly because they occupy a position between extremes. They are largely incapable of any long-term constructive action, and it is misleading to refer to them as a "third force" or a "vital center" or to apply to them any other label that suggests a conception of corporate unity or a sense of common purpose.
In short, the great liability of the new constitutions is the lack of moral unity in the societies that have promulgated them. It is the absence of anything approximating R ousseau's concept of a "general will." It is the failure to achieve agreement among parties and interest groups on any fundamental common aims and the failure to acknowledge that there are values upon which parties must agree, at least tacitly, not to disagree for fear of bringing the state itself into jeopardy. To reiterate, it is the failure to secure consensus.
It is in this lack of consensus, quite as much as in popular apathy and toleration of the habitual, that we find the explanation for much that is tentative and superficial in the postwar constitutions. Here is the primary reason for the repetition of hackneyed phrases and orthodox formulas. Here is the most persuasive explanation of the failure to assess the impact of collectivism upon personal and group freedom and economic efficiency. In short, here is the reason why the provisions of the new constitutions are so often the "warmed- over" product of the constitutional assemblies of another generation. Glittering generalities can secure the support of politicians of almost any camp, particularly when such generalities are hallowed by long use. So can tried and tested constitutional formulas, however hackneyed. But any attempt to press forward toward the unknown, or perchance toward the unpopular, constitutes a political liability. It is best avoided and left for future resolution. Otherwise cracks are likely to develop in the thin veneer of habit and traditional loyalties that, temporarily at least, hold groups together.
Failure to come to grips with some of the real problems of the contemporary state is not the only liability attributable to the lack of social and moral unity in the community. Probably a more serious danger, because it is more imminent, is the likelihood that the absence of consensus will paralyze the political process in free societies and prevent even the elementary discharge of public business. Western parliamentarism may have developed an excellent procedure for facilitating and encouraging the art of compromise. But none of the parliamentary arts and mechanics can compensate for the absence of social consensus. Indeed, to be effective, parliamentary arts and mechanics must assume consensus. Because of the schisms which afflict free society, parliamentary regimes face the possibility that the arts of parliamentary compromise will prove inadequate and that government by parliamentary majorities will break down. If such a breakdown occurs parliamentary states, new and old, will again find it necessary, as in the 1930's, to depart from constitutional normality and legality and resort to extralegal, makeshift arrangements in order merely to maintain authority. In other words, the penalty for the failure to secure at least a minimum of social unity may well be the breakdown of the elementary processes of government by consent and the administration of further doses of "emergency" or "crisis" government.
That the constitution-makers fear such a breakdown is only too apparent. Their fears are implicit in the various constitutional clauses that seek to give mechanical stability to parliamentary government. Typical are those clauses that require a special procedure to place upon the agenda motions critical of the cabinet or likely to bring about the cabinet's downfall; that arbitrarily delay voting upon such motions and demand extraordinary affirmative majorities for their adoption; and that seek to make dissolution of parliament available to the cabinet in order to curb the more reckless ambitions of opposition party groups. The essays by Professors Dunner and Lewis consider at greater length these efforts to give a somewhat artificial stability to the postwar parliamentary regime. Suffice it to say here that all these efforts are poor substitutes for united and disciplined majorities. That these substitutes can keep the ship of state afloat, when the shoals of real controversy are reached, is doubtful. As previously indicated, one of the discernible trends in the new Western constitutions is the rejection of the historic French doctrine of parliamentary supremacy. Inchoate concepts of a constitutional separation of powers, an allegedly more vigorous executive authority, and, above all, the embryo, if not the fetus, of judicial review of legislative action in Italy and Germany mirror this conservative trend. In one sense this is but another reflection of the distracted and divided political community of our time: it reflects the desire of minorities to erect safeguards against potentially hostile majority coalitions. The decline of the legislature's historic constitutional position is also expressive of the fear that a government which focuses its powers in legislative majorities may not function at all and that, hence, for the safety of the commonwealth, other areas of authority, as august or nearly as august as the legislature, must be groomed. Some of the more conservative groups of the West, like the De Gaullists in France, constantly champion such a view, urging an independent executive to compensate for anticipated parliamentary anarchy. Other groups may not be so explicit about the matter, but their fears of governmental instability are as abiding, even if they formally reject the De Gaullist solution.
Whatever the weaknesses of the new constitutions, as respects the internal affairs of state, they may still achieve stability of sorts if the communities that have adopted them can be given reasonable security against external aggression. Even the nonexpert can understand that the threat of such aggression is another shadow cast upon the postwar settlements within each individual state and that this shadow is even more enveloping and more menacing than the shadow cast by the lack of domestic unity.
Solution of this problem of world order is obviously beyond the competence of any particular state. Nevertheless, the national constitutional arrangements, which these essays describe, impinge formally upon the broader problem of maintaining world order on more than one point. Where they do, moreover, we discover at least the rudiments of a sense of national responsibility for global peace and stability and explicit admissions that the sovereign discretion of the national state must be appropriately limited. Such is the purport, for example, of the constitutional provisions explicitly accepting the principles of international law and the formal offer, in certain of the new documents, to limit municipal sovereignty, on a reciprocal basis, to the extent required for the establishment of effective collective-security arrangements. The new French Constitution, which is perhaps most explicit on this latter point, declares that France will go as far as any other state in accepting such limitations on national sovereignty as may be necessary to the defense of peace (see the Preamble). Clauses such as these denote a new sense of national responsibility for international organization and suggest that the constitution-makers, however uninspired they may have been, were at least aware of the urgency of the international problem.
Equally worthy of comment are the efforts that have been made to integrate into some formal or semiformal constitutional association a metropolitan national state and its erstwhile dependent territories. Oldest contemporary example of this phenomenon is the British Commonwealth of Nations, now officially known simply as the Commonwealth, which was formally originated after World War I. Professor Ulam devotes his essay to the rapidly changing character of this multinational structure, particularly to the changes since 1945, and the effect these have had upon the formal legal description of the Commonwealth provided in the Statute of Westminster. Since the last global conflict, the world has witnessed the efforts of both the Dutch and the French to create similar organizations. The French effort, officially known as the French Union, occupies much space in the new French Constitution and is obviously regarded as a most important part of the new national dispensation.
These multinational structures may be but the last gasps of dying empire; on the other hand, if they should succeed, their contribution to world political integration and world order can be considerable. They can bring into effective, if limited, association many diverse peoples and cultures; establish forums for the discussion and decision of common problems, particularly those of extranational significance; and provide logical steppingstones to broader, and ultimately universal, organization.
Similar in significance are the steps taken by the Western European nations to promote European constitutional integration. Agitation for such integration, small in volume but persistent since World War I, grew after World War II and resulted in the creation of the Council of Europe at Strasbourg. The Consultative Assembly of this Council may be nothing but a debating society at this writing, but the conception of a permanent multinational organization of the states of Europe and plans for extranational projects, economic, cultural, and political, are writ large upon the records of the Council's debates and that of its committees. That conception is also well articulated in the recent parliamentary debates of member states of the Strasbourg Assembly and even in the actual constitutions of some Western European nations. Since World War II, European union has ceased to be merely a vague ideal and has become a concept of public law.
These extranational developments in public law and the effort to integrate political nationalism in a broader juridical order constitute, probably, the most progressive aspect of the product of constituent assemblies after World War II and compensate somewhat for the prevailing lack of originality. They indicate awareness of the fact that the stability of domestic constitutional arrangements, whether innately good or bad, is peculiarly dependent upon the international climate. They are evidence of broad popular acceptance of the proposition that peace and sta- bility within particular states depend upon the maintenance of global peace. Indeed, acceptance of that proposition represents probably the most important advance in political understanding which has been made in the past fifty years, a half century otherwise singularly reactionary in its political practice and singularly unimaginative in its political theory.
This awareness of the dependence of an orderly state upon an orderly world can well mean the salvation of the new constitutional settlements, inherently dubious though their outlook may be. The content of the new documents may be hackneyed, and the documents may scarcely lay claim to the faith of people or challenge their patriotism. Their governmental and administrative arrangements may be threatened by the paralysis of social and moral disunity. But if, contrary to present indications, global conflict is not imminent and if, over the long pull, Fortune be reasonably benign and this new national will to sacrifice sovereignty for international order has a chance to assert itself, these postwar national constitutional settlements may survive indefinitely. Like the constitution of the Third French Republic, which certainly began operations under the most adverse auspices, these new documents may yet enjoy a degree of longevity and acquire a vogue among their respective peoples that will confound their critics, including this one, and surprise even the most optimistic observers.
The Political Theory of the New Democratic Constitutions
By Carl J. Friedrich
ANY attempt to assess the political theory of the new constitutions is confronted with the problem whether to treat the constitutional documents as prima-facie evidence or to search for underlying trends that these documents may or may not express. When Charles A. Beard threw out his challenge concerning "the economic interpretation" of the American Constitution -- a challenge which in later years he sought to soften considerably -- he implied, if he did not state explicitly, that the words the constitution-makers at Philadelphia used were modeled upon their economic interests and the views which stemmed from them. In an interesting detailed application of this general thought, Walton Hamilton and Douglass Adair in their The Power to Govern argued that the word "commerce" must be interpreted in accordance with what "commerce" meant to the fathers: that a broad, mercantilist notion was what the constitution-makers "intended" to have understood in the commerce clause. An examination of the political thought of the new constitutions in such exacting and refined terms would be a Herculean task, little short of an intellectual and social history of Continental Europe during the last two generations. All that is being attempted here is to indicate the broad framework of general ideas on politics into which these constitutions are set. 1
1 The constitutions to be considered here include the French Constitution of 1946, the Italian Constitution of 1947, and the German Basic Law of 1949 -- with occasional references to the German Land constitutions of 1946 to the present; attention is also given to the emergent Constitution of Europe. Regarding leading commentaries for the French Constitution, mention might be made of Maurice Duverger , Manuel de droit constitutionnel et de science politique ( 5th ed.; Paris, 1948), Julien LaFerriere, Manuel de droit constitutionnel ( 2d ed.; Paris, 1947), Georges Burdeau , Manuel de droit public -- les libertés publiques, les droits sociaux ( Paris, 1948), Marcel Prélot, Précis de droit constitutionnel ( Paris, 1948); for Italy, Oreste Raneletti , Istituzioni di diritto pubblico ( 13th ed.; Naples, 1948), P. B. di Ruffia, Diritto costituzionale (lo stato democratico moderno) (Vol. I; Milan, 1949); on the Italian Constitutional Assembly, V. E. Orlando La costituzione della repubblica italiana, which gives textual extracts and an interesting introduction by the editor, is valuable; the Italian text is contained in the volume published by the general secretariat of the Chamber of Deputies in 1949, entitled L'assemblea costituente, which also contains other legislation in summary; for Germany, no good commentaries have yet made their appearance. Three divergent American accounts may be mentioned, however: A. Brecht, "The New German Constitution," Social Research, XVI ( December 1949), 425-73; Hans Simons, "The Bonn Constitution and Its Government,"Proceedings of the Twenty-sixth Institute of the Norman Wait Harris Memorial Foundation, pp. 204-14; and Carl J. Friedrich, "Rebuilding the German Constitution," American Political Science Review, XLIII ( 1949), 461-82 and 704-20. The text of the important constitutional documents is contained in Germany Under Occupation, Illustrative Materials and Documents, eds. Pollock, Meisel, and Bretton ( Ann Arbor, 1949). See also, for a general discussion of the constitutions within the longer perspective of constitutional development, Carl J. Friedrich, Constitutional Government and Democracy ( Boston, 1950), and the literature cited there at length.
The very phrase "political theory" is intended to provide a limiting concept. The new constitutions deal with a great many matters, not strictly "political" in the sense in which that term has come to be specialized for purposes of modern political science. Everything today is "political," of course. But "political" in the stricter sense is confined to the organizational pattern of government, the control relationships, if you please, its functioning processes, and the like. In this sense, the new constitutions represent restorations, rather than revolutions, although they are stases or overturns in the Aristotelian sense. And, yet, closer inspection reveals a revolutionary change of unintended proportions, which I am proposing to designate by the term "negative revolutions." 2
The revolutions of 1640 and 1789 were carried forward with a positive enthusiasm for freedom. The drama and the failure of both revolutions were dominated by this fact; both revolutions provided the stage for long-drawn-out struggles to write a constitution. Each
2 See for this the author's "The Negative Revolutions and the Union of Europe," in Perspectives on a Troubled Decade, eds. Bryson, Finkelstein, and McIver ( New York, 1950), pp. 329 ff.
produced a crop of such constitutions, and eventually a dictator emerged to carry on by force and authority what could not be arranged by co-operation. But the lesson of the struggle for constitutional freedom was not lost; the idea of the rights of man was not dead. In the United States, a group of small, seemingly inconsequential, colonies got together and merged the ideas of both revolutions, forged them into a lasting charter: the Constitution of the United States. In England and in France the same impulse produced constitutional systems in the course of the next generation, and these systems remained.
The same cannot be said for the revolution of 1917. In impulse and in effect it was anticonstitutional. The dictatorship of the proletariat was, in the revolutionary vision, not linked to a constitutional democracy but to a direct democracy of the Rousseauistic model; yet no corresponding realistic appreciation of the limits, as far as size and spirit are concerned, characterized the vision. Both the revolutionaries themselves and the Fascist reaction they brought on stressed total authority and accepted coercion and violence thinly disguised by alleged necessities and dangers.
But now a strange turn has occurred. Out of the battle of revolutionaries, counterrevolutionaries, reactionaries, and innocent bystanders, a third force has emerged. And this third force is spreading. It is recapturing the impetus of the revolutions of 1640 and 1789. In France, in Italy, even in Germany, constitutions have been written by men who are certainly far from the "mad inspiration of history" which Trotsky called a revolution. These constitutions are not the result of any positive enthusiasm for the wonderful future; they flow rather from the negative distaste for a dismal past. What these odd revolutionists are saying primarily is: "No." They do not want Fascism and dictatorship. They do not want Communism and dictatorship. They do not want liberalism and the anarchy of the "free market" and its enterprises growing into gigantic monopolies. What, then, do they want? The answer seems to be: "We want peace. We want a chance to live and if possible to live well. We want something better than either free enterprise or the planning economy. We insist that there must be an order beyond Com- munism and Fascism, and we want to try to work it out." That is why I propose to call these revolutions "negative."
France affirms the rights of man of 1789, Italy affirms the rights and duties of Mazzini's good citizen, Germany affirms the dignity of man and abolishes the death sentence and compulsory military service. Are these not positive beliefs? Certainly they once were. In 1789, the Declaration of the Rights of Man was expected, however, to usher in the millennium. Did the makers of the French Constitution of 1946, reaffirming these rights, share such expectations? Hardly. They only knew that such a program would be less bad than what they rejected: the weakness and confusion of the Third Republic, the glum serfdom of the Vichy dictatorship, the terror of the Communist comrades. Similar observations apply to the other two democratic constitutions. When read with the cynicism of the twenties, or the ideological spectacles of Marxist orthodoxy, these constitutions have, in fact, a hollow ring. There does not pulse in them that passion, based upon the weird mixture of romanticism and scientism, which animated constitution-makers from 1789 to Weimar.
Are the negative revolutions a species of restoration? Do they seek to rebuild what was once there? Admittedly, neither Charles II nor Louis XVIII ever restored the past either; they just tried. But their policies and programs did express the exhaustion of a generation that was tired of enthusiasm, tired of ideas, tired of change. It might seem as if the same exhaustion were sweeping Europe today. Yet, there is a sign that this analogy does not hold, and this sign provides a possible key to the situation. Genuine enthusiasm is felt in many quarters of Europe for the possibility of effective unification. Underlying the strictly practical and pragmatic grounds there exists an undercurrent: a vivid sense of cultural unity and community. It found striking expression in the French Assembly debate that settled Germany's admission to the European Union. This sense of unity, this idea of European culture, unlike the shadowy and somewhat disturbing concept of world culture (behind which lurks the Soviet Russian slogan of world revolution), corresponds to vividly felt realities in spite of the bitter conflicts, and to some extent even because of them.
When T. S. Eliot, during World War II, appealed to the Germans, pleading with those among them who would yet acknowledge the common culture of Europe, he said: "The dominant force in creating a common culture between peoples each of whom has its distinct culture, is religion...I am simply stating a fact." This fact has found striking expression in the new constitutions through the stress laid upon the dignity of man. The way in which this broad concept is interpreted is decisively related to the unity of Europe and distinguishes present European trends from both the Soviet Union and the United States. For this dignity of man is interpreted in all European constitutions to mean freedom of expression and socialization or, perhaps more broadly, social responsibilities. The first sets off Europe from the Soviet Union, the second from the United States. Maybe it will prove unrealizable. But when taken together with the common recognition of European unity, and the willingness to surrender national sovereignty to such higher unity, it may yet revolutionize Europe and the world.
The political theory of the new constitutions that are democratic 3 in the traditional Western sense (the "people's democracies" are here excluded, because their constitutions are façades to a much greater extent than constitutions necessarily are) revolves, then, around four major focal points which distinguish them from their
3 Throughout this chapter the word "democratic" is used in the prevailing Western sense, which was adumbrated by the American Government through its occupation authorities in an effort to differentiate itself clearly from the Soviet position, on July 9, 1946. It stressed, inter alia,
(1) frequent popular elections in which "not less than 2" parties effectively compete, these parties to be "voluntary associations,"
(2) guarantee of basic rights,
(3) "rule of law" ; see for this Carl J. Friedrich and others, American Experiences in Military Government in World War II ( New York, 1948), App. C.
Consideration is focused upon the constitutions of France, Italy, and Germany, the latter term referring to Germany under Western occupation whose constitution (Basic Law) claims to represent all Germany, from a democratic standpoint, just as the republic that has been erected in the Soviet zone claims to do from a Communist ("people's democracy") standpoint. It might have been well to include also the constitutions of the several German states (Länder); there are twelve of them, and all but three have constitutions that resemble the Basic Law sufficiently to reinforce the analysis given here.
Austria was permitted to reactivate the constitution of 1929, to annul at the same time all laws made after March 5, 1933, and especially the Fascist Constitution of 1934 -- an inadequately noted and belated recognition that Fascism came to Austria at the same time it came to Germany, though in attenuated form. The constitutional situation in Austria deserves and requires separate analysis.
predecessors: (1) reaffirmation of human rights; but (2) efforts to restrict these rights in such a way as to make them unavailable to the enemies of constitutional democracy; (3) stress upon social goals and their implementation through socialization; but (4) efforts to circumscribe these goals and their implementation in such a way as to prevent the re-emergence of totalitarian methods and dictatorship. With reference to all four aspects, a comparison reveals that, generally speaking, they are most explicit in the German Basic Law, and least so in the French Constitution of 1946, the Italian Constitution occupying a middle ground. This fact is in keeping with the relative depth of the totalitarian impact, comparatively, in the three countries, as well as with the time sequence of the three constitutions: 1946, 1947, 1948. This sequence deserves attention, because it suggests that we are here face to face with an emergent trend still in the process of crystallization.
At this point the question may well be asked: What right have we to consider the French, the Italian, and the German Constitutions together? Is not the political theory of a constitution bound to be affected by preceding political experience? So put, a certain divergence is explainable: the more intense the experience with Fascism, the more poignant is the political theory of the new constitution. This reflection reinforces the point made earlier about the time sequence. Furthermore, Fascism represents a pattern of ideological reaction to Communism, and we face in any case the related problem of Communist danger. In this respect, France and Italy are today more vulnerable than Germany, considering the breadth of electoral support in these countries for Communism (approximately 30 per cent as against 8 per cent in Germany); but Germany is confronted with the impact of Communist control in the Soviet-occupied zone and the threat of a war in which the country would forthwith be overrun by victorious Soviet armies. These armies would no doubt establish "people's democracies" in their wake, and hence every German, so the saying goes, has his Communist friend, as a re-insurance policy.
Another common ground of these three constitutions is the Rousseauistic tradition regarding democracy that the three countries share to a large degree. What I mean by this tradition is not necessarily something to be found in Rousseau himself, but something associated with his work and thought since the French Revolution: radical majoritarianism. It is the view that the majority, as such, provides an implicit and indubitable "legitimacy" in the determination of public policy and general laws. Reinforced by Jacobinism in France, by Mazzini in Italy, and by Kant and the Kantians in Germany, this view inclines to reify the concept of the general will in terms of actual votes taken in elections, referendums, and the like. That is to say, with a general skepticism about the capacity of man to free himself of such prejudice-creating frameworks as his class and economic interest goes the conviction that the general decisions in the body politic result from an act of will, rather than rational deliberation. Also involved is a tendency to disregard (a) the degree of reversibility of decisions, and (b) natural limits to any decision, resulting from the inherent conditions with which the decision is concerned. 4 But politically decisive is the disregard for the minority, including the individual. There is little understanding in this tradition of the delicate balance between the majority's and minority's "rights" in a free society and the persistent difficulties inherent in any scheme which sets out to achieve this balance in such a way that neither of two undesirable results arises: (a) that the minority is tyrannized over by the majority, (b) that the majority is prevented from acting by the recalcitrant minority. Much of the best thought of constitutional theorizing in English-speaking countries has, as everyone knows, gone into the exploration of these issues; Harrington and Locke, the Federalist and John Stuart Mill, and a host of others have tried to resolve the numerous problems posited by what I once called "one majority against another: populus semper virens." This problem is, of course, at the heart of constitutional liberty, as Kant well knew and made explicit in spelling out the implications of Rousseau's
4 For a more detailed discussion of these problems, see my The New Image of the Common Man ( Boston, 1942; new ed., 1950), chap. iv; for a contrary view, see Edwin Mims, Jr., The Majority of the People ( Toronto, 1941), and Willmore Kendall , "The Majority Principle and the Scientific Elite," The Southern Review, IV, No. 3 ( 1939). Neither author deals with (a) above.
concept of the general will. 5 But Continental European democrats, in the tradition of the Jacobins, have tended to neglect these problems, with the result that constitutionalism has been a weak ingredient in their democratic ideology.
It is not possible to consider constitutional provisions in detail, let alone the debates in terms of which their meaning becomes clear. It must suffice to indicate some broad lines of analysis to be implemented by the other essays that follow. Relatively small is the influence of British and American constitutional experience upon these new constitutions, in spite of the manifest "success" of these models in mastering the political tasks with which men, working with and through them, have had to deal. Vague excuses, such as "America is different" and "Britain's parliamentary system is inimitable," served to insulate native thought habits from undue disturbance by these Anglo-American traditions. In Germany, this propensity to stick to local habits was, of course, reinforced by the brutal fact of occupation, which made it unattractive for a politician seeking popular approval to appear to copy the occupants' ideas on democracy in detail; it was bad enough to have to "democratize" under instructions. For the Social Democrats, the unscrupulous propaganda of the Communist party exploiting this weakness was a prime factor in making them move with the greatest circumspection in all matters of this kind. Whatever the reasons, the influence of British and American constitutional thought was certainly quite limited.
There is, however, one important feature of American constitutionalism that has taken hold of Continental European theorists to an unprecedented extent, and that is the idea of making the courts, or at least a judicial body, the guardian of the constitution, rather than the legislative and/or executive authorities. Here again, the French provisions are less pronounced than the German and Italian ones. Austria has had a limited constitutional judiciary under its constitution of 1929, now revived. 6 It has always been recognized
5 See for this my Inevitable Peace ( Cambridge, 1948), as well as Professor Lewis W. Beck's Introduction to his selections of Kant.
6 See Ludwig Adamovich, Grundriss des oesterrischischen Verfassungsrechts ( 4th ed.; Vienna, 1947), esp. pp. 303 ff., where the narrow limits of judicial review in Austria are indicated.
in the United States that the existence of a federal system greatly contributes to the need for, and the vitality of, a judicial guardianship over the constitution. The absence of such a federal system in France, its emasculated form in Italy with its regions, and its presence in both Austria and Germany undoubtedly explains to some extent the difference, in stress and emphasis, upon judicial review. The French organized merely a "constitutional committee" consisting of the president who presides, the presiding officers of the two houses of the legislature, and ten members of the houses -- seven from the lower, three from the upper -- who are chosen annually by proportional representation. It is obvious that such a body, modeled upon a proposal once advanced by Sieyès, is still very close to the legislature (as are similar ones in a number of the German states). Actually, by the end of 1949, it had met only once. By contrast, the Italian Constitution, definitely implemented by a constitutional law, set up a constitutional court (Arts. 134-137) consisting of lawyers (jurists) who serve for twelve years and are nominated one third by the president, one third by parliament, and one third by the judiciary. They may not be parliamentarians. The German Basic Law likewise provides for a constitutional court (Arts. 92-94), but half its members are elected by the Bundesrat and half by the Bundestag, and its jurisdiction is more fully described. Since the law envisaged by the Basic Law has not yet been adopted, it remains to be seen whether an attempt will be made, as has been the case in some of the Länder, to emasculate the court by excluding individual litigants and similar procedural devices. The German Basic Law shoulders the constitutional court with the task of determining who has abused various basic rights "in order to attack the free, democratic basic order" and provides for the court's pronouncing the extent to which any such attackers have forfeited these basic rights. While the intention of this provision (Art. 18) is laudable, insofar as it seeks to prevent to some extent the re-emergence of Fascist-Communist attempts to twist constitutional freedoms into anticonstitutional tools, the article is a dangerous weapon. In the light of experience in older constitutional democracies, it is certainly well that this weapon be placed in judicial, rather than executive, hands.
This recognition of judicial protection for constitutional charters is of fundamental significance for the political theory of the new constitutions: not only does it relate clearly to the broader and deeper appreciation of the importance of civil rights, but it also clearly signalizes a recognition of the constitution as a fundamental law in a manner not customary in Continental Europe before. It represents a departure from the older, radically majoritarian, position noted earlier in this paper.
Returning now to the general issue of the reaffirmation of human rights, this trend in European constitutional thought is marked, specifically, by a tendency to put such rights into more forthright language than has been customary since the French Revolution. The reason is apparent enough: Fascist and Communist perversion of general paper declarations has shown how useless such declaratory rights can be. The "constitutions" of the Länder in the Soviet zone of Germany, for example, contain high-sounding lists of such rights, but their interpretation is left to a committee of the Communistdominated parliament. While it would be futile to assume that, under Russian bayonets, judicial safeguards would be any better, the complete concentration of power in the hands of a majority party, so called, reveals the central issue of these rights: How can they be enforced? There are, of course, still such qualifying phrases as suggest interpretation of these constitutional rights by legislation (e.g., Italian, Arts. 14, 21, freedom of the press: "contrary to good custom," etc.; German, Arts. 2, 4, 8, 10). The rather numerous references to such laws in the German case would be more objectionable if the Basic Law did not also provide (Art. 19) that "in no case may a basic right be altered in its essential core (Wesensgehalt)." 7
Both constitutions conceive of these rights as not limited to the
7 We are concentrating in this discussion upon the Italian and German provisions, because the French relegated the statement of basic rights to the preamble. However, the earlier French draft that was rejected by the voters on May 5, 1946, did contain such a bill of rights, which to a considerable extent fits into the analysis above (not, however, into the anti-Communist part of it). Cf. Georges Burdeau, Manuel de droit public. The authoritative Précis de droit constitutionnel by Marcel Prélot, a member of the constitutional committee, entirely discards the preamble and speaks of the rights having been "eliminated," and in the author's view rightly so.
individual but as social and economic in their ramifications. In fact, the Italian Constitution, like the discarded French draft, elaborates these social and economic aspects into a broad pattern; the German Basic Law is briefer, but the fundamental outlook is the same. Thus the state appears as the collective assisting in the realization of all these rights, rather than as the antagonist of the individual's selfexpression. Education and family life (Italian, Arts.29-34; German, Arts. 6-7) and the care of the indigent and the underprivileged are thus seen as social rights, while the right to work, and to social security (Italian, Arts. 35-38; German, Art. 12) when unable to work, take their place alongside the right to organize and to conduct strikes (Italian, Arts. 39-40); they are followed, rather than preceded, by the right of private initiative and of property. But these former individual or natural rights are now carefully circumscribed by such expressions as that they must not be contrary to social utility or do damage to security, freedom, or human dignity (Italian, Arts. 41-42; German, Arts. 14-15). These matters deserve the greatest attention; it is easy to laugh off such broadly sketched social philosophy as in no sense a guarantee of individual rights. Those individual rights, the freedoms of expression, and of personal security and privacy, also find their place in these constitutions and at times are carried to much greater length than in older constitutions (e.g., contrast the German Basic Law guarantee, Arts. 3-4, that no one may be compelled to serve militarily against his conscience, with Italian, Art. 52). But there is a definite effort made in these constitutions, as had been done earlier in the Weimar Constitution and in the Austrian Constitution of 1929, to anchor the human rights of the "welfare state" in the constitution. In conclusion, it might be noted that parties are recognized as instrumentalities of democracy and that these parties themselves need to be democratic (Italian, Art. 49; German, Art. 21).
The need for preventing the enemies of the constitutional order from utilizing such broadly conceived rights for the purpose of destroying the constitution itself is more marked in the German, than in the Italian, Constitution. In the latter, it is merely proclaimed that all citizens have a duty to be faithful to the Republic and to observe the constitution and the laws. The German Basic Law, on the other hand, proposes, as already noted, to put the enemies of the constitution beyond its protective frame. It goes so far as to attempt to provide (Art. 143) a criminal sanction against attacks on the constitution, written apparently with direct reference to Hitler's seizure of power "from within." Similar provisions are found in the several Land constitutions.
Socialization and planning are given constitutional sanction in all three constitutions, and there can be no doubt that the political theory of these constitutions encompasses these modern approaches. While rather controversial, they constitute, according to prevailing opinions, extensions rather than perversions of constitutionalism. This is not the place to elaborate such an idea, 8 but there can be no doubt that the makers of these constitutions entertained the hope that such a solution could be found. Thus, Article 25 of the French Constitution provides for an economic council which, apart from advisory legislative duties, "must be consulted in the adoption of a national economic plan for full employment and the rational utilization of resources." Likewise, the Italian Constitution envisages such an economic council (Art. 99). The German Basic Law, in its long list of legislative competencies of the Bund (Arts. 74-75), includes socialization and planning among these federal activities. Before the Basic Law came into being, a socialization law, representing a compromise between Christian and Social Democrats, had already been formulated and passed by the legislature of Land North-Rhine-Westphalia (in September 1948) but was suspended by the British in order not to anticipate federal legislation in this field; a similar situation prevails in Western Berlin. Likewise, Hesse passed a Shop Council Law, involving the principle of workers' participation in management, similarly suspended by the Americans. This law, too, represented a Christian and Socialist compromise. Finally, the Bizonal Economic Council prepared a "deconcentration law," which is being brought forward under the Basic Law's enabling clause in this field. All these activities, no less than the socialization measures in France and Italy, show that these consti-
8 Constitutional Government and Democracy, chap. xxiii.
tutional provisions represent a broad sweep of political thought, as do efforts to develop national planning, like the Monnet Plan. They have been greatly strengthened by the pressure for implementing the Marshall Plan. But political theory is no longer unaware of the totalitarian potentialities of a socialized and planned economy. It would be very misleading, however, to pretend that these constitutions or their makers had as yet made any very striking contribution to the solution of the problems of the rival claims of freedom and authority under such conditions. A slogan, the "socialmarket economy," is making itself heard in connection with the German Basic Law, but whether it will turn out to be more than a "conjunction of opposites" remains to be seen.
The slogan of a "social-market economy" (soziale Marktwirtschaft) has certainly become the target of numerous angry attacks by German Social Democrats. In these "broadsides" the underlying conflict between the two major elements supporting European democratic constitutionalism is finding vigorous expression. It is important to bear in mind that all three constitutions (as well as the German Land constitutions) are the result of compromises between these Christian and Socialist Democrats, united primarily by their common hostility toward the totalitarianism of right and left (with some significant differences of emphasis in this respect also). But beyond this common adversary, the approaches of the Christians and the Socialists are rather widely divergent. It is not only that the Christians assign a maximal role to religion in the ordering of social relations -- from which an emphasis on education and the like stems -- whereas the Socialists, while no longer doctrinaire atheists, prefer to leave religion a private matter and build the constitution upon a civic spirit; but, in keeping with this theoretically significant divergence in their general outlook, the Christians tend to minimize the role of the state in social betterment, while the Socialists consider it decisive. Such compromise legislation as the socialization law, passed in September 1948 in North-Rhine-Westphalia (but suspended by the British occupation authorities), was very difficult to achieve because of this radical divergence in viewpoint; a mixture of the two outlooks is reflected in the law's essential provisions. It is, in this connection, worth while to note the difference in terminology: Continental Europeans often speak of socialization as different from nationalization, in the sense that the latter involves the "state" as owner and manager, whereas the former does not necessarily do so.
This basic divergence in attitude toward the degree of creative potentiality of state action is reflected, in turn, in the two parties' different attitude toward federalism. The Christian Democrats favor whatever degree of regional and local autonomy can be secured under prevailing conditions. Communal autonomy in France, regional autonomy of the provinces in Italy, and states' rights federalism in Germany are merely three cognate expressions of the same underlying partiality for "grass-roots democracy," as Americans like to call it. There are, of course, considerable differences of opinion within the Christian Democratic movements, but the general trend cannot be doubted. The Socialist Democrats, on the other hand, even if not outright centralists, incline toward the solving of social problems by means of state action in all fields. Yet their ideology contains a distinct paradox in this general outlook, for, while favoring the state, they do not favor "bureaucracy" ; they are forever insisting that the civil service must be "democratized" and thus brought within the general framework of their "civic responsibility" pattern of political theorizing.
But whether the Christian Democrats and the Socialists work together in a coalition, as in France, Italy, and a number of German states, or whether they confront each other as government and opposition, as in the Federal German Republic and other German states, it is in any case clear that the continuing process of molding constitutional developments is largely the result of their recurrent compromises. For a constitution consists not merely of the compromise arrived at, when its formal provisions were drafted, but of the ever-changing interpretation for its provisions provided by those in power as the political situation unfolds. Perhaps these compromises would not be possible if there were not increasing pressure from the partisans of totalitarian solutions inside and outside these countries; no one knows. The essential fact remains that the divergent theorizing of the Christian and Socialist Democrats coalesces into a compromise practice under these constitutions, and that in the course of this development there is unfolding a "common ground" of constitutional democratic theory which is more moderate than the viewpoints of either of the theoretical contestants.
To round out the analysis, one might mention some governmental institutions that represent, at least negatively, a taking of stock of European constitutional thought and an attempt to transcend the challenge of totalitarianism. For one, the establishment of a Council of the Judiciary in both France and Italy, to weaken the bureaucratic hold of the justice ministry upon courts, is noteworthy. French desire to emulate the British Commonwealth policy has found expression in the very interesting French Union, through which effective participation in government of all those living under French law is eventually going to be brought about. Italy has also made an attempt, albeit a feeble one, to get away from overcentralization by the recognition and organization of regions with a measure of autonomy; while Germany, partly under Allied pressure but also responding to ancient traditions, has re-established a thoroughgoing federalism which, freed from the Prussian incubus, may prove a workable scheme and more truly federal than the Weimar Republic or even the Kaiserreich. Germany's Basic Law has also made an interesting attempt to avoid the instability of governments resting upon coalitions in a parliament by making votes of lack of confidence depend upon the opposition uniting in putting forward a new chancellor, and giving the chancellor the right to dissolve. But this provision (Art. 67) may lead to a dangerous stalemate, since another article provides that a majority consists of the majority of all members of parliament (Art. 121), which suggests that obstructionist minorities, even though they cannot agree on a chancellor, may thwart all legislation by staying away. 9 The diffi-
9 These provisions are given especial attention by Brecht, op. cit. Actually, similar provisions have worked reasonably well in Württemberg-Baden; they have now also been incorporated into the new constitution of North-Rhine-Westphalia. See, for an interesting comparative analysis, Friedrich Glum, Das parlamentarische Regierungssystem in Deutschland, Grossbritannien und Frankreich ( Munich, 1950), esp. chap. xiii. Dr. Glum takes a critical view of this new system, which he believes will end by leading to minority cabinets that will have to yield to a determined anticonstitutional opposition (cf. pp. 333 ff.).
culty is enhanced by the weakness of emergency powers under the Basic Law. This is a countertrend in Germany; in France and Italy the emergency powers have been strengthened, and these provisions have already proved their value. Up to the end of 1950 this problem was not serious, because behind any such powers of the German Government there stood the authority of the occupying powers who, under the Occupation Statute, had reserved to themselves the right to resurrect their "full authority," not only in the interest of their own security and obligations, but also "to preserve democratic government in Germany" (Occupation Statute, Art. 3). But if the Occupation Statute should be abrogated, without any radical amendment in the Basic Law to correct this weakness, a very serious situation might develop. The abuse of Article 48 of the Weimar Constitution by the antidemocratic elements around Hindenburg in 1932-1933 has obscured the fact that, as had been intended, this article served the constitutional system when it was under very serious attack in 1923. Both the Communist rebellion in Saxony that year and the so-called beer-hall Putsch could probably not have been handled successfully by a government that had had at its disposal only the powers which the Basic Law provides in the case of an emergency. Nor could the Länder be expected to step into the breach; their constitutions also contain rather inadequate emergencypower provisions. This is notably true of the two largest states, Bavaria and North-Rhine-Westphalia. 10 Under the circumstances, it is to be hoped that the United States, Great Britain, and France will, under any kind of negotiated security treaty, maintain some sort of prerogative in the handling of emergencies.
Perhaps the most startlingly novel aspect of these constitutions is their abandonment of the idea of national sovereignty as a central presupposition of their political theory. Here, again, the constitutional provisions are increasingly radical, as we compare the French,
10 Art. 60 in the latter constitution only provides for the special case in which the Landtag (legislature) is prevented from sitting. The Bavarian provisions resemble those of the Basic Law.
the Italian, and the German documents. The French Constitution states that "on condition of reciprocal terms, France shall accept the limitations of sovereignty necessary to the organization and defense of peace" (preamble). The Italian Constitution, in Article 11, provides that Italy "consents, on conditions of parity with other states, to limitations of sovereignty necessary to an order for ensuring peace and justice among the nations; it promotes and favors international organizations directed toward that end." The Basic Law's Article 24 elaborates this thought by the following: "(1) The Federation may, by legislation, transfer sovereign powers to international institutions. (2) For the maintenance of peace, the Federation may join a system of mutual collective security; in doing so it will consent to those limitations of its sovereign powers which will bring about and secure a peaceful and lasting order in Europe and among the nations of the world. (3) For the settlement of disputes between nations, the Federation will accede to conventions concerning a general, comprehensive obligatory system of international arbitration." It will be noted that paragraph (2) specifically makes reference to Europe as an area to which the national sovereignty might yield its various rights. While this provision does not preclude participation in the looser kind of league that the United Nations constitutes, it unquestionably is intended to be a more inclusive commitment. 11 This tendency was reasserted by a resolution in the Bonn Parliament, passed in July 1950, instructing its delegation to the Consultative Assembly of the Council of Europe to "work for the establishment of a government and parliament of Europe" and authorizing it "to transfer to such government and parliament all such authority as other European governments and parliaments were prepared to transfer to it." The resolution passed 362 to 40. The French Parliament, likewise, has gone on
11 Whether membership in the United Nations entails an infringement of national sovereignty has been a subject of dispute. The Charter explicitly states that the member states are "sovereign" -- as did the United States Articles of Confederation (in Art. II). On the other hand, member states can be committed to actions involving war without their consent, except for those states that exercise a veto power in the Security Council. Yet what this commitment actually amounts to, the Korean crisis has revealed. It seems fair to conclude that, at present, the United Nations Charter leaves member states sovereign; moves to alter this situation have so far not succeeded.
ecord in supporting its government in its efforts to establish a government of Europe, and the foreign-policy debates of the French Council and Assembly are full of references to this idea, as are the resolutions of political-party congresses. The M.R.P.F. (Gaulliste), for example, has adopted a radical plank supporting a government and parliament for Europe.
All these developments point toward what seems to be a central development of political thought in Continental Europe; namely, the establishment of a federal government for Europe as a whole supported by a European "nation." This European sentiment has grown very rapidly in the course of 1949 and 1950 and in many ways constitutes a revolutionary development. It is the positive projection of the negative revolutions that occurred in France, Italy, and Germany. By the end of 1950, this novel constituent power had become very active. Transitional institutional forms had been set up in the form of the Council of Europe, consisting of Ministers and a Consultative Assembly, with headquarters at Strasbourg. At the same time, the Schuman Plan, so called, had led to the draft of an international "government" of the coal and steel industries of France, the Benelux, Italy, and Germany (Federal Republic). Plans were afoot for the establishment of a European army and for a "government" of agriculture. These developments represent what is called the "functional" approach as contrasted with the "federal" approach of the Council of Europe and the more far-reaching plans to convert the latter into a government of Europe. The issue of functionalism versus federalism has been hotly debated and is not settled, by any means. What concerns the student of political thought is the radical turning away from nationalism involved in all these developments and the substitution of a regional internationalism. This regional internationalism could, and in quite a few minds does, involve a new "nationalism" on a broader plane. As it is customary to speak of Chinese or Indian "nationalism," meaning thereby the sentiment of allegiance and political support for the broad cultural entities of China and India, so European culture is very much the focal point of attention of the European movement. Perhaps one should speak of "culturism" rather than nationalism.
On the other hand, the peoples of Europe are being referred to, from time to time, as a "nation" already, and a number of the characteristic elements of nationalism are present in much of the thinking and arguing over the "Pan-Europe" of the future. But this Europe-in-the-making must, in view of the diversity of its "national" subcultures, try to organize itself federally. This means that constitutionalism has suddenly acquired new life and significance, for a federal state cannot be organized, except on a constitutional basis. Its characteristic division of powers (or competencies) along regional lines, i.e., between the federal authorities and the local constituent units (states, Länder, cantons, etc.), presupposes a written document. This document must be protected by adequate sanctions and calls for continuous interpretation by some kind of judicial body. 12 Such a federal union will not come into existence without a vigorous constituent power, sufficient to overcome local vested interests, sentiments, and ideology. Within the Consultative Assembly at Strasbourg, in the meeting in August 1950, all this was proposed, but the demand for the election of a constituent assembly was thwarted by opposition in the Council of Ministers, especially opposition by Britain. Britain, which is governed under an ancient and deep-rooted constitution, has not experienced the rise of such a constituent will to create a new constitutional order as is found on the Continent. Her constitutional tradition is "organic," in the sense that the grown, as contrasted with the made, constitution appears to her people the sound and natural process. No federating of discordant elements under outside pressure was involved in the process either -- the union with Scotland having been brought about by quasi-dynastic methods. This view is sensible, if there is adequate time for the growth. For actually "growth" is a slow accumulation of rules and institutions over a long period of time. But there are situations when a new organization has to be created at one time. This sort of event is characteristically involved in the founding of federal states as they emerge from a preceding congeries of independent units. The Europeans who insist upon the federal, as
12 See the theory of federalism given in my Constitutional Government and Democracy, previously cited, chap. xi.
against the functional, approach are convinced that such a time has arrived for them. They have come to this view mainly for three reasons: first, the need for achieving some measure of military security in the face of the Soviet Union, without so much dependence upon the United States as is at present required; second, the need for much larger market areas unimpeded by tariffs, foreign exchanges, and the like; and, third, the desire to eliminate the destructive intra-European warfare (and, at present, reconstruction to overcome its effects). In other words, European union has a military, an economic, and a broad political objective in view. To each of these major objectives there corresponds a series of activities, roughly N.A.T.O., O.E.E.C., and the Council of Europe. But behind these immediate objectives, and giving them meaning and significance, is the sense of European culture as a precious heritage to be preserved, a vital challenge to be met.
A great deal of theorizing is going on in Europe at the present time concerning these developments. This theorizing is essentially constitutional in nature. It has significantly intensified the grasp of the inherent meaning of constitutionalism as a system of effective regularized restraints upon a legally organized government. Past Fascist experience, as well as the specter of Soviet dictatorship, have combined to focus attention upon a number of interrelated propositions: that the German problem cannot be solved without a united Europe within which Germany may develop economically and otherwise; that the Communist problem cannot be solved without a united Europe, one that will have a large and prosperous economy; that the Fascist problem cannot be solved without a united Europe in which the appeal of emotional mass nationalism will be attenuated by supranational allegiance. This supranational allegiance found expression in the adoption of a charter of basic rights at Strasbourg in August 1950. The charter represents the thought of the three constitutions we have already studied. It is not novel, any more than they are. Ancient truth, das alte Wahre in Goethe's sense, has been embodied in this document. And yet there is something profoundly significant, from the standpoint of political thought, in this common action. Si duo faciunt idem, non est idem. It is fulfillment of the universalism of the English and French revolutions. Both are here being transcended; their specifically local and national orientations have been left behind, and a more truly human embodiment has been given to these ideas. For if all Europeans are now equal before the law, it means that they all acknowledge themselves to be equal to each other. National conceits and pretensions are being laid aside, or at any rate recede into the background.
Before concluding this general sketch of the political theory of the new European constitutions of a Western democratic type, it seems important to note one rather striking divergence from the American, if not from the British, climate of opinion. Nowhere on the Continent is there to be found any genuine "belief in the common man," as that belief is taken for granted in the United States. In fact, the very term is nonexistent and hence untranslatable. This extraordinary personification of American democratic traditions is, throughout Continental Europe, confused with the mass man. Attacks upon the mass man, such as Ortega y Gasset's, have achieved very wide currency among Europeans of presumably democratic convictions. Not only Europe's deep attachment to culture, but the Marxist insistence upon the class-conscious elite (in the socialist sector), and the corresponding elite notions in the catholic tradition, have combined to prevent the rise of any such confidence in the common man's ability to deal with common concerns of the community as is generally accepted in America, even by people with sophisticated ideas about the workings of democracy. Somehow, this lacuna in European democratic thought seems related to the exaggeration of the majority's views on one side and to the role of the state on the other. In both cases, we must recognize in European democratic theory a stronger emphasis upon the collective aspects of society and government and a corresponding weakness, when it comes to the individual. Characteristically, European parliaments make quite inadequate provisions for the contact between the citizen and his representative. European party leaders tend to become rather authoritarian, as soon as they have achieved a measure of status and leadership. The resulting reaction of the people at large is one of indifference, cynicism, and even antidemocratic (though not necessarily prototalitarian) sentiments. Whether a belief in the common man could be generated to remedy these defects seems doubtful. As the gentleman was the embodiment of England's ideal of man in an aristocratic age, so the common man seems America's personal "mirror of man." Some of the more thoughtful European theorists appreciate the weakness resulting from the absence of such a personal projection of democratic ideals, especially in the face of an aggressive totalitarian challenge. But is that enough?
In sum, the negative revolutions that have occurred in Western Europe as a result of the victory of British and American arms over Fascism are animated by a spirit of reconstruction. The political theory associated with these revolutions and with the resulting constitutions is one of moderation and compromise. It seeks to transcend the totalitarian challenge, not by a blind appeal to the past, but by a patient effort to recapture the essentials of human freedom and dignity. The political thought of the negative revolutions is motivated by the social and economic ills of an aging industrial society, rent by violent revolutionary claims for radical improvement. Yet, on the whole, it is still true that Continental Europeans stress abstract principles, rather than specific procedures and concrete solutions. Quite a few years ago, John Stuart Mill wrote:
The common-places of politics, in France, are large and sweeping practical maxims, from which as ultimate premises men reason downwards to particular applications, and this they call being logical and consistent. For instance, they are perpetually arguing that such and such a measure ought to be adopted, because it is the consequence of the principle on which the form of government is founded; of the principle of legitimacy or the principle of the sovereignty of the people. 13
It is a curious but undeniable fact that these observations still hold true to a remarkable degree, not only of France, but of Italy and Germany as well. If Mill thought that "it would be often a much stronger recommendation of some practical arrangement, that it does not follow from what is called the general principle of the
13 John Stuart Mill, Logic ( 1st ed.; London, 1843), II, 618.
government, than that it does," I believe that this thought is as "weird" and "incomprehensible" to Europeans today as it was nearly a hundred years ago. From which it follows that the political theory of these constitutions is probably a good deal more important than an Englishman or American is likely to assume. This reflection may serve as a humble excuse for seeking to elucidate the theorizing of those who have developed these new constitutions: rejecting the totalitarian dictatorship, they are groping for workable principles of social order with genuine theoretical concern.
Electoral Changes after World War II
By Edward G. Lewis UNIVERSITY OF ILLINOIS
H OW people vote and how their representatives speak for them are vital aspects of democracy, because while democracy is an idea, it is also machinery. And a democracy built out of faulty machinery is itself faulty. So a study of the electoral process and of the representative legislature of a state is, actually, a study of how democratic that state is.
The constitution-builders in postwar democracies knew that this was true, so, they built their electoral and representative systems most carefully. In only a few countries have the electoral and legislative systems been twisted away from democracy -- from majority rule. South Africa is one of these. But the over-all trend is toward improved representation.
Different countries have become a part of this trend by different routes. This is to be expected, because governments are a part of the tradition of the country -- of its way of life, its customs, and its aspirations. But, fortunately, there are not as many routes to improved legislative representation as there are democratic countries. Instead, there are mainly two: those used in the so-called twoparty parliamentary countries and those used in the multiparty parliamentary countries.
In the two-party countries, mainly Great Britain and the Commonwealth countries, the route to improved representation has been, with few exceptions, through slight changes and improvements in the existing system.
In Great Britain itself, in the postwar period, there was no major change in the underlying idea of the representational system. It is
now, more than ever, founded on the single-member district. Each electoral area now sends one representative to Parliament. This means, though, that the number of members a party has in the House of Commons may not be at all proportional to the number of people who voted for that party in the country. In fact, if parliamentary representation even closely equals the party's voting strength in the country, it is an accident. This can be demonstrated by the February 1950 general election statistics. The spectacular example is the Liberal party. Nearly nine per cent of those who cast ballots voted for Liberal candidates -- about two and one-half million votes -- but the Liberal party won only seven tenths of a per cent of the seats in the House of Commons. Of course, the Labour and Conservative parties fared better. For Labour, fortyfive per cent of the votes won fifty-one per cent of the seats, and for the Conservatives, forty-two per cent of the votes won forty-eight per cent of the seats.
1 But 186 members were elected by a minority of the voters of their district.
2 These were in multiparty districts where, with at least three parties putting up candidates, the victor received more votes than his rivals, but not a majority of the votes.
The British have recently made a number of changes in this imperfectly representative single-member district system, but their effect is to make it more symmetrical than it used to be rather than to change its basic aspects. Up until World War II some odd historical remnants had upset the symmetry of the system -- a few plural votes were allowed.
3 For example, some people voted twice because they had business property in one voting area and lived in another. Others voted twice because, in addition to voting for a representative from their home district, they had a university degree that allowed them to vote for one of the twelve university members of the House of Commons. But although the actual
1 These calculations are based on the summaries of the Manchester Guardian Weekly, March 2, 1950, p. 3.
2 Parliamentary Debates (Commons), 5th series, vol. 472, col. 143.
3 Slightly less than 200,000 people probably voted twice in the 1945 general election. See R. B. McCallum and A. Readman, The British General Election of 1945 ( London, 1947), pp. 220, 275-76.
number of people who voted twice was small, the idea of plural voting was anomalous in a democracy.This anomaly was removed, at least for the moment, 4 by the Representation of the People Act of 1948.
5 By it, the principle of "one man one vote" was finally put into effect in Great Britain. Both the university constituencies and the business plural votes were wiped out.A number of other minor changes in the election system were effected through this same act. These were mainly recommended by a Speaker's Committee on electoral reform and the redistribution of seats. The House of Commons set up this committee by a resolution of February 2, 1944, introduced by the coalition government.
6 Thirty-two peers and members of Parliament made up the committee. They were selected roughly in proportion to party strength, but also to represent various shades of opinion, different types of constituencies, and all parts of the country. The committee met twenty times. Its terms of reference show how sweeping its recommendations could be. These terms were:To examine, and, if possible, submit agreed resolutions, on the following matters: --
a. Redistribution of seats.
b. Reform of franchise (both Parliamentary and local government).
c. Conduct and costs of Parliamentary elections, and expenses falling on candidates and Members of Parliament.
d. Methods of election. 7
The committee's major recommendation was that a general redistribution of seats should take place as soon as possible. And to do this it recommended that boundary commissions be set up to redraw the boundaries of electoral areas. Furthermore, it recommended that these commissions should be instructed to reconsider
4 The 1950 Conservative party election manifesto, "This Is the Road," calls for a restoration of the university constituency.See British Information Services Publication I.D. 970, p. 17. This is a reprint of the Conservative manifesto. 5 II & 12 Geo. VI, c. 65.
6 The parliamentary history and recommendations of the Speaker's Committee are found in Cmd. 6534, British Parliamentary Papers (cited hereafter as B.P.P.), 1943- 1944, vol III, p. 213. Cmd. 6543, B.P.P., 1943- 1944, vol III, p. 221.
7 Cmd. 6534, previously cited, p. 2.
the boundaries of electoral districts not less than every three nor more than every seven years. The commissions were to be nonpartisan.
These Speaker's Committee recommendations were put into effect by the House of Commons (Redistribution of Seats) Act of 1944. 8 At the time this Act was discussed in the House of Commons, Herbert Morrison, for the Labour party, called it the culmination of the electoral reforms that began with the great reform act of 1832. 9 It was indeed as important as this because it set up permanent machinery for redistribution of seats, in the form of the boundary commissions. The earlier reforms along this same line had been piecemeal, and no machinery previously existed for a periodical review of electoral boundaries. The 1944 Act removed this major defect of the British representational machinery.
The Speaker's Committee, however, did not recommend the "one man one vote" principle. In fact, by a vote of twenty-five to six it explicitly rejected it. 10 It also voted unanimously to continue the university constituencies, and voted twenty-one to eight to allow one business and one residential vote. Even so, as we have seen, the Labour government abolished the plural vote by the Representation of the People Act of 1948. 11
Thus the British electoral system has been improved, but always within the framework of the single-member district. The British Government has given very little thought to the introduction of proportional representation as a cure for the distorted majorities produced by the single-member district system. The 1944 Speaker's Committee was asked to recommend the adoption of proportional representation, but by a vote of twenty-four to five it decisively
10 Cmd. 6534, previously cited, pp. 6 and 8.
11 Many other minor changes were made by this Act, in such fields as corrupt and illegal practices and registration of voters. It also assimilated the local and the parliamentary franchise. This Act was based partly on the Speaker's Committee report already cited (note 6 above), but also on the interim and final reports of the Departmental Committee on Electoral Reform (Cmd. 6606, B.P.P., 1944- 1945, vol. V, p. 59. Cmd. 7286, B.P.P., 1947- 1948, vol. XI, p. 727. Cmd. 7004, B.P.P., 1946- 1947, vol. XI, p. 377).
8 7 & 8 Geo VI, c. 41.
9 Parliamentary Debates (Commons), 5th series, vol. 406, col. 1646.
rejected the idea. 12 For years, of course, the Liberal party has asked for proportional representation. The obvious reason for this is that, by it, the party would gain many seats in the House of Commons. For example, the use of proportional representation in the 1950 elections would have given the Liberals about fifty-four seats in the House of Commons instead of the nine the party actually received under the single-member district system, assuming that the popular votes had been the same.
More recently, however, proportional representation has been at least suggested in the House of Commons by no less a dignitary than Mr. Winston Churchill, as leader of the opposition. He proposed that a "Select Committee" should be set up to inquire into the whole question of electoral reform but that "it should be based not on the numbers of Members here, but upon the numbers of votes recorded by the electorate for the three parties which are represented in the House." 13 For the Labour government, Mr. Morrison called this suggestion both unparliamentary and unconstitutional. Nothing came of it.
But the British Government's dislike for proportional representation has not always been reproduced in the Commonwealth. Thus, in 1948 the Australian Parliament, departing from British precedent, enacted a proportional-representation statute for selecting Senators, members of the Australian upper house. 14 This change grew out of the Representation Act of 1948. 15 This Act increased the size of the House of Representatives (the lower house) from seventy-four members to one hundred and twenty-one. And, according to the Australian Constitution, the Senate must be one half the size of the House. Hence, the Senate was increased in size from thirty-six members to sixty. By this change, each state elected ten members, whereas formerly it had elected six.
But this Act increasing the size of the Senate could not be put into operation at once. This was because the terms of the Senators were staggered -- one half went out of office at intervals of three
12 Cmd. 6534, previously cited, pp. 7 - 8.
13 Parliamentary Debates (Commons), 5th series, vol. 472, cols. 143 - 44.
14 Commonwealth Electoral Act 1948 (Act no. 17 of 1948).
15 Act no. 16 of 1948.
years. Hence each state, for the 1949 elections, had three Senators whose terms had not yet expired. That left seven new senatorial posts to be filled in the elections by the proportional-representation system.
This change to proportional representation was attacked by the Australian Liberal party -- then in opposition -- as a piece of rank partisanship. The Act, it said, was in fact a racket. 16 Undoubtedly the effect of the Act was to keep the Labour party in control of the Senate while it lost control in the House. The explanation for this is that, at the time of the passage of the Act, the Labour party had fifteen of the eighteen seats of Senators whose terms had three more years to run. Through the use of the proportional-representation system it was likely that the seven new Senators from each state would be nearly evenly split -- say four for the Liberals and three for Labour -- because the popular support of the parties was nearly the same. Thus the Liberal party coalition, even though it was successful in the House elections, could not win control of the Senate. In fact, the election turned out very nearly as the opposition Liberals had predicted, except that in one state the Labourites won four instead of three seats. 17
Even though the Liberal party opposed the method of introduction of proportional representation in 1948, it proposed two years later to extend and modify the system. And as the Labour government's act had momentarily benefited the Labour party in the Senate, so this new proposal would momentarily have helped the Liberal party. The new proposal 18 was that, on double dissolutions (that is of the House and Senate at the same time), the ten Senators to be elected from each state should be divided into two, groups of five each, one group to be elected for three years and the other for six. This proposal was made, the Liberal government said, to get a workable majority in the Senate. Mr. Menzies, the Liberal Prime Minister, said that if ten Senators were elected in one group
16 Commonwealth of Australia, Parliamentary Debates, 1946- 1948, vol. 196, p. 1001.
17 Round Table, no. 158 ( March 1950), p. 181.
18 Introduced May 4, 1950; passed by the House of Representatives on June 7, 1950; rejected by the Senate. See Keesing's Contemporary Archives ( London), VIII ( August 12-19, 1950), 10900.
as the existing law required, instead of being split into two, a close election could well result in a stalemate -- five Senators from each party. By the new proposal, in a close election, each group of five Senators might split three to two. Thus, the party with a bare majority of the votes would win six seats in each state. This would create a workable majority in the Senate.
Obviously this proposal of Mr. Menzies makes proportional representation no longer proportional; that is to say, it exaggerates the majority of the winning party. But it also helps to solve one of the major weaknesses of proportional representation -- the unworkably slender majority that results when two major parties, in a twoparty country, are almost evenly balanced. So, although the Australian scheme departs from the ideal of proportional representation, it might at least produce a dependable majority.
Some proportional representation was also introduced in one other British Commonwealth country -- the newly independent member of the family, Ceylon. There, while the lower house is elected by the single-member district system, the upper house or Senate is partly chosen by proportional representation. The Senate has fifteen of its thirty members appointed by the Governor, but the remaining fifteen `are selected by proportional representation, using the single transferable vote system. 19
The inspiration for using proportional representation in the Ceylon Senate came from Great Britain, however, and not from the Ceylonese themselves. In Ceylon, in fact, a second house was not wanted by local leaders, although these leaders did say that, after independence, the Ceylon legislature might create a second house. The Soulbury Commission, a group sent from England to make recommendations about the government of Ceylon, introduced the idea of the existing second house. 20
But these are only minor postwar experiments with proportional representation. Apart from these, many British Commonwealth countries remain firmly attached to the single-member district sys-
19 See the "Constitution of Ceylon," Art. 9 (2), in Amos J. Peaslee, Constitutions of the Nations ( Concord, N. H., 1950), I, 381-82.
20 For an extended discussion of this point, as well as of the drafting of the Ceylon Constitution, see Cmd. 6677, B.P.P., 1945- 1946, vol. X, p. 319.
tem, at least in their lower houses. For example, the Ceylon system, for the lower house -- the House of Representatives -- is a singlemember district system. It is somewhat like the British. The idea for it came from the Ceylon ministers who drew up a draft constitution; and this part of their constitution was accepted by the Soulbury Commission. By this constitution, a Delimitation Commission draws the boundary lines of the electoral districts. This commission is appointed by the Governor-General. Its members must not be actively engaged in politics. The commission must follow certain rules in drawing districts. It must make the districts approximately equal in population (about I to 75,000); but it must also consider transportation, physical features, and the community or diversity of interests of the area. If a substantial minority group lives in an area, the commission must provide it with some representation. After the commission has drawn its lines, the Governor-General puts the recommendations into effect by proclamation. If, after the commission has drawn its lines and after the elections have been held, any important racial, religious, or other interest group is not represented in the legislature, the Governor-General may appoint members to the House of Representatives, not to exceed six (Art. II). Needless to say, these powers of the Governor-General are used on the advice of responsible ministers.
The Indian Constitution also contains what amounts to a singlemember district system for electing members of the House of the People, the lower house. 21 But, curiously enough, the Indian Constituent Assembly, which drew up the constitution, was chosen in part by proportional representation, by the Hindu, Moslem, and Sikh groups of the provincial legislatures. This scheme was proposed by the so-called British Cabinet mission to India in 1946. 22 Its recommendation was to allot to each province the number of seats to which it was entitled on the basis of one representative for each one million people; then the province's seats were to be divided among the General (Hindu), Moslem, and Sikh groups on the
21 Art. 67. The constitution is printed in O. P. Aggarawala and S. K. Aiyar, The Constitution of India ( Delhi, 1950). The draft constitution is printed in Peaslee, op. cit.
22 See Cmd. 6821, B.P.P., 1945- 1946, vol. XIX, p. 127.
basis of population. Thereafter, the members of the provincial legislatures, divided by communal groups, were to select the Constituent Assembly members by proportional representation. But the members of the provincial legislatures had themselves been elected under the arrangements made by the Government of India Act of 1935. 23 This Act provided for a district system of election, although some of the districts had two or three members. This system had been worked out by the Marquess of Lothian's committee in 1932. 24 The Lothian committee also recommended that only a limited number of people should be allowed to vote. This recommendation was put into effect. Those who could vote had to meet property and educational requirements, and, in 1937, thirty million Indians met these requirements. 25
The result of this complicated electoral pattern was that the Indian Constituent Assembly, which became the Indian legislature for the first years of the new constitution, was indirectly elected. And it in turn was chosen by voters who met extensive property and educational requirements. Because millions of Indians were illiterate, and not used to the idea of democratic elections, the immediate use of full adult suffrage would have been impractical. The new constitution, however, does provide for adult suffrage; and the legislature is empowered by it to write a new law that will make this full adult-suffrage provision effective.
Pakistan's electoral situation is much like that of India. Pakistan, too, has used its Constituent Assembly as a legislature. 26 That body had also been elected following announcement of the British Cabinet mission's plan of 1946. The Pakistan Constituent Assembly, however, has been much slower about writing its constitution. In the meantime, before the constitution goes into operation, Pakistan is governed under the amended Government of India Act of 1935.
23 Particularly Schedule I ( 25 & 26 Geo. V, c. 42).
24 House of Commons Paper 112 ( 1), B.P.P., 1932- 1933, vol. V, p. 661.
25 For a full account of the provincial electoral procedure in 1946 (and earlier) under the Government of India Act of 1935, see F. O. Bell, "Parliamentary Elections in Indian Provinces," Parliamentary Affairs ( London), I (Spring 1948), 20-28.
26 This was provided for in the India Independence Act of 1947, Art. 8 (1), 10 & 11 Geo. VI, c. 30.
The amendments make the dominion independent of the British Parliament and set up the Governor-General as a typical British Commonwealth ceremonial executive. But the real governing power, of course, rests with the Prime Minister and his Cabinet, who are in turn responsible to the Parliament, that is, the Constituent Assembly, until a constitution is written.
Others of the Commonwealth countries still using the singlemember district system have made minor mechanical improvements in it. For example, Canada made her system more accurately representative by a Representation of the People Act, 1947. 27 This Canadian change, however, required an amendment to the British North America Act. The old arrangement under that Act tied representation in the rest of Canada to Quebec's representation. The Liberal government wanted to cut the representation system loose from this tie. It argued that such a scheme was artificial. The important thing, it said, was that the provinces should be evenly represented, on the basis of population. It therefore pushed through the Canadian Parliament an amendment to the British North America Act; and afterwards this amendment was approved, almost without comment, by the Parliament in Great Britain. 28
This amendment provided for a readjustment of the Canadian representation after each census. The readjustment formula was complicated. First, the House of Commons was fixed at 255 members. The government decided on this figure, it said, because in the redistribution about to be made only one province -- Saskatchewan -would lose a representative. 29 The other provinces either retained the existing number of representatives or gained some. Then the total census population was to be divided by 254. The resulting electoral quotient was divided into the population of each province, and the result of this division, disregarding remainders for the moment, represented the number of seats given to that province. The remaining seats -- those not already apportioned -- were allotted, beginning with the province having the highest remainder, until
27 Chap. 71 of 1947.
28 In the British Statutes, 9 & 10 Geo. VI, c. 63. Presumably British parliamentary action was taken under provisions of the Statute of Westminster, 1931.
29 Dominion of Canada, Debates, House of Commons, vol. II, 1946, p. 1937.
the total of 254 was reached. There were a few deviations from this formula. The Yukon has one representative, although its population is far short of the electoral quotient. Also, no province was to receive less representation than it had in numbers of Senators. By this exception Prince Edward Island, with four Senators, received four members of the House of Commons, although its 1941 census population was so small that it normally would have received two members.
Once the number of representatives for each province had been calculated, then the really difficult political problem came up. How should the electoral boundaries within the provinces be drawn? Here the Canadians did not follow the British system. Instead, they set up a special committee of the House of Commons to do the work. The committee, established in 1947, was built on partisan lines. The government and the opposition whips nominated its members in proportion to party strength. 30 Furthermore, the government party gave the commission few instructions to guide it. The two principal instructions were that county and municipal organization lines should be followed as far as possible, and that in general rural constituencies could have smaller populations than urban constituencies. 31 The reason given for this last was that urban constituencies were normally more vocal and had the leading newspapers in them, so that their views could be expressed adequately even though they had fewer representatives.
The decisions of this special committee were written into the Representation Act of 1947, an Act that was not passed without a good deal of partisan argument. Some of those whose constituencies had been changed feelingly charged the government with gerrymandering. 32 It is undoubtedly true that this Canadian distribution system can be manipulated to favor the party in power.
Several irate Canadian members of the House of Commons asked why the British nonpartisan system was not used. They also praised New Zealand's relatively nonpartisan boundary-commission system for redistribution of seats. But, in New Zealand, even with an
30 Dominion of Canada, Debates, House of Commons, vol. I, 1947, p. 739.
31 Ibid., pp. 692-93.
32 Dominion of Canada, Debates, House of Commons, vol. VI, 1947, pp. 5568 ff.
almost nonpartisan boundary-commission system, there had been, in 1945, a minor revolution in the single-member district system. This revolution was the abandoning of the "country quota." Since 1881 the New Zealand electoral system contained a purposeful overrepresentation of the rural voters. In 1881, for example, they were given a bonus of 33.5 per cent; in 1887, 18 per cent; and, since 1889, 28 per cent. 33 Under this old system, the country population was fictitiously increased by 28 per cent before the electoral district boundaries were drawn.
But in the Electoral Amendment Act of 1945, 34 the New Zealand Labour government abolished this "country quota." After this Act, the electoral districts had to have an approximately equal number of adults, excluding Maoris and some others, such as convicts. The actual drawing of the electoral district lines is done by the seven-man representation commission. Three of its members are nonpolitical; the other four are appointed by the House of Representatives. The commission must follow the instructions in the Act: (1) The North and South Island representation must be in proportion to the respective populations; (2) the districts must be as nearly equal as possible; but (3) due consideration must be given to existing electoral district boundaries (excepting those before the Act went into effect), community of interest, communication facilities, and topography. Once the lines are drawn, the commission's report is published in the government Gazette; objections are heard by the commission; and then the final commission report is proclaimed by the Governor-General. The report goes into effect immediately, ready for the next election. Parliament must be given a copy of the report, but the report is not debated unless Parliament demands debate. A commission device very like this had previously operated in New Zealand, although there had been a North Island and a South Island commission -- each one having three nonpartisan, ex officio members, and two appointed by the House of Representatives. 35
The Union of South Africa also uses a nonpartisan boundary
33 New Zealand Official Yearbook, 1947-1949 ( Wellington, 1950), p. 16.
34 No. 10 of 1945.
35 See Electoral Act of 1927, no. 44.
commission to draw constituency lines, 36 but it is not this part of the South African electoral system that has attracted world-wide attention in the postwar period. The burning problem in South Africa, rather, is that of the franchise itself. This franchise problem is only one aspect of the apartheid (or "separateness") policy of the ultranationalist government of Dr. Malan. Dr. Malan is trying to solve the racial color problem in South Africa by a most rigid segregation system. And because most of the unskilled labor in South Africa is done cheaply by native and colored workers, his plan creates enormous economic as well as other difficulties. Many of the native and colored people, although already segregated, live in and around the larger towns; the apartheid plan calls for a division of South Africa into separate native and white areas. Thus, the franchise changes are only a small part of this much larger program of the Nationalists.
The background of the native and colored franchise problem in South Africa, however, goes back to the South Africa Act itself. That Act was written by a National Convention, which met in 1908. One of the compromises of that convention was about the colored and native vote in the Cape Colony (natives and colored people were not allowed to vote in other colonies). The colonies that did not allow natives to vote were adamant in demanding that native suffrage be prohibited everywhere. The Cape Colony was equally firm in defending its wider suffrage. The upshot was that the Cape gave up its wish to have colored people seated in the new Parliament; it also did not have the colored people counted for distribution of seats in Parliament. But, in exchange, both natives and colored people were permitted to remain on the voter's lists in the Cape. Furthermore, this compromise was "entrenched" in the South Africa Act by the requirement that a two-thirds vote of both houses, meeting together, should be required for changing this part of the Act. 37
In 1936 this particular "entrenched" clause was amended by the
36 See Union of South Africa Act, 1909, Art. 38, and later amendments, particularly Act no. 30 of 1942.
37 See Cambridge History of the British Empire ( New York, 1936), VIII, 633 ff.
Representation of Natives Act by the needed two-thirds vote. 38 By this amendment the native (but not the colored) voters in the Cape lost the privilege of voting for the ordinary members of the House of Assembly, the lower house. In return, though, the natives could vote for three Europeans to be their representatives in the House of Assembly. For these elections, the Union of South Africa was divided into three "circles" or electoral districts. Also, the natives could choose four European Senators to represent them, and for this choice an electoral college system was set up. A further feature of the Act of 1936 was the creation of the Natives Representative Council. Six of its members were official, representing the government, four native members were nominated by the GovernorGeneral, and twelve were elected indirectly by the natives themselves. This Council, meeting irregularly, could only consider and report on matters of interest to natives. Its reports, however, did have to be presented to Parliament. 39
Somewhat similar in principle to the native representation act of 1936 was the Asiatic Land Tenure and Indian Representation Act of 1946. One section of this Act provided that the Indians of Natal (where one quarter of a million of them lived) and of the Transvaal (having about 25,000) could elect three European members to the House of Assembly to speak for them. They could elect one Senator, and the Governor-General would nominate another Senator also to represent them. These Senators must be European. Although the Indians in South Africa are in many cases descendants of Indians brought in from 1860 onwards, most of them had not formerly voted. Only in the Cape had the Indians been placed on the common voter's roll. The new Act was, however, not actually put into effect; and in 1948 it was repealed by the Nationalist government on the ground that the Indians ought not to have any representation. This was but one more part of their apartheid policy.
This same policy of apartheid had been the emotional electoral battle cry of the Nationalists. They used it to edge to victory in
38 Act no. 12, of 1936.
39 For a brief description of the native problem, see Official Yearbook of the Union of South Africa, no. 23 of 1946 ( Pretoria, 1947), chap. xi.
1948, but their victory was a qualified one. Their opponents, the United party, actually received a majority of all the votes, but the Nationalists won the plurality of the seats in the House of Assembly. Partly this was the result of three-way splits in single-member districts, and partly it was the result of an overrepresentation of the rural constituencies, in which the Nationalist strength was greatest. 40
With a slender plurality in the House of Assembly, the Nationalists were dependent upon the votes of the Afrikaner party for accomplishing their program of apartheid -- including the franchise reform; but on this the Afrikaner leader, Mr. Havenga, refused to agree until the voters should clearly show their desire for a change.
Dr. Malan, therefore, said that he would consider the 1949 provincial elections an indication of the voters' views on apartheid and particularly on the franchise question. In these elections the voters cast their ballots in the same way they had in 1948. Again the United party received a majority of the votes, but the Nationalists won a majority of the provincial council seats. 41 This, said Dr. Malan, was a clear mandate from the voters for electoral reforms. He therefore set out on his program. In this, one of the major objectives was to strike the Cape colored voters from the common electoral register. But here Dr. Malan had a constitutional problem to overcome because the Cape colored franchise was one of the "entrenched" clauses of the South Africa Act. To change it, apparently, Dr. Malan needed a two-thirds vote of both houses, and this he could not get.
40 See Table of votes
But Dr. Malan did not think that a two-thirds vote was actually necessary. He said that the Statute of Westminster of 1931 had freed the Union of South Africa from bondage to the British Parliament. The British Parliament had passed the South Africa Act and had therefore imposed the two-thirds rule in the "entrenched" clauses. Thus, now that South Africa was free, it could change any part of its constitution by a simple majority. The opposition United party pointed out that this argument was at least dubious because it was a South African National Convention that had actually written the South Africa Act. Furthermore, that convention had agreed upon "entrenching" the Cape colored vote as one of the conditions for forming the Union. 42
Without the consent of the Afrikaner party, Dr. Malan could not change the constitution even by a majority vote, much less two thirds, because he lacked the majority. But he could still take some steps toward apartheid. One of these dealt with the Natives Representative Council. The Minister of Native Affairs, who was legally responsible for calling its meetings, announced on January 4, 1949, that no further meetings would be called. 43 But this action was not as drastic as it appeared because the Council had almost ceased to function some years earlier. Dr. Malan's action, therefore, was more a declaration of principle than a change of behavior. At the time the Council was abandoned, however, the Minister of Native Affairs said that a more effective ethnic link with the natives would someday be established.
We have already noted another of Dr. Malan's steps to apartheid: his repeal of the Indian representation system. But here again the action only formally accomplished what had already been done informally. The Indian Act had not been put into effect by the Smuts government.
The Nationalists had to take several steps more before they could accomplish one of their major objectives; that is, getting the colored voters off of the common roll in the Cape. They still had to
42 Journal of the Parliaments of the Empire, XXX ( 1949), 141-46.
43 See Round Table, no. 158 ( March 1950), pp. 182-84. There was a meeting of the Council in December 1950, but it adjourned sine die. See The Times ( London), December 6, 1950, p. 6, and December 8, 1950, p. 5.
get a majority of the seats in the House of Assembly even if they assumed they could make this constitutional change by a majority vote rather than by the constitutional two thirds. So Dr. Malan continued to build his majority. A part of this process was the annexation of Southwest Africa. By a careful manipulation of the electoral districts, six more Nationalists were elected from Southwest Africa to the House of Assembly. Each of these members represented half as many voters as the usual representative did in the rest of the Union. And with these additional six, the Malan government had close to a majority of the seats and might shortly, with the support of a few of the Afrikaner party, place the apartheid changes into effect. The issue remains unsolved, however, at this writing.
Except for the Union of South Africa, it can be said that the twoparty countries, which means substantially Great Britain and the Commonwealth countries, have improved their representational system in the postwar years. But almost always this has been done within the framework of the single-member district system -- a system that is often representationally defective.
But other democratic countries do not fit into the two-party category. In most of them many parties are usual, and the way in which their legislature is elected greatly influences the position and strength of each party. One acerb observer has said that the very existence of parliamentary government in one of these countries, namely, France, is dependent upon the electoral system. 44 Indeed, it may well be true that the existence of democracy in France depends on the details of the electoral system. This is because political opinions in that country in the early postwar years have been split into three large groups -- those on the extreme left, the Communists, with about one third of the votes; those on the extreme right, the De Gaullists, with another third of the votes; and those in the middle, divided into several parties. The left and the right -- two thirds of the voters -- firmly oppose the present form of the French government, if their party's programs can be believed. Hence, if
44 Raymond Aron, "Will the Mode of Election Determine the Future of the Fourth Republic?" France illustration, no. 166 ( December 18, 1948).
the electoral system actually reproduced the political complexion of the country, the present parliamentary democracy in France might well be changed.
The present electoral system can be changed easily enough, too, if a majority of the legislators can agree on the same change. This is because the constitution of 1946 provides that the machinery of elections is to be fixed by law. The only constitutional requirements are that both chambers must be elected on a territorial basis, that the National Assembly (the lower house) be chosen by universal, direct suffrage, and that the Council of the Republic (the upper house) be elected by universal, indirect suffrage. 45
Within this very simple framework, then, the legislators can build almost any electoral system they desire. In the first flush of liberating enthusiasm, before the party strife had become too great, the legislators passed the electoral law of October 5, 1946. 46 This provided for the selection of National Assembly members. It set up a list system of proportional representation. By it, each electoral area (usually the department) elected several candidates, in proportion to its voting strength. In each area the voter was required to vote only for one party list; he could not split his vote among several candidates on different party lists. He could, however, show his preference for different candidates on his own party's list. To take care of this possibility, the law provided that if one half the voters for a particular list should depart from the order of preference set up by the party, then the voters' preference should be counted; otherwise, the voter could show that he supported his party and his party's order of preference by marking his ballot in a party column. In practice, in the 1946 elections, the voters generally accepted the party's order of listing of candidates.
The French use a typical system for counting the proportionalrepresentation ballots. This is a responsibility of an electoral commission of which the president of the Departmental Civil Court is chairman and two other judges and two prefectural representatives
45 Art. 6. The constitution is reprinted in L. H. Laing and others, Source Book in European Governments ( New York, 1950). See also Appendix A, p. 226.
46 Law 46-2151. Excerpts are in Laing, op. cit., pp. 114 ff.
are members. The commission uses the system of the highest average for counting. Under this system, the commissioners count the ballots for each party list and then distribute the total number of seats among the different successful parties. To do this they give the first seat to the party with the largest vote. Then they divide that party's number of votes by one seat plus one. If the quotient is still larger than the total vote of any other party, the second seat goes to the same party. If not, the second seat goes to the party having the highest remaining vote. After this, as the law states, seats are granted successively to that party "list for which the division of the number of votes for the list by the number of seats already granted to that list, plus one, gives the highest result" (Art. 13). The candidates on each list are declared elected in the order that the party has put them on the ballot, unless half the voters have altered that order; if this happens, the commission declares the candidates elected in the order set up by the voters.
This electoral system has greatly strengthened the control of the larger parties over their Deputies, because the party, in making out the lists of candidates, controls the order of preference and hence the order of election. It also encourages the formation of larger parties, because each party list must have as many candidates as seats. The single independent candidate cannot get his name on the ballot.
Another feature of this electoral system is that it breaks the per. sonal contact between the Deputy and his district. This contact may be quite strong under the single-member district system, because the legislator knows his own district and many of his people know him. But, under the 1946 French system, the districts were each likely to have four or five representatives and some had as many as eleven. 47 This relationship also helps to strengthen the party's hold over the Deputy, because the party is likely to keep a much more careful watch over the Deputy than his constituents can.
Of course, the major advantage of this system is that it mirrors the political opinions of the voters far more accurately than the single-member district system does. This is the most powerful
47 Table 2 of the Law of October 5, 1946.
argument for proportional representation, but it is a costly advantage. The cost is almost always a coalition government; and often one result of coalition government is a weakened and less responsible Cabinet.
Because of the political results of the 1946 electoral system for the French National Assembly, there have been frequent suggestions for changes. Each suggestion for change usually sets up a scheme advantageous to the proposer, yet each of the changes is in line with some phase of earlier French electoral experience. The most frequently suggested change is the so-called uninominal vote with a second ballot. This system was greatly favored during the Third Republic. Under it France would again be divided into singlemember districts. On the first ballot all parties could present candidates. If no candidate received a majority of the votes, there would be a second balloting. On this second ballot, a plurality would be sufficient for election.
The center parties, with one exception (this is the Popular Republican Movement, the M.R.P.), favor this system. They like it because their local connections are good and because they can often combine with each other on the second ballot to elect a moderate candidate. The M.R.P., however, among the moderate parties, resolutely opposes this system. Its members are fearful that, because their party is mainly a postwar party, it will lose out under this system. Their local connections are poor. They are also afraid that their clericalism -- they are the modern Catholic Action party -- will make them the target of many electoral bargains on the second ballots. This is because they know that for years clericalism has been the whipping boy for the radical parties. 48
The other major political groups -- representing nearly two thirds of the voters, if the balloting in October 1947 is to be considered as representative -- disagree completely with the second-ballot system. One of these groups, the Communists, prefers the pure proportional-representation system. For them, as for the M.R.P., this system is a source of electoral strength. They feel that all electoral bargains will be made against them. Proportional repre-
48 The New York Times, October 6, 1950, p 1.
sentation is their ticket to success. The other extremist group -the De Gaullist Rally of the French People -- wants a departmental list system with a second ballot. Thus, if it won the majority of the departmental votes, it would get all the seats from that department; and, on second ballots, it could compromise with other antiCommunist parties. The De Gaullists, of course, favor this system because they think it might give them a working majority in the National Assembly.
Meanwhile, there has been no real agreement among major groups of French parties on reform of the electoral system. On February 28, 1951, the Cabinet of Mr. René Pleven resigned because of the failure of the majority parties to agree on a new electoral law. Shortly thereafter, at the end of March 1951, a compromise electoral law was worked out. Its principal feature was the use of a departmental list system of election, with one ballot. There was to be no run-off election. If one list -- made up either by one party or a group of parties working together -- obtained a majority of the departmental votes, this list was to have all the seats of the department. (These seats were to be distributed among the grouped parties of the list on the basis of proportional representation.) If no list or grouped list received 50 per cent of the votes, the seats were to be distributed by the proportional-representation system of highest averages. The most populous departments -- Seine, and Seine and Oise -- were excepted from this system. 49 Applied in the elections of June 17, 1951, this law greatly favored the middle parties which, with 52 per cent of the vote, won 401 seats, the extreme right and left, with 48 per cent of the vote, winning only 224 seats.
The French upper house, the weak Council of the Republic, is selected by a different system. It is complicated and indirect. Here again the parties in power when the electoral law was written safeguarded their own special positions. The effect of the system is to strengthen the center parties at the expense of the extreme right and left.
The electoral system for the Council of the Republic was set up
49 See Le Monde, March 23, 1951, p. I, and March 24, 1951, p. 4.
by the law of September 23, 1948. 50 It provides for an electoral college very much like that used for electing Senators in the Third Republic. Each department's membership in the Council of the Republic varies according to the size of its population. The members are chosen by the electoral colleges, half of them every three years. The colleges are made up of (1) the departmental deputies to the National Assembly, (2) the general councilors of the department (somewhat like local government representatives), and (3) delegates from municipal councils. These last electors are by far the most numerous in the electoral colleges. For this reason they really control the selection of most of the members of the Council of the Republic. Thus, rural sections of the country have great influence in the elections. In elections to the Council of the Republic in November 1948, two thirds of the electoral-college members came from rural municipalities of 3,500 or less population; and these two thirds represented half the people of France. The other half of the people, therefore, were represented by only one third of the electoral-college members. 51 Understandably, the parties of the center and the right were the greatest gainers from this arrangement.
Thus in France, although there is now complete adult suffrage, the electoral system has been consistently fixed for partisan purposes. This partisanship can hardly be avoided. Moreover, perfectly good and logical arguments can be used to support either proportional representation, or the list system, or the single-member district system of representation. None of these is completely satisfactory. None of them can be said to be the most democratic, in the sense of expressing the majority's will most effectively.
Elsewhere on the Continent of Europe the same electoral problems arise. The Italians have solved their particular problem rather differently from the French. The Italian Constitution, like the French, is brief in describing the electoral system; details are filled in by law. But the constitution does stipulate certain simple suffrage re-
50 Law 48-1471. The first Council of the Republic, however, was elected following a slightly different system -- that established by the law of October 27, 1946 (Law 46-2383). This law was passed by the second Constituent Assembly.
51 Manchester Guardian Weekly, October 21, 1948, p. 14.
quirements. It says that "all citizens, men and women, who have reached the age of majority, are electors." It explains that "the vote is personal and equal, free and secret. Its exercise is a civic duty." 52 Having established these general voting requirements, the constitution goes on to set up the general conditions for electing the Deputies and Senators. For the Deputies, it states: "The Chamber of Deputies is elected by universal and direct suffrage, in the proportion of one deputy for 80,000 inhabitants or for fractions greater than 40,000" (Art. 56). For the Senate the electoral basis is regional. "To each Region is attributed one senator for 200,000 inhabitants or for a fraction greater than 100,000." The Senators are also elected "by means of universal and direct suffrage" but by voters who have reached the age of twenty-five. 53 The electoral laws, based on these constitutional provisions, deal separately with the Chamber of Deputies and the Senate.
For the Deputies, the electoral law is that of February 5, 1948. 54 By this law the country is divided into thirty-one electoral districts. The voters in each one of these districts elect as many Deputies as their numbers permit them to elect. The actual voting is by a proportional-representation list system. By it each voter has one vote. But, unlike the original French arrangement, each party does not have to nominate as many candidates as there are seats to be filled in the region. On the other hand, no party may offer a list in which the total number of candidates falls short of the number of seats to be filled by more than three. Within each list the voter may, if he does not like the official order of candidates on his list, show his preference for three or four candidates of the list. 55
Counting of the ballots takes place under the control of a court of appeals or a lesser court in the chief town of each electoral region, and distribution follows the pattern usual to list systems of 52 propor-
52 The constitution is printed in translation in Documents and State Papers ( United States Department of State, 1948), I, 46-63. It is also printed in Appendix B, p. 248.
53 Arts. 57 and 58. An exception to the regular rule of distribution of Senators is made for the Val d' Aosta. This area is the subject of special sections of the laws on the selection of Senators and Deputies.
54 No. 26 of 1948. The most important provisions of this law are translated in Laing, op. cit.
55 Three for lists of fifteen or less; four for sixteen and over.
tional representation on the Continent. Remnant votes, that is, votes of parties insufficient to elect a candidate, are exploited in an unusual way. They are collected for the individual parties from all over Italy, and additional seats are then allotted on a national basis. These remainders are even collected from the parties that did not have enough votes to elect a candidate in most of the regions, provided that the party had secured the election of at least one candidate in one electoral region. Under the remainder system the small party generally stands a better chance of gaining satisfactory representation, provided it is strong enough to win a seat in at least one locality. 56
In the first election under this new law, that of April 19, 1948, the Christian Democratic party won a majority of the seats, although its popular vote was less than a majority -- 48 per cent in fact. The other large group, the Popular Front parties, also gained. Its popular vote was 30.7 per cent and it won 32 per cent of the seats. But the smaller parties received fewer seats than their popular votes would indicate they should have. For example, the popular vote for the Republican party was 2.5 per cent, but it won only nine seats, or 1.5 per cent of the total. The Republicans' vote should have given them fourteen seats under a strictly proportional system. This sort of proportional representation, obviously, is not exactly proportional, since it produced a majority government where a majority did not quite exist.
The Italian Senate is selected by a combination of several electoral systems. One of these is used to fill five seats. For these, the President of the Republic names citizens who have distinguished themselves in the scientific, artistic, social, and literary fields. These are appointed as Senators for life. Former Presidents of the Republic will constitute another category of lifetime Senators. 57 Still other appointed members of the first republican Senate are certain former members of the Constituent Assembly. 58
The greatest number of the Senators, however (237 out of 345),
56 In the 1948 elections under this law, there were twenty-two seats distributed on the national level, from among a total of 574 seats ( Manchester Guardian Weekly, April 29, 1948, p. 5).
57 Art. 59 of the constitution.
58 Constitution, Transitional Provision III.
were elected following the procedure set up by the electoral law of February 6, 1948. 59 Like the Deputies, the Senators are elected by regions and, as we have seen, the constitution establishes the number of people to be represented by each Senator; that is, one Senator for each 200,000 people, or one for a fraction over 100,000. Each of these regions is divided into electoral districts, one for a Senator. This means that the senatorial system makes some use of the singlemember district system. But it is only a limited use, for a candidate is elected only if he receives 65 per cent of the votes cast in his electoral district. Very few achieve this majority; hence most of the elective seats are filled by a modified system of proportional representation, which supplements the majority formula. All seats not filled under the 65 per cent majority rule in the single-member districts are pooled for an electoral region. Electoral officials add up the total vote for each party group of candidates and award available seats to each group according to the standard procedure of the list system of proportional representation. Each party's list vote is divided by one, then by two, then by three, and so on. The resulting quotients are arranged in descending order, and the seats allotted in this order. The next job is to distribute the party's assigned seats to its candidates. This is done by multiplying each candidate's actual votes by 100 and dividing the product by the number of votes in the candidate's district. Actually, this formula gives the percentage of the total vote of each district that the candidate received. The candidates on each party list are arranged by these percentages, and the seats are allotted within each list in the descending order of percentages.
Because of this use of a combination of a single-member district system for some seats and proportional representation for the rest, the senatorial elections do not produce strictly proportional results. For example, in the 1948 elections, the Christian Democrats received 47.9 per cent of the popular votes for the Senate, but received 55 per cent of the number of elected Senators. On the other hand, the other major parties received their seats on a strictly proportional basis. For example, the Popular Front parties received 31.2 per cent
59 Law no. 29. Partially translated in Laing, op. cit.
of the popular vote and exactly the same percentage of the elected seats in the Senate. The Socialist Unity party received 5.1 per cent of the popular vote and 5.06 per cent of the seats, and so forth.
Thus, the Italians have skillfully altered the traditional proportional-representation formulas, and the result has been to favor the largest parties. In the 1948 election, as we have seen, the Christian Democrats -- the largest party -- received a majority of the elected seats in both the Chamber and the Senate. Yet the party's popular vote was slightly less than a majority for each chamber. Nevertheless, even with this misrepresentation of party strength, the Italian system gives a truer picture of the voters' party opinions than a single-member district system usually does.
The West German electoral system is even more a hybrid of proportional representation and the single-member district system than the Italian, and it is even more favorable to the large parties. The Bonn Basic Law -- the temporary German equivalent of a constitution -- contains only a few statements on elections. Hence, the major features of the electoral system are set up by the legislature, and they are thus easily changed. The Basic Law does require that Deputies for the Bundestag, or lower house, be elected by the people by universal, free, equal, direct, and secret suffrage. 60
The details of the electoral system were fixed by a directive of the Bonn Parliamentary Council -- the group that wrote the Bonn Charter -- on May 10, 1949. The various Länder (geographical units comparable to the states of the United States) promulgated the law on June 15, 1949. They made some slight changes in the Parliamentary Council's directive at the request of the Western military governors. 61 This electoral law for the Bundestag combines the single-member district system and proportional representation. By it, 60 per cent of each Land's Deputies are elected from single-
60 Art. 38 (1). The Basic Law is printed in Germany, 1947-1949 ( United States Department of State Publication no. 3556, March 1950), pp. 283 ff. It is also printed in Laing, op. cit.
61 Germany, 1947-1949, pp. 310 off. This document contains a translation of the electoral law as promulgated on June 15, 1949, together with annotations showing changes made in the May 10 directive after correspondence with the military governors. The June 15 version is printed, in large part, in Laing, op. cit., pp. 422 ff.
member districts, and the remaining 40 per cent are elected by proportional representation (Art. 8). In the single-member districts, the candidate who gets the most votes is elected; that is, the person with a plurality or better. For the proportional-representation seats, all the votes received by a party in the Land are added together, and this figure is used for assigning seats to the party lists by a system very like that used for the French National Assembly. 62 Once the number of seats to which each party is entitled has been determined, the seats already won by that party in the singlemember districts are deducted from the party's total. The remainder constitutes the number each party may distribute to its candidates. If a party wins less than 5 per cent of the Land vote, its votes are not considered unless that party has gained one of the district seats of that Land by a plurality. Obviously this provision discriminates against the small party.
This law of June 15, 1948, governed the Bundestag elections of August 14, 1949. In these elections, the largest parties gained at the expense of the smaller ones. Yet it has been calculated that the political picture would not be greatly changed if full proportional representation had been used instead of the hybrid system actually used. 63
The members of the German second chamber, the Bundesrat, are chosen by a quite different system. This system is not unlike the one used for the second chambers of the Second Empire ( 18711918) or of Weimer ( 1918-1933). The Bonn Bundesrat consists of members of the governments of the Länder, and they are appointed and recalled by their governments. 64 These members only roughly represent the same number of people. Each Land has three votes; if it has more than two million people, it has four votes; if over six million people, five votes. Thus, the smaller Länder are overrepresented; but this is a persistent tendency in many legislative systems.
A summary of electoral changes all over Western Europe and in
62 See pp. 53 - 54.
63 For a detailed analysis of the outcome and statistical calculations, see Otto Kirchheimer and A. H. Price, "Analysis and Effects of the Elections in Western Germany," Department of State Bulletin, XXI ( 1949), 563-73.
64 Basic Law, Art. 51.
the British Commonwealth countries shows that proportional representation has made headway. But in almost every proportionalrepresentation system changes have been made so that an increased majority can be obtained. Meanwhile, the single-member district remains entrenched. Especially is this true in countries whose constitutions survived World War II. It was in the countries with new constitutions that the modified proportional-representation systems made headway.
In several postwar constitutions, a direct connection between the voters and the public has been re-established by the referendum. By it, the voters themselves make certain major policy decisions. The countries using this system usually apply it to constitutional amendments, but there are examples in which it has been used for other major policy decisions. Even the British Commonwealth countries have come to make some use of this device. This is noteworthy because the time-honored principle of their parliamentary democracy is that it is representative and not direct; that is, the voters speak through their elected representatives but do not legislate directly.
After World War II the possibility of using the referendum was discussed rather extensively in Great Britain. One suggestion that it be used came from Mr. Winston Churchill while he was coalition Prime Minister in 1945. His idea was that the British voters should be polled about the question of the length of life of the coalition Parliament. They were to be asked whether a new Parliament should be elected after VE day, or whether the elections should be postponed until VJ day. 65 Mr. Attlee, for the Labour party, strongly opposed the suggestion. He thought the plebiscite system was closer to the Nazi system than to the British. 66
Although the idea did not advance beyond the suggestion stage in Britain itself, it was applied to the Newfoundland constitutional question in 1948. This concerned the governmental fate of Newfoundland: whether it should continue under a colonial commis-
65 This was proposed in a letter from Mr. Churchill to Mr. Attlee. The letter is printed in The Times ( London), May 22, 1945, p. 4.
sion government, go back to dominion status, or join Canada. These weighty questions were discussed by a Newfoundland constitutional convention, but no agreement could be reached. The British Government thereupon suggested that the local voters be polled by a referendum. The suggestion was subsequently applied, and Newfoundland's voters were queried on whether they wished to continue colonial government, regain dominion status, or join Canada. 67
The British Government also suggested the use of a referendum in some of the Indian provinces to decide whether those provinces should join Pakistan or India. 68 More than once, then, the British Government has used the referendum, though not in Britain proper.
Commonwealth countries have also expanded use of the referendum in the postwar period. New Zealand, for example, has held a referendum on race-track betting. This was under the Gaming Poll Act. 69 The machinery for holding the referendum was written into the Act itself. A similar arrangement was made for the referendum held in 1949 on the compulsory military service question. 70 In Australia, likewise, the referendum continues to be used, several constitutional amendments having been submitted to the voters by this means since 1945. 71
Certain Continental democracies use the referendum in much the same way as Australia; that is, for constitutional amendments. But most of them, unlike Australia, have other methods for amending the constitution. The French, for example, can amend their constitution if two thirds of the members of the National Assembly vote to adopt the amendment or if three fifths of each house -the National Assembly and the Council of the Republic -- adopt the amendment. But if only an ordinary majority of the Parliament agrees to the amendment, then a popular referendum is used as the final step. 72 Also, a referendum is needed for amendments dealing
67 Parliamentary Debates (Commons), 5th series, vol. 448, cols. 208-10.
68 See Mr. Attlee's statement to the House of Commons on June 3, 1947. Cmd. 7136, B.P.P., 1946- 1947, vol. XIX, p. 11, esp. pars. 11 and 13.
69 New Zealand Official Yearbook, 1947-1949 ( Wellington, 1950), p. 789.
70 Keesing's Contemporary Archives, VII ( June 4-11, 1949), 10036.
71 See Journal of the Parliaments of the Empire, XXVII ( 1946), 379, 387; also Annual Register ( 1948), p. 103. 72 Constitution of 1946, Art. 90.
with the existence of the Council of the Republic unless that body agrees to the amendment. In a larger sense, however, the referendum has played an enormous part in recent French history. This is in connection with the entire constitution-making process. It was the French voters themselves who rejected the first constitution in 1946 and the French voters, again, who approved the present constitution. Thus, in France the voters have been directly consulted on the awesome job of constitution-making; it is therefore hardly surprising that they should be consulted on the less formidable job of constitution-changing.
The German Basic Law, unlike the French Constitution of 1946, was not approved directly by the voters. Instead, the component parts of the state, that is, the Länder, approved the Bonn document; and it was the members of the Land assemblies rather than the Land voters who made the decision. 73 But the ultimate decision on the Bonn government was not actually made either by the Land assemblies or by the West German voters; rather, it was made by the Western Allied occupation authorities. This fact cannot be forgotten. Its importance was underscored by the Military Governors themselves. At the very time they approved the West German Basic Law, they also issued their Occupation Statute. By it they reserved "the right...to resume, in whole or in part, the exercise of full authority." 74 Thus, the Bonn Charter operates on the sufferance of the occupying powers.
This Bonn Charter, however, makes use of the referendum as well as of the initiative, the latter another of the mechanisms of direct democracy. One article of the Bonn document states that "all state authority emanates from the people" ; but this authority is to be exercised "in elections and plebiscites" as well as in separate legislative, judicial, and executive organs. Here the plebiscite, or referendum, is put on equal terms with elections for exercising state authority. The Bonn Charter, however, contains very few other statements about the referendum. One of these few deals with changing the boundaries of certain Länder (Art. 29). But
73 See Germany, 1947-1949, p. 281.
74 The New York Times, April 11, 1949, p. 9.
this section was explicitly reserved for final consideration by occupation authorities. Nor does the amending process involve a referendum, as it may do in France. The Bonn Basic Law simply requires two thirds of the members of the Bundestag and two thirds of the votes of the Bundesrat in support of an amendment (Art. 79). This section of the Charter is also explicitly controlled by the occupation authorities. No amendment may go into effect without their approval. 75 In fact, the Bonn Charter uses the referendum much less than did the Weimar Constitution of 1918, even though the Weimar Constitution served as the model for Bonn.
Finally, Italy's Constitution calls for the referendum and other direct democratic devices rather frequently. Fifty thousand electors may present a proposal to the legislature (Art. 71); and a popular referendum is authorized for the partial or total abrogation of a law if a half-million electors or five Regional Councils request it (Art. 75). Voters are enjoined against the use of this device for the possibly popular purpose of protesting against tax laws, the budget, pardons, amnesties, or treaties; but it can be used if new Regions are to be created or old ones to be fused (Art. 132). It is also a part of the amending procedure when less than two thirds of each of the chambers have voted for a constitutional change or if one fifth of the members of either chamber or 500,000 voters or five Regional Councils request the referendum be applied (Art. 138).
A survey of both the Continental European postwar constitutions and the British Commonwealth laws and constitutions clearly indicates that the referendum is making headway. The same observation applies to the other device of direct democracy, the initiative, although less emphatically. By and large, however, these gains are, up to now, merely the implications of constitutional provisions. Actual application of the devices has been rare except, surprisingly enough, in certain of the Commonwealth countries.
75 Occupation Statute, Art. 5.
The Position of the Representative Legislature in the Postwar Constitutions
By Edward G. Lewis UNIVERSITY OF ILLINOIS
IF democracy means governmental control by a majority of the voters, then an all-powerful legislature representing the current majority is vital to democracy. But if that legislature is limited in its powers by a constitution, so democracy is limited. This is because a majority of the voters, speaking through their legislature, are themselves thereby limited in their activities. Many statesmen and scholars insist that democracy must be more than majority rule. At its base, they say, is respect for individual rights. In their view, an unlimited majority would be as tyrannous as one-man rule, and the lack of limitations would violate an essential part of democracy -- the freedom of the individual.
In all the new postwar democratic constitutions limitations are put on pure majority rule. In all of them these limits take the form of bills of rights, though in Great Britain and some of the Commonwealth countries the formal constitutional structure still emphasizes the omnipotence of the majority, as represented by the legislature. This does not mean that individuals are less free or more likely to lose their freedom, but it does mean that the protections of the individual take a different form. They take the form of ordinary laws that the legislature may change at any time. The British Bill of Rights, however, even though it can be changed by Parliament, is an important part of the British system of government. Any fundamental change in it is extremely unlikely. In fact, it has lasted much longer (since 1689) than bills of rights written into
Continental constitutions. In measuring the democratic character of a country, the living force of tradition must be remembered.
There are, therefore, two central questions to be asked to discover the type and amount of democracy existing in a country. One of them is about the formal structure of the legislature: To what extent does it let the expressed opinions of the majority of the voters operate? To answer this question, the formal structure and operation of the legislature must be looked at. For example, what are the powers of the upper and lower house? Which house is the more powerful and which one represents the existing desires of the majority of the voters the more effectively? The second fundamental question is about the formal constitutional limitations on the legislature: What subjects are taken away from ordinary majority control? What organizations limit the legislature?
On both these questions the answer is that the postwar trend is in line with prewar democratic developments. Nevertheless, increasingly, the Continental countries use some form of "constitutional court" removed from direct majority control as a legal check on the legislature.
In Great Britain, trends discernible before World War II continue. Apart from one important structural change, namely, a further weakening of the House of Lords, there have been only minor changes. The British Government thus remains true to its traditional concept of the omnipotence of Parliament, always remembering that Parliament is the House of Commons, the House of Lords, and the King. But the Parliament Act of 1949 1 did strengthen the power of the already enormously powerful House of Commons.
The most remarkable fact about this new Parliament Act is not the substitution of the one-year suspensive veto of the Lords for the two-year veto. This change is in accord with the trend established by the Parliament Act of 1911, which originally "clipped the wings" of the House of Lords by cutting its veto to two years. What is more remarkable is the fact that the major parties nearly came to an agreement on an extensive change in the structure of the House of Lords. Tentatively, at least, the party leaders agreed,
1 12, 13, 14 Geo. VI, c. 103.
for example, that the structure be modified so that no party should have a majority. They also agreed that the members of the House of Lords should not necessarily be hereditary peers but that most of them should be "Lords of Parliament" appointed on a nonhereditary basis. 2
These tentative agreements went by the board because the area of disagreement was crucial to the Labour party. That party insisted that the period of the Lords' suspensive veto be limited to nine months after the third reading in the Commons, the reading by which the House of Commons finally approves a bill. The Conservatives insisted that twelve months elapse after the third reading in Commons. Labourites favored the lesser period because they feared three additional months would bring on another parliamentary session and extend the period beyond twelve months. Because of this, the Labour party discarded the tentative agreement and directed its members to vote for the one-year veto between the second reading in one session and the final reading in the subsequent session. 3 Thus, the predominance of the House of Commons is reinforced and the British come close to a one-house legislature in fact if not in law.
This does not mean that they have lost or will lose their individual liberties. These liberties are as safe as the voters want them to be. So long as the British legislators and the British voters keep their great respect for the centuries-old tradition of their government, the liberties are as safe as they always have been. This is not to say that the individual liberties have always remained the same. Their content changes with changing times, but the core of individual liberty remains.
Among the minor changes in the House of Commons procedure are various amendments in the rules or standing orders by which the House governs itself. 4 By one of these the House set up a
2 For details of the agreement, see Cmd. 7380, British, Parliamentary Papers (cited hereafter as B.P.P.), 1947- 1948, vol. XXII, p. 1001.
3 Parliamentary Debates (Commons), 5th series, vol. 456, col. 820.
4 The most extensive revisions were made in 1947 and 1948. See the Report of the Select Committee on Standing Orders, "House of Commons Paper 192", B.P.P., 1947- 1948, vol. IX, p. 603.
business committee to allot a specific amount of time for discussion to various parts of bills. This committee has power only over bills on which a time limit for discussion has already been fixed by the House; that is, for those bills the government wants to speed up. A similar arrangement is made in the standing committees on bills for the discussion of which a specific time has been allotted. In these there is now a business subcommittee, which allots a prearranged amount of time for each part of the bill.
Another relatively new development in the House of Commons is the Select Committee on Statutory Instruments. It was set up first in 1944 and originally known as the Select Committee on Statutory Rules and Orders. It has the power to draw the attention of the House to any Statutory Instrument "which imposes charges, is not open to challenge in the courts, makes unusual or unexpected use of the powers conferred, has been unjustifiably delayed in publication, or for any special reason requires elucidation." 5 The purpose of this committee is to handle the difficult problem of delegated legislation that grows out of the great increase in governmental activities. As the government controls more and more parts of economic life, so the need for detailed rules and regulations increases. The House of Commons cannot itself meet this need. For example, it is not expert enough to fix in detail how the laborers and their foremen get on with each other in the coal mines. This sort of regulation comes from the Ministry of Fuel and Power or the National Coal Board. The House, therefore, has actually delegated some legislative powers to the ministry. There are many other reasons why the House delegates legislative power. But this very delegation raises a problem for the House: How can it check on the use made of this discretion? This is where the Select Committee on Statutory Instruments goes into action.
As we have seen, this Select Committee may only draw the attention of the House to the existence of a Statutory Instrument that it thinks breaks the rules. To do more than this, for example, to recommend definite action to the House, would be unparlia-
5 Third Report of the Select Committee on Procedure, "House of Commons Paper 189", B.P.P., 1945- 1946, vol. IX, p. 241.
mentary, since the making of policy is the function of the ministry. If a select committee were to make suggestions attacking the policy of the government, a question of confidence in the government would surely arise. Thus, the role of the Committee on Statutory Instruments is limited.
The British Parliament, therefore, does not differ greatly from the prewar model. The same observation may be made about the Commonwealth Parliaments. In the older Dominions, for example, while there have been discussions about the relationship between the upper and the lower houses, few definitive changes have been made. 6
Even the new Commonwealth legislatures have not departed far from the standard Commonwealth parliamentary pattern. This pattern, however, limits them more than the mother Parliament is limited. In most instances the source of these limitations is a written constitution. This is the case in India. By the constitution which was approved in November 1949, a two-house legislature was set up. But the lower house or House of the People, which is directly elected, is decidedly more powerful than the upper house, the Council of States (largely elected by the state legislative assemblies). The House of the People is paramount because money bills and financial measures are passed by it alone. Likewise, disagreements between it and the Council of States are settled by a joint meeting in which, of course, the House of the People is the more powerful because it has twice as many members as the Council of States. Further, the constitution specifically makes the Prime Minister responsible only to the House of the People. 7
Nevertheless, limits are placed on the House of the People. Most importantly, the Supreme Court of India, whose members serve during good behavior, can review the constitutionality of legislative acts. In addition, the Indian Constitution contains an elaborate
6 In New Zealand, however, the second chamber was abolished, January 1, 1951. See Round Table, no. 161 ( December 1950), pp. 99 ff. For relevant discussion in South Africa, see Journal of the Parliaments of the Empire, XXVII ( 1946), 93844.
7 For the text of the constitution, see O. P. Aggarawala and S. K. Aiyar, The Constitution of India ( Delhi, 1950).
bill of Fundamental Rights, and this also limits the action of the legislature. Furthermore, because the governmental structure is federal, the controls of the central legislature are limited. Decidedly, then, the Indian legislature lacks the legal omnipotence of the British Parliament.
The legislature of Ceylon, another of the new Dominions, is also limited by a constitution. Amendments to the basic law require a two-thirds majority of all the members of the House of Representatives, rather than an ordinary majority. Also, the legislature is forbidden to pass laws regulating religious beliefs. In respect to general legislation, the House of Representatives is the more powerful of the two houses. The constitution states that the Prime Minister is responsible to Parliament; but the Senate (upper house) can be overruled by the House of Representatives because the Senate can only delay ordinary bills for two sessions and money bills for only one month. 8
Pakistan, the third new Dominion in the British system, had not produced a constitution by the end of 1950. It has operated since the partition of the subcontinent under a modification of the Government of India Act of 1935. Textual changes were made in this Act following establishment of an independent government within the Commonwealth framework. Otherwise the structure is the same as it was. This means that the Pakistan Constituent Assembly, which temporarily is also the Pakistan legislature, is bound by the many and detailed limitations of the Government of India Act. Pakistan's Prime Minister has issued a general statement about the contemplated provisions of the proposed new constitution. 9 He says it will protect the rights of religious minorities and that other fundamental rights, such as equality of status, and opportunity of social, economic, and political justice, will be safeguarded. Always, however, these rights will be subject to law and the "public majority." The government will also be federal in form. Hence, it would appear that the Pakistan Government will be one of limited
8 For the constitution, see Amos J. Peaslee, Constitutions of the Nations ( Concord, N.H., 1950), I, 367-408.
9 Quoted in India and Pakistan Yearbook ( Bombay, 1949), p. 604.
powers and that its legislature will be confined within the bounds of a federal constitution.
On the Continent of Europe, as in the British Commonwealth, the constitution-builders have, in the main, followed traditional patterns. Even so, none of the new constitutions is a slavish copy of its democratic predecessor. Partly this is because constituent assemblies tried to improve on the old models; partly, also, it is because existing political pressures required changes.
The French constituent assemblies are a good example. The first French Constitution of 1946 was written by a somewhat leftist assembly, which planned a one-house legislature. Socialists and Communists strongly favored this feature, whereas the Popular Republican Movement, most of the other parties holding over from the Third Republic, and the rightists opposed it. The Communists liked one house because it offered an easy way to take over the government. They hoped to form a momentary coalition with the Socialists and transform the government into a Communist people's democracy. 10
However, on May 5, 1946, the French voters rejected this constitutional draft by 10,583,724 votes to 9,453,675. The campaign leading to this rejection had been focused mainly on two features of the proposed document. One of these was the weak executive, which General de Gaulle, the first postwar president, especially opposed. The other was the one-house legislature. 11
Only the second of these institutions was changed by the Second Constituent Assembly, which met on June 11, 1946. The voters approved the second constitutional draft on October 12, 1946, by 9,257,432 to 8,125,295 votes. The revised legislature, like that in the Third Republic, has two houses. The more powerful is the National Assembly. As we have seen, the voters elect its members directly, and, except for the constituent amending power, it exercises the sovereignty of the French people (Art. 3). Indeed, the constitution
10 For a most comprehensive account of French constitution-making in 1946, see Gordon Wright, The Reshaping of French Democracy ( New York, 1948).
11 For a valuable brief discussion of these points, see R. K. Gooch, "Recent Constitution-making in France," American Political Science Review, XLI ( 1947), 429-46.
puts relatively few limitations on the Assembly's power. It is not expressly limited by a long bill of rights, the famous Declaration of 1789 being given no more than passing mention in the preamble of the constitution. The constitution also provides that "the National Assembly alone shall adopt the laws" and that "it may not delegate this right" (Art. 13).
Under the new dispensation, moreover, Ministers are responsible only to the National Assembly and not to the other house, a departure from the practice under the Third Republic. Less fundamental parts of the new French Constitution add to the ascendancy of the National Assembly. The premier (officially called the President of the Council) can only be formally appointed by the President of the Republic (the ceremonial executive) after the premier has submitted his program of action to the National Assembly. In practice this requirement of advance approval of the new premier's program has been a major stumbling block in the setting up of new ministries. The National Assembly also keeps a continuing control over the premier and his Ministers. For this reason it has often been said that the French Government is really run by the Parliament, whereas the British Government is run by the Cabinet. Indeed, legislative pre-eminence in the French Government shows up in the National Assembly's own rules. The timetable of debates, for example, is arranged by a committee of the National Assembly. In Great Britain, on the other hand, the chief whip -- a Minister -- arranges the timetable in consultation with the opposition whip. Likewise, the French legislative commissions can make important changes in the laws proposed by the Ministers, whereas the British standing committees generally confine their work to minor improvements. In these and many other ways, the National Assembly remains master of the ministry.
But, for all its great powers, the National Assembly must occasionally reckon with the upper house or Council of the Republic, which is not completely powerless. The constitution requires that it concur in a declaration of war. The Council may also send proposed laws to the National Assembly, although these may not contemplate reduction in revenues or increased expenditures. On proposed laws, already passed by the National Assembly, the Council of the Republic has at the most a two-month suspensive veto. The least time it can delay a proposal, under urgency rules, is for as long as the National Assembly has itself taken to consider and vote on a measure. Clearly, then, the Council of the Republic has some few functions; but it is considerably weaker than the old Senate of the Third Republic.
Another limitation on the National Assembly is the constitutional committee. It is headed by the President of the Republic and consists of the presiding officers of both the National Assembly and the Council of the Republic, in addition to the ten members selected by the two houses. The important function of this committee is to determine if laws passed by the National Assembly actually imply amendments to the constitution. It examines laws at the request of the Presidents of the Republic and the Council of the Republic, supported by a majority of the Council. If it thinks that a law does amend the constitution, the National Assembly is asked to reconsider the measure; if Parliament holds to its earlier action, the regular amending procedure must be followed before the law becomes effective (Arts. 91, 92, and 93).
There are still other constitutional limitations on the National Assembly. It is not free, for example, to upset governments on the spur of the moment, because the Constituent Assembly wrote delaying clauses into the constitution in connection with questions of confidence. By these clauses, a question of confidence can only be put after the Council of Ministers has discussed it; furthermore, only the President of the Council can put it, and one full day must elapse after its presentation to the Assembly before it is voted upon (Art. 49). The motion of censure -- prepared by those who oppose the government -- must likewise be given to the National Assembly one full day before it is voted upon (Art. 50). These are provisions that were supposed to quiet sudden storms, although in spite of their existence cabinets have fallen about as frequently as they did under the Third Republic.
One other device in the new French Constitution is intended to increase the stability of the Cabinet. This is the dissolution article (Art. 51). By its terms the Council of Ministers, with the consent of the President of the National Assembly, may decide to dissolve the National Assembly if two Cabinet crises have occurred on questions of confidence or motions of censure within an eighteenmonth period. After the President of the Republic has proclaimed the dissolution, new elections take place within a month. This article was designed to restrain the National Assembly from lightly passing motions to bring down cabinets. Such a restraining article had not been included in the constitution of 1875. Under the provisions that did exist the President of the Republic could dissolve the Chamber of Deputies if the Senate approved. This had been done after the events of May 16, 1877. The incumbent President of the Republic, who was a reactionary, and an almost equally reactionary Senate dissolved the Chamber of Deputies in the hope that a new chamber would bring back the monarchy. The result was quite the opposite, but the memory of this episode was so strong that throughout the rest of the life of the Third Republic dissolution was never used again. Without the dissolution power, however, the only solution to a Cabinet crisis was a new Cabinet. This gave the individual Deputies a good deal of irresponsible freedom in voting against the government, because the fall of a Cabinet did not threaten legislative tenure or raise the specter of election expenses. Undoubtedly, the fact contributed to Cabinet instability under the Third Republic; and it was awareness of this fact that led to an attempt to rehabilitate the practice of dissolution in the new constitution.
The National Assembly is assisted by two other constitutional agencies, the Economic Council and the Assembly of the French Union. The first of these is a functional body whose members come from labor, industry, agriculture, co-operatives, overseas territories, intellectual societies, and other groups. Its powers are purely advisory. On the crucial economic issue of the budget, it cannot make recommendations. However, its advice must be asked on the French "economic plan," and it may look into proposals on its own initiative if they fall within its province; that is, proposals of an economic or social character. 12 The National Assembly must hear
12 Law46-2384 of October 27, 1946. Partially reprinted in L. H. Laing and others, Source Book in European Governments ( New York, 1950), p. 123.
the viewpoint of the Council, but it need not follow it. The Assembly of the French Union is also, in a sense, a functional body whose members are selected because of their expert knowledge about colonial affairs. It may only deal with matters affecting overseas territories, and its role is advisory.
The Italian Constitution of 1947 provides quite a different solution of the problem of legislative structure. In Italy, both houses of the legislature -- the Chamber of Deputies and the Senate -- have almost equal powers. Both must directly approve bills concerning constitutional and electoral matters, the delegation of legislative power, the ratification of treaties, and the approval of expenditures. 13 The constitution also provides that the government is responsible to both chambers, not merely to the Chamber of Deputies. But this responsibility is tied to motions of confidence, not to ordinary legislative proposals. Thus, if a Cabinet proposal is voted down by either or both chambers, the Cabinet need not resign. Furthermore, a three-day period must elapse before a vote on a motion of lack of confidence. A motion of lack of confidence passed against a Cabinet may lead to dissolution and new elections for either or both chambers (provided that the President of the Republic is not within less than six months of the end of his term). New elections are ordered by the President of the Republic with the support of the Prime Minister and of the president of the chamber that is being dissolved. Thus, the device of dissolution and the delay on voting motions of no confidence are both available to the Italian Ministers to restrain legislators from lightly voting against the Cabinet.
There are other more direct restraints on the power of the Italian Parliament. It is prohibited from taking away from the citizens a great number of civil and other fundamental rights. The list of these rights and corresponding duties is impressive, but many of the rights need legislation before they begin to operate.
The Italian legislature is also limited by a Constitutional Court. Significantly enough, this tribunal is described in the constitution in
13 For a trenchant analysis of the new Italian Constitution see Mario Einaudi, "The Constitution of the Italian Republic," American Political Science Review, XLII ( 1948), 661-76.
the section headed "Constitutional Guaranties," not in the section headed "The Judiciary." Its important work, as the section heading makes clear, is not strictly judicial, but instead is political: that of safeguarding the constitution against violation by the different governmental agencies. This includes Parliament. According to the constitution, this court decides disputes about "the constitutionality of laws, and of acts having the force of law, emanating from the state and the Regions; on conflicts arising over constitutional assignment of powers within the state, between the state and Regions, and between Regions; on impeachments of the President of the Republic and of the Ministers, according to the norms of the Constitution" (Art. 134).
The fifteen judges who perform these potentially important functions are appointed by each of the three major branches of the Italian central government: one third by the President of the Republic (of course with ministerial approval), one third by the legislature in joint session, and one third by the ordinary and administrative judges. All the judges appointed to this court must have had extensive judicial training, as ordinary or administrative judges, as university professors of law, or as lawyers of twenty years' practice. They serve for twelve years and are not immediately re-eligible.
Italy's legislature does not differ radically from still another new Continental Parliament, that of Western Germany. This body, which consists of the popularly elected Bundestag, or lower house, and the much less powerful second chamber, or Bundesrat, is limited by the rules of the occupation authorities as well as by the limitations of the Bonn Basic Law. Among the most important of the latter limitations are a long list of Basic Rights. This list deals with freedom of opinion, of the press, of teaching, of assembly, secrecy of the mails, of property, and the right of asylum. Each of these particular freedoms is forfeited by a person if he uses them to attack the "free, democratic basic order." Here the Bonn authors tried to protect the very existence of democracy against attacks from the political left and right. The vital job of applying this safeguard of democracy was given to the Federal Constitutional Court, which thus serves to restrict the discretion of the legislature. The Constitutional Court decides on the interpretation of the Basic Law "in the event of disputes concerning the extent of the rights and duties of the highest federal organs" and also on "the formal and material compatibility of federal law or Land law with this Basic Law" (Art. 93).
Of course, the federal system itself acts as a limitation on the Bonn legislature. The Charter contains many explicit grants of power to the central government, in such matters as foreign affairs, citizenship, coinage, customs, and commercial unity. But the list of concurrent powers on which both the central and Land governments may act is long, and deals with such important matters as civil and criminal law, public welfare, economy, and labor. Apart from the powers expressly given to the central government, the Länder have legislative power. They must, however, always "conform to the principles of the republican, democratic and social state based on the rule of law" (Art. 28).
Within this limiting framework, then, the legislature carries on its work. Of the two houses of the legislature, the Bundestag is much the more powerful, although the Bundesrat can exercise certain restraints. For example, the Bundesrat must sometimes consent to changes in the territory of the Länder and it may begin impeachment proceedings. However, on most ordinary legislation the Bundesrat has only a kind of suspensive veto. Although Cabinet bills must first be submitted to it, an opinion must be given within three weeks. After a bill has been passed by the Bundestag, the Bundesrat considers it. Within a period of two weeks the Bundesrat may demand a joint conference, and the conference may ask the Bundestag to reconsider. If a majority of the Bundesrat should veto a bill, a majority of the Bundestag must repass it. This majority needed to repass is raised to two thirds if the Bundesrat's veto was supported by two thirds. The Bundesrat also participates in the amending process. An amendment of the Basic Law can only be passed by two thirds of the members of the Bundestag and two thirds of the votes of the Bundesrat.
The Bundesrat, however, does not directly control the fate of the German Chancellor and the ministry. This is the special responsibility of the Bundestag; and the working out of this responsibility is carefully described in the Bonn Charter. Certainly this problem is the central one in a parliamentary government. Under the Bonn arrangement, the Bundestag may express its lack of confidence in a Chancellor by electing his successor by a majority vote. Thereupon the Bundestag requests the federal President to appoint this successor, and he may not refuse this request (Art. 67). As in France, there is a "cooling-off" period. In Germany it is forty-eight hours. This period of time must elapse between a noconfidence motion and the election of a new Chancellor. Thus, the Bundestag cannot be completely capricious in upsetting a government; it must be ready to substitute one that will have majority support. If a stable majority cannot be constructed in the Bundestag, then the Chancellor may request the federal President to dissolve the Bundestag. The Charter provides, however, that this right of dissolution lapses if a majority of the Bundestag elects a new Chancellor (Art. 68).
From the foregoing it may be seen that the representative legislatures of the postwar democratic countries do not differ greatly from their prewar prototypes. Except in Italy, the trend toward unicameralism has continued. Here and there evidence may be offered to indicate a trend toward restricting legislative power and curbing the legal supremacy of parliamentary majorities. In several states minor structural changes have been made based on the prewar and wartime experience of those who wrote the constitutions. In sum, these changes are not challenging and certainly not revolutionary. Now that the heroic period of postwar constitution-making has come to a close, the legislators are faced with a much more difficult problem than drafting basic documents. Their problem is to use the existing legislative machinery to settle the enormous postwar social, political, and economic issues. The continued existence of the democratic form of government depends upon their success.
5 Stabilization of the Cabinet System in Western Europe
By Joseph Dunner GRINNELL COLLEGE
T HE cabinet system of government is usually defined as that form of government in which the cabinet, as the "real" executive, is legally responsible to the legislature for policies and administration. The tenure of the members of the cabinet depends upon the legislature. If major policies or administrative acts of the cabinet are disapproved by the legislature, the ministers must resign or dissolve the legislature and stake their continuance in office on the outcome of a new general election. The members of the cabinet are customarily members of the legislature. In fact, they represent the leading core of either the majority party or a coalition of parties forming a majority in the legislature. As parliamentarians, they serve as a sort of steering committee in the legislature. As members of the executive branch, they serve as heads of the various administrative departments. In contrast to the presidential type of government, in which the president as the "real" executive is independent of the legislature in regard to his tenure and, to a considerable degree, his policies and acts, cabinet government, in the persons of the cabinet ministers, emphasizes the interdependence of legislative and executive functions.
The cabinet system of government originated in England as an outgrowth of the Privy Council of the King. While the members of the British Cabinet are at once the working executive, the guiding agency in legislation, and the leaders of the majority party inside and outside of Parliament, this concentration of responsibility and power in the governing party is matched by a unique responsiveness to the voice of the parliamentary minority, a free press, and the general public.
Owing to British traditionalism, the remnants of aristocratic organization that continue to influence British political life, 1 and the regular alternation of two major political parties, able and willing to shoulder the responsibilities of government, the cabinet system in England proved so successful that it was adopted, with some modifications, by most of the states of the European Continent.
Very few of the Continental European nations have, however, ever succeeded in developing fully the subtle and yet fairly simple interrelationship of British constitutionalism with a cohesive, efficient executive leadership, tempered and controlled by a vigilant representative body. While on the European Continent, as in Britain, the contest of political parties created that individual and collective responsibility of cabinet ministers which lies at the root of parliamentary government, the absence of the gentlemanly character of British politics and a traditional multiplicity of large and small parties nearly always militated against a smooth and satisfactory operation of the cabinet system.
As a rule, ministries in France, Italy, and Germany, as well as in a number of other European countries, have to be formed as coalitions by representatives of a number of parties, which compete with one another for popular support. A government so constituted often is unable organically to harmonize, in its political and administrative policies, even the more essential interests of the groups upon which it is compelled to rely. It is from this condition of things that there arose the remarkable frequency of ministerial crises and cabinet changes in the pre-Fascist era of France, Italy, and Germany. This resulted in a popular demand for stable and clearly recognizable government leadership, and, in turn, such a demand, perverted by demagogues, resulted in the emergence of totalitarian structures.
After World War II, public opinion in France, Italy, and Germany
1 Cf. Carl J. Friedrich, Constitutional Government and Democracy ( Boston, 1950).
considered new constitutions necessary to underscore a fresh approach to political life. But it must be kept in mind that governmental systems are not created de novo. The crucial problem upon which the constitutional debates of the postwar years in Western Europe have been centered is the precise character of the relationship between the executive and legislative branches of government. In attempting to find a more satisfactory solution to this problem, the framers of the new constitutional documents evolved a number of interesting new devices. Yet the connection of the new documents with the past is quite apparent. The more carefully one examines the position accorded in the new basic laws to the head of state, the head of government and the ministers, and to the legislative bodies, and the more one analyzes the various procedural and substantive checks on the parliamentary control of the executive, the more one is reminded of the French proverb, Plus ça change, plus c'est la même chose.
Under the constitution of 1875, the President of the French Republic theoretically enjoyed supreme executive powers. In actual fact, however, his powers were of no real significance. His official decrees had to be countersigned by a responsible minister. His suspensive veto over parliamentary acts was allowed to fall into disuse. While he sat as chairman of the Council of Ministers, he had no vote. Poincaré once remarked, "Je suis un manchot constitutionnel." While the Kings of France reigned and governed, the French presidents traditionally neither reigned nor governed. After the collapse of the Vichy regime, fear of De Gaulle's alleged dictatorial ambitions resulted in the "tripartisme" of M.R.P. (Christian Democrats), Socialists and Communists formally transferring many of the more important executive powers, once attributed to the President of France, to the President of the Council of Ministers, as the French prime minister or premier is known (Art. 47 of the constitution).
Under the constitution of 1875, the most important governmental function of the President of the Republic was his selection of a new premier whenever a ministry fell. The constitution of 1946 reduces this appointive power of the President of France by provid- ing that formal presidential appointment of a premier and ministers must be preceded by submission of the executive program to the National Assembly and a vote of confidence for the ministerial candidates (Art. 45, 3, and Art. 46). While the constitution of 1875 gave the President of the Republic the initiative of the laws, concurrently with the members of the Chamber of Deputies and the Senate, the new constitution stipulates that only the President of the Council of Ministers and the members of Parliament shall have the initiative in legislation (Art. 14).
The constitution of the Third Republic did not limit the chances for re-election of the President of France. The new constitution, like the old one, stipulates a term of seven years, but adds, "He can be re-elected only once" (Art. 29, 2). In one minor respect only has the office of the President of France been somewhat strengthened. Under the new constitution, as under the constitution of 1875, the President of the Republic sits without a vote as chairman of the Council of Ministers. But this presidential prerogative is extended by the stipulation that "he shall order the minutes of their meetings to be recorded and shall keep them in his possession" (Art. 32). As a national leader who must keep out of the storms of partisan politics, the President of France affords badly needed continuity in government. If he is a forceful individual, he can become the interpreter of past policies and the arbiter in Cabinet deliberations. Beyond that he must not venture.
By comparison, the new Italian Constitution of 1947 gives the President of the Republic rather extensive executive powers. They are symbolized by the provision that the President of the Council of Ministers and the ministers, before assuming their office, shall swear an oath in the hands of the President of the Republic (Art. 93 of the Constitution). Of more material significance is the right of the President of Italy to dissolve one or both of the chambers at any time and as often as he deems necessary, except during the last six months of his term, when he should be prevented from a possible manipulation of the forthcoming presidential elections (Art. 88).
Italy's head of state, like the President of France, is elected for seven years at a joint session of both houses of Parliament. While the French Constitution says nothing about the mode of election, 2 the Italian Constitution prescribes the secret ballot and a two-thirds majority. After the third ballot, however, an absolute majority suffices (Art. 83, 3). Like the President of France (Art. 37), the Italian President can send messages to the chambers (Art. 87, 2); he also promulgates the laws (Art. 87, 5). Under the new French Constitution, the President's appointive powers, applying to Councilors of State, members of the National Defense Council, chiefs of the central administrative services, general officers of the armed forces, and ambassadors and government representatives in France's overseas territories, are to be exercised at Cabinet meetings (Art. 30). This can only mean that the appointments must have the approval of the Cabinet. In the fields traditionally within the jurisdiction of the parliamentary head of state, the Italian President is allowed to act alone although countersignature is necessary.
Under the Weimar Constitution of 1919, which undoubtedly was ever present in the minds of the framers of the Bonn Basic Law of 1949, the office of the popularly elected Reichspräsident was of overriding significance. In fact, it was this office that provided the legal mechanisms for the change of Germany from a parliamentary democracy to the Hitlerian dictatorship. While the Reichspräsident could not initiate ordinary legislation, he had the power of governing by emergency decree (the well-known Article 48 of the constitution of Weimar), and he had the power to dissolve the Reichstag (Art. 25).
Under the Bonn Basic Law, the federal President is deprived of an independent popular base. He "shall be elected, without discus. sion, by the Federal Convention" (Art. 54), which consists of the popularly elected deputies of the Bundestag (Federal Diet) and an equal number of specially elected delegates of the Länder (state) parliaments. His term in office is five years. Immediate re-election is admissible only once. Under the Basic Law, the federal President
2 An agreement, accepted by all major parties and confirmed by Parliament on January 16, 1947, required the secret ballot and an absolute majority for the election of the first President of the Fourth Republic.
has the privileges customarily accorded to the head of state in a parliamentary democracy. The ill-fated experiment of the constitution-makers of 1919, in attempting to fuse elements of the American presidency with the British monarchic tradition, has obviously been discarded by the constitution-makers of 1949 in favor of a presidential office closer to French and Italian models.
If the new Italian Constitution weakens the position of the President of Italy by comparison with the position enjoyed by the King under the Statuto of 1848, 3 and if the French and West German documents likewise reduce somewhat the power of the head of state, the French and Italian Constitutions, as well as the Bonn Basic Law, have tried to compensate by strengthening the position of the Cabinet in its relationship with the legislative bodies.
As was the case under the constitution of 1875, the "real" executive in the new Fourth Republic of France is the Council of Ministers. In contrast to the constitution of 1875, however, the constitution of 1946 establishes a certain hierarchy in the membership of the Council of Ministers by making the President of the Council somewhat more than a primus inter pares. It is significant that he, and no longer the President of the Republic, directs the armed forces and co-ordinates all measures of national defense (Art. 47). It is he who shall secure the execution of the laws. He alone can put the question of confidence before the National Assembly (Art. 49). The requirement that the program of the premier be accepted by an absolute majority of the National Assembly before the premier's appointment serves to enhance the power of the legislature in relation to the President of the Republic; at the same time this requirement also increases the stability of a Cabinet whose program has been approved. Altogether, such departures from the constitution of 1875 as were made in the new French system result from the dual objective of increasing the power of the National Assembly and the efficiency of the ministerial team as an executive committee of the Assembly.
3 "To the King alone belongs the executive power" (Art. 5). The legislative power shall be exercised collectively by the King and two Houses, the Senate and the Chamber of Deputies (Art. 3).
Three times -- under Napoleon I, under Napoleon III, and during the Vichy period -- France had succumbed to a dictatorial perversion of its constitutionalism. If the constitution-makers of 1946 were to bring about greater ministerial stability than characterized the French Cabinets of the Third Republic, they had no intention of diminishing the controlling role of the Assembly in its relations with the executive.
Under the constitution of 1875, the Council of Ministers depended for support not only on the Chamber of Deputies but on the Senate as well (Art. 6). Since the composition of the membership as well as the policies of the two chambers were often at variance, the very formation of a Cabinet was, at times, next to impossible. French experience with a strong upper house during the Third Republic caused the "tripartisme" to create a scheme of parliamentary organization reminiscent of the days of the French Revolution and the Second Republic. While the new French Constitution reserves a limited amount of legislative initiative to the Council of the Republic, the National Assembly has the sole legislative authority (Art. 13). Under the constitution of 1946, the Ministers are not responsible to the Council of the Republic (Art, 48, 2).
Another attempt to harmonize added control of the executive by the Assembly with increased ministerial stability can be seen in the constitutional treatment of the dissolution powers of the executive. Under the British system, general elections for Parliament can occur whenever the King, acting upon the advice of the Cabinet, dissolves the House of Commons. Through the device of dissolving Parliament, the Cabinet can fix the time of the election to gain the best advantage for bringing critical issues before the voters. On the other hand, the House of Commons can effectively dismiss a Cabinet by passing a resolution of "want of confidence." This in turn will almost always lead to general elections. As stated before, the fact that elections may be held at any time tends to make both the executive and the legislative branches of British Government highly sensitive to public opinion.
On the surface, the new French Constitution sanctions the power of the Cabinet to resolve parliamentary deadlocks by appealing the issues at stake to the nation in a general election. However, some unpopularity attaches to this device inasmuch as it was attacked by Socialists and Communists in both constituent assemblies as "antidemocratic." Moreover, the dissolution of the National Assembly is based on conditions that in actual practice destroy the effectiveness of the principle. First of all, no dissolution is permissible during the first eighteen months of the legislature (Art. 51, 2). Afterwards, it may take place only if, during another eighteenmonth period, two ministerial crises have followed each other as the result of either a refusal of a vote of confidence (Art. 48) or of the passage of a motion of censure by an absolute majority of the Deputies (Art. 50). Even in this case the Cabinet needs the concurrence of the President of the Assembly. Moreover, the Assembly has a right of immediate political retaliation; for, in the case of dissolution, the President of the Council of Ministers must surrender his office to the President of the National Assembly, who appoints a new Minister of the Interior (head of the police forces in Continental Europe) with the approval of the Secretariat of the National Assembly (Art. 52).
While this limitation of official pressure during elections could, as such, be considered an improvement in constitutional technique, it is bound to increase the subservience of the Cabinet to the Assembly and its party blocs under the "régime conventionnel" of the Fourth Republic. It should also be kept in mind that an appeal of the Cabinet to the electorate can always be frustrated by the simple method of delaying a vote of nonconfidence or censure. Should the Cabinet, in such a situation, prefer to resign, it would, of course, lose its right to dissolve the Assembly.
This arrangement can be understood only if we remember that to many Frenchmen the dissolution of the legislature appears to signify a coup d;'état rather than a means of determining the wishes of the electorate. It must also be remembered that the ever. shifting coalition governments secure most of their personnel from the same pool of ministerial candidates; or, in other words, that many ministerial candidates return to office time and again. Finally, it should be kept in mind that the senior members of the civil service, legally protected from the operation of the spoils system, give France more administrative stability than the frequent Cabinet crises might indicate.
Under the new Italian Constitution, the Cabinet has ten days to consolidate itself and to organize its parliamentary support before it must present itself to the two chambers, the Senate and the Chamber of Deputies, for a vote of confidence (Art. 94). Three days -- two more than in the French practice -- must elapse before a motion of nonconfidence can be put to a vote. Moreover, the motion of lack of confidence must be signed by at least one tenth of the members of either of the chambers in which it is presented. A vote in opposition to the Cabinet by one or by both the chambers on a motion of the government does not carry with it the obligation of resigning (Art. 94); but it stands to reason that, if the Cabinet is defeated on major issues of policy, a vote of nonconfidence is likely to follow. In that event, the Cabinet must resign.
Although the Christian Democrats in the Constituent Assembly of Italy had hoped to make the dissolution power a presidential prerogative completely detached from the policies of the Cabinet, the act of dissolution, like every other presidential act, must be countersigned by the President of the Council of Ministers. While the present government, thanks to the elections of April 1948 which gave the Christian Democrats a majority of the seats in the Chamber of Deputies, enjoys rare stability, there is no such guarantee for the future. In Italy, as in France, the extremist parties to the left and right have been assisted greatly by the prevailing electoral laws. 4
The two Italian chambers possess concurrent powers of legislation. As in France under the Third Republic, this raises the question of the influence that the co-existence of two legislative chambers
4 On the basis of the list system of proportional representation, adopted by the Second Constituent Assembly on October 5, 1946, for the election of the Deputies of metropolitan France to the National Assembly, the communists emerged as the strongest party in the Assembly. By contrast, in the elections to the Provincial Councils of March 1949, in which the traditional French plurality system was applied, the Communist party elected only 37 out of some 1,500 Provincial Councilors. In Italy, proportional representation is written into the constitution itself (Arts. 56-57).
may have on the continuity and stability of the executive branch. In view of the different composition of the Senate and Chamber of Deputies, reflecting different periods and slightly different modes of election, the possibility exists that, just as in the days of the Third Republic, one house may approve of the policies of the government while another may express a lack of confidence. In such a case the new constitution leaves the final decision in the hands of the President of the Republic. He can either accept the negative verdict of the one chamber and, following the resignation of the Cabinet, proceed to form a new one or dissolve the house that cast a vote of nonconfidence. In all likelihood, he will be guided by the political mood of the country as a whole and attempt to follow the house that reflects it more accurately. Italy under Fascism, like France under the Vichy system, experienced the weakening of parliamentary government through the practice of delegating important legislative powers of Parliament to the executive. While the French Constitution prohibits such delegation outright (Art. 13), the new Italian Constitution allows exceptions "for a limited time and for defined objectives" (Art. 776). Under the Fascist dictatorship, executive decrees had the validity of law. Under the new constitution, the government may issue decree laws only if it has received specific authorization from the chambers (Art. 77); moreover, on the day the decrees are issued, it must present them to the chambers for conversion into regular law. To prevent the executive from ruling the country by emergency decrees during a period of parliamentary crisis, the constitution demands that, even in the event of a dissolution, a special session of the chambers must be convoked within five days after the issuance of the decrees to permit the chambers either to sanction or to reject the decrees (Art. 77).
On the other hand, just as the dissolution provisions of the Italian Constitution allow the government to overcome an executive-legislative stalemate by presenting important issues to the electorate, the electorate itself retains a greater measure of legislative initiative than is granted the French voter. While the French Constitution limits the use of the referendum to constitutional amend- ments (Art. 90), the Italian Constitution authorizes the President of the Republic to announce a referendum if 500,000 voters or five Regional Councils demand a total or partial abrogation of a law or any act having the force of law (Art. 75). No referendum is allowed, however, on tax laws, on the budget, on laws concerning amnesty and pardon, and on international treaties.
Generally speaking, the Italian Constitution has avoided the pitfalls of an almost omnipotent unicameral legislature such as exists in the French system. While Parliament is the supreme authority in the Italian nation, the executive holds a position of central influence in it.
Under the Bonn Basic Law the federal Chancellor occupies a position similar to that of the British Prime Minister and somewhat stronger than that of the heads of the governments of France and Italy. The Chancellor is elected by the Bundestag (Diet) on the proposal of the federal President (Art. 63). If, within a two-week period, a candidate cannot obtain a majority, he must be elected by a simple plurality. While the federal President is legally bound to appoint the person who has received a majority vote, he is free to refuse appointment to a candidate elected by a relative plurality. In that event, the President must dissolve the Diet and call for new elections.
As in the days of Weimar, the Chancellor selects his ministerial colleagues and determines the broad outlines of governmental policy. Like his French and Italian counterparts, he alone puts the vote of confidence before the Diet. Departing quite radically from the French and Italian Constitutions, the Bonn Basic Law stipulates that the Diet may remove the Chancellor only if it elects a successor by majority vote (Art. 67). If the Diet cannot produce a successor, the Chancellor, himself unable to marshal sufficient parliamentary support, may ask the federal President to dissolve the Diet. The presidential right of dissolution lapses, however, if the Diet elects a new Chancellor within a twenty-one-day time limit and thereby forestalls new federal elections. As Article 68 of the Basic Law, dealing with the dissolution of the Diet, leaves the decision on this matter in the hands of the Chancellor, it is theoretically possible that a Chancellor, as in the days of Von Papen and
Von Schleicher, could remain in office without ever having a majority. Moreover, since the federal President has the power to declare "a state of legislative emergency" (Art. 81, 1), the Chancellor, with the support of the President, can pass emergency laws that have been rejected by the Diet. It should be noted, however, that this power of the government to rule by emergency decrees is contingent upon the approval of the majority of the Bundesrat and that no constitutional amendment is allowed under the state of legislative emergency (Art. 81, 4). It is further understood that, after the expiration of a six-month period, a renewal of such a "state of legislative emergency" with the same Chancellor at the helm of the government is inadmissible (Art. 81, 3).
Obviously, all these provisions are intended to avoid the recur. rence of situations that were so frequent in the days of the Weimar Republic, when the absence of a responsible parliamentary majority, willing to sustain the government, caused a general disappointment in the efficiency of the whole democratic process. The danger of these provisions, however, lies in the temptation they offer to a federal Chancellor to govern without a parliamentary majority, even where such a majority could be organized.
Like its two predecessors, the Imperial Bundesrat and the Reichsrat ( National Council) of the Weimar Republic, the new Bundesrat ( Federal Council) is composed of delegates appointed by the Land governments. Unlike the Italian Senate, it is not a true upper house, inasmuch as its share in legislation consists chiefly in assenting to Cabinet bills or postponing the promulgation of laws. But consent of the Federal Council is required in matters that concern the Länder (Art. 80, 2); and constitutional amendments need the support of two thirds of the members of both the Federal Council and the Diet. In regard to normal legislation, an absolute majority of the Federal Diet can override a suspensive veto of the Federal Council (Art. 77, 4). The Cabinet is dutybound to keep the Bundesrat "currently informed" on the conduct of federal affairs, although the Cabinet's primary responsibility is to the Federal Diet.
Like the Japanese Constitution of 1947, the Bonn Basic Law was promulgated in the presence of foreign military authorities. As nations of proved energy and industry and, especially, in view of the East-West conflict, neither Japan nor Western Germany is a completely helpless pawn on the international chessboard. If the hopes and plans of the Western powers are fulfilled, the potentials of the two defeated nations will be released along democratic lines. Nevertheless, it stands to reason that the constitutional documents drawn up under the influence of Allied military administrations will be discarded or at least modified after a final peace settlement. In this respect it is significant that the framers of the Bonn Basic Law deliberately called their document a "Basic Law" and not a "Constitution."
If we were to find a common denominator in the new constitutional documents of Western Europe, it would be the emphasis that all of them place on the prerogatives of the popular assembly. While the Italian and German documents attempt to strike a certain equilibrium between the executive and an ultimately superior legislative authority, the French Constitution suggests a deliberate effort to deprive the executive of all independence from parliamentary rule.
This trend can be well understood as a reaction to the Fascist past of these countries and the "Gleichschaltung" of supreme legislative, executive, and judicial powers in the hands of the hierarchy of a totalitarian party clique. The re-emphasis on parliamentary supremacy must be viewed as the return to a utilitarian-liberal concept of the state. Although the protagonists of this concept usually mention the traditional trinity of power as the best safeguard against the abuse of power, they are probably quite aware of the fact that the lawmaking and administrative processes are closely interwoven and that a rigid separation of power is but jeu et mystére.
Every highly industrialized democracy has had to delegate the function to frame bills to the experts of the government bureaucracy, while Parliament retains the power to approve or disapprove these bills as regards their broad intent. It is certainly true that in the United States "the separation doctrine has served to maintain the principal attributes of the legislative significance of Congress." 5
But it is also true that, in the more unified system of the executivelegislative relationships in Britain, Parliament has retained "the principal attributes" of legislative authority. The fact that private member bills rarely reach today the crucial second reading, while government bills virtually monopolize the timetable of the House of Commons, has been called "cabinet dictatorship." This is a matter of terminology, not to say a play on words; for it must not be forgotten that it is through the majority party in the Commons that the British Cabinet receives its power to assume legislative leadership, and that it is Parliament as a whole before which the members of the Cabinet have to justify their policies.
The main problem which confronted the framers of the postwar constitutional documents of France, Italy, and Western Germany was to work out a system that permits the legislative authority to supervise the legislative functions delegated to the executive branch without disturbing their efficacy. To assume that the few improvements in constitutional technique which have been pointed out could automatically produce the great measure of stability enjoyed by the British system would be an act of wishful thinking. In view of the traditional multiplicity of rather doctrinaire political parties in the Continental European nations, abetted largely by the electoral system of proportionate representation, there remains always the danger that the legislative assembly will become divided into so many factions that no stable majority can be found to support the executive.
The return of France, Italy, and Western Germany to the utilitarian-liberal concept of the state comes at a moment when we experience the resurrection of the totalitarian menace in the form of Soviet imperialism and its world-wide Communist agencies. In the final analysis, a successful revival of constitutionalism in France, Italy, and Western Germany will depend less on the constitutional machinery than on the dominant movements of thought and feeling in these countries.
5 Arnold J. Zurcher, "The Presidency, Congress and Separation of Powers: A Reappraisal," The Western Political Quarterly, III ( March 1950), 88.
Local Autonomy in France and Italy *
By Ferdinand A. Hermens UNIVERSITY OF NOTRE DAME
T HE political development of the Western world is characterized by the paradox that where central government is strong, as in Britain and the United States, local autonomy is well developed, and that where central government is weak, as in France and Italy, local autonomy is severely curtailed. Strength and selfconfidence at the political center apparently engender a willingness to let local bodies lead a life of their own; weakness at the center breeds fear that local authorities might rival their national counterparts, or at least become too strong to be checked when checks are needed in the general interest.
Events in postwar France and, to a significantly lesser extent, in postwar Italy conform to this pattern. Both countries have a tradition of centralized government, born out of the original uncertainty of national unity. In both, the opinion that democracy, like charity, begins at home had gained ground at the end of World War II. Thus, the two new constitutions contain generous provisions for enlarged home rule. In France, where the national government is even weaker than it was during the Third Republic, nothing has come of these reforms; in Italy, where the national government is, for the time being, more forceful and coherent than in France, a measure of progress has been made.
In France, the Revolution deemed it necessary to break up the
* The preparation of this and the following chapter was made possible through the assistance of the Committee on International Relations of the University of Notre Dame. For material on France the author is indebted to Dr. Jacques Cadart, and for material on Italy to Professor Giuseppe D. Ferri and Mr. William H. Knight. The author alone is responsible for the conclusions reached.
old provinces and to replace them by eighty-three (at present ninety) small départements, which would permit the national government to "divide and rule." Still, the law of December 22, 1789, which effected this change, intended to institute self-government for the départements as well as for the municipalities. It proved impossible, however, to establish a new tradition of local home rule during a time of revolutionary disorders. In the words of Professor Sharp: "Administrative and financial chaos developed in many parts of the nation." 1 Therefore the Revolution resorted to centralizing measures, and Napoleon completed the process with the law of the 28 Pluvôise of the year VIII ( 1800). He introduced, in particular, the préfet who, as the representative of the central government, became the all but absolute ruler of departmental affairs and exercised strict control over the municipalities. The name "prefect" was new, but the office was a revival, for a smaller geographical unit, of the intendant who under the ancien régime had ruled over a généralité. Napoleon's centralizing legislation was partly reversed by the July Monarchy, which once again made the councils elective; but serious progress had to wait for the Third Republic. The law governing the basic aspects of departmental life was issued by the National Assembly in 1871 and the law governing municipal life in 1884, although both have been amended since that time, the latter more than the former. The medium of centralization is in both cases the prefect, appointed by the Minister of the Interior, whose function is twofold: He controls in some detail the self-government of the département and of the municipalities within its borders, and he is, to a limited extent, the head of the instrumentalities of the central government located within his département.
In the two French Constituent Assemblies of 1945 and 1946 the tendency toward decentralization was not universal. Edouard Herriot and most of the members of his Radical party, who had come to defend everything connected with the Third Republic as much as others opposed it, were afraid that radical measures of local autonomy might bring different parties into control in various parts of the country. The Communists favored autonomy, apparently
1 Walter Rice Sharp, in William Anderson, ed., Local Government in Europe ( New York, 1939), p. 112.
feeling that, while in the national government they could at best conquer a share, they might be able to dominate local and departmental government in certain areas. The Christian-Democratic M.R.P., unlike its counterparts in Italy and Western Germany, insisted on strict limitation of local autonomy.
The result was a compromise, contained in provisions which Gordon Wright has called "one of the most obscure chapters of the constitution" 2 (Arts. 85-89). The conflicts raging in the minds of the constitution-makers are readily apparent from the first sentence of Title X: "The French Republic, one and indivisible, shall recognize the existence of local administrative units." Still, the compromise would seem workable. Article 87 stipulates that the local and departmental councils (in this connection we can ignore the overseas areas) are to govern the respective units "freely." The execution of their decisions is to lie in the hands of the mayor of the commune (as all municipalities are termed, regardless of size, just as all are subjected to the same legal regulations) and in the hands of the president of the departmental parliament (the "general council") for the département. Subsequent plans to implement these constitutional provisions contemplate three sets of measures: First, there is to be decentralization in the sense of self-government of the départements. Second, there is to be administrative "deconcentration," meaning that all the agencies of the central government within the départements are to be grouped under the control of the prefect, with decisions made locally, so far as possible. Third, there is to be true municipal autonomy.
Before discussing concrete reform proposals, it may be well to note the shortcomings of the present setup. Thus, the "exposition des motifs" for the bill introduced by the M.R.P. in order to bring about departmental decentralization 3 states:
The general councils are, at the moment, hemmed in by a group of provisions which subject them to a narrow administrative tutelage.
2 The Reshaping of French Democracy ( New York, 1948), p. 241.
3 Assemblée Nationale, première législature, session de 1947 (No. 2341), Proposition de loi tendant à réorganiser l'administration départementale dans le cadre de la réforme administrative..., présentée par M. De Tinguyet les membres du Mouvement Républicain Populaire, p. 2.
Their deliberations are prepared by the prefects, discussed by the active participation of the administration, very frequently submitted to the approval of, and always executed by, the prefects alone.
The budgetary rules, and the rules governing financial control, double the effects of this administrative tutelage by adding a narrow financial tutelage.
When, on November 9, 1949, the National Assembly discussed the "Statute of the Personnel of the Communes," and it was charged that this law constituted an interference with local freedom, the Deputy, Waldeck-L'Huiller, the reporter of the Commission of the Interior, said:
The true interference with municipal autonomy, Mr. Minister, consists in the constant and abusive intervention, in the meddling so often denounced here of the superimposed powers of tutelage, which constitute an intolerable hampering, and which all of the mayors, who sit here (as members of the National Assembly) know well. 4
Inasmuch as the legal relation between cities and provinces is basically the same in Italy as in France, the interference with municipal government by the prefects may be illustrated by what the mayor of an Italian town told this writer: The prefect's principal concern was uniformity. The town in question was a seaside resort. The mayor wanted to develop the city's water front and planned expenses along those lines. The prefect found it hard to understand why the city in question should engage in expenditures that the other cities in his province, which were not seaside resorts, did not contemplate. In this case the mayor proved to be sufficiently able personally, and influential politically, to get, in the main, what he wanted, but he resented the expense of time and energy required to meet objections of a purely bureaucratic nature. In France, where the prefect is supported by a much more powerful central bureaucracy ( Rome cannot, of course, compare with Paris as a centralizing force), his weight is greater. The result is a corresponding lessening of local initiative. French cities and départements would, if granted the freedom promised them in the constitution, probably make
4 Journal officiel de la république française, November 9, 1949, p. 6004.
mistakes from which they are now preserved by the tutelage of the prefect, but they might also develop a strengthened local and regional life; as a result, the energies of the people of France might not be drained off to their capital to the extent that they are at present.
In order not to make the prefects the villains of the piece of stymied local energies, we must emphasize that they constitute a body of men with excellent training and, as a rule, high qualifications. Their profession -- the dignity of which is properly enhanced by a splendid uniform -- is, next to the diplomatic service, the one that is most attractive to young Frenchmen who aspire to public service. The ambiguity of their position arises from the fact that they have both administrative and political functions, which causes Michel Debré to write that the career of prefect at present is "neither in the field of administration, nor in that of politics." 5 One might call them administrators who must permanently resort to political maneuvering if they are to achieve their task. They may want to keep within the framework of the law, but they will do well to be on good terms with the powers that be, not only in Paris, but also the Deputies and perhaps the Senators of their département, returning favor for favor, even though they may compromise their impartiality.
There is no lack of concrete plans for the implementation of Section X of the French Constitution. Thus, a bill providing for departmental decentralization was introduced in the name of the then Prime Minister, Paul Ramadier, and the then Minister of the Interior, Edouard Depreux, in 1947. 6 Its "exposition des motifs" constitutes a rather forceful restatement of the goals that the respective constitutional provisions were meant to reach. It is said that: "The reforms which are to be realized must be daring. Our democracy has reached maturity and it is necessary that our local bodies cease to be regarded as minors (comme des personnes morales mineurs)." To characterize the spirit of the reform, the authors of
5 La Mort de l'état républicain ( Paris, 1947), p. 84.
6 Assemblée Nationale, première législature, session de 1947 (No. 1391), Project de loi relatif à l'organisation départementale.
the bill quote the President of the Republic, Vincent Auriol, who in his book, Hier-Demain, wrote: "We must repudiate equally the centralizing Jacobinism which stifles initiative, the caesarian authoritarianism, which suppresses freedom, and the separatist autonomy which disperses the nation and mutilates the fatherland."
The authors proceed to assure the prefects that they will not become useless, that they will remain the representatives of the central government, and that deconcentration will give them new powers. On the other hand, the president of the general council receives generally the attributes with which so far the prefect was charged as agent of the département.
It will be his task to arrange for the topics to be submitted to the general council, to carry out the decisions of this assembly, to nominate departmental officials, to administer the property of the département, and to represent it before the courts and in contracts.
Furthermore, while the law of August 10, 1871, does not attribute to the departmental assembly a general competence comparable to that given to municipal councils, and limits its powers to those enumerated:
The present bill provides, on the contrary, that the general council through its deliberations regulate the whole of the affairs of the département as a territorial collectivity.
The extension of the departmental liberties further implies a profound transformation of the regime of tutelage for which the constituent assembly has decided to substitute administrative control.
This change of denomination means more than a mere change of terminology. It testifies to the desire to break with former conceptions, the maintenance of which has proven unacceptable.
While tutelage has too often revealed a paralyzing character, control must limit itself to as few interventions as possible....
Passage of this bill would, obviously, for the first time give real self-government to the French départements, but it is not expected in the immediate future.
"Deconcentration," the second part of the reform program, is to give to the prefects control over the activities of the agencies of the central government within the départenent, This measure is, as mentioned above, intended to compensate the prefects for the powers they would lose as a result of departmental self-government. The complaint has been made frequently that the various government agencies in the départements refer measures of only local interest to the ministries in Paris, a procedure which means the loss of much time and finally results in decisions being made by inexperienced young men in Paris. The prefects are said to contribute to this tendency by "opening an umbrella"; i.e., by referring all kinds of minor decisions to the ministries in order to shield themselves against possible blame. A bill to remedy the situation was submitted to the National Assembly in the name of the then Prime Minister, Robert Schuman, and seven other ministers, on March 6, 1948. 7 It is rather short and delegates to the prefects the power of supervision over all offices of the central government located in the département, not only those of the Interior Department, with the exception, of course, of the administration of justice. Practically the same bill was submitted by Mr. Dreyfus-Schmidt, the reporter of the Commission for Administrative Reform, on January 20, 1949. How much such a bill, if adopted, would mean in reality is difficult to tell. It is interesting to note that the one important reform measure of recent years is the institution of the so-called "super-prefects"; 8 i.e., eight prefects charged with the task of co-ordinating government activities in the various regions of France. These officials continue, in a different manner, the supervisory functions exercised by the six regional prefects instituted by the Vichy government. Under present conditions, the "super-prefects" may be needed in order to bring order out of what would otherwise (as a result of the continuing multiplication of government functions) be administrative chaos; still,
7 Assemblée Nationale, première législature session de 1947 (No. 3705), Projet de loi relatif aux pouvoirs des préfets et à la deconcentration administrative, présentée au nom de M. Robert Schuman, president du Conseil des Ministres, par M. André Marie, Garde des Sceaux, etc. See also, Assemblée Nationale, premiere l'egislature, session de 1949 (No. 6122), Rapport fait au nom de la Commission de la Réforme Administrative sur le projet de loi relatif aux pouvoirs des préfets et à la deconcentration administrative, par M. Pierre Dreyfus-Schmidt.
8 For details, see Roger S. Abbott and Roger Sicard, "A Post-War Development in French Regional Government: The 'Super-Préfet,'" The American Political Science Review, XLIV ( June 1950), 426 ff.
they could as properly be called agents of concentration as of deconcentration.
The third topic to be dealt with is the powers of the municipalities. A bill intended to enlarge them was introduced in the National Assembly on June 18, 1948, in the name of the Communist deputies. 9 It is rather lengthy but, on the whole, constitutes what appears to be a faithful interpretation of the intentions expressed in Article 88 of the constitution. The municipal councils are to be given complete powers; there is to be no more administrative tutelage by the prefect, although the acts of the municipalities must stay within the laws. Certain actions of the municipal councils are, however, to be submitted to the presidents of the departmental councils for their opinion or for their approval. The mayors are to obtain control over the municipal and rural police; the city of Paris is, in the main, to receive the same city government as the other French cities. It may be noted that the office of the "police prefect" for Paris would be abolished; none of those who have held this office has ever been popular with the Communists. The mayor would inherit his powers, although one wonders whether the Communists would be any better satisfied with a police under the control of Pierre de Gaulle (who became "Mayor of Paris," i.e., President of the General Council of the Seine, after the municipal election of 1947) than they were with the department when it was headed by Jean Chiappe, a prewar official specializing in effective measures to repress Communist activities.
Municipal reform is to include further a change in the recruitment of municipal officials. Such a bill was introduced by Jacques Bardoux in the National Assembly of February 7, 1947. 10 It proposes certain reforms in the election of mayors and assessors; mayors, for example, could no longer hold office in the National Assembly and in the Council of the Republic. The rules of budgetary procedure would be more strict. Finally, provision is made to secure for the
10 Assemblée Nationale, première législature, session de 1947 (No. 492), Proposition de loi relatif à l'administration municipale, présentée par M. Jacques Bardoux.
9 Assemblée Nationale, premiere législature, session de 1947 (No. 1731), Proposition de loi relatif à l'organisation municipale, présentée par Mm. Auguet, Waldeck L'Huiller...et les membres du groupe communiste et apparentés.
technical employees of the cities a higher professional level; they would be recruited by a concours, with the intention of having as many of them as possible taken from among the graduates of the facultés droit. It might be mentioned in passing that the prefect of the département is to recruit the local police, with approval by local authority wherever their functions are purely local. Mr. Bardoux, who introduced the bill, complains that the gardes champêtres, to whom in many rural municipalities the entire law enforcement is entrusted, are "impotent old men," entirely unable to exercise their functions. It will be seen that a bill of this kind, although intended to strengthen local government, would add to the body of national regulations with which municipalities have to comply.
This, then, is the general framework of the laws that would fill the structure established by Title X of the French Constitution. The bills themselves seem to be rather well drawn, and the enactment might, for the first time, give France real local self-government. However, the chances of these laws being passed (with the possible exception of the last one, dealing with municipal employees) is small. The Communists seem, at present, to be the only active supporters; the Socialists, who in the past took the same attitude, have deserted them. Communist sponsorship appears, to the majority of the National Assembly, to reflect on the content even of those measures which not a few of them advocated several years ago themselves, and which are even now, at least nominally, supported by the Assembly Commissions of the Interior and of Administrative Reform. Now it is true that wherever the Communists and their allies would secure control of local and provincial governments they could create more difficulties with the enlarged powers of these bodies than before. Two considerations are, however, disregarded by those who advance such arguments. In the first place, when Communists did secure the control of a municipality, before as well as after World War II, this generally had the result of making them unpopular; the devices of administrative chicanery to which they invariably resorted usually led to a loss of votes in the ensuing elections and, not infrequently, to a loss of control. In the second place, Communist power is, even on the local level, largely a function of proportional representation (hereafter referred to with the familiar abbreviation P.R.). This was demonstrated in the municipal elections of October 1947. In the cities with a population upwards of 9,000, P.R. was applied and, for the nation as a whole, the Communists preserved their position. In the smaller towns, the battle went differently. When subsequently the National Assembly discussed the system of voting to be used for the election of the Council of the Republic, the Communist spokesman, Demusois, said:
It happened (as a result of the majority system) that in a very large number of municipalities...the Communist party saw itself excluded from the municipal council, although its candidates had secured fortyfive per cent, forty-seven per cent, and even forty-nine per cent of the votes. 11
It might be added that wherever the Communist candidates seemed likely to secure a majority this led to a degree of unity among the non-Communist voters (if not their parties) which could not have been created in any other way. Also, the majority system has the tendency of separating a good part at least of the "soft shell" from the "hard core" of the Communist vote: people who vote Communist for reasons of protest, but are not really Communists themselves, vote for more moderate candidates. This was clearly discernible in the elections to the General Councils held in March 1949. At a time when, in all elections held under P.R., the Communists still maintained (or even increased) their share of the popular vote, there was, for the first time, a perceptible decline in the Communist vote, from the 28.6 per cent obtained in the elections to the National Assembly to 23.5. The Communists won only 35 of the 1,508 seats at stake on this occasion, about two and a half per cent of the total; i.e., one tenth of what, in the words of their central committee, a "just system of voting" would have accorded them. It should seem clear, then, that as long as municipal and departmental councils are elected under a majority system, no one need fear that the Communists would be placed in a position to use, for their own pur-
11 Journal officiel de la république française, August 13, 1948, p. 5711.
poses, the added powers which départements and municipalities would obtain in case Section X of the French Constitution were implemented by legislative action.
The true reason for the inability of the French Government and Assembly to carry out the explicit directives of the constitution lies in their own weakness, which makes them afraid and incapable of effective reform measures in any field. This was pointed out, even if for reasons of his own, by the Deputy, Pierre Dreyfus-Schmidt, a member of a pro-Communist group, who, in the course of a brief debate in the National Assembly on February 17, 1949, reported the laws providing for administrative deconcentration and departmental decentralization on behalf of the Assembly's Committee on Administrative Reform, and found himself hampered by procedural objections of the then Minister of the Interior, Jules Moch. The latter said that some of the features of the law, as proposed by the commission and previously recommended by the Socialist Premier, Ramadier, were "particularly dangerous for the authority and the permanence of the state." When the Assembly, by a comparatively small majority, had recommitted the bill under consideration (the one providing for concentration), the reporter said:
The ministers defend obstinately the bureaucracy (les bureaux) before this Assembly, without being aware of it. We have constantly to deal with demands by them which are in reality demands of the bureaucracy.
Actually, we are being governed by the bureaucracy. As long as the ministers do not comprehend that it is their duty to impose the will of the Assembly on the functionaries who are under their orders, we shall be in the same position. 12
In this particular case, the prefects are the bureaucracy whom Mr. Dreyfus-Schmidt had in mind; and the prefects object to the implementation of the constitution because, whatever else may be said about it, it could not be real without curtailing their power. In the France of today, even more than in the France of the Third Republic, no Minister of the Interior is strong enough to risk opposition by "le corps préfectoral" (the term indicates that the prefects,
12 Journal officiel de la république française, Débats Parlementaires, Assemblée Nationale 2 eséance du 17 février 1949, p. 652.
who, incidentally, are usually competent and well-trained officials, are similar in prestige to the diplomatic corps) as a whole. Mr. Moch could, of course, have given other reasons in defense of his position: The change of any system that has formed such strong roots in the political soil as has the French system of local government inevitably upsets routine to the extent of making for uncertainty during a period of transition; it would necessitate a revision of financial legislation in order to make municipalities and départements primarily dependent upon taxes for which they themselves are responsible. These difficulties are real, but they were anticipated and presumably discounted when the new constitution was adopted.
French failure to carry out the constitutional provisions for local autonomy strengthens the arguments of those who, like Michel Debré, 13 hold that the French political problem is one and that, as long as there is no strong government at the top, there will be no real self-government at the bottom. It might be added that Debré had, during the days of the Resistance when he headed the Comité Général d'Etudes, worked out in good time proposals that promised to secure the necessary result in the national as well as in the local field. 14 He failed in the latter because he failed in the former.
The Italian Constitution is bolder than the French in the extension of local autonomy, and a serious start, at least, has been made in the implementation of its provisions. These have little direct bearing on communes and provinces: Article 5 of the constitution
13 La Mort de l'état républicain; see, in particular, the very interesting discussion of the problems of local reform on pp. 80 ff. Debré would like to make the départements more viable by reducing their number to between forty-five and fifty, and then give to them, as well as to the municipalities, real self-government. He is, apparently, inspired by the British example in the field of local and national government. The honest, if somewhat bitter, discussion of the French political system in this excellent book should commend itself to the political scientist for its author's knowledge of administrative detail and likewise for his sure grasp of general problems.
14 For details, see Gordon Wright, op. cit., pp. 36 ff., and Ferdinand A. Hermens, Europe between Democracy and Anarchy (Notre Dame, 1951), pp. 125 ff. Debré insists strongly on the need for a plurality system in French elections, which he would want to be applied in elections held in multiple-member constituencies, and also on the need for a workable right of dissolution. That the former cannot be applied successfully without the latter has been emphasized by Jacques Cadart (see his contribution to Maurice Duverger, L'Influence des systèmes électoraux sur la vie politique [ Paris, 1950 ], pp. 137 ff.).
(contained in that depository of good intentions, the "Fundamental Principles") states: "The Republic, one and indivisible, recognizes and promotes local autonomy," and there follows a reference to decentralization and concentration; Article 128 refers to provinces and communes as "autonomous bodies," and Article 129 promises to make both of them organs of state and regional decentralization.
The meat of the clauses in the new Italian Constitution providing for extended local autonomy is to be found in Title V, Articles 114133, which deal in some detail with the establishment of regions as new organs of government. When Italian national unity was established, the Piedmontese law of October 23, 1859, providing, on the French model, for small provinces with centrally appointed prefects at their head, was extended to the annexed territories. There remained, however, advocates of administrative decentralization, although they usually insisted that their demands be carefully distinguished from federalism, the latter being deemed dangerous to the country's newly won unity. 15 At the end of World War II, the general desire of promoting radical reforms, as well as the wish to do justice to the particular problems of peripheral areas, led to what could be turned into a constructive compromise between those in favor of the old centralism and those demanding bold steps in the direction of decentralization. The basically unitary structure of the state was reaffirmed, but the nineteen regions, into which the country was to be divided, were endowed with a set of limited powers which, it was hoped, would enable them to vitalize local energies, in particular in cultural, social, and economic matters.
Action was rapid in regard to the five peripheral regions. They occupy a status of their own, defined by separate laws, and motivated by special requirements. In Sicily a separatist movement was to be
15 For a brief history of the demand for regional autonomy, see Giovanni Miele, La regione, in Piero Calamendrei and Alessandro Levi, eds., Commentario sistematico alla costituzione italiana ( Rome, 1950), II, 225-379. While Miele's approach is juridical, his comprehensive discussion of all aspects of regional government contains factual material that will be welcome to the reader interested in details. See also Nicola Sutherland, "The Problem of Administration in Italy," The Journal of International 'Liberal' Exchange, I ( 1950), No. 2, 31 ff.; Mario Einaudi, section on France and Italy, in Morstein Marx, ed., Foreign Governments: The Dynamics of Politics Abroad ( New York, 1949), pp. 248-50.
headed off; in Sardinia strong demands for autonomy were recognized; in the Val d'Aosta a special status was to obviate the French territorial claims; in the Trentino-Alto Adige the formerly Austrian population was to be given satisfaction; and in Friuli-Venezia Giulia Yugoslav territorial claims were to be headed off. With the exception of the last named, the peripheral regions have been established; the inauguration of the fourteen regions for the rest of the country has, at the time of this writing, not yet taken place.
The provisions concerning the regions are complex. Article 117 of the constitution contains a long (if not too impressive) list of enumerated powers; the main items are control of urban and rural local police, public charities, roads, aqueducts, and public works. A commissioner of the central government resides in the capital of the region. Every law passed by the Regional Council must be submitted to him. He must approve it within thirty days, unless the central government opposes it. The latter may do so because of the presumed illegality of an act or because it conflicts with "the interests of the nation or those of other regions." In case of disapproval, the bill goes back to the Regional Council. If it is approved again with an absolute majority of its members, the central government may refer the issue either to the constitutional court to determine its legality or to the Chambers to determine the question of either the merits of the bill or of conflicts with the interests of other regions.
The organs of the region (Article 121) are the Parliament or Regional Council, and the Executive Committee or Giunta. The Council is elected under the terms of an election law established by the organs of the central government; this feature eliminates the possibility that some regions might experiment with different systems of voting, with considerable benefits resulting for the country. The Regional Council elects the members of the executive Giunta, as well as that body's president, from among its own members, which means that at least some of the principles of the parliamentary system are adopted. The degree of the possible central control of these agencies is indicated by the first two sections of Article 126, which read as follows:
The Regional Council may be dissolved when it performs acts contrary to the Constitution or commits grave violations of the laws, or if it fails to respond to the request of the Government to replace its Executive Committee (Giunta) or President when they have committed analogous acts or violations.
It may be dissolved when, by reason of resignations or through the impossibility of forming a majority, it is not in a position to function.
It may also be dissolved for reasons of national security.
It is obvious, then, that the powers which the central government has reserved for itself are substantial. They are strengthened by the degree of state intervention made necessary, in the opinion of many, by postwar events, in particular, the unrest fostered by Communist and, to a lesser extent, neo-Fascist agitation. There is one striking, if unusual, example in the fact that, in the region of Val d'Aosta, the state-owned Cogne works claim to employ eighty per cent of the industrial workers of the region, which gives the central government a strong lever of power against these particular regional authorities who have been endeavoring, rather successfully, to demonstrate that regional government can be carried on without conflict with the national government.
Difficulties for regional reorganization further arise out of the poverty of some of the regions. The regional governments of Sicily and Sardinia, and those to be formed in Southern Italy, may succeed in drawing attention to the needs of their respective areas, but if adequate remedial action is to be forthcoming the money will have to be provided by the central government. Article 119 of the constitution provides that the state will, by law, assign special contributions to individual regions; explicit reference is made to the needs of the South and of the islands. Meanwhile, opponents of regionalism point to the fact that the only immediate result of establishing the new institutions is new government machinery, consisting of nineteen new parliaments and governments, as well as the necessary employees for the new services. A saving might be effected if the provinces and the prefects were abolished. The only statute mentioning the abolition of the provinces is, however, that of Sicily, where this provision has not yet been carried out; in the other cases both provinces and prefects will, apparently, continue, although in Trentino-Alto Adige the two provinces actually have the characteristics of regions. It would, of course, be possible to abolish provinces and prefects insofar as they are organs of the state and to permit the continued existence of associations (consorzi) of communes for the area of the provinces. This was done in the former Prussian province of Westphalia where, after its merger into the state of North-Rhine-Westphalia, the Landeshauptmann continues to function as the co-ordinator of the welfare and educational activities carried on by the municipalities. If regional government in Italy develops true vitality, the provinces may, of course, atrophy even where retained by law, although developments to date do not point in this direction.
Prime Minister De Gasperi is, as a native of the Trentino, strongly in favor of regional decentralization, and he is determined to carry out the respective constitutional provisions. The obligation to hold elections for the regional parliaments within a year after the constitution went into effect has not, however, been met (except in the above-mentioned four peripheral regions). Much of the delay can be explained by the fact that an Italian government (even the De Gasperi government after the Christian-Democratic victory in the elections of April 1948) does not lead the Chamber in legislative work as the British Cabinet leads the House of Commons. Italian parliamentary commissions make substantial changes in the bills submitted by the government, and so do the two Chambers themselves. Thus, the First Permanent Committee of the Chamber made a detailed report on the government's bill for the establishment of the region, concluding that the official project was "from many points of view insufficient and full of gaps," 16 and submitting an alternative draft. The ironing out of such differences requires time at best, and the Italian Chamber and Senate were occupied with more urgent matters, with business being slowed down by Communist and left-wing Socialist obstruction.
16 Camera dei Deputati, No. 211-A, Relazione della I Commissione Permanente ...sul disegno di legge presentato del Consiglio dei Ministri...Costituzione e funzionamento degli organi regionali, presentata alla presidenza l' 11 novembre 1949, p. 1.
In the final resort the basic difficulty in implementing the constitutional provisions for decentralization is the same in Italy as in France. In both cases the government at the center lacks the strength required for making far-reaching changes in the administrative structure. In Italy, De Gasperi's victory in the elections of April 1948 placed him in a much more favorable position than was occupied by the Third Force cabinets in France; but in both cases the government was not strong enough to move against its own bureaucracy, and it was feared that the Communists might derive unwelcome advantage from decentralization. As French Communist influence is largely a result of P.R., it is interesting to note that Ivor Thomas wrote, in his comments on Italy's 1948 elections: "The Front (formed by the Communists and the left-wing Socialists) has suffered a major reverse which only proportional representation saved from being a major rout." 17 After such a "rout" on the national level, the representatives of the extreme left could hardly expect to do better in regional and local parliaments. Certainly, this would seem to be the lesson of the French municipal elections of October 1947 and the departmental elections of March 1949. There is, then, in both countries a key that could open the gates leading to political clarification on both the local and the national levels, but it is doubtful whether it will be used.
The obstacles to be overcome, before a way out of the difficulties created by P.R. is found, are illustrated by the events of Italy's crisetta, the "little crisis," which began when, on October 31, 1949, the right-wing Socialists left De Gasperi's Cabinet and was ended by the appointment, on January 27, 1950, of Prime Minister De Gasperi's sixth Cabinet. The "little crisis" became rather large; all the subjects on which the coalition partners differed were brought to the fore; the electoral system to be used for municipal, provincial, and regional elections was discussed with particular heat. The Christian Democrats had begun to challenge P.R. on the local level; it had been applied in municipalities with more than 30,000 inhabitants, whereas in those with a smaller population elections were held under the limited vote, each voter being allowed to vote for
17 The Italian Election, The contemporary Review, CLXXIII ( May 1948), 257.
four fifths of the councilmen. The Christian Democrats tried to extend the use of this system, although with modifications designed to meet the objections of the smaller parties. De Gasperi referred to "the difficulties experienced in communes where at present P.R. applies," comparing them with communes using the limited vote, "where no such inconvenience had to be lamented." 18 He could have mentioned the example of the city of Rome, where after the P.R. elections of 1946 no mayor could be elected, and the Council had to be dissolved, with a government commissioner appointed to run the city temporarily. Or he could have pointed to the city of Viareggio, where two parties obtained nineteen Council seats each, with two independents turning the scales. The Deputy Carignani commented: "No one can fail to see the precariousness of such an administration where the two independents...make rain or sunshine, laughing at the one side as well as the other." 19 It is needless to say that the cause of local autonomy suffers from such developments, as does the cause of regional autonomy by the splitting up of parties characteristic of the present Sicilian and Sardinian parliaments.
The representatives of the smaller parties in the coalition (Liberals, Republicans, right-wing Socialists) were impressed only by the fact that, in their opinion, P.R. alone would enable them to survive. The Liberals were particularly insistent, even though one of their leaders, the then National Councilor (subsequently President of the Republic), Luigi Einaudi, had in 1946 opposed P.R. in a speech in which, with supreme mastery of the subject, he had made a kind of grand tour of all the arguments in favor of that system of voting, leaving none of them standing by the time he finished. 20 Parties that have become small under P.R. rarely succeed in assessing cor-
18 Il programma definitivo esposto da De Gasperi, Il giornale d'Italia, January 20, 1950. 19 Camera dei Deputati, No. 984-A, Relazione delle I Commissione Permanente ...sul disegno di legge...per la elezione dei Consigli Comunali, presentata alla presidenza il 10 giugno 1950, p. 2. 20 Contro la proporzionale, Discorso pronunciato alla Consulta Nazionale nella seduta dell' 11 febbraio 1946. Published as a pamphlet, Rome, 1946.
rectly their chances under a majority system, where more than numbers count and where the local prestige enjoyed by the members of Italy's smaller parties would weigh heavily in their favor. Nor was a proper evaluation of the facts promoted by the Christian-Democratic predilection for the limited vote. In a country with a twoparty system as firmly established as in the United States, this can yield excellent results, as it has done for more than a generation in the city of Indianapolis, where it applies to the election of the city council. Where there exists a multiple-party system of the kind that the Italian system of voting, as used for the Chamber and the Senate elections, either creates or preserves, a party can secure the advantages conferred upon the strongest and the next strongest group without having to pay the price of moderation and decentralization, which the majority system in single-member constituencies necessitates. In Italy, the limited vote (unless modified by provisions in favor of a proportional division of the minority seats) means, for the time being, that the country's two strongest formations, the Christian Democrats and the "People's Bloc" of Communists and left-wing Socialists, have a monopoly of the seats. They can alter this result by forming coalitions with minor parties, but are unlikely to do so if they consider it unnecessary for success. The minor parties feel that such a monopoly for the major groupings is artificial, but they weaken their case by failing to realize the needs of political integration. In France, the return to the majority system in single-member constituencies for the departmental elections of March 1949 demonstrated that the majority principle favors large parties only to the extent that they are moderate, and that smaller parties, as the Radicals now are, can derive great advantages from the popularity of their candidates as well as from their strategic position, which enables them to attract support both from their right and from their left. The General Councils of the French départements are free from the difficulties besetting the P.R. parliaments of the regions of Sicily and Sardinia. While the latter, with their partisan bickering, weaken the case of local autonomy, the former, if given more responsibility, would be able to discharge it without difficulty.
The Italian controversy concerning the electoral law for the municipalities was finally settled as follows: 21 In cities of up to 10,000 inhabitants the limited vote applies in its simplest form. Four fifths of the seats go to the strongest party, and one fifth to the runner-up. In the larger cities, two thirds of the seats go to the strongest party, or to the strongest combination of parties; the remainder are divided among all others according to P.R. Where a combination of parties secures two thirds of the seats, these are divided among them in proportion to the number of votes obtained by each party. The purpose was to make it possible for the smaller parties, in particular the Liberals, the Republicans, and the rightwing Socialists, to present lists of their own, link them to those of the Christian Democrats, and thereby to avoid "the great fear of these stormy times: the fear of the wasted vote." 22 This is the law under which the municipal elections of 1951 were held, and which enabled the moderate parties to take control of most of the cities won by the Communist-Socialist left in 1946 in spite of an increase of the leftist vote over the level attained in the national elections of 1948. This system maintains some of the essential aspects of the psychology guiding the voter under P.R.; besides, it fails to encourage the development of a "loyal opposition" that could operate as the safety valve, which Luigi Einaudi, in his above-mentioned speech, characterized as one of the principal requirements of democracy.
The electoral law 23 for the provinces provides that two thirds of the seats are attributed, in single-member constituencies, to the candidates with the highest vote, the remainder being used to reestablish as close a proportionality between votes and seats for each party as possible.
In Italy, then, as in France we can only conclude that the basic problems of national and local government are closely interrelated.
21 For the text of the law, see "Norme per la elezione dei Consigli Municipali," Gazzetta ufficiale della repubblica italiana, March 2, 1951.
22 Oronzo Reale, "La democrazia e i sistemi elettorali," La voce repubblicana, December 10, 1950.
23 For the text, see "Norme per la elezione dei Consigli Provinziali," Gazzetta ufficiale della repubblica italiana, March 13, 1951.
Only if national governments are strong and stable will they have the incentive and strength to carry out reforms providing for a large measure of local autonomy; only if the agencies of local government are constituted in a manner tending to assure coherence and moderation can they inspire the confidence needed for an extension of their powers.
[Continue to Ch.7]
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