Functional Autonomy after World War II
By Ferdinand A. Hermens UNIVERSITY OF NOTRE DAME
I N the preceding discussion of local autonomy in France and Italy we were moving on proved ground. What is being attempted in those two countries has been Anglo-Saxon praxis for a good many generations. Functional autonomy, on the other hand, takes us into a field almost entirely eschewed by the two oldest and largest democratic countries. Experiments in this direction have been attempted in the newer democracies, such as Weimar Germany and Czechoslovakia, and in France, where democracy never attained the strength and stability characteristic of it in the Anglo-Saxon countries. That a variety of dictatorships have claimed the successful establishment of functional autonomy only adds to the bewildering aspects of the issue.
A discussion of functional autonomy necessitates, more than that of any other topic in political science, clarity on fundamentals. In this case as in others it is, of course, essential that conclusions be based on the analysis of the concrete material pertaining to the issue; 1 but in a discussion of social and economic councils a mere listing of isolated facts risks, on account of the terminology involved, suggesting conclusions based more on ideological background than actual accomplishment. Let us bear in mind, then, that the customary formulation of the demands for functional autonomy in-
1 The pertinent data are summarized and problems analyzed by Arnold J. Zurcher, The Experiment with Democracy in Central Europe ( New York, 1933), pp. 252 ff.; Herman Finer, The Theory and Practice of Modern Government ( rev. ed.; New York, 1949), pp. 543 ff.; Carl J. Friedrich, Constitutional Government and Democracy ( rev. ed.; Boston, 1950), pp. 460 ff. The latter book contains, on pp. 649-52, a critical bibliography.
volves criticism of "political" democracy. It is said that existing parliaments, and the political parties which organize them, are not representative, or not sufficiently representative, of the economic interests of the country. 2 Where economic interests are made effective in political decisions, this is done through lobbying, which means that a public function is left in the hands of private groups. Furthermore, party leaders are amateurs, whom no training has prepared for the technical issues of modern society. Lastly, parliaments are overburdened, with the result that the executive has usurped too many parliamentary functions; an economic parliament could lighten the legislative load and give parliaments time to fulfill their essential tasks.
A discussion of these charges must begin by admitting that, if representation is taken to indicate a reflection of every interest in a country, political parties are not representative. If they were, the result would be anarchy rather than democracy. Proponents of functional representation, like those of proportional representation, are inclined to overlook the difference between society and the state. Society consists of individuals associated in a multiplicity of groups: families, neighborhoods, social classes, religious bodies, and the like. To represent all these groups on a minor scale in a parliament would leave us with nothing but their multiplicity and their mutual antagonism. We must go beyond this and find a principle by which the unity of action essential to the state can be established, and, in a democracy, this must be done on the basis of spontaneity rather than of coercion.
Political parties are the answer to this need. Their essence does not lie in the reflection, but in the reconciliation, of differences: 3
2 This and other charges are formulated brilliantly by Herman Finer in his book, Representative Government and a Parliament of Industry: A Study of the German Federal Economic Council ( London, 1923). It is interesting to compare his change of approach to the subject as expressed in the new edition of his volume, The Theory and Practice of Modern Government, cited above, with that of his earlier work; while, in 1923, he gave expression to the notions current among British Guild Socialists, he expresses himself, in 1949, in the familiar terms of the political scientist who is aware of the need for integration.
3 It is interesting to note that while Charles A. Beard, in his book, An Economic Interpretation of the Constitution of the United States ( New York, 1913), took it for granted that political parties merely represent economic interests, he revised this view in his later volume, The Republic ( New York, 1943), pp. 268-69, making allowance for the integrating function of a party and explicitly exonerating the leaders of the Federalist party from the charges of having served group rather than national interests.
they find common denominators in the face of what John Locke called "the variety of opinions and contrariety of interests which unavoidably happen in all collections of men." To this integrating task our parties are suited, because the majority system forces them to attract, in a process of persuasion, voters from a large variety of different social groups. In addition to integration, elections organized by political parties under the majority system can fulfill the tasks of decision and the selection of a democratic elite. A decision results from the mere formation of a majority; the voters of the Anglo-Saxon countries know, on the evening of election day, to which party the conduct of their public affairs is entrusted. The need for a political elite has been sadly neglected by democratic theory, although Jefferson formulated the whole problem in classical terms when, in a letter to John Adams, he exposed the merits of a "natural aristocracy." 4
A representation of interests is deficient on all these points. It limits itself to a juxtaposition of what exists in society of different and divergent forces, and offers no way of transcending them. It suffices to contemplate the formation of "economic parliaments" in order to make the basic difficulty apparent. Such bodies, supposedly organic and natural, do not arise spontaneously; they would never arise if there did not exist a government, formed on a different basis, that could bring them into existence. Even then, there is no general principle that such a government can follow. It is usually demanded, as is done explicitly in Article 99 of the new Italian Constitution, that "qualitative" as well as quantitative considerations are to be taken into account. "Quality" will, however, have to be determined without reference to any objective criterion. Guild history in the late Middle Ages shows that, where functional
4 Letter written on October 28, 1813; see Saul K. Padover, The Complete Jefferson ( New York, 1943), pp. 282-83. For a more detailed discussion of the views expressed above, see Ferdinand A. Hermens, "The 1938 Elections and the American Party System," The Review of Politics, I ( April 1939).
groups are not checked by a higher political authority, physical force is their final arbiter. 5
Assuming that a functional parliament has been brought into existence and a division of its seats agreed upon, how are its decisions to be made? Unanimity will be the exception and hardly occur in important matters; use of the majority principle is inevitable but also incongruous. In the German Reichswirtschaftsrat, on one occasion, the scales between the iron-manufacturing and the iron-consuming industry were turned by the professional musicians. The situation will rarely be so grotesque, but the strange character of the principle involved will always be noted, and the authority of the vocational parliament will suffer. One wonders, in fact, why the term "parliament" is used at all for a gathering of people representing different economic interests. There can be little genuine debate among them; the life-giving principle of a political parliament is lacking.
Functional parliaments are in no stronger a position so far as the problem of a political elite is concerned. Political scientists, from Aristotle 6 to Harold Laski, have advised us of "the limitations of the expert." The latter is likely to be a specialist of such a narrow nature that his knowledge will have little relevance to a political decision. A businessman, or a trade-unionist, may be a master in the technique of his trade, and yet be entirely unaware of what it means to direct the interrelation of all trades (and of noneconomic political issues), which is the specific political task. When, in 1937, I discussed in Vienna the functioning of the economic section of the parliament of Dr. Schuschnigg with one of this body's government-appointed members, he said: "One of the members represents the Tyrolese dairy industry. When we talk about problems outside his special field, he sleeps. When he talks we sleep, because all he deals with is the technical details of his trade." This incident was adduced as an example of "the inferiority of democracy" ; in reality, it proves only the incongruity of associating basically nonpolitical specialists with
5 Take only the telling illustrations related in Henri Pirenne, Belgian Democracy: Its Early Origins ( Manchester, 1915), pp. 174-80.
6 Politics iii. 11.
a political task. In the solution of those tasks the "amateur" is much more likely to be trustworthy than the specialist; if he fulfills the requirements of political leadership, he will be able to absorb the essentials of any technical problem in the same way in which the successful lawyer is able to absorb them.
Finally, is there much of a chance to avoid, through a vocational parliament, the danger of lobbying? In this connection it must first be borne in mind -- as Harold Laski 7 has emphasized -- that lobbying is one thing under a political system in which the individual member of a parliament is largely on his own, as he is in consequence of the separation of powers in our Congress and even more in our state legislatures. Lobbying is something else again where, as in England and in Canada, decisive power is in the hands of the party leaders (meaning, in the last resort, the Cabinet); mere sectional interests are, in that case, at a disadvantage, and logrolling is all but impossible. What there remains in the way of lobbying is so intimately connected with the essence of freedom that democracy will have to live with it. Certainly, the lobbyists will pay slight attention to a vocational parliament which commands so little prestige that its actions, usually limited to recommendations, may be safely ignored.
There remain the questions whether functional parliaments can provide political parliaments with technical advice not otherwise available, and whether they can help to overcome social conflicts, in particular to bring capital and labor together. It will be best to postpone the answer until after the examination of the functional parliaments created, or proposed, by the constitutions under consideration.
The French Economic Council was preceded by the National Economic Council, which was first established by decree in 1925 and subsequently placed on a broader basis by the law of March 19, 1936. 8 It appeared to be a basic defect of this institution that it had
7 Parliamentary Government in England ( New York, 1938), pp. 136-38.
8 For a keen analysis of the constitutional functioning of this body and a presentation of its lessons (soon to be disregarded), see Georges Cahen-Salvador, "Le Conseil National Economique," Droit social (September-October 1946). Dr. CahenSalvador, the Secretary-General of both the former and the present Council, placed a complete file of material at my disposal and discussed with me the pertinent problems. He is, of course, not responsible for my conclusions.
no constitutional basis; as a result, it lacked prestige and could not be placed into organic contact with the legislative process. Article 25 of the new constitution fills this gap. The final phrasing of this article was preceded by considerable, though somewhat obscure, controversy over the nature of the Council. 9 The leftists generally wanted a technical council of advisers, representing central organizations. The M.R.P. wanted a "parliament of industry," and was -- as were many others -- fond of such terms as "economic and social democracy" and "industrial autonomy." These goals were to be reached by a Council that would have regional as well as national representatives. The views of the left prevailed in the main, and the 164 members of the present Council 10 are mostly appointed by central trade-unions, employers' associations, and the like. It should be noted that the membership of the Council is weighted toward employees; with forty-five members they form the largest single group, whereas, for example, there are only fourteen representatives of private industry and six representatives of nationalized enterprises, plus ten representatives of commercial establishments. It might be mentioned that there are ten representatives of La Pensée française, including scientists, economists, and so forth.The functions of the Council are as follows: First, the National Assembly may consult it on matters of economic and social policy, excluding the budget and international conventions.
Second, the government may ask its advice on the same topics; it must ask its advice on decrees intended to carry out laws on which the Council was consulted, as well as on the national plan.
10 The relevant legal texts were published by the office of the Conseil Economique in a pamphlet entitled Textes constitutifs du Conseil Economique et règlement intérieur ( Paris, 1948). For the background and details concerning the present Council, see France documents, issue of September 1947, entitled Le Conseil Economique; also La Documentation française, notes documentaires et études, No. 908 ( Le Conseil Economique, May 1948).
9 Gordon Wright, The Reshaping of French Democracy ( New York, 1948), pp. 240-41.
Third, the Council may itself take the initiative to examine problems within its general competence and investigate them.
Fourth, it may, at the request of the parties and in accord with the interested ministers, act as an arbiter in economic or social conflicts.
It will be seen that emphasis was placed on the subordinate and advisory tasks of the Council. Still, its advice was to be made effective. The Avis et rapports of the Council are published as part of the Journal officiel and distributed to all members of the National Assembly and of the Council of the Republic. In the sessions of the respective committees of the National Assembly, the reporter of the Economic Council is to be heard; he may be heard in the debates of the National Assembly. A full record of the debates of the Council is published in the same format as the debates of the other three parliaments of the Fourth Republic.
How effective have these devices been in the few years that have elapsed since the establishment of the Council? At present, if one looks for unqualified praise, one must look to the writings of its president, Léon Jouhaux, 11 who speaks, of course, the language of diplomacy. On the other hand, it is typical that when, in its issue for July- August 1948, the magazine Politique 12 published two articles on the subject, which constitute the best critical evaluation available to date, 13 the editorial introduction contained this sentence: "Well received at the outset, it (the Council) has rapidly disappointed, and some foretell its disappearance, or its fusion with another council." Let us briefly relate the major points of criticism.
First, instead of trying to give competent technical advice, the Council tries hard to become the fourth parliament of the Republic, imitating, in organs and procedure, the National Assembly, the Council of the Republic, and the Council of the French Union. Inevitably, the Council engages in partisanship and is used by its
11 "Le Rôle du Conseil Economique," Revue française du travail ( August 1947).
12 "Faut-il maintenir le Conseil Economique?" ; Yves Archambeaud, Conseil Economique et régime democratique; Maurice Byé, Le Présent et l'avenir du Conseil Economique;
13 See also, however, Jacques Revol (pseudonym for a high official of the Council), "Le Fonctionnement du Conseil Economique," Droit social ( April 1948).
constituent groups to secure publicity for their views. This is a development against which Georges Cahen-Salvador, the SecretaryGeneral of the former Conseil National Economique, had given warning before the Council was established. It had been expected that the work of the new body, like that of its predecessor, would in the main be done in committee, without the disturbing influence of publicity. The present Council, however, disregarded all warnings. It meets in plenary session, lasting from two to three days each, every second week during the period when Parliament is in session. Thus, considerable opportunity is offered to partisan oratory. On March 10, 1948, for example, a representative of the co-operatives, Mr. Gaussel, reported on the economic policy of the government. He took issue with the "plan Mayer," which provided for a liberalization of economic policy and relied on taxation to close what, in this country, we would call "the inflationary gap." His report was followed by a declaration of one of the few economists on the Council, Professor Maurice Byé, who drew attention to the fact that the Council, barging out from its assigned task of suggestions concerning the concrete proposals submitted to it, had launched into a general condemnation of government policy, in which emotion was evident and precision lacking. 14 Byé was voted down by a heavy majority, and the debate became agitated. Le Monde of March 11, 1948, reported:
Yesterday's meeting...was particularly stormy and little worthy of an assembly which one believed uniquely preoccupied with technical problems.... At one time confusion became so great, that repeated sounding of the bell by the Vice-President, Brousse, did not succeed in reestablishing calm.
The second criticism directed at the Council is related to the first. Its members consider themselves the delegates of the professional groups by which they have been designated rather than as men and women with practical experience in a given field that they would strive to utilize for the general welfare. To be sure, they cannot be
14 For the report on the meeting, see Bulletin du Conseil Economique, deuxième année, No. 10 ( March 10, 1948).
recalled, but they know to whom they owe their appointment and on whom they depend for designation for a second term. They are, therefore, inclined to act as automatons, whom the officers of their professional groups can maneuver at will; their speeches in the Council meetings are less calculated to influence the opinion of that body by technical arguments than to provide their organizations with publicity for their views. The Communists who sit in the Council as representatives of the Conféderation Générale du Travail, the "General Labor Federation," miss no opportunity to make political speeches, introducing topics of foreign policy whenever this can be done.
Third, there is a tendency toward logrolling. Committees as well as the full Council tend to follow the views of the most interested groups, every other group expecting the same courtesy in return. This system works until the point is reached where the demands of one group involve definite sacrifices by another substantial group. Naturally, all groups have acquired the tact not to make such demands and, as a result, a permanent Santa Claus atmosphere prevails. Disagreeable decisions are left to the National Assembly.
Fourth, the Council's plenary assembly resorts too often to decisions by majority vote. This is the natural procedure for a political parliament; however, inasmuch as the moral authority of the "advice" given by the Council to the government, or to the National Assembly, or of the "resolutions" adopted by the Council on its own initiative, depends entirely on the strength of the arguments advanced, the quantitative relation between majority and minority is, artificial as it is anyway, all but irrelevant.
A number of different proposals have been made, by various leaders, to overcome these defects. One of them is the establishment of a permanent central committee, with a small membership, designed to take the place, in all but a few cases, of the plenary assembly. Such a committee, eschewing public deliberations, would be better suited to avoid the pitfalls of partisan propaganda and to maintain close liaison with the government, as well as with the National Assembly and the Council of the Republic. Objections have been raised that such a committee would establish two kinds of
Council membership, as those not belonging to it would be less influential than those who would belong; unless the committee were large, the smaller groups within the Council could not be represented. For these reasons, Maurice Byé is among those who oppose a permanent committee; Georges Cahen-Salvador and Léon Jouhaux favor it.
A revision of the Council's committee system might also help. At present it is modeled on a system prevailing in the National Assembly, with membership distributed among the groups in proportion to their members. Such proportionality, while natural in a political parliament, hardly commends itself in a body charged with technical advice. Under the present system, for example, only eight of the twenty-four members of the Committee on Agriculture are connected with farming; the remainder can hardly claim any technical competence on the subject. The bulk of the membership should, therefore, in each case consist of people drawn from the professions in question, plus impartial experts, whose number should, in any case, be sharply increased over the few who at present have found refuge among the members of "the group of French thought." Academic economists, for example, are, if they understand economic reality, better experts on questions of economic and social policy than are typical representatives of economic interest groups; in the German Reichswirtschaftsrat, much of the constructive work accomplished was due to the initiative of men like Professor Ludwig Heyde. Furthermore, government experts should be called upon for assistance. Close co-operation with them, such as existed in the old Council, could help to bring the new Council into contact with the making of public policy. This would mean less publicity and more utility. It goes without saying that, where the experts disagree, as they usually do, the views of the minority should be fully reported; the final choice between alternatives has to be made by the National Assembly anyway.
Other reform proposals concern the liaison between the Council on the one hand and the National Assembly, the Council of the Republic, and the government on the other. The possibilities provided in this field by the constitution and by the law of October 27, 1946, have been largely ignored. The National Assembly committees should send their reporters regularly into the corresponding committees of the Economic Council; the provision requiring that the Avis of the Economic Council be read before the National Assembly discusses a measure should be taken very seriously; the National Assembly should invite the reporters of the Council to take part in its deliberations; there should be delays making it possible for the reports of the Council to be discussed at least by the committee of the National Assembly; and the government should notify the Council in good time of whatever attention has been paid to suggestions, in particular its "resolutions," to which at times the government does not trouble to answer at all.
There remain minor reform proposals concerning, for example, the need for reliable documentation. There being no adequate official service, the Councilors have a tendency to rely on the material provided for them by the research agencies of their respective professional organizations; this leads to considerable differences in regard to the facts and figures used. The discrepancy is not, however, unrelated to the nature of the institution, as representatives of interest groups tend to produce their own information, colored by their own views and interests. The same applies to proposals to bring about a more satisfactory group representation. Certain groups are not represented at all; thus, rent control had to be discussed without representatives of the landlords. It is needless to say that, if all groups receive representation that demand it, the Council membership will have to be increased considerably over the present number of 164. Besides, there will always be dissatisfaction about the number of seats accorded each group. Such quarrels are reminiscent of what Professor Pirenne has to say about the Flemish town during the period of guild rule:
We find civic constitutions subject, during the 14th century, to perpetual fluctuation. They were continually revised; "members" were added or suppressed, the classification of crafts was modified, and still there was dissatisfaction. 15
15 Henri Pirenne, op. cit., pp. 175-76.
The final conclusions drawn from the practical working of the Council leave little room for praise, more for blame, and most for disappointment. So far as praise is concerned, reference might be made to the reports published by the Council. Some of them are good, others leave much to be desired. Good reports are, however, as likely to be disregarded as bad ones. The government rarely calls upon the Council for advice; the National Assembly does so not infrequently but, it is suggested, more often than not for purposes of delay, or in order to "pass the buck." None of the reports made by the Council has achieved eminence, either of quality or in political repercussions, approaching that of the better known Royal Commissions in Britain. The latter, incidentally, would seem to be in a better position to fulfill the advisory functions of an economic council than any of these councils has proved to be. In the case of the institution with which we are here concerned, reference must be made, however, to the work of its delegation on wages and prices, which was established at the demand of the first Schuman government. It was the task of the delegation to determine to what extent the rise in wages had kept pace with the rise in prices; in France as in the United States the official index of the cost of living was not adequate. The work of this delegation has often been commended; it is said to have succeeded in driving home the fact that nominal wages are not as significant as wage earners usually assume, and that real wages are decisive. This implies that government action to reduce prices, if successful, is more beneficial to workers than a rise in nominal wages offset by an increase in the price level. To have brought about popular acceptance of this proposition, elementary as it is, would be no mean merit.
One of the technical advantages that an economic council may have, according to Dr. Cahen-Salvador, is an integrating effect upon government departments. The latter are inclined to identify themselves with the interests of the particular group with which they are concerned -- the Ministry of Agriculture defending the farmers, the Ministry of Labor the workers, and the like. In the Economic Council all these groups meet face to face; they include representatives of consumers, who are overlooked in the organization of ministries but whose interests are often more in accord with the general welfare than those of a particular group of producers. From such meetings there could result the substitution of a more general for a particular point of view. Few would, however, want to say that much has been accomplished along such lines; in fact, the old National Economic Council, in whose work officials from the various government departments participated, was better equipped for the solution of this task than is its successor. In the latter, the mere fact of public deliberations invites the representatives of particular groups to state and restate their point of view, without any serious effort to find common ground. However, we might mention the atmosphere of courtesy, based on personal contacts between representatives of different groups, especially workers and employers, made possible by common council membership, for which the dignified surroundings provided by meetings in the Palais Royal provide a suitable background. All this helps to promote better personal relations between representatives of different economic groups, but few would want to contend that this has exercised an appreciable influence on, for example, labor relations in postwar France.
Thus, the record to date of the Conseil Economique has not justified the claim that such an institution could remedy the deficiencies of a political parliament. The Council is, in fact, the creature of a political parliament, which has determined its composition as best it could, creating, inevitably, as much dissatisfaction as satisfaction. (It might be noted in passing that, while the Council's term of office was to have been three years, the intention being to consider the composition of the first Council experimental and to adopt a different arrangement later, the necessary legislative action has not been taken, and the first Council continues beyond its term.) Nor has the Council lightened the burden of the legislature; neither has it produced "economic statesmen," supplementing the deficiencies of the political parliament. The visitor to Paris will encounter little praise for the present Council; he is not unlikely to be told that it is another innovation which turned out to be an encumbrance.
We must now turn to the provisions concerning the National Council of Economy and Labor in Article 99 of the Italian Constitution. Its provisions can best be explained by stating that it differs from the French Economic Council in two respects: It takes in questions of labor by constitutional authorization, whereas the French Council is constitutionally empowered to deal with economic questions alone, although the law establishing it expressly mentions social questions; second, it has the right to initiate legislation. A bill to give effect to these constitutional provisions was introduced in the Senate on March 15, 1949, by the government. 16 It provides for a total of sixty members. The usual difficulties arose in the apportionment of the membership. The Chamber of Commerce of Rome, 17 for example, complains that Chambers of Commerce are not adequately represented, whereas there are to be sixteen members representing government agencies, including nationalized industries. The Chambers of Commerce suggest that there is little need to represent the state before itself; they propose equal representation of state agencies and Chambers of Commerce.
Among the other provisions of the bill it may be mentioned that the introduction of a law is to require a three-fifths majority of the Council, and that its president is to be nominated by the President of the Republic, at the proposal of the Prime Minister. The deliberations are not to be public. These provisions seem to suggest that there is less enthusiasm on the part of the government for the Council than there was during the deliberations in the Constituent Assembly, an assumption that is strengthened by the lack of haste in introducing the bill or in working for its passage. The French experience has been watched closely in Italy; apparently, it did not inspire enthusiasm. 18
16 Senato delta Repubblica, Disegno di legge, presentato dal presidente del Consiglio dei Ministri (De Gasperi) di concerto con tutti i Ministri nella seduta del 15 marzo, 1949; Ordinamenti e attribuzioni del Consiglio Nazionale dell' economia e del lavoro.
17 Le Camere di Commercio e il Consiglio Nazionale dell' economia; Roma Economica, Bollettino mensile della Camera di Commercio, Industria e Agricoltura di Roma ( August 1949).
18 The above discussions had to be brief; the interested reader will find further details in Alberto Bertolino, "L'attivita economica, funzioni e forme organizzative del lavoro. Il Consiglio Nazionale dell' economia e del lavoro", in Piero Calamendrei and Alessandro Levi, eds., Commentario sistematico alla costitutzione italiana ( Rome, 1950), pp. 407 ff., in particular pp. 438-40; Giuseppe Alibrandi, "Sull' istituendo Consiglio Nazionale dell' economia e del lavoro," Il diritto del lavoro, Nos. 1-2 ( 1949).
Reference might also be made to the Bavarian Senate, whose functions are similar to those of the French Council of the Republic. The details are contained in Articles 34-42 of the Bavarian Constitution. One third of the Senators (twenty-one out of sixty) are designated by professional bodies; the remainder represent religious groups, charitable organizations, universities, municipalities and associations of municipalities. The Senate is to give advice on proposed laws, which the government may submit to it; the latter must submit to the Senate the budget, constitutional amendments, and laws to be subjected to a plebiscite. The Senate can introduce bills in the Diet through the government. Lastly, it can within a month, or in the case of emergency procedure within a week, raise reasoned objections to a law passed by the Diet. The constitution says: "The Diet decides, whether it will yield to the objections." It is not required that the Diet's decision be based upon an absolute majority of its members; this renders the position of the Bavarian Senate definitely weaker than that of the French Council of the Republic.
The Bavarian Senate, then, constitutes a case of a second Chamber principally based on economic groups. At first it received much favorable publicity. The dignity of its proceedings was emphasized, and articles appeared in the German press that praised the Bavarian Senate as an escape from the "Party monopoly" characteristic of the political parliaments. It must, of course, be borne in mind that the rights of the Senate are limited; this body could hardly afford to press its views in case of a definite conflict with the government and the majority of the Diet. In the first Diet under the constitution, incidentally, the Christian Social Union (C.S.U.) had an over-all majority; its views coincided with those of the Senate on all important matters. In the Diet elected in November 1950, the C.S.U. lost its majority, and the fragmentation typical of P.R. parliaments developed. Still, the rightist parties together retained a majority and, though they found it impossible to co-operate in forming a government, the existence of such a majority excludes the possibility of a serious conflict with the Senate. It must be added that in a country which is predominantly agrarian conflicts over economic policy will be less frequent than in an industrial state, apart from the fact that the Federal Republic of Germany, of which Bavaria is a part, has a more important share in economic policy than do the Länder.
These considerations make for a comfortable co-existence of the Diet and the Senate. At the same time it is obvious that it would hardly make a difference if there were no Senate. Observers have, in increasing numbers, come to realize this fact. When the author, for the purposes of this study, consulted German economists and political scientists on the Bavarian Senate, those who expressed an opinion agreed that the Senate was unimportant (they were a minority, because most of those approached had heard so little of this body that they had not formed any views about it); some expressed disappointment that it had failed to make a more significant place for itself.
Experimentation with economic representation will continue; in years to come interesting results may be expected from the new Dutch "Publiekrechtelijke Bedrijfsorganisatie" (enterprise organization under public law), which is to culminate in a "Social Economic Council." 19 The result is, however, likely to be comparable to the American experience with the code authorities under the National Industrial Recovery Act, so far as the organization of individual industries is concerned, and to the French Economic Council, so far as the central Social Economic Council is concerned, although the latter's limited membership (minimum thirty, maximum fortyfive) should guard it against a thoughtless imitation of parliamentary procedure. Democratic countries will keep their promise to allow professional groups to act in freedom, and, as a result, there will not be the cohesion that is needed to create even the appearance
19 For details, see A. J. S. Douma, Hoofdzaken en Strijdpunkten van de Publiekrechtelijke Bedriejfsorganisatie ( The Hague, 1950).
of effective common action on the part of the functional bodies created. In dictatorships the ruling party can act as the integrating factor, and, in this case, "corporative" institutions are little more than smoke screens intended to hide a reality from which the conscience of civilized mankind recoils. So far as Italian Fascism is concerned, it is interesting to note that in more serious publications the basic facts were frankly admitted, 20 whereas propaganda destined for popular consumption continued the old theme of the successful establishment of a "corporative state." The situation is similar so far as Russian Communism is concerned. The name "Soviet" means council; the "Soviet Union" is, in theory, a state based upon the councils of workers and peasants. Reality was, however, made tragically clear when in the famous Kronstadt sailors' revolt of 1921 the slogan of the revolutionaries was: "The Soviets without the Communist party!" The Communist party stands, of course, at the base as well as at the top of the pyramid of political power. This the Kronstadt sailors saw, but they failed to realize that this political structure could be eliminated, not by an economic structure of representatives of social groups, but only by an alternative political structure. To proclaim "Soviet" rule in its doctrinal purity amounted to proclaiming a political vacuum.
These considerations take us back to our starting point. The popularity of the demands for functional representation is one of the symptoms of a disease that the proposed solution tries to overcome by medicine derived from the same source. The failure to distinguish between state and society, and to assume that a mere "representation" of social groups would solve a political problem, is widespread. Proportional representation is its institutional embodiment. That system of voting risks taking us back to the divisive forces of society, which true political representation -- whose task is, according to Madison, to "refine and enlarge the public view" -- is meant to overcome. In practice, P.R. has been one of the conditions of the political disintegration witnessed in so many countries, France in particular, after the end of World War II.
20 The best example is the article by Francesco Ercole, "La funzione del partito nell' ordinamento corporativo," Archivio di studi corporativi, II ( 1931- 1932), 41-71.
One of the results of such disintegration is that political parties cease to be serviceable bridges between the differences that divide a country; they affirm old divisions, create new ones, and by giving a bad name to the institution of political parties they endanger the essence of democracy. When, for example, in Germany the Staendestaat (the corporative state) is again praised as a desirable alternative to the Parteienstaat (the parties' state), a vacuum is once more pitted against a reality, undesirable though that reality may be. Nature abhors a vacuum in politics as well as in physics, and the collapse of authority is too easily followed by tyranny.
Federalism -- The Bonn Model
By John Brown Mason FORMERLY OBERLIN COLLEGE
T HE geography of Germany has contributed much to the growth of her federalism, although it has also lent itself to intra-Balkanization. In the central and southern upland area -- as large a part of the Reich as its northern plains -- nature acts as a barrier to communication, while fostering autonomous development of small areas, furthering their cultural individuality, and increasing the difficulties of political unity. The Alps and their foothills in the far South bring out local characteristics again, rather than nationwide similarities. Germany is also a country of regional diversity in regard to population characteristics, which have long ceased to coincide with political borders. For instance, both the lighthearted Rhinelander and the stolid Pomeranian are (or were) Prussians, although their political outlook tends to differ as much as their degree of natural cheerfulness. Certain pronounced sectional sentiments have had strong effects on the development of federalism, often accentuated by a pronounced religious schism until the recent flood of German refugees from the East and the Balkans tended to lower the dikes of regional religious diversity.
The historical confluence on German soil of Eastern and Western cultural and political tendencies produced uneven results, causing some distinct differences between the eastern and western parts of the country. These are now being accentuated by the contrasting
* This essay was read at the annual meeting of the American Political Science Association in New York on December 28, 1949, before the writer joined the staff of the United States High Commissioner in Germany. The views expressed herein do not, therefore, in any way represent the views of the Department of State.
character and purposes of the Western and Soviet regimes of occupation unless, perchance, a new bond may be formed by the strong desire for national unity.
However, the geographical and cultural divergences between German regions that seem to provide a natural basis for federalism have also proved to be obstacles. At times the quest for German unity seemed to conflict head on with ideas of federalism -- rather than to supplement them -- reaching an extreme form in the loose association of some 300 independent and mutually suspicious states, principalities, and free cities of the Holy Roman Empire a century and a half ago. Upon this unhappy state of disunity, modern Germans look back with a combination of sorrow, contempt, and fear of possible recurrence.
German unification was finally brought about in the form of a strong federal union -- via the earlier and weak North German Confederation -- established under Bismarck's leadership and accompanied by the rise of Prussia. But national unity, dear to the Germans as something most difficult to achieve, was brought about by a policy of "blood and iron," after the attempt of the liberal elements to unite the country on a democratic basis had failed dismally.
If the constitution of the Bismarckian Empire had been characterized by strong federalist and weak democratic features, the Weimar Republic presented the opposite picture: a watered-down version of federalism was presented by a constitution that, at the time, was said to echo the march of the working class toward political, economic, and social democracy. When the Hitler steam roller finally flattened the remnants of federalism and crushed democracy, it was unable to kill the seeds of either. Both rose to new life after the double devastation caused by Nazism and war.
Eleven Länder in Western Germany now form the Federal Republic of Germany (Bundesrepublik). Its constitutional basis is the so-called Basic Law adopted by the Parliamentary Council at Bonn on May 8, 1949 -- the fourth anniversary of the unconditional surrender of Nazi Germany. This intentional coincidence in dates points to two basic facts: the domestic background and cause of Germany's unprecedented downfall from which, it is hoped, a new civil development may arise toward a more permanent democratic and peaceful Republic; and, secondly, the fact that the new constitution was created by a people not yet free but under the control of occupying powers who set in motion and determined the procedure for constitution-making, decreeing for it certain directions and limitations, including provision for a federal structure.
At the same time, the basic disagreement among the wartime Allies resulted in the practical inability of the Germans in the Soviet zone to express or even publicly concern themselves with this first post-Hitler opportunity to create a democratic German constitution. Cynics might claim that the Bonn Constitution, with its strong democratic features, echoes the march of the Western armies of occupation from the Thames, the Seine, and the Mississippi. While the acceptance of the Bonn Constitution 1 does not by itself indicate what exact form it would have taken had the Germans been absolutely free to shape their basic law, the many wide and free discussions before and during the deliberations and the size of the final vote in the Parliamentary Council indicate that, under the given international and domestic conditions, this document represents the preferential will of the large majority of the people, at least in Western (and probably also in Eastern) Germany.
The Allied Influence 2
Allied interest in the future form of government in Germany has been expressed frequently but not always consistently. The Potsdam Declaration called for the "decentralization of the political structure and the development of local responsibility." 3 The famous Directive
1 Germans speak of the Bonn "Basic Law," or Grundgesetz, and refuse to call it a Verfassung on the ground that the term presupposes possession of "sovereignty." In contradiction, however, to this argument they do speak of a Landverfassung and even a Gemeindeverfassung. The American translation "constitution," therefore, is considered a correct translation and is used throughout this discussion.
2 This topic is discussed in some detail in Carl J. Friedrich, "Rebuilding the German Constitution," American Political Science Review, XLIII ( June 1949), 465-71, 479-80.
3 See Axis in Defeat: A Collection of Documents on the American Policy toward Germany and Japan, Department of State Publication no. 2423, 1946, p. 13.
1067 of the United States Joint Chiefs of Staff of April 1945 strongly favored the
establishment throughout Germany of federal German states (Länder) and the formation of a central German government with carefully defined and limited powers and functions. All powers shall be vested in the Länder except such as are expressly delegated to the Central Government.
The directive also contained these important observations:
Your government does not wish to impose its own historically developed forms of democracy and social organization on Germany, and believes equally firmly that no other external forms should be imposed. It seeks the establishment in Germany of a political organization which is derived from the people and subject to their control, which operates in accordance with democratic electoral procedures, and which is dedicated to uphold both the basic civil and human rights of the individual. It is opposed to an excessively centralized government which through a concentration of power may threaten both the existence of democracy in Germany and the security of Germany's neighbors and the rest of the world. Your government believes that, within the principles stated above, the ultimate constitutional form of German political life should be left to the decision of the German people made freely in accordance with democratic processes. 4
The British Foreign Minister Mr. Bevin stated his government's position in Parliament on October 22, 1946:
We countenance a German constitution which would avoid the two extremes of a loose confederation of autonomous states and a unitary centralized state. Certain questions would be exclusively reserved to the center. No regional units would be exclusively competent in all the remaining powers. Allowances would thus be made for local differences in traditions, religion, and economic circumstances. 5
At the Moscow Conference in March 1947, the Allies disagreed strongly on the character of German decentralization. The Soviet Union, logically enough, demanded a German government that was unitary in fact, and which therefore would be susceptible to the influence of the Communist party, strongly and safely embedded in
4 Directive Regarding the Military Government of Germany, July 11, 1947, Department of State Publication no. 2913.
5 The Times ( London), October 23, 1946.
the Soviet zone. France went to the other extreme, favoring a German confederacy, which she believed would be weak and therefore not a danger to her security. The British favored federalism in principle but, perhaps for historical reasons, showed less understanding of it than America would like. The American delegation took the leadership in embodying the basis for decentralized federalism in Germany's future constitution.
The desire of the United States and Great Britain to avoid a charge of violating the Potsdam Agreement, on the one hand, and French policy, on the other, kept the Bi-zonal Organization from developing into a formal provisional government. Continued and increasing disagreement between the Western Allies and the Soviet Union induced the former to prepare for the establishment of a German government based on a German constitution and effective initially in the three Western zones. The terms of the so-called London Agreements on the future political organization of Germany were forwarded to the German Minister-Presidents on July 1, 1948. The Agreements authorized the Minister-Presidents to call a Constituent Assembly, selected by the Länder diets, by September 1 of the same year and set forth a procedure for choosing its members. The Agreements also suggested an electoral quotient of 750,000 and provided for a popular referendum on the constitution after it had been approved by the Military Governors. A majority in two thirds of the Länder was required to ratify the proposed constitution. The London Agreements stated specifically:
The Constitutional Assembly will draft a democratic constitution which will establish for the participating states a governmental structure of a federal type which is best adapted to the eventual re-establishment of German unity at present disrupted, and which will protect the rights of participating states, provide adequate central authority, and contain guarantees of individual rights and freedoms. 6
The German Minister-Presidents accepted the Allied authorization to convene a representative assembly. They proposed, however, that it be called a "Parliamentary Council," as it would draw up a basic
6 See OMGUS press release 7-C-2, Berlin, Germany, July 2, 1948, Document 1.
law of a provisional nature rather than a full-fledged constitution. The latter would have to wait the day when the Allies would be ready to return sovereignty to the German people. 7
Strong Federal Features of the Basic Law The Bonn Constitution or Basic Law is fundamentally federalistic in a number of important respects:
1. It provides for a division of legislative competence between the Bund and the Länder (Arts. 70-82). The legislative powers of the Bund are enumerated and include both exclusive authority and concurrent authority. The Länder enjoy all legislative authority not specifically granted to the Bund, including education, relations between church and state, police, and internal administration. The Länder also have the right to conclude international treaties in those fields in which they possess legislative authority.
2. The constitution provides for a division of fiscal authority.
3. The Länder participate in the adoption of the constitution and of its amendments. To be adopted, the constitution had to be approved by the popularly elected Diets in two thirds of the eleven Länder in which it was to be initially valid (Art. 144). All Länder except Bavaria approved the constitution and did so by large majorities. The Bavarian legislature authorized the government to ratify, if two thirds of the Länder should do so. The Weimar Constitution, on the other hand, had been adopted by a unitary constitutional convention. To be valid, amendments to the constitution require a two-thirds vote in both the Federal Council (Reichsrat) and the Federal Diet (Bundestag). Under the Weimar regime it was possible for the Reichstag to adopt an amendment by a twothirds vote even if the Federal Council, representing the Länder, opposed. The Weimar dispensation also authorized constitutional
7 At present the occupation Statute amounts essentially to a statement of Allied reserved powers, linked with a grant of the remaining legislative, executive, and judicial powers to the federal and Land governments, subject to review by the Allies. The occupation powers were primarily concerned with maintenance of the constitution, foreign relations, foreign trade, reparations, the level of industry, decartelization, disarmament and demilitarization, and the protection and security of the occupation forces. See Arnold Brecht, "Reestablishing German Government," Annals of the American Academy of Political and Social Science, CCLXVII ( January 1950), 36.
amendments by means of a popular referendum. Amendments to the Bonn Constitution are "inadmissible" respecting the federal form of government, i.e., the division of the Bund into Länder, the principle of participation of the Länder in legislation, and the basic principles upon which the state is founded, that is, civil rights and its democratic and federal character as laid down in Articles 1 to 20.
5. The constitution provides for the establishment of a Federal Constitutional Court (Arts. 92-95), each chamber of the federal legislature electing one half of the court's judges. This tribunal is to decide, inter alia .... in case of differences of opinion or doubts as to the formal and material compatibility of federal law or Land law with this Basic Law or on the compatibility of Land law with other federal law, at the request of the Federal Government, of a Land Government or of one-third of the Bundestag members; in case of differences of opinion on the rights and duties of the Federation and the Länder, particularly in the execution of federal law by the Länder, and in the exercise of federal supervision; on other public law disputes between the Federation and the Länder, between different Länder.... (Art. 93).
6. The President of the Republic is elected by a federalistic method, i.e., by a federal convention consisting of the members of the Federal Diet and an equal number of members elected by the Länder legislatures on the basis of proportional representation. The federal President may be impeached before the Federal Constitutional Court by the Federal Diet or the Federal Council (Art. 61). The motion for impeachment can be made by at least one quarter of the members of the Federal Diet or one quarter of the votes of the Federal Council, while the decision to impeach requires a twothirds majority of the members of the Federal Diet or of the votes of the Federal Council. After the institution of impeachment proceedings, the Federal Constitutional Court -- a strongly federalistic institution -- may, by interim order, determine that the federal President is prevented from performing the duties of his office; if the President is found guilty of a willful violation of the Basic Law or of any other federal law, it may declare him to have forfeited his office (Art. 61,2). Under the Weimar Constitution only the Reichstag, a unitary institution, had the right of impeachment.
7. The constitution provides that the Federal Council (upper chamber) shall consist of members of the Länder cabinets. The vote of a Land must be cast as a unit, thus enhancing its influence upon the central government. With the disappearance of Prussia, a number of small Länder -- with a maximum of five votes per Land -- take the place of President Lowell's "lion among half a dozen foxes and a score of mice," thus allowing for more variety of expression along federal lines. Unlike the situation under the Weimar regime, the members of the national Cabinet are not entitled to place motions before the Federal Council. While, in principle, the Federal Council enjoys only a suspensive veto, this right may weigh heavily on certain occasions. A veto adopted by a two-thirds majority of the Federal Council can be overridden only by a twothirds vote in the Federal Diet, or lower chamber; and such affirmative vote must embrace at least an absolute majority of the Diet's membership. In certain cases, 8 listed expressly in the constitution, the consent of the Federal Council to federal laws and orders is required, thus changing its suspensive veto to an absolute veto. It would therefore appear that in these cases the Federal Council acts as a "genuine" second chamber.
8. In the top federal positions, civil servants from all the Länder are to be employed in equitable ratio and persons employed in other federal offices normally are to be selected from the Länder in which
8 These laws relate to certain types of taxation (Arts. 105, 3; 106, 3), the equalization of financial burdens between Bund and Länder (Arts. 106, 4; 107), the structure of Land finance administration authorities (Art. 108, 3), possible changes in Land administration concerned with the execution of federal laws (Arts. 84, 1; 85, 1), the right of the federal government to give instructions concerning the execution of federal laws (Art. 84, 5), the possible establishment of independent federal authorities at the top, middle, and lower levels and of certain types of public law corporations and institutions (Art. 87, 3), laws concerning the procedure for changes in the existing territories of the Länder (Art. 29, 7), and of a law concerning the legal succession and the settlement of former Reich property (Art. 135, 5). In addition, the consent of the Federal Council is required for provisional federal decrees (Verordnungen) having the force of law, and of federal individual instructions, in special cases, to the Länder, concerning refugees and expellees (Art. 119), and for a federal decree providing details regarding the placement of permanent officials and employees on the retired or waiting lists, or under certain conditions their transfer to another position with less remuneration (Art. 132, 4).
they are employed (Art. 36). This provision is of a federalist character.
9. In case a Land fails to fulfill its constitutional or legal obligations toward the Bund, "federal sanction" (Bundeszwang) on the part of the federal government may force the Land to fulfill its duties, but only with the approval of the Federal Council. Prior to such a step, of course, the difference must be submitted to the Federal Constitutional Court. The "federal compulsion" of the Bonn Constitution against a Land is, therefore, subject to the approval of two distinctly federalistic institutions -- the Federal Constitutional Court and the Federal Council. Under the Weimar Constitution, the power of "federal sanction" was taken away from the former Bundesrat and given to the Reich President, a unitary institution. A Land was able to appeal against the decision of the President in the Court of State or other pertinent court, but the appeal came after the intervention by the Reich President. On October 25, 1932, for instance, the Court of State declared unconstitutional the outright dismissal of the Prussian Government on July 20 of the same year by Chancellor von Papen, and its replacement by himself and his deputies.
10. The Länder execute their own laws, through their own authorities. The Länder also execute the federal laws as their own concern, except as otherwise determined or permitted in the constitution, and in a few cases listed in the constitution the Bund authorizes the Länder to execute federal laws. In both cases, Land execution is supervised by federal authorities: in the first case the federal government exercises supervision to ensure the legal validity of the execution, while, in the second case, the federal government supervises the legality and suitability of the manner of execution.
The Military Governors expressed concern about this very farreaching administrative prerogative of the Bund and stated their intention to watch carefully over its use. 9 But federal supervision is limited to fields actually regulated by federal laws (Arts. 84, 3; 85, 4), in contrast to the more unitary Reich supervision of the constitution of 1871 (Arts. 15 and 4) which was applicable in all
9 Friedrich, op. cit., XLIII ( August 1949), 716,
fields that could be regulated by federal law, whether they actually were or not. Also, the Bonn Constitution contains much more farreaching provisions for the settlement of Bund-Länder disputes or differences in opinion through the constitutional courts than the Weimar Constitution.
The Federal Diet
The fathers of the Bonn Constitution faced no major problem or disagreement among themselves in working out the constitutional provisions concerning the Federal Diet (Bundestag), the most important organ of the Bund. As the center of the federal system of government, it is mentioned first among the federal organs -- as in earlier constitutional documents. Elected by the entire people in universal, free, equal, and direct elections, its members are the representatives of the whole people, not bound by orders and instructions and subject only to their conscience. The Bundestag makes the laws for the country as a whole, elects the federal Chancellor, and controls the federal government. As part of and equal partner in the Federal Convention, it also participates in the election of the federal President, its membership making up one half of the Federal Convention, the presidential electoral college.
This participation in the election of the President puts the Bundestag in a stronger position than the WeimarReichstag, which had no presidential electoral function. In addition, the federal President is greatly limited in his power to dissolve the Bundestag. However, while this fact greatly adds to the importance of the Bundestag, an essentially unitary organ, the corresponding loss of power of the old Reich President hits an equally unitary institution. The shift in powers, therefore, does not appear to represent either a decrease or increase in the strength of federalist institutions.
Article 20, dealing with the federation and the Länder, provides: "All state authority emanates from the people" and "shall be exercised by the people in elections and plebiscites and by means of separate legislative, executive, and judicial organs." Art. 38, introducing the constitutional section on the Federal Diet (Bundestag), provides that its members shall be "elected by the people in universal, direct, free, equal, and secret elections" and that "they are representatives of the whole people, not bound by orders and instructions, and subject only to their conscience." The Federal Diet is, therefore, the unitary element in the federal government and it is the direct, democratic representative of the people. It is the primary branch of the federal government, limited only by the constitution in the field of legislation, whereas the executive and the judiciary are limited by legislation.
The absolute parliamentary system of the Weimar Republic has been limited in the interest of greater governmental stability and continuity by providing for the so-called "constructive vote of lack of confidence." This is a procedure by which the Federal Diet expresses its lack of confidence in a federal Chancellor, but can do so only by electing a successor by majority vote. A combination of unrelated and heterogeneous elements -- such as National Socialists and Communists of the Weimar Republic with nothing in common except opposition to the Cabinet -- will be unable to overthrow the Cabinet and leave the country without a helmsman. While this provision detracts from the power of Parliament, the latter is strengthened by an added limitation upon the power of the federal President to dissolve Parliament (Arts. 63, 68), by the apparent denial of the right of self-dissolution of Parliament, and by the new right of Parliament to take part in the election of the federal President.
The Federal Council
The character and status of the Federal Council (Bundesrat) were the subject of extended deliberations both at the Herrenchiemsee meeting of a special commission of experts appointed by the Minister Presidents to prepare a constitutional draft and at the Parliamentary Council in Bonn, where opinion was strongly divided in regard to the Federal Council's composition and its tasks. Originally, agreement existed only on the proposition that a second institution should exist alongside the Federal Diet. In these deliberations victory ultimately went to the adherents of the conciliar type of federal representation in the federal government through which
the Länder governments might participate in both the legislation and administration of the federation.
The conciliar type of organ was put through by the more federalistic elements in all parties and adopted by a large majority in the Parliamentary Council, or constitution-making body. It had the support of German tradition from the medieval Reichstag to Bismarck's Empire and the Weimar Republic. It was also in line with the fact that the governments of the Länder had shared considerably in the establishment of the new government of Western Germany, often because of considerations originating with the occupation powers.
The proponents of a more (but not absolutely) centralist organization of government favored a senate of popularly elected representatives of the Länder. They admitted the historical tradition in favor of the conciliar type of federal representation, but pointed out that the dynastic units which were united in 1871 in a kind of federation of princes were no longer in existence. They also argued forcefully that a Federal Council consisting of instructed Cabinet members of the Länder would never be accepted popularly as a genuine second chamber. In answer to these arguments it was claimed that a second chamber (or second institution) elected by the Land diets, or directly by the people, would be only a miniature replica of the elected Land parliaments serving as a unit.
A notable minority had favored a second chamber consisting of two elements, one elected directly by the people and one appointed by the Land governments. This proposed mixed system, similar to one set up in the constitution of 1849, was said to be unworkable -popularly elected senators, it was argued, would be organized along party lines, while the Land government representatives, though party members, would be restrained from joining party groups because of their role as representatives of Land governments, which consisted of party coalitions. This argument that popular election would strengthen party discipline is persuasive especially in view of the German custom of strict party discipline, re-enforced by the German list system of proportional representation, which would not allow genuinely "uninstructed" senators to vote regardless of party preferences. "Sons of the wild jackass" are not a German institution and if transplanted would die of loneliness in a disciplined country. Land cabinet members, on the other hand, are not likely to be instructed by party caucuses but rather by coalition governments, representing the majority of the Land voters -- a more federalistic procedure. Whether a mixed system would be desirable from a different point of view is still another question.
Originally, the Social Democratic party favored the senate form of federal representation, while large numbers of the Christian Democratic and the Christian Social Union parties favored the reestablishment of the conciliar system. The mixed system was strongly favored by the Free Democratic party, the largest of the smaller parties, whose chairman, Professor Theodor Heuss, was later elected first President of the new Federal Republic.
Article 51 of the Basic Law provides that the Federal Council shall consist of members of the Land cabinets, which shall appoint and recall such members. Contrary to the Federal Council of empire days, the new institution will, therefore, not be a meeting of expert government officials but, as under Weimar, it will be a public platform for the leading Länder statesmen which they can use to propagandize the attitudes and proposals of their respective Land governments.
The status of the President of the Federal Republic differs greatly from that of his predecessor in the Weimar Republic. The Parliamentary Council in Bonn paid special attention to Germany's experience with the dualism of a popularly elected President and a Chancellor and Cabinet responsible to parliament. The federal President is now elected for a period of only five years by a distinctly federalistic method, viz., by a Federal Convention consisting of the members of the Federal Diet and an equal number of members elected upon the basis of proportional representation by the Land diets (Art. 54). The President no longer possesses the emergency powers with which he was able, under the Weimar Constitution, to suspend civil rights and enforce government decrees -- even control local real-estate taxes and municipal and state expenditures; nor does he take part in federal action against the Länder (Bundesexekution) or appoint or dismiss the Chancellor at will.
The President of the Weimar Republic had been elected by the people for a period of seven years. The direct method of election and the length of his term reinforced the strong position resulting from certain constitutional powers. These were the power to dissolve the Reichstag on his own initiative (Art. 25 of the Weimar Constitution); to compel a state, with the aid of armed forces, to fulfill its duties according to the national constitution or national laws (Art. 48, 1); his dictatorial emergency powers (Art. 48, 2); and his right to appoint and dismiss the Chancellor and Cabinet (Art. 53).
The federalistic character of the new President's position is emphasized not only by the participation of the Länder parliaments in his election but also by the constitutional provision that, in case of his inability to perform the duties of his office, his functions are to be exercised by the President of the Federal Council (Art. 57). Under the Weimar Constitution, if the Reich President was prevented from performing his duties, he was represented at first by the national Chancellor. In the case of longer periods of inability, the representation was to be regulated by national law. The same arrangement held in case of a premature vacancy of the presidency (Art. 51).
Internationally, the President is the head of the Federal Republic -- the head of state. He concludes treaties in its name with foreign states and accredits and receives diplomatic envoys. He also appoints federal judges and officials, exercises the right of pardon, and promulgates federal laws. In all these functions, however, he needs the countersignature of the Chancellor or the appropriate minister. As in France, the President now occupies a decidedly weak position in contrast to the Chancellor, who is put in a position of definite and dominant leadership, comparable to that of the Prime Minister in Great Britain.
Federal and Land Legislative Powers
As briefly indicated above, the constitutional provisions for legislation bear a strong federal imprint. As under the Imperial and Weimar Constitutions, today's federal government possesses only the powers specifically granted to it. All others belong to the Länder (Art. 70). The Länder also have the right to conclude international treaties in those fields in which they possess legislative authority if the federal government concurs (Art. 32, 3).
The Bund possesses both exclusive and concurrent legislative authority. The list of its exclusive powers is short. It includes foreign affairs, federal citizenship, passports, immigration and emigration, extradition, currency, weights and measures, customs and foreign trade including international payments, railroad and air traffic, post and telecommunications, federal officials and employees, trade-marks and copyrights, co-operation with the Länder in criminal police matters, protection of the constitution, the fight against international crime, and federal statistics (Art. 73). All these affairs are matters that, by their nature, need uniform treatment or regulation. The Länder enjoy power to legislate in these fields only if expressly empowered by federal law (Art. 71).
While the power of the Bund to exercise concurrent legislation includes a much larger number of fields, ranging from civil and criminal law and laws on economic subjects (including industry, agriculture, and labor) to the fight against infectious diseases (Art. 74), it can legislate in these fields only (1) if the matter cannot be regulated effectively by Land legislation, or (2) if regulation by one Land would prejudice the interests of other Länder, or (3) if federal action is required for the preservation of the legal or economic unity of the country. 10 On the other hand, the Länder can legislate in these fields only as long as the Bund does not exercise its legislative authority (Art. 72). In effect, therefore, federal legislation is possible in all these important fields. The Länder are free
10 See German Constitutional Proposals, prepared by the Civil Administration Division, OMGUS (undated; published in 1948). Includes a comparative analysis of draft constitutions by Professor Arnold Brecht.
to regulate these matters until federal legislation is passed. The Bund determines the conditions that permit it to enter these fields, but its interpretation is subject to the jurisdiction of the Federal Constitutional Court in case of disputes or differences of opinion.The legislative initiative lies with the Federal Cabinet, members of the Federal Diet, or the Federal Council. Under the parliamentary system, and as in the past, the overwhelming majority of bills is likely to be introduced by the Federal Cabinet, which must first submit them to the Federal Council. The latter has the right to give its opinions on these bills within three weeks. Bills prepared by the Federal Council are submitted to the Federal Diet by the Federal Cabinet, with a statement of its own views.The Federal Council may veto bills passed by the Federal Diet, subject to certain rules of procedure, but the veto may be overridden by the Federal Diet. However, as already indicated, a veto passed by a two-thirds majority in the (federalistic) Federal Council can be overridden only by a two-thirds majority of the (unitary) Federal Diet members present at the voting, and these must constitute at least a majority of the entire membership.
Non-federal or Antifederal Features
1. Section II of the Bonn Constitution on "The Bund and the Länder" provides not only that the Federal Republic of Germany "is a democratic and social federal state," but also determines that "the constitutional order in the Länder must conform to the principles of the republican, democratic and social state based on the rule of law [ Rechtsstaat ] within the meaning of this basic law." The Bund must guarantee that the constitutional order of the Länder corresponds to the basic rights and provisions just referred to and those listed elsewhere. The federal constitution, therefore, determines the basic features of the constitutions of the Länder. 2. The federal constitution invades the normal jurisdiction of the Länder when it determines the basic rights of local self-government. It provides that counties (Kreise) and communities (Gemeinden) "must have a representative assembly resulting from universal, direct, free, equal, and secret elections" (Art. 28, 1). Even more interven- tionist than the Weimar Constitution, it requires that communities "must be safeguarded in their right to regulate, under their own responsibility, all the affairs of the local community within the limits of the laws" (Art. 28, 2). 4. The Bonn Constitution shows an antifederalist approach when it subjects changes in the geographic boundaries of the Länder to the final jurisdiction of the Bund. The basic division of the Bund into Länder is, as mentioned, one of the few constitutional provisions that are not subject to amendment. But the organization as such is to be determined by federal law, with the Federal Council enjoying merely a suspensive veto (Art. 29). The Länder, as such, do not participate in this process. The population of the areas that are to switch Land jurisdiction is to participate in a referendum on the subject, but not the population of the Länder, which are to lose or gain territory. If the law is rejected in at least one area, it becomes subject to a nation-wide referendum, if re-enacted in the Federal Diet. In such a case, a peasant in Bavaria may have to vote on whether Mainz should be a part of Hesse, and the resident of Bremen on whether the Palatinate, formerly a part of Bavaria, should be joined to a neighboring state. Article 29, which regulates this potential reparceling of Land areas, is intended primarily for the one reorganization of Germany expected to be necessary to clean up some of the rather arbitrary present boundary lines -- a reorganization to be carried through within three years. The requirement for the consent of the Federal Council was omitted to facilitate this reorganization. However, Article 29 provides that in case of other changes, i.e., later territorial changes, only the federal law regulating the procedure shall require the approval of the Federal Council, and not the law about the territorial change itself.
5. From the point of view of the Länder, potentially the most important provision of the constitution is Article 30 in Section II on "The Bund and the Länder." It provides: "The exercise of the powers of the state and the performance of state functions shall be the concern of the Länder, insofar as the Basic Law does not otherwise prescribe or permit." This provision would appear to set up the principle of Länder jurisdiction in case of doubt, except where otherwise provided in the constitution. Such exceptions are numerous. Important in this connection is the German equivalent of the "supremacy clause" of the United States Constitution. Article 31 of the German document reads: "Federal law shall supersede Land law." This article, giving the Bund precedence over the Länder, is, of course, conditioned by the requirement that the federal law must be constitutional, i.e., that the federal government has jurisdiction.
The Prerequisites for a Sound Basis for Federalism in Germany To be sound, effective, and lasting, German federalism must grow out of, and fit in with, the characteristics of the various regions and peoples that make up Germany, due regard being paid to surviving historical patterns which have proved their worth in preserving regional values within national unity. In deciding upon state boundaries, organic units should be preserved or created. It is one thing to merge tiny territorial units resulting from dynastic accidents, to abolish enclaves and exclaves, or to break up Prussia, and quite another thing to carve out new state boundaries primarily to suit the convenience or mood of military occupation authorities. Nor can any goal of the fragmentation of Germany be called federalism.
Federalist provisions in the constitutions of the Bund and the Länder must be the expression of the popular will or, if the result of compromise, they must gain popular assent. They cannot be the result of orders received from the outside if they are expected to last. Fundamentally, a federal system imposed by foreign dictate would be as much a contradiction in terms, a logical absurdity, and a practical impossibility as a "democracy" set up in response to orders and commands, and threats of "or else...." Fortunately, the federalist character of the Bonn Constitution seems to comply with current German sentiment as much as with Allied directions.
Written constitutional provisions for a division of labor and authority between federal and state governments are of course necessary, but they may be or may become insufficient. They can be reduced to a mere formality if a political group opposed to effective federalism gains control of both the Federal Parliament and all, or most, of the diets; if a coalition of parties opposed to federalism gets into office (as in the early stages of a people's democracy); if a party professing belief in federalism becomes so large, powerful, and uniform in outlook that it is tempted to mold all governments in its own image; and if, regardless of political majorities, too much power and influence is exercised by a civil service trained to such disciplined and tradition-bound views that, in effect, its thinking and actions would be gleichgeschaltet, in a rigid uniformity. In such a case, constitutional provisions and divergent state needs or desires may easily become obliterated.
Federalism, like democracy, is assured of effectiveness and longevity only if it is part and parcel of the living constitution of the country, observed in the spirit rather than just in the letter of the law. Each must be meaningful to the people, offer worth-while opportunity, and provide for self-expression in matters close to the home and the hearth, the heart, and the pocketbook, especially in matters such as education, religion, police affairs, socialization, taxation, and the like. There is need for a spirit of enterprise and experiment swelling up from below, a readiness and eagerness to have one's Land serve as a social, cultural, and economic laboratory, and to have it lead -- or even just grope -- where other Länder fear to tread because of the weight of tradition, lethargy, or honest disagreement.
German federalism calls for more ideas on the part of the Germans -- not only of Bavarians and Württembergers, but also of Rhinelanders and Westphalians. It requires initiative among Hessians, let us say, without orders and directives from Bonn or Berlin, and it demands that the residents of one Land respect the constitutional right to actions and attitudes of another Land along lines they may oppose or dislike.
If diversity of ideas, initiative close to the grass-roots level, and respect for regional divergences are prerequisites for effective federalism, they are also part of the basis for a more lasting and sound democracy at home and internationally. If Germans living under the Bonn Constitution will respect and welcome diversity of political thought and action among the Länder, within the unifying framework of a federal constitution, it would seem that they are also more likely to fit into a family of nations consisting of units standing on their own feet and not managed by an almighty pater familias. In the past, Germany has tried to make Europe German. The world will be better off, and so, we believe, will Germany herself, if that country becomes European without losing her identity and individual value. If Germans can get along with one another without imposing uniformity of action and thinking on themselves, success of federalism in Germany may prove to be the prototype of that country's role in the international scene.
The British Commonwealth as an Example of a Multinational State System
By Adam B. Ulam HARVARD UNIVERSITY
T HE two World Wars have sounded the death knell of oldfashioned imperialism. World War I marked an effective limit to the expansion of the West and, though it was not so realized at the time, the beginning of a rather rapid process of dissolution of the multinational systems, which prior to 1914 had seemed almost permanent pictures of the political map of the world. If the hard test of practical politics rather than that of legal formulas and theories is to be applied to the situation as of today, can we still say that there exists in any meaningful terms a political entity called the Commonwealth of Nations or its French variant, the French Union? Can the new realities, the new social forces, be crowded into a constitutional formula, or is the very process of constitutional reformulation of the old imperial relationships an imposing façade concealing a crumbling structure? The answer can only be given after appraising some of the forces and facts impinging upon the old imperial structures, and determining whether or not they can be reduced to a constitutional mold in a world where there are very many constitutions but very few instances of what might be called true constitutionalism.
The two World Wars have acted as great catalysts of social and political change throughout the world. The aftermath of World War I brought nationalism into the focus of political phenomena, not only as a characteristic of Western culture and of some isolated cultures outside the Western world, but as the central tendency of the twentieth century. Between the two wars nationalism, and very often militant and integral nationalism, was superimposed upon every social and political issue that was a part of international and domestic policies. Great movements of social reconstruction, which had arisen in the nineteenth century and which had been based upon concepts of loyalties and interests transcending state and national boundaries, now became transformed and distorted by the injection of nationalist orientation. The philosophy of national selfdetermination that was enunciated at Versailles and that brought the disintegration of the Austro-Hungarian Empire, before 1914 the outstanding example of a multinational constitutional system in Europe, was not an invention of President Wilson but a simple recognition of the ultimate expression of the great historical movement, which ever since the Renaissance has dominated the Western world and which was spreading over Eastern Europe and Asia.
Now nationalism in its modern guise is a stranger to the Lockian world of constitutionalism. As a political movement it is impatient of gradualism and of constitutional formulas and symbols. Nationalism, if agitating various portions of a multinational system, is not only opposed to the reality of domination by one nation within the system but is even impatient of a symbol or fiction of such domination. It is not surprising, therefore, that we find, within a few years after the end of World War I, insistent attempts to define more specifically and to ensure the broadest limits of the autonomy of the self-governing units of the British Empire, which until 1914 were, by and large, content to have their independence from the mother country depend upon convention rather than upon formal statutes and declarations. The feeling which grew up very suddenly after 1918 in the Dominions was not one of hostility toward the British connection or its monarchical connotations (though this did constitute a factor in the Irish Free State and in South Africa) but an expression of the desire that in theory as well as in practice no vestige of doubt should be allowed about the status of the Dominions as free and independent nations.
But effects of the transition extended beyond the realm of legal formulas. In the nineteenth century, the heyday of Britain's power, it was easy for some Englishmen of liberal persuasion to envisage a peaceful and friendly demise of imperialism as a natural consequence of the political progress of humanity. 1 The prevailing trend in public opinion in England, while by no means as radically inclined as was Bright, looked throughout the nineteenth century with complacency at the prospect of full maturity of the selfgoverning colonies. But inherent in the assumption was the notion of quite a different world than the twentieth century was to bring. Toward the end of the nineteenth century and in the beginning years of the twentieth the idea of full independence for the future dominions became more and more supplemented by the notion of a closer and perhaps institutionalized federation between Great Britain and her self-governing colonies in matters like defense, foreign policy, and so on. Here World War I, which in fact marked the fullest possible collaboration between the self-governing units of the empire, marked at the same time, and paradoxically enough, a turn of sentiment toward independent and concrete nationhood for the overseas communities. The Chanak episode showed that South Africa and Canada were no longer willing to have their foreign policy made in London. The empire was in the process of dissolution insofar as the self-governing colonies were concerned, and a commonwealth had to be created to take its place. Already at the Imperial Conference of 1921 various decisions on foreign-policy matters had to be reached through a compromise between the views of those present, rather than through a unilateral decision of the government of the United Kingdom advised only by the Dominions, the normal procedure at previous Imperial Conferences. 2 Thus, an important constitutional precedent was established by convention,
1 John Bright, the most typical representative of the earlier and most optimistic phase of English liberalism, could say: "I believe that if Canada now, by a friendly separation from this country, became an independent state, choosing its own form of government -- monarchical, if it liked a monarchy, or republican if it preferred a republic -- it would be no less friendly to England, and its tariff would be no more adverse to our manufacturers than it is now.... I do not object to that separation in the least; I believe it would be better for us and better for her." -quoted in O. F. Christie, The Transition from Aristocracy, 1832-1867 ( New York, 1928), p. 89.
2 Eric Walker, The British Empire ( London, 1943), p. 142.
and the Imperial Conference of 1926 and the Statute of Westminster were to formulate legally what was fast becoming a fait accompli -the notion of the Commonwealth as a free association of independent states and the final repudiation of the idea of an imperial federation. The spirit of nationalism was still not appeased, and the Irish Free State and the Union of South Africa were not to be satisfied with the substance of independence but were to go to and through the Statute of Westminster grasping for more and more in the way of concrete symbols of their national separateness.
While the twin forces of nationalism and democracy were modifying the structure of Great Britain's relations with her Dominions, the same combination was making an attack upon Britain's colonial and Indian empires. Again World War I marked the passing of an era. Prior to that conflict, it had been assumed even by the most liberal elements in English public life that the extension of representative institutions to India would be a long and gradual process and that the reins of power there would remain for a long time in the hands of Parliament at Westminster. Unlike the French or the Dutch, the British have never denied, at least in theory, the path of constitutional development to their colonies with self-government as the ultimate, if very distant, goal. 3 A more cynical or Machiavellian imperialism would not have sown the seeds of parliamentary government in India, nor propagated Western political ideas and Western education in Africa and Asia. But British imperialism could be cynical only intermittently, and Britain's commitment to a constitutional development in her most important dependency began even before the Morley-Minto reforms. The latter, despite Morley's dictum at the time that democratic institutions were inapplicable east of Suez, constituted the first step on the tortuous road toward full self-government in India. The full implications of the
3 It is not argued here that the colonial record of the Dutch and the French is not superior to that of the British in many respects; nor that the former have always denied the rudiments of political representation to the nations under their control. It is simply asserted that, in theory, representative government, even of a very limited form, has from the beginning always figured in the discussions about the future of the colonial, and especially the Indian, possessions of Great Britain, while the same cannot be maintained about the whole course of Dutch or French colonial policy.
reforms were again to be dramatized by World War I, which brought claims for new and far-reaching reforms, going beyond the careful and limited amount of representation granted in India and looking toward dominion status for the empire. Nationalism was becoming a phenomenon that could no longer be localized, and a democracy was in no position to enact the part of an autocracy over another nation. The series of constitutional reforms and would-be reforms instituted in India after 1919, beginning with the MontaguChelmsford proposals enacted into the Government of India Act of 1919 and ending with the Government of India Act of 1935, attempted to steer the tide of nationalism into the channel of constitutionalism. Nothing is more indicative of the failure of nineteenthcentury preconceptions to deal with the problems of the twentieth century than the fate of those measures. Every concession by Britain in India was regarded as inadequate even before its formal promulgation. That self-government is an art which has to be learned gradually, that national independence for a formerly dependent nation should be an achievement rather than an absolute moral right -- all those solid and complacent maxims of the nineteenth century had to yield to the impatient spirit of new nationalism.
The aftermath of 1918 had seen, therefore, the onslaught of the very same forces that were to persist through and after World War II. Nationalism was wreaking havoc in the complicated structure of the British Empire. In addition, the force of social and economic change was thrown behind the fissiparous force of militant nationalism. The relative decline in Great Britain's position as a world power, dating from the early twenties, has to some degree depreciated the strength and prestige of the empire as a whole. And the influence of international Communism was thrown after 1920 behind the militant nationalisms of Asia.
The task of fitting all the disharmonious social and political facts into a neat constitutional formula has occupied British and dominion statesmen ever since 1920, and it is optimistic to assume that the task was finished and concluded with the declaration of 1949. The twenties began to bridge the gap between the theory and the prac- tice of the constitution. When the principles of the Statute of Westminster were first announced and when they became legal realities in 1931, it was difficult to conceive of the next step toward fuller independence of the units of the British Commonwealth without envisaging the end of any conceivable association between its members, and indeed the end of the Commonwealth itself. Yet the process of weakening the formal links of the empire went on during the thirties; it continued throughout and after the war. But the Commonwealth remains even today a meaningful and important organization playing a considerable part in international politics, quite apart from the importance of its member states.
The meaning of "dominion status" had never been defined prior to 1926; and indeed any attempt to do so would have been regarded as an attempt to put down in hard and fast legal formulas an essentially developing and dynamic thing or an attempt to constrain convention by law -- an idea rather repugnant to the main trend of British constitutional traditions. Yet indications were not lacking, even before 1926, that some sort of a definition of the status of the Dominions was clearly in order if serious strain was not to be placed upon Great Britain's relations with her self-governing colonies. Considerable conflicts had developed on occasion between representatives of the Crown in the Dominions and their ministries, the two parties being handicapped by differing conceptions of the status and powers of the Governor-General. The Colonial Laws Validity Act of 1865 operated as an uncertain and cumbersome check, at least in theory, upon legislative autonomy of the Dominions. The formal paraphernalia of restraint upon self-government in the new nations were formidable indeed. They included, to mention just the most important elements in the picture, the power of disallowance of colonial legislation held both by the GovernorGeneral and by the Sovereign advised by his British ministers, the Colonial Laws Validity Act, and the Judicial Committee of the Privy Council. Though the power of disallowance had by 1926 practically fallen into desuetude, and the Colonial Laws Validity Act had become a legal nuisance rather than a concrete barrier to full legislative independence, there still remained real grievances and the irritating suggestion of incompleteness in the independent status of the Dominions. General Smuts, who was defeated in the 1924 elections in South Africa because of his supposed subservience to the empire, had said in 1917 that "although in practice there is great freedom, yet in actual theory the status of the Dominions is of a subject character. Whatever we may say, and whatever we may think, we are subject Provinces of Great Britain. That is the actual theory of the Constitution, and in many ways, which I need not specify to-day, that theory still permeates practice to some extent." 4 It is well to recognize the nationalist sensitivity of General Smuts's words, for hardly more than thirty years later another Commonwealth statesman, Mr. Nehru, was to feel almost the same way about the improved and defined status of the Dominions under the Statute of Westminster, and was to demand a considerable advance upon the previous definition.
Dominion status was under discussion between 1926 and 1931, and its definition under the Statute of Westminster is still the legal basis of the status enjoyed by Canada, Australia, South Africa, and New Zealand; more recently, and with some variations, by Ceylon; and, at least for the time being, by Pakistan. It is the cornerstone and the basis of the British Commonwealth of Nations -- "The Third British Empire" -- and in many ways it suggested to the French and the Dutch, after World War II, the way to deal with their own colonial problems.
The Statute of Westminster once and for all removed even the very theoretical possibility of the Parliament at Westminster legislating for any of the Dominions except by the request and consent of the government of the given Dominion. The legislative autonomy of the Dominions was made complete by annulling for the future the provisions of the Colonial Laws Validity Act of 1865 insofar as the legislative bodies of the Dominions were concerned. It was the intent of the Statute to transform the self-governing part of the British Empire in law, as it was already in fact, into an association of free states "united by a common allegiance to the Crown." The
4 Quoted in K. C. Wheare, The Statute of Westminster and Dominion Status ( Oxford, 1938), p. 23.
Crown itself was thus defined not only as the symbol but also as the most concrete legal link of the British Commonwealth of Nations. Under the Statute of Westminster, legal changes touching the succession to the throne or any alteration in the royal titles were to be ratified not only by the British Parliament but also by the Parliaments of all the Dominions, as actually happened in December 1936 upon the abdication of King Edward VIII.
Thus, the series of documents and declarations, beginning with the Balfour Declaration of 1926 and ending with the Statute, established the status of the Dominions as fully self-governing communities with all the essential characteristics of independent states. Constitutionally their legislative bodies became fully autonomous. The Governor-General was no longer an agent of the British Government but solely a representative of the Crown, with his constitutional function similar to that of the King in the United Kingdom; i.e., that of the ceremonial head of the state. Within the space of five years the formal structure of the British Empire was reviewed and rearranged. That the job, which taxed the energies and legal skill of many experts as well as Lord Balfour's metaphysical skill, was largely an acknowledgment of a fait accompli, and, as such, a concession to nationalist emotions rather than to concrete and pressing needs, is amply demonstrated by the behavior of Australia and New Zealand. The two most "British" Dominions went along with their fellow members of the Commonwealth, though they never felt that dominion status should be very strictly defined. They were not to ratify the Statute of Westminster till many years after its inception, Australia in 1942 and New Zealand in 1947.
On the other hand, the Statute of Westminster did not go far enough for the Union of South Africa or for the Irish Free State. The Union of South Africa, not satisfied with Section 4 of the Statute of Westminster (which required request and permission by the Dominions for any legislation affecting them), provided in the Status of the Union Act of 1934 that "no Act of the Parliament of the United Kingdom and Northern Ireland, passed after the eleventh day of December 1931 shall extend or be deemed to extend to the Union as part of the law of the Union, unless extended thereto by an Act of the Parliament of the Union." 5 Essentially this provision of the Status of the Union Act added little or nothing to the real legislative powers of the Parliament of the Union. Other provisions of the Act attempted likewise to spell out, in harsh detail, what had already been conceded to the Dominions either by law or by convention. The sole intent of the Act was to remove any implication or hint that might have been construed to suggest a still superior status for the Parliament at Westminster or a status for the GovernorGeneral as anything more than that of the ceremonial head of the state advised solely by his South African ministers. The Status of the Union Act presaged that for South Africa, or at least for a large portion of her citizens, dominion status was not a satisfactory definition of independence.
The case of the Irish Free State, or Eire as it became known in 1937, indicates much more clearly the "looseness" of the Commonwealth even as it existed before 1945. Prior to Mr. De Valera's assumption of power in 1932, the Irish Free State had already pushed dominion status to its extreme limits. Ireland had come into the Commonwealth reluctantly and sullenly. The achievement of selfgovernment could be for her not a consummation of a long and peaceful development, as it was for other Dominions, but only an interlude in the struggle to abolish not only the substance but also the symbolism of her dependent position vis-à-vis Great Britain. Professor Mansergh speculates that even the period of Ireland's willing collaboration in the Commonwealth, the period which ended in 1932, strengthened the fissiparous tendencies within the Commonwealth and hastened latent tendencies in the same direction in Canada and South Africa. 6
When Mr. De Valera assumed office in 1932 the fragility of the purely constitutional bonds of the Commonwealth became only too obvious. The appurtenances of membership in the Commonwealth and of the connection with the Crown had to go one by one: the oath of allegiance to the King, the office of Governor-General, and the appeal to the Privy Council. In 1937, Ireland became a de facto
5 Quoted in Wheare, op. cit., p. 317.
6 Nicholas Mansergh, The Commonwealth and the Nations ( London, 1948), p. 199.
republic, its constitution departing in phraseology and form from the established British pattern. But Mr. De Valera refused to sever the connection completely, and the tenuous thread of the External Relations Act remained as the only constitutional link between Ireland and the Crown and hence the Commonwealth. 7 Within the community of free nations of the empire, Mr. De Valera's Ireland became a foreign body forcibly demonstrating that constitutional formulas are not always capable of reconciling national animosities and opposing political and social views.
On the eve of World War II the Commonwealth represented a variety of constitutional forms and stages of development. As a form of political organization, in the accepted sense of the word, the Commonwealth of 1939 could hardly be described as a unit. It was certainly not a federation, which implies an effective central organ of legislation. Nor was it, despite the preamble to the Statute of Westminster, a group of freely associated states "united by a common allegiance to the Crown," since one of its members acknowledged neither the Crown (though recognizing one function of its holder) nor the allegiance. The only really relevant description of the Commonwealth in 1939 could be a political one. Such a description would have recognized that, for all practical purposes, Eire was not a member of the Commonwealth; as for the remaining members, they all adhered to the Westminster formula but with varying sets of reservations. Thus, while New Zealand felt that dominion status need not be formally defined and that the relationship between the mother country and the self-governing units of the empire could be safely left to convention, the Union of South Africa had insisted on the most unambiguous legalistic statement of her independence with the unstated premise that even complete secession from the empire was within the rights of the Dominions.
By 1939 the Dominions were independent states. If legislative autonomy is the prime attribute of sovereignty, then the Union of South Africa and Canada were by 1939 independent by law, and
7 See Executive Authority (External Relations) Act of 1936 reproduced in The constitutions of All Countries, I ( London, 1938), 189.
Australia and New Zealand, though they had not yet adopted the Statute of Westminster, were independent by virtue of the constitutional convention affirmed at the Imperial Conferences of 1926 and 1930. Ireland was in a class by herself, neither in nor out of the Commonwealth, and Newfoundland had had to give up dominion status. As for the four "real" Dominions, the only limitations upon their integral sovereignty persisted in 1939 because of their own preference. The Judicial Committee of the Privy Council sitting in London remained as the supreme court of appeal for the Dominions (excepting some categories of litigation excluded by dominion legislation), but the Judicial Committee is not, from the point of view of the law, a part of the judicial machinery of the United Kingdom since it is a legal appurtenance of the Crown. Insofar as the two federal Dominions and New Zealand were concerned, the Statute of Westminster specifically stated that the procedure for the amending of their constitutions which had been in force prior to the Statute was not to be changed by its passage. 8 Since the procedure required concurrence of the British Parliament on some basic constitutional changes, it might appear that the status of Canada, New Zealand, and Australia was still unequal in regard to that of Great Britain. But it was a constitutional convention, in force even before 1931, that the consent of the Parliament at Westminster would be automatic if requested by the competent constitutional authority in the given Dominion. The reservation in the Statute of Westminster was inserted largely because of the fear of the provinces in Canada and the states in Australia that their constitutional status might otherwise be infringed, and because of New Zealand's oft-repeated wish not to have her status quo changed. It is the absence of a similar reservation in regard to South Africa that gives the Union Parliament unfettered powers to change the constitution of the Dominion, and that recently enabled Dr. Malan's government to change the "entrenched" clauses of South Africa's Constitution by less than a two-thirds majority.
Such was the structure of the British Commonwealth that went to war in 1939. It is curious to observe that the response of the
8 Sections 7 and 8 of the Statute.
Dominions to Great Britain's declaration of war paralleled the extent of their previous assertions of independent status. Eire stayed neutral. In South Africa there was a considerable division of public opinion on whether or not the Union should enter the war. The vote against neutrality, a condition desired by the then Prime Minister, General Hertzog, was close, but it enabled General Smuts to take over and to lead his country through the war. The other Dominions declared war upon Germany without hesitation, but it was done in the manner which suggested that the decision was their own -- the decision of independent nations -- rather than compliance with the policy of the mother country. 9
But India was not consulted about entrance into the war. The Congress party immediately ordered its provincial ministries to resign in protest, and provincial self-government in many places had to be suspended for the duration. Thus, India's war effort had to be carried through against the opposition of the most powerful political party in the country.
World War II demonstrated once again the basic weaknesses and strengths of the Commonwealth. When Great Britain herself was in supreme danger, there was no doubt about the response of the Dominions. The war was felt to be the struggle for the preservation of free democratic institutions everywhere, and hence the question of dominion nationalism versus the imperial connection could not really arise. But the war also demonstrated the decline in the strength of Great Britain, perhaps most dramatically to the Pacific Dominions, whose national and political responsibilities were consequently enhanced. The situation was brought home to Australia early in 1942 after the fall of the Dutch East Indies to Japan, when it seemed as if the Dominion, which had hitherto felt secure behind the British fleet, would be exposed to Japanese invasion. There was a brief flurry of bad feeling and strained relations between the
9 In the debate on the issue of war versus neutrality, South Africa rejected the assumption that, since the King in Great Britain was at war, South Africa was constrained to follow. Instead, the Union supported the assumption that "there was no limit to our freedom under the Statute of Westminster as confirmed in our country under the Status Act," but that it was in the interest of South Africa to enter the war. -- Mansergh, op. cit., pp. 14 - 15.
Cabinets in Canberra and in London that centered around Mr. Churchill's rather imperatorial appointment of Mr. Casey, then the Australian Minister in Washington, to a British ministerial post without, it seems, prior consultation with the Australian Prime Minister, Mr. Curtin. The tension soon and happily passed, but the incident, trivial in itself, was a portent of the new era in which the last vestiges of colonialism, both formal and informal, were to disappear from the Commonwealth, and Britain herself was to become in spirit as well as in law merely a senior partner in the enterprise.
The changes that the war brought about in Britain's dependent empire were of more monumental character. The Government of India Act of 1935 was thought at the time of its enactment to settle the status of the subcontinent at least for a decade or two. The Act, though marking a considerable advance in self-government for India, fell considerably short of bestowing dominion status. It became pretty clear right after the beginning of the war, and even more obvious following Japan's entrance into it, that Great Britain, following the conclusion of the conflict, was not going to be able to hold India in a dependent status. It became increasingly clear that the last vestiges of imperial attitude were being dispelled in England by the war, and that the postwar social democracy which England was bound to become, whether under a Conservative or Labour government, would have neither the resources nor the will to keep any of its possessions in a static state of subjection. The only problem was the tempo and the shape of the coming colonial emancipation. Was India to take a place in the Commonwealth or was she going to abandon the British connection? If either of these alternatives was to materialize following the war, how about Ceylon and Burma, which were by 1939 at a stage of colonial self-government that was at least as advanced as that of India? And if they were going to be granted independence, how could the same goal be withheld from other, less advanced, colonies? Could dominion status accommodate the growing nationalism of Asiatic communities? When Sir Stafford Cripps went to India in 1942 on behalf of the War Cabinet to offer dominion status to the Indian leaders if they would reconcile their own differences and would support the war effort of the Commonwealth, he found hostility to the idea of dominion status as a substitute for full and unequivocal independence. Only a few years before, dominion status had been the fondest expectation of many Indian political leaders. Yet by 1942 it had acquired the connotation of something considerably less than independence. Sir Stafford's attempts to illustrate the completeness of independence under dominion status and the lack of restraint under it on the members of the Commonwealth are significant for two reasons. In the first place, only a few years earlier, they would have shocked a strict legalist; in the second place, they failed to dispel Indian suspicions (though the Cripps mission ultimately failed on other counts). 10
Mr. Churchill's wartime words that he did not become Prime Minister to preside over the liquidation of the empire now have a very ironic ring. The British Empire has been "dissolved" in the sense that it has been transformed into the Commonwealth -- a loose confederation of independent states; and even its dependent units -- Britain's colonies -- are now officially assured of an eventual advancement into the Commonwealth. By the same token, the Commonwealth still remains a vast laboratory of practical politics, and the experiments that are going on there remain among the most important and fascinating features of contemporary politics.
There are three major spheres of constitutional development within the Commonwealth. There is, in the first place, fuller development and implementation of dominion status insofar as the "old Dominions" are concerned. Canada, Australia, New Zealand, and South Africa now have not only the rights but also the apparatus appropriate to independent nations. This is verified by their own diplomatic representatives to foreign countries and the increasing tendency to have their constitutional decisions and interpretations made at home instead of having them carried, even as a matter of form, to the British Parliament or to the Judicial Committee of the Privy Council. Though the Dominions were already independent nations before 1939, the war gave them the psychology
10 See a discussion of the point in Mansergh, op. cit., pp. 17 - 18.
of independent statehood. It may be argued that in some cases, notably in South Africa, this development has been accompanied by a rather aggressive and intolerant nationalism; but, in general, the new status of the Dominions is both natural and in keeping with the spirit of the new Commonwealth.
The second sphere of political development of the former empire is in many ways the most crucial, and its success or failure is likely to be a major factor in world history. It is the attempt to fit the new states of the East, which arose out of the Indian Empire and the colony of Ceylon, into the Commonwealth as willing and equal partners. Here, unlike the case of the old Dominions, it is no longer the problem of finding a few constitutional formulas and convenient symbolism, but the much more engrossing and difficult task of assuaging violent nationalism, which had bred for so long on the hatred of the British master, and of developing a community of interests and ideals that would appeal to those Asiatic nations whose cultural and political traditions and problems are so utterly different from those of the West.
Finally, there is the sphere of constitutional and political development, commonly ignored outside Great Britain, which involves the growing emancipation and gradual extension of self-government in various British colonies. The notion of colonial status as a static condition is no longer applicable, if it ever was, to Britain's colonial possessions. How far the assumptions underlying those reforms -the nineteenth-century notion that self-government can be granted piece by piece with its recipients growing in political wisdom and moderation in the process -- are applicable to Nigeria or to Jamaica remains to be seen. But, again, the effort has an importance transcending the fate of the Commonwealth.
The significance of the Commonwealth clearly transcends the future of Great Britain itself, or the fate of its individual members. In the world of today the Commonwealth is the only confederation of several nations that rejects the notion of centralism and that attempts in its own way to be a sort of league of nations, where different races and nationalities are held together only by their willingness to associate and to consult and to respect certain symbols of this association. It is only right to point out that the present state of the Commonwealth is neither stable nor clearly defined. An organization that has two members engaging in a violent, and at times armed, dispute over a territory, as are India and Pakistan in connection with Kashmir, cannot be said to possess effective unity. On broader issues of foreign policy and defense, the Commonwealth often speaks with many voices. The Crown is no longer an effective symbol of its unity, for one of the members is a republic and another, South Africa, is rather close to becoming one. Clearly a new spirit must be built within the Commonwealth to replace the prevailingly British tone of the era that ended in 1945. Whether time and circumstances will allow it or whether the already elastic formula has been stretched to a point where it is completely meaningless, and the new Commonwealth is a transitory phenomenon in the evolution of independent and separate state systems, remains to be seen.
Constitutionally the new form of the association is even more of a monstrosity than it was under the Statute of Westminster. There have been several attempts at elucidating the status of the inhabitants of what had once been the British Empire, what was more recently the British Commonwealth, and what is now, in deference to the sensitivities of its Asiatic members, simply the Commonwealth. Thus, the British Nationality Act of 1948 11 establishes dual citizenship throughout the Commonwealth. Previously the expression "British subject" was the common denominator of a Nigerian, Londoner, and New Zealander. Some Dominions, notably Canada, anticipated the action by the British Parliament and introduced the additional category of citizenship for the given Dominion. The Nationality Act sanctioned a more universal application of dual citizenship. An inhabitant of the United Kingdom and of the other eight independent members of the Commonwealth (South Rhodesia being so considered for the purposes of the Act in addition to India and the Dominions) may now be known either as "British subject" or "Commonwealth citizen." For Great Britain proper and her colonies a new category of "citizen of the United Kingdom and
11 11 and 12 Geo. Vl, c. 56.
Colonies" is established to parallel dominion citizenships. Thus, the word "citizen," a relative stranger to British constitutional vocabulary, is introduced to dispel any remaining notion that membership in the Commonwealth implies a recognition of its monarchical character or "Britishness."
Even of more profound constitutional importance was the decision reached in April 1949 at a special conference of the Prime Ministers of the Commonwealth in regard to India's position. The startling character of the decision led The Economist to entitle a discussion of the impact of the decision "New Statute" -- an obvious reference to the "Old Statute," which eighteen years before formally sanctioned the now passing stage of the Commonwealth. 12 India announced her decision -- and had it accepted by her sister Dominions and Great Britain -- to become a "sovereign independent republic" and yet to remain in the Commonwealth recognizing the King as "the symbol of the association of its independent member nations and, as such, the Head of the Commonwealth." India's decision meant, of course, a fundamental change in the constitutional structure of the Commonwealth. The Crown, which by virtue of South Africa's Status Act had become in effect a "divisible Crown" rather than a factor of unity, was now further weakened, and the road was open for the introduction of the republican principle into the Commonwealth, the principle that ultimately may be adopted by Pakistan, Ceylon, and even South Africa.
Second thoughts on India's decision to stay in the Commonwealth and the Commonwealth's acquiescence in the new formula produced some doubts, especially among Australian and New Zealand statesmen, on whether the new formula did not represent a net loss, since in addition to the vagueness and looseness already associated with the Commonwealth it seemed to add complete formlessness to the organization. The argument has run, and it is still not silenced, that in groping for new, and perhaps fictitious, ties one should not weaken the older and more solid ones. An interpretation of the Commonwealth given by Mr. Nehru in answer to an Indian critic may be quoted to support the view expressed above: "The Com-
12 The Economist ( London), April 30, 1949.
monwealth itself, as such is not a body, if I may say so; it has no organization through which to function and the King also can have no functions." 13 All that can be said about the declaration now is that it weakens the only sense in which the Commonwealth has had a formal unity and that the advantages it does confer are as yet theoretical and untested by history.
In two cases the Commonwealth has been unable to accommodate its members despite the great latitude of its current constitutional position. Both Eire and Burma have severed completely their connection with Britain. The decision in both cases seems to have been forced by considerations of internal politics rather than by real or fictitious shortcomings of dominion status, which in the case of Ireland had been stretched out to such length that by the time Ireland became officially a republic it came as a letdown.
There have been no postwar constitutional changes in dominion status itself. To be sure, the process of implementing the Statute of Westminster has gone forward in the case of the "old Dominions." In 1939 the Statute was a mold of independent statehood, still unfilled in many cases. Since then Australia and New Zealand have both officially adopted it. More important, the process of curtailing the functions of various institutions located in Great Britain in regard to the Dominions has been going on at a rather rapid pace. The British North America Act of 1949 relieved the British Parliament of the burden of giving its formal assent to changes in the Canadian Constitution. It is not unlikely that the future will see the extension of the same principle to Australia. The Judicial Committee of the Privy Council finds its jurisdiction on dominion cases increasingly restrained. Progress in removing these anachronistic limitations upon the Dominions' formal sovereignty has been caused not so much by pro- or anti-Commonwealth feeling but simply by a desire to resolve constitutional dilemmas, which have especially plagued the two Dominions with federal constitutions. Even so, at least in the case of Canada, the changes have also been prompted by a strong national feeling.
13 Jawaharlal Nehru, Independence and After (a collection of speeches) ( New York, 1950), p. 269.
Along with the formal loosening of institutional ties with Great Britain there has developed an increased assurance and determination on the part of the Dominions to speak as independent nations. In three of the four old Dominions the office of Governor-General is filled by citizens of the given Dominion. Though this is in no sense an innovation since 1939, it is a good indication of the trend. When Mr. Chifley's government recommended Mr. McKell, an active Labour politician, as the Governor-General of Australia and had its recommendation accepted, it demonstrated that there is no restriction on the discretion of a dominion government in choosing the constitutional head of the state. 14
The Dominions are now independent nations and, more important, they have grown to regard themselves as independent units in international politics. Is then the Commonwealth an optical illusion, a mirage, now deprived even of the legal fiction of unity under the Crown? To answer the question one must take into account considerations transcending purely constitutional points of analysis. Representative institutions are today in danger everywhere in the world. Along with the growing independence of the Dominions and their exercise of the perquisites of sovereignty in international politics, there has developed an increased awareness of the interdependence of their interests in maintaining and preserving their free democratic institutions. The picture has not been without occasional blemishes. In the Union of South Africa these institutions are in danger from conflicts generated by the racial and national structure of the Union. Yet, in general, even in the Asiatic Dominions, it is felt that membership in the Commonwealth is in some deep and yet vague sense a commitment to perpetuate the representative institutions and democratic ideals upon which the Commonwealth is ultimately based.
The spread of those ideals has affected the still dependent "colonial" part of the imperial network. Even during World War
14 There are, of course, ample precedents for this in the case of the Irish Free State before it dispensed with the Governor-Generalship. Also in South Africa, in 1936, Sir Patrick Duncan, then a minister in the Hertzog-Smuts Cabinet, was appointed to the office.
II far-reaching constitutional reforms were planned and in some cases put into effect. These dealt with various British colonies in Africa and in the Caribbean. The end of the war saw an extension of the reforms to almost every British colony. When Ceylon, the first colony to become a Dominion after the war, assumed that status, the words of the agreement between Ceylon and the United Kingdom clearly implied that dominion status is the logical culmination of colonial development. 15 Representative institutions and, in some cases, semiresponsible government are now being granted to countries that, thirty or forty years ago, were at a most primitive stage of political development. This experimentation on the part of the British Government has not been inhibited by the knowledge that no nationalism is ever satisfied by half measures and that the path of constitutional reform in the colonies is not likely to be easy, nor free of violence, nor rewarding to Britain in terms of gratitude or firm attachment of the colonies once they become nations.
About twenty years ago an American writer asked: "If the Dominions have really become nations how can they form anything properly called either British or Commonwealth?" 16 History still has not given its answer to this question. To the cynic, or perhaps the realist, the Commonwealth is an empty formula concealing the dissolution of an empire succumbing to the forces of nationalism and social change. To an idealist it is a vast and promising experiment in international collaboration between various races and nationalities. Between the two views there is common ground for considering the Commonwealth as an orderly retreat from imperialism and an attempt to rally those forces and ideas that today are everywhere threatened by a more insidious and incomparably more oppressive imperialism. Within this more modest sphere the
15 "Whereas Ceylon has reached the stage in constitutional development at which she is ready to assume the status of a fully responsible member of the British Commonwealth of Nations, in no way subordinate in any aspect of domestic or external affairs freely associated and united by common allegiance to the Crown...." -- cited in Sir Ivor Jennings, The Constitution of Ceylon ( New York, 1949), p. 226.
16 W. Y. Elliott, The New British Empire ( New York, 1932), p. 16.
Commonwealth with its machinery of consultation and its periodic conferences is a league of nations rather than a confederation or an alliance; and its future as a multinational organization must depend on the inherent strength of the idea of representative and responsible government that has guided its growth.
Constitutional Documents of East-Central Europe *
Robert G. Neumann THE UNIVERSITY OF CALIFORNIA AT LOS ANGELES
T HE new constitutions of the countries that now compose the so-called Soviet satellites, and of the ex-satellite, Yugoslavia, are set in a historical background which helps to explain their nature and their draftsmanship. Constitutional government, as it is known in Western Europe and in the United States, is unknown in Eastern Europe, with the exception of Czechoslovakia and of Finland. The latter country, however, is not included in our consideration. Stabs at Western-type constitutionalism have been made occasionally. At a surprisingly early date, in 1879, the so-called Tirnovo Constitution of Bulgaria included many liberal stipulations. Similarly, the Polish Constitution of 1921, which was written primarily in order to curb Josef Pilsudski, was a democratic document. But neither of them prevailed in theory or in practice; and the people of Communist Europe may therefore be expected to take constitutional documents in their stride even if their governments rule as they please and the civil "rights" enumerated thereunder remain a constant mockery of reality.
There is a basic difference between constitutions in a democracy and a dictatorship. In a democracy a constitution, whether written or unwritten, whether supported by judicial review or under a system of legislative supremacy, is designed to limit, to restrain. 1 Constitu-
* This essay, although written for this book, was published earlier in the Journal of Politics.
1 Carl J. Friedrich, Constitutional Government and Democracy ( Boston, 1941), pp. 121 ff.
tional government in the Western sense is therefore limited, restrained government. But limitation and dictatorship are mutually exclusive terms, and while satellite Europe has a number of interesting constitutions it does not have constitutionalism.
It follows that constitutions of democratic countries present different questions to the analyst than is the case with those of dictatorships. When studying democratic constitutions, we are concerned with the organization of state and government, with the relations between government and citizens, and with the basic rights of the citizen. This approach will reap few benefits when applied to dictatorships. True, the Soviet and satellite constitutions also circumscribe the institutions of state and government, but this description is often lacking in reality. All Communist constitutions describe their legislatures as the "supreme organ of state power," 2 but no discussions ever take place there, and no independent decisions are reached. The constitutions of the so-called "People's Democracies" present their respective governments as "the highest organ of state administration," 3 yet these governments rarely meet, and all decisions are made in the respective Politburos of the Communist parties, or quite often in the Moscow Politburo for which the Cominform serves as a transmitter. It is, of course, quite true that modern democratic government is based on political parties, and they are usually either unmentioned in the constitutions, as in the United States, or mentioned only incidentally and in unimportant places, as in France. But when political parties come to power in a democracy, they express themselves largely through constitutional channels. The Communist parties, which direct affairs in all the countries under consideration, are secret, and the Politburos that make all policy decisions remain obscure. No indication is given in any of these documents of the real seat of power. Only the Hungarian Constitution of 1949 hints at the true state of affairs by proclaiming that "thee
2 Bulgarian Constitution ( 1947), Art. 15; Albanian Constitution ( 1946), Art. 37; Hungarian Constitution ( 1949), Art. 10; Rumanian Constitution ( 1948), Art. 37; Yugoslav Constitution, Arts. 49, 50. No such provisions are found in the constitutions of Czechoslovakia and Poland. On their nature see infra.
3 Albania, Art. 53; Bulgaria, Art. 38; Hungary, Art. 22; Rumania, Art. 66; Yugoslavia, Art. 77; infra.
leading force...is the working class led by its advance guard and supported by the democratic unity of the whole people" (Art. 56). The nature of this advance guard is coyly kept in the dark, but a study of the equivalent paragraph of the Soviet Constitution 4 reveals it -- to nobody's surprise -- as being the Communist party.
What is then the purpose of constitutions in "People's Democracies"? For one purpose, at least, we are favored with an explanation by Communist leaders, made with admirable unanimity. In his speech on the draft of the 1936 Soviet Constitution, made before the Extraordinary Eighth Congress of Soviets, Stalin clearly identified the U.S.S.R. Constitution as the expression of that which has already become reality. 5 These words were echoed, almost verbatim, by the Yugoslav Vice-Premier, Edvard Kardelji, on December 2, 1945, when introducing the new Yugoslav Constitution. 6 And on August 17, 1949, Deputy Prime Minister, Matya Rakosi, introducing the Hungarian Constitution, declared:
Thus the new draft constitution is merely a placing on record and a consolidation, in legal form, of What Hungary has in reality already achieved and won. 7
A second purpose of these constitutions is their propaganda value. The civil-rights provisions in particular serve this purpose, and they are proclaimed by all Soviet apologists as the gospel truth, although they have no validity whatsoever and are condemned by the Communist party in other, more reliable, pronouncements. Thus, when the Polish Socialist, Julian Hochfeld, the rapporteur of the Parliament (Sejm) for the Declaration of Rights and Liberties, 8 suggested that its purpose was "to prove that the spirit in which the Sejm will legislate and write a new Constitution will be that of wisely inter-
4 Art. 126. "...the Communist Party of the Soviet Union (Bolsheviks), which is the vanguard of the toilers...."
5 Joseph Stalin, "on the Draft Constitution of the U.S.S.R.," Selected Writings ( New York, 1942), pp. 381 ff.
6 Politka ( Belgrade), December 3, 1945, as quoted in Michael Boro Petrovich, "The Central Government of Yugoslavia," Political Science Quarterly, LXII ( December 1947), 519 ff.
7 Hungarian Bulletin ( Budapest), August 30, 1949.
8 Adopted by the Constituent Assembly on February 22, 1947, and still in force.
preted rights and freedoms," he was severely criticized for his unMarxist approach. 9 More realistic, Undoubtedly, is an authoritative Polish commentator, who explained that the Polish declaration created no direct rights which could be claimed by individuals against the state but is merely a promise that the legislature will be guided by certain principles. 10 The picture is further rounded out by the famous speech of Georgi Dimitrov during the election campaign of 1946, in which he accused the opposition of an "improper" campaign and pointedly reminded them of the fate of Draha Mihkailovitch in Yugoslavia, 11 a fate that was later meted out to the opposition leader, Nikola Petkov.
The constitutions of Albania, Hungary, Rumania, and Yugoslavia follow very closely the Soviet model and contain no reminiscences of former constitutional documents that once existed in those countries. This similarity extends not only to individual provisions but also to organization, construction, and sequence. Even the Soviet coat of arms, no masterpiece of heraldic art, has been very nearly copied. However, the Polish and Czechoslovak Constitutions differ in one respect. The Polish Constitution of 1947, known as the "little constitution," 12 is officially known as "provisional." It is a mixture of old and new, having adopted large sections of the old constitution of 1921. 13 The Czechoslovak Constitution of 1948 is officially permanent, although it too contains many concepts retained from the old democratic constitution of 1920. This is especially expressed in the nominal equality of president, government, and Parliament, which runs counter to established Communist constitutional doc-
10 K. Grzybowski, Ustroi Polski Wspolczensnej ( Cracow, 1948), p. 120, as quoted in Sharp, op. cit., p. 33.
11 Vernon Van Dyke, "Communism in Eastern and Southeastern Europe," The Journal of Politics, IX ( November 1947), 368 ff. During the same period, "elections" were held in Yugoslavia under the encouraging slogan, "ballots for Tito, bullets for Grol." ( Milan Grol was one of the leaders of the opposition.)
12 The constitution of 1947 is the second "little (provisional) constitution." The first one lasted from 1919 to 1921.
13 The old provisions are taken over verbatim. Thus, for instance, Article 11 of the new (little) constitution is followed by Articles 20-24 of the 1921 document, and that process is repeated several times. The authoritarian 1935 constitution is ignored.
9 Samuel L. Sharp, New Constitutions in the Soviet Sphere ( Washington, D.C., 1950), p. 32.
It may therefore be surmised that the 1948 constitution of Czechoslovakia will have to make way for extensive amendments or will be exchanged for another document, more closely tailored to the Soviet model.A republican form of government can now be found in every country of Eastern and Central Europe. A change occurred in Albania, Bulgaria, Rumania, and Yugoslavia, but one should bear in mind that Tito, Hoxa, and the late Georgi Dimitrov receive or received a superroyal kind of veneration that satisfies the need for a personification and near deification of the state symbol. However, the peculiar form of republic found in those countries is referred to as a "people's republic." This somewhat trite term, which is applied to all satellite states and Yugoslavia, with the exception of Poland, signifies, as far as one can penetrate the dense fog of the Communist vernacular, a state that has a republican form of government and subscribes to the "people's democratic order." The latter concept was defined by the late Georgi Dimitrov as follows: 15
1. It "represents the power of the toiling people...under the leadership of the working class" (proletariat). This means the class state in which the workers play the dominant role and "the state serves as a tool in the fight of the toilers against the exploiting elements, against all efforts and tendencies, aimed at re-establishing the capitalist order and the bourgeois rule."
2. "The people's democracy is a state in the transitional period, destined to ensure the development of the state on the path to socialism." This means that, although capitalism has been overthrown, the economic roots of capitalism are not yet extirpated. Therefore a relentless class struggle is indicated.
3. "The people's democracy is built in collaboration and friendship with the Soviet Union.... Any tendency towards weakening this collaboration with the USSR is directed against the very existence of the people's democracy in our country." This is further elaborated by the statement that the task of a people's democracy includes the "consolidation of the key positions held by the working class, headed by the Communist Party, in all spheres of political, economic, and cultural life." Moreover, the people's democracy stands for internationalism,
14 See infra.
15 Georgi Dimitrov, "Political Report" ( Sofia, 1948), pp. 52-55. This is Dimitrov's speech to the Fifth Congress of the Bulgarian Communist party, December 19, 1948.
which Dimitrov defines as"international collaboration under Comrade Stalin."
Deprived of its excess verbiage, the concept of the people's democracy boils down to two simple criteria. It is a state in which the classless society has not yet been achieved but in which the Communist party has the upper hand and has begun the task of liquidating its opponents. It is also a state that follows the lead of the Soviet Union. A "people's republic" is then the crystallization in legal form of the people's democracy.
One of the consequences of the people's republican system is the condemnation of the doctrine of the separation of powers. Under Communist theory the will of the people must be supreme, and the agencies of government have the function of interpreting it. Vyshinsky explains that from top to bottom the Soviet social order is penetrated by the single general spirit of the oneness of the authority of the toilers. The program of the All-Union Communist Party (of Bolsheviks) rejects the bourgeois principle of separation of powers. 16
And Vassil Kolarov, late Prime Minister of Bulgaria, declared that
the source of power in a people's democratic system is the people on whom are bestowed the supreme rights, while the fullest and surest expression of the people's will is the National Assembly. 17
To establish the doctrine of separation would mean a check on the people's sovereign power, which would be "undemocratic." Says Kolarov:
Whoever preaches a division of the people's power actually places another power next to that of the people.... Since two unequally strong powers cannot coexist without struggling for supremacy, the apologists of Montesquieu are in reality working for the domination of the banks and big business.
16 Andrei Y. Vyshinsky, The Law of the Soviet State, trans. H. W. Babb ( New York, 1948), p. 318.
17 Vassil Kolarov, speech on the draft constitution, June 20, 1947 ( Sofia, 1947), p. 33.
This remarkable argumentation assumes, of course, that there is one single will of the people which is correctly interpreted by "its most advanced part," the Communist party.
In the question of the relationship between central and regional governments, different approaches may be noted, which depend largely on the ethnic and historical structure of the countries concerned. Albania, Bulgaria, Poland, and Rumania are unitary states. Yugoslavia has a federal regime modeled closely on the Soviet Union, while Czechoslovakia has a peculiar approach all her own. The Federal People's Republic of Yugoslavia is composed of the People's Republics of Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, and Montenegro. The People's Republic of Serbia moreover includes the Autonomous Province of Vojvodina and the Autonomous Kosovo-Metohijan Region (Art. 2). The trend toward a federal structure was already quite pronounced during the formative war years. The Anti-Fascist Council of National Liberation (AVNOJ) resolved during its second session on November 29, 1943: "That Yugoslavia be established on a democratic federal principle as a state of equal peoples." 18
The federal organization of Yugoslavia is almost a carbon copy of the pertinent paragraphs in the Soviet Constitution. Like the U.S.S.R., Yugoslavia has a bicameral legislature -- the only such case in the Soviet orbit outside the Soviet Union. 19 The People's Assembly of the F.P.R.Y. (Narodna skuptina) is divided into a lower house, the Federal Council (Savezno vece), and a Council of Nationalities (Vece Naroda). The latter house is composed of members elected by the voters in the several people's republics, autonomous provinces, and regions. 20
According to the constitution, the federal government of Yugoslavia possesses only expressed and enumerated powers, while all
18 As quoted in Petrovich, op. cit., p. 507. Also reprinted in the official gazette, Sluzbeni List, February 1, 1945.
19 For the purposes of this article, Yugoslavia may be considered in the Soviet orbit, as no other country has modeled its constitution more closely on the Soviet precepts.
20 Art. 54. Each republic elects thirty, each autonomous province twenty, and each autonomous region fifteen members to the Council of Nationalities.
others are reserved to the people's republics. 21 Actually, however, the powers of the central government are overwhelming. Not only does the constitution grant the central authorities vast powers, including all economic matters of national importance, but they also exercise direct administrative control over the republic governments. Like the Soviet Constitution, the fundamental law of Yugoslavia distinguishes between federal and federal-republican ministries in the central government. The federal ministers 22 administer their functions throughout the entire country by means of their own staffs. The federal-republican ministers, 23 on the other hand, exercise their prerogatives through the corresponding ministries of the republics. 24 Even then, however, they may directly administer affairs in the republics if they are of national importance. It may be presumed that the minister of the central government decides what is or is not of national importance.
This arrangement might indeed strike the observer as being a true form of federalism. However, there are some serious objections to such an appraisal. While the form of the state may be federal, the source of all policy rests in the Communist party and especially in the central Politburo, whose decisions are irrevocable and binding on the central as well as the local level. Moreover, the political theories of federalism and of the "people's republics" are in opposition to one another. Federalism, as the term is commonly understood, is a form of limited government. Federalism is also pluralistic in essence. But, as we have seen, the concept of the "people's democratic order" does not permit limitation, and the doctrine of the single popular will cannot easily be reconciled with the idea of
21 Art. 44. Where central government power exists, it is supreme but not necessarily exclusive (Art. 46).
22 Foreign Affairs, National Defense, Communications, Transport, Post, Foreign Trade.
23 Art. 86 -- Finance, Interior, Justice, Industry, Mines, Commerce, Agriculture and Forestry, Labor, Public Works.
24 Art. 99. Ministries of a republic are either federal-republican or republican. Federal-republican ministries correspond to central departments to which they are subordinated. They are autonomous with regard to some functions and agents of the central government in others. Republican ministries are autonomous.
pluralism. The federalism of Yugoslavia, like that of the Soviet Union, is therefore not a true federalism, except possibly in its cultural aspects, but a form of administrative decentralization, which may of course have merits of its own.
If the constitution of Yugoslavia presents a "federal" picture, at least on paper, the approach of the Czechoslovak Republic is much more cautious. The Czechoslovak postwar governments were faced with a high degree of animosity between Czechs and Slovaks. The history of the "independent" state of Slovakia, whose leader, Monsignor Tiso, brought it under Hitler's tutelage, was not forgotten by the Czechs, whose capacity for remembering past grievances is bested only by the Poles and, possibly, the Hungarians. On the other hand, Slovak memories of Czech rule are also somewhat less than happy. Some concessions had to be made. 25 During the abortive uprising against the Germans in the summer of 1944, a Slovak National Council emerged, 26 and later, when the Red Army marched into Slovakia, it used the Council in the reorganization of local government. 27 The Czech ( London) government in exile was therefore forced to reckon with the existence of a separate Slovak administrative and policy-making body. Accordingly, in the Koice agreement of April 5, 1945, the right of the Slovaks to be "masters in their land" as an autonomous nation was recognized by the government.
At first the Communists supported the Slovak claims for autonomy, but after their defeat by the (Slovak) Democratic party in 1946 they changed their tune. 28 The eventual solution of this problem takes the form of a compromise, but the "autonomy" of Slovakia is narrowly circumscribed and controlled in such a way as to be lacking in real substance.
25 For a good summary and analysis, see Samuel L. Sharp, "The Czechs and the Slovaks: New Aspects of an Old Problem," American Perspective, 1 ( 1947), 311-22.
26 In Czechoslovak practice the word "nation" (národ) denotes the members of the distinct ethnic groups, Czechs and Slovaks. The word people (lid) is used when the entire population is meant.
27 The Slovak National council was composed of a coalition between the Communists and the Democratic party.
28 Sharp, op. cit., p. 319; also, Central European Observer, June 27, 1947.
The Fundamental Articles 29 of the Czechoslovak Constitution describe the republic as "a unitary State of two Slav nations possessing equal rights, the Czechs and the Slovaks." However, this provision is implemented in a very peculiar fashion. The above-mentioned Articles speak of equal rights of Czechs and Slovaks. Yet, there are special Slovak national organs, but the concomitant existence of Czech national organs is missing. There is a Slovak National Council with general legislative powers. Its functions extend primarily to legislation concerning educational, Cultural, and welfare matters. It also extends to technical functions of town and country Planning and certain trade regulations, but those are overshadowed and narrowly circumscribed by the Uniform Economic Plan, which is in the hands of the central government (Art. 96). The Slovak National Council may also perform such acts as the central parliament, the National Assembly, may confer upon it. The Slovak National Council is convoked and dissolved by the Prime Minister of the Prague government (Art. 102) and may be adjourned by him for no more than three months and not more often than twice a year.
The Slovak "administration" lies in the hands of a Board of Commissioners who "discharge all governmental and executive power in Slovakia, save for matters of foreign affairs, national defense, and foreign trade." The chairman and the members of the Board of Commissioners are appointed and recalled by the central government which also determines what commissioner shall head a certain executive department (Art. 114). But this is not all. The commissioners are accountable to the central government and must abide by its directives and instructions (Art. 117). Where the act of a commissioner exceeds his competence, the central government may declare it void, and an individual minister may stay the execution of the commissioner's order pending the decision of the central government as a whole (Art. 122).
It must be clear, therefore, that the so-called Slovak "autonomy" is nonexistent in both fact and constitutional theory. It merely exists
29 The Czechoslovak Constitution of 1948 is divided into a Declaration, twelve "Fundamental Articles," and the Detailed Provisions.
in the field of propaganda. The Slovak "legislature" has, as we have seen, only limited functions which are strictly controlled, while the executive powers are vested in appointees of the central government who are strictly accountable and removable at a moment's notice. That the central government is dominated by Czechs need hardly be stated. Under the Czechoslovak "People's Republic," the Slovaks, whose desire for autonomy is based on their historical, educational, cultural, and religious differences from the Czechs, have less "autonomy" than is granted quite a number of areas living under a colonial administration.
The Soviet doctrine of the "supremacy of the popular will" 30 is strongly expressed in all constitutions under consideration, including the constitutions of the Länder in the Soviet zone of Germany. 31 Consequently, they give pre-eminence to their legislatures, which are unicameral except in Yugoslavia. However, this type of "Assembly Government" 32 must be viewed against the background of a single, popular will that is uncontested except by "enemies of the regime" to whom no Place can be allowed within the organization of the state. Consequently, assembly government in the Communist sense means that all powers are possessed by the assembly, but that the use of these powers depends on the single "will" of the people which is not formulated in the assembly but in the Politburo. The powers of the Soviet-type assemblies are therefore as real as, say, the power of the French President over the appointment of officers. They do not exist. Nor could they exist. For if they were exercised differently from the will of the leadership, it would mean that there is a possibility of more than one "will of the people," a situation that, according to Kolarov, is impossible.
A recent author has correctly observed that assembly-type governments lend themselves especially well to the entrenchment of
30 See the formulation in the first constitution of the RSFSR ( 1918); "Authority must belong entirely and exclusively to the toiling masses and their authorized representatives -- the Soviets of Worker, Soldier, and Peasant deputies." -- Vyshinsky, op. cit., p. 167.
31 Robert G. Neumann, "New Constitutions in Germany," The American Political Science Review, XLII ( June 1948), 448-68.
32 Gouvernement conventionnel, a term originating in the French Revolution.
executive supremacy. 33 A peculiar link between executive and legislative authority is the institution of the Presidium, which is an invention of the Soviet Constitution and adopted directly from that parent document by the constitutions of Albania, Bulgaria, Hungary, Rumania, and Yugoslavia. Similar but more narrowly conceived institutions exist also in Czechoslovakia and the German Länder of the Soviet zone. Poland's Provisional Constitution calls it a State Council. Like their Soviet model, the Presidiums of the Communist countries have many functions. One is that of a collegium president, as Stalin termed it. 34 This function, which is primarily formal and representative, is performed either by the Presidium as a whole, as in the case of decorations and awards, or by the President of the Presidium, as in the case of the reception of letters of credence from foreign ambassadors. Czechoslovakia, however, has retained the office of the President of the Republic 35 apart from the Presidium of the National Assembly. 36
The Presidium is elected by the National Assembly in each state, theoretically responsible to it and subject to recall. This approach differs radically from the method by which heads of state are elected in all non-Communist countries. If one may judge by the Soviet experience, the most important role of the Presidium is legislative. When the National Assembly is not in session, which is quite frequently the case, the Presidium exercises most of its legislative functions, and presidial decrees are quite common, though apparently not yet as frequent as in the Soviet Union. In its capacity as a "little assembly" the Presidium carries on the tradition of the "Principal Standing Committee," which is common in a number of European constitutions where it has a much more restricted scope.
Of special interest are the review and interpretative functions of
33 Karl Loewenstein, "The Presidency Outside the United States: A Study in Comparative Political Institutions," The Journal of Politics, XI ( August 1949), 479.
34 Vyshinsky, op. cit., p. 330.
35 Arts. 67-79. All acts of the President must be countersigned by a member of the government to be valid (Art. 77).
36 Arts. 63-66. The Czechoslovak President of the Republic, not the Presidium, is the state's external representative.
Otherwise the Presidium has on the whole the same functions as those of the other Communist countries. The same is true of Poland, but to a narrower degree.
the Presidium, which are also borrowed from the Soviet Constitution. The Presidium is supposed to check on the constitutionality of laws and on the legality of governmental orders and edicts. 37 It also interprets statutes authoritatively. These actions are undertaken in a systematic manner and not as a result of law suits by individuals. 38 As far as the review of legislation and orders are concerned, it appears to belong largely to the realm of legal fiction. All legislative initiative and all executive orders emanate from the government or, in reality, from the Politburo. It is not likely that a Presidium, some of whose members are also members of the government and of the Politburo, will differ in its interpretation from the originator of the legislation or order under review. The legislative acts and orders of regional and local councils, however, may be placed under effective control by this function of the Presidium. On the other hand, the systematic interpretation of statutes is a living feature of the law. It has its origin in the concept of authentic interpretation; i.e., interpretation of statutes by the legislature, which is a familiar feature of countries under the influence of the Roman law. It is natural, therefore, that in the countries here discussed the legislature as a whole, as well as the Presidium, has the right of interpreting statutes. But the Hungarian Constitution, the most recent, goes farther than any other constitution, including that of the U.S.S.R. It gives the Presidium the right to annul or modify bylaws, ordinances, or edicts issued by any organ of government, central or local, not only when they are unconstitutional, but also when they are "detrimental to the interests of the working people." Any local organ of government which infringes upon the constitution or whose activities are "seriously detrimental to the interests of the working people" may also be dissolved by the Presidium (Art. 20, 2, 3). These far-reaching rights may possibly point the way toward future constitutional developments, especially as the Soviet Union has initially effected considerable changes amongst its regional units of government by decree of the
37 Bulgaria, Art. 35; Czechoslovakia, Art. 65; Hungary, Art. 20; Rumania, Art. 44; Yugoslavia, Art. 74.
38 See Vyshinsky comment on the difference between the Soviet and United States systems, op. cit., pp. 339 ff.
Presidium rather than by statute, although the constitutionality of such a matter is in doubt. 39
Following the model of the Soviet Constitution, the basic laws of the satellite and ex-satellite countries describe their respective cabinets ( Council of Ministers) as the "Highest Organ of State Administration." 40 This is true, however, only in a purely formal sense. The ministers are indeed in charge of the various departments of government, but legally the control of the Presidium, where it exists, is far greater than is ordinarily the case in the relationship between governments and parliaments in Western parliamentary democracies. Here again it must be remembered that Presidium and government are not two separate centers of policy making but are merely two aspects of the same thing, the unified machinery of control whose sole source of policy is a body of men unknown to the constitution and to a considerable extent to the public at large, the Politburos of the respective Communist parties. In most Communist states some of the most important members of the Politburo and the government are also members of the Presidium, although the presidency of the Presidium is usually left to an unimportant figurehead. But in the Hungarian Constitution of 1949, the Prime Minister and the other ministers are declared ineligible to be members of the Presidium. This innovation may possibly herald a diminution of the Presidium's importance.
The organization of the executive machinery does not differ materially from the system to which those countries were accustomed. Subordinate administrative and local organs receive their orders from their respective ministers as of yore. But it is not always easy to determine where final power of decision rests on the top, as some of the real bosses may not even occupy government offices or be found in second place. Yet there appears to be a tendency of combining real and formal power as, for instance, in Albania, Bulgaria, and
39 The German Volga, the Kalmyk, the Chechen-Ingush, and the Crimean Autonomous Soviet Socialist Republics and the Karachaev Autonomous Region were abolished between 1941 and 1943. ( The New York Times, November 30, 1945, June 27, 1946). Cf. Julian Towster, Political Power in the USSR, 1917-1947 ( New York, 1948), p. 85.
40 Bulgaria, Art. 38; Rumania, Art. 66; Hungary, Art. 22; Yugoslavia, Art. 77. Poland and Czechoslovakia have no such provisions.
Yugoslavia. A peculiar situation exists in Poland, where the President of the Republic, Boleslaw Bierut, is also General Secretary of the Polish Worker's (Communist) party. 41
Also interesting is the attitude toward the judiciary. In most countries under discussion the judges are elected by the legislature, appointed by the Presidium or the head of state, or are popularly elected. In effect, however, those appointments are made as they have always been made, by the Minister of Justice. A partial innovation has been the widespread use of lay judges who, comparable to the Schoeffen in German and Austrian criminal law, occupy the bench together with learned judges. Jury trials, which have existed in all those countries at various times in the past, have been uniformly abolished. 42
Because of the absence of judicial review, which is expressly forbidden in one constitution, 43 the interpretative functions of the Presidium, and the direct and heavy-handed control of the Minister of Justice over bench and prosecution staff, the independence of judges is nonexistent. This is not particularly surprising because authoritarian regimes have always considered the control of the judiciary one of their primary tasks. Moreover, none of the countries under discussion, except Czechoslovakia, ever had a completely independent judiciary. However, the constitutions affirm the independence of judges in traditional phrases. Some give an inkling of the truth through the peculiar formulation that the judges shall be independent "in the discharge of their judicial duties," 44 which means that they do not possess personal independence. The Hungarian Constitution of 1949, the newest and presumably "most advanced" of them, declares judges to be independent, but makes judgeships elective and declares all judicial officers "accountable to their electors in respect of their judicial activities." 45 The most
41 The fact is that the Prime Ministers of the satellite countries are often not the true leaders.
42 It appears to be the tendency in all dictatorships to abolish the jury.
43 Poland, Art. 24, 3.
44 Poland, Art. 24, 2; Rumania, Art. 93; Bulgaria, Art. 57.
45 Art. 39. Judges of the higher courts are elected for five years, the judges of the inferior courts for three years. The judges of the Supreme Court and the presidents of the higher courts are elected by Parliament. All may be recalled.
"perfect" definition of judicial functions under a people's democracy can also be found in the Hungarian Constitution. Article 41 reads:
The Courts of the Hungarian People's Republic punish the enemies of the working people, protect and safeguard the state, the social and economic order and the institutions of the people's democracy and the rights of the workers and educate the working people in the observance of the rules governing the life of a socialist commonwealth.
In such a setting, the "bills of rights" found in all constitutions except the Polish one, where a separate "Declaration" to that effect exists, 46 do not offer much more than propagandistic blandishments. "Bills of rights" have value only where they afford protection to the citizen against his government, or where they are at the very least expressions of an accepted political theory. Neither, however, is the case in the Communist-controlled countries. In the realm of political theory there is room only for the mystical, collective "will of the people," not for the very real will of individuals. Liberty against the "government of the people" is therefore inadmissible by Communist standards. The practice in those countries with regard to civil liberties is so well known that discussion seems quite futile.
The constitutions of the Communist orbit are the legal expressions of the so-called "people's democratic order," which, as we have seen, is a transitional phase toward complete sovietization and the mystical "classless society." These documents must therefore be considered as essentially temporary. 47 However, this transitional character of the constitutions should not arouse any doubts about the stability of those regimes. On the contrary, the transformation through which they are going is developing at an accelerated pace, despite, and perhaps because of, Tito's defections, and pretty much according to plan. Whether the final stage will be complete incorporation into the Soviet Union cannot yet be known to outsiders, but there are many indications which point in that direction.
46 Cf. supra.
47 C. E. Black, "Constitutional Trends in Eastern Europe, 1945-48," Review of Politics, XI ( 1949), 35.
Reflections on the Value of Constitutions in Our Revolutionary Age
By Karl Loewenstein AMHERST COLLEGE
The Ontological Approach
The epidemic of constitution-making in the wake of World War II has no parallel in history. Since 1945 some fifty-odd nations have equipped themselves with new constitutions. 1 In some countries
1 The following enumeration is incomplete:
Germany: two federal constitutions ( 1949), one each for the Western (Deutsche Bundesrepublik) and the Eastern part (Deutsche Demokratische Republik); each of the four Länder in the United States zone ( 1945-1946); three in the French zone (in addition to the Saar); five in the Soviet zone ( 1946-1947); two in the British zone (North-Rhine-Westphalia and Schleswig-Holstein ( 1950); those in Lower Saxony and Hamburg are in the process of completion. Berlin adopted two constitutions ( 1946 and 1948). France: two constitutions ( 1946); the first, of April 27, 1946, was rejected by referendum. Other new constitutions in Western Europe are: Italy ( 1947); Iceland ( 1944).
In Eastern Europe new constitutions were adopted by the Soviet satellite states of Yugoslavia ( 1946); Albania ( 1946), which was reportedly supplanted by a new constitution in 1950; Bulgaria ( 1947); Czechoslovakia ( 1948); Rumania ( 1948); Hungary ( 1949); Poland confined itself to an adaptation of the older constitution of 1920.
Latin America has had nine new constitutions since 1945: Bolivia ( 1945); Brazil ( 1946); Ecuador ( 1946); El Salvador 1945); Guatemala ( 1945); Haiti ( 1946); Nicaragua ( 1948); Panama ( 1946); Venezuela ( 1947).
Among the new constitutions in Asia are: China ( 1946); Japan ( 1946); Siam ( Thailand) ( 1949); Korea (1948); whether Northern Korea had a constitution is not known. Others, in the British sphere of influence, are India ( 1949); Ceylon ( 1946); Burma ( 1948). In Pakistan and Indonesia, constitutions are under preparation. Israel, after a draft constitution ( 1948), operates on the basis of an interim or "little" constitution ( 1949). Transjordan adopted a constitution in 1946.
Reliable texts are not easily obtainable except in the case of Western Europe and Latin America; a good collection of the latter is edited by Russell H. Fitzgibbon, The Constitutions of Latin America ( Chicago, 1948). For the Arab world, see Helen Miller Davis, Constitutions, Electoral Laws, and Treaties of the States in the Near and Middle East ( Durham, N.C., 1947). The ambitious undertaking by Amos J. Peaslee , Constitutions of Nations ( Concord, N.H., 1950), to assemble in three volumes the constitutions of all states seems, at least to the author of this section, a complete and unmitigated failure. Translations are often far from accurate even if obtained from American embassies abroad. The factual data (in some cases even concerning the very date of the constitution) are shot through with crude errors; the introductions of the editor are often without understanding. Much of the tabulatory material is worthless. The bibliographies are neither up to date nor properly selective. Misspellings abound. It is regrettable that the author's efforts have resulted in so amateurish a compilation.
the new constitution symbolizes statehood and independence attained. In others, a previously serviceable document did not survive the authoritarian hurricane and had to be completely recast in the light of past experience. In others again, the changes in the location of political power caused by revolution required a redefinition of the political organization.
In practically all cases the procedure of constitution-making followed the classical democratic pattern: by elections, everywhere pretending to be free and unconstrained, the people, exercising the pouvoir constituant, called into being constituent assemblies or constitutional conventions which, in turn, drafted and adopted the instrument of government. Popular ratification occurred ( France and some of the Länder in Western Germany) but was not the rule. In a few instances only the customary procedure was deviated from by injecting into it appointed, instead of popularly elected, constituent bodies. Outwardly at least the entire process seems to reflect the triumph of the ideology of democratic legality.
Though it is historically permissible to distinguish "families" of constitutions which, as a rule, embody similar or identical "patterns of government," 2 practically all new constitutions are surprisingly alike in structure in that they operate uniformly with the traditional tripartite division of functions into legislative, executive-administrative, and judicial organs of the state. Almost without exception they have a comprehensive and ambitious bill of rights which, in addition to the classical libertarian freedoms from state interference, professes the ideal of social justice to a degree amounting almost to standardization.
Does the seeming universality of the process indicate that at long last, after the dark night of lawless despotism, the bright young day
2 See Karl Loewenstein, Political Reconstruction ( New York, 1946), pp. 317 ff.
of democratic constitutionalism is dawning? Does the phenomenon of constitutionalism mean that all nations alike attach a paramount importance to a formalized constitutional order, or do they merely follow the laws of diffusion and imitation? And, further, are the constitutions "real" and "living" in the sense that the competitive struggle for political power is actually conducted within the frame offered by the constitution, or is the latter manipulated by the ruling class or classes without permitting the sharing of political power by all sociopolitical forces of the community?
Such questions are rarely asked, since the interpretation and application of a constitution is usually monopolized by relatively small groups of technicians -- politicians, lawyers, judges, civil servants -to whom, in a society managed by plural power groups, the constitution serves as the instrument for the attainment and preservation of special interests. "Constitutionalysis" and "constitutionology," to speak with Thomas Reed Powell, overshadow what may be called the ontology of constitutions, that is, the investigation of what a written constitution really means within a specific national environment; in particular, how real it is for the common people, who after all are everywhere, in this alleged age of the common man, the addressees of political power.
The following discussion is a pioneering -- and, therefore, most tentative -- attempt to implement the customary legalistic and functional analysis by an approach that focuses primarily on the congruity, or lack of it, between political reality and ideological intent of the constitution, or on the distinction between the nominal validity and the actual value of a constitution. The question is: Are the constitutions suitable to satisfy, and do they satisfy, the needs and the aspirations of the people living under them? The volume of new constitutions is an invitation for such a comparative investigation. 3
3 No student desirous of divesting himself from the stereotypes of constitutional legalism will ignore the work of Max Weber and Guglielmo Ferrero trilogy: Bonaparte in Italy ( London, 1939); The Reconstruction of Europe ( New York, 1941); The Principles of Power ( New York, 1943). Relevant materials may be found in: John A. Hawgood, Modern Constitutions since 1787 ( New York, 1939); Karl Loewenstein, "The Balance between Legislative and Executive Power," Chicago Law Review, V ( 1938), 566 ff.; Georges Burdeau, Traité des sciences politiques ( 3 vols.; Paris, 1949, 1950) (Vol. III contains the general theory of constitutions); Maurice Duverger, Manuel de droit constitutionnel et de la science politique ( Paris, 1948); Dietrich Schindler, Verfassungsrecht und soziale Struktur ( Zurich, 1932); J. Allen Smith, The Growth and Decadence of Constitutional Government ( New York, 1930); Samuel L. Sharp, New Constitutions in the Soviet Sphere ( Washington, D.C., 1950).
The "Climate" of Constitution-making
Constitutions, as the rationally conceived and formalized rules for the exercise and, thereby, for the restraining control of political power, are a relatively recent experience of the homo politicus. As long as power was based on the traditional forces of irrational state mysticism -- the divinely ordained authority of the legitimate hereditary dynasties and the classes affiliated with them -- there was no need for the formalization of the "lois fondamentales du royaume" ( France), to observe which the traditional power holder was believed to be divinely obligated. The idea of a written constitution was the result of a long-drawn revolutionary struggle for the secularization of political power (Lecky). It was primarily an English discovery 4 in the Puritan revolution when the lower gentry and the middle classes forced on Stuart absolutism their share in political power. For Cromwell, religiously conscious of the inherent moral limitations of political power, the answer was a self-limiting "Instrument of Government" ( 1653) rather than a "constitution." For the British a written constitution was no necessity, because power shifted to the new social classes pragmatically and without recourse to natural law. But subsequently the increasing ascendancy of natural law gravitated the eighteenth century toward a written constitution as the moral basis of a well-ordered society. The goal was reached, rather for practical than theoretical reasons, first in the American colonies, thereafter in the European key state of France. Here Rousseau's general will provided the moral and the metaphysical incentives, mobilized by the social contract and translated into
4 See, for example, Egon Zweig, Die Lehre vom pouvoir constituant ( Tübingen, 1909); Walther Rothschild, Der Gedanke der geschriebenen Verfassung in England ( Tübingen and Leipzig, 1903); Richard Schmidt, Die Vorgeschichte der geschriebenen Verfassung ( Leipzig, 1916).
practice by Sieyès' pouvoir constituant, both as "subversive" of the existing order as Marxism proved a century later. The constitution was considered the solemn manifestation of the social contract and the functional implementation of the imaginary oath that the general will had taken for its self-realization.
But it is by no means accidental that the climate for the birth of the written constitution was the eighteenth century, fascinated not only by what were believed to be the imperatives of natural law but also by the application of the laws of nature to social dynamics. The science of mechanics was transferred to the science of government. The well-balanced constitution, with its liberty-guaranteeing checks and balances, was intended to establish, by functionally separated powers, the ideal equilibrium of the social forces. 5 In the environment of the Enlightenment the constitution was primarily a moral necessity and a functional achievement only subsidiarily. The constitution itself and the process of constitution-making were surrounded by a sort of collective magic, which belies the rational logicism accompanying it. In their naïve optimism the political theorists and the politicians themselves believed that all that was needed for a well-ordered society was a well-ordered constitution. Well-ordered meant well-equilibrized. Unaware of the demonism of political power, the written constitution would automatically offer the solutions of all social ills and guarantee the happiness of the people living under it. Being a "good" constitution and operated by "good" people it would be self-executing by harmonious cooperation in the interests of the whole society. The first result was the preposterously unworkable French Constitution of 1791, preceded by the greatest seminar in political theory the world has ever known. 6
The French Revolution did not hesitate to disown the naïve trust of its initiators in human nature and to prove, by streams of blood,
5 See, for example, The Federalist, No. 51, and the interesting observations by Hans J. Morgenthau, Politics among Nations ( New York, 1949), pp. 125 ff. See also, on the problem of political equilibrium, Carl Schmitt, Verfassungslehre ( Munich and Leipzig, 1928), pp. 183 f.
6 See Robert Redslob, Die Staatstheorien der französischen Nationalversammlung von 1789 ( Leipzig, 1912); Karl Loewenstein, Volk und Parlament nach der Staatsauffassung der französischen Nationalversammlung von 1789 ( Munich, 1922).
that functional utility cannot be neglected with impunity, lest political power might become uncontrolled and destroy political liberty. In the search for the magic formula for taming political power while preserving the freedom of the general will, the constitutional laboratory of the Revolution provided the world with all possible "forms of government," that is, the functional co-ordination of powers: constitutionally limited monarchy; parliamentary government and its perversion of assembly government (gouvernement conventionnel); the intricate checks and balances of the Directory pattern; and, last but not least, the legalized authoritarianism of the First Consul. But in the process, not surprising with so rational a people as the French, the pristine spell of the sacrosanctity of the constitution as the manifestation of the social contract was definitely lost, never to be recaptured again. The Americans are the only nation which for socioeconomic reasons, irreproducible elsewhere, has retained the original spirit of the constitution as "basic" and irrefragable.
Constitutions in the Nineteenth Century
During the nineteenth century most states "constitutionalized" themselves, following certain prominent patterns such as the United States Constitution in Latin America, the French Charte Constitutionnelle ( 1814) for the semiauthoritarian technique of monarchical legitimism, and the Belgian Charte ( 1831) for the parliamentary constitutional monarchy. 7 But the transcendental value with which the process had been imbued in the eighteenth century was no longer attached either to the creation or the operation of the constitution. What happened was that the industrial and commercial bourgeoisie asserted itself as the ruling class and that, wherever it took -- or was grudgingly granted -- its share in political power, the constitution merely legalized the shift that had occurred before. In spite of the constitutional semantics, popular sovereignty was nominal only, using the representative ideology for
7 See John A. Hawgood, Modern Constitutions since 1787 ( New York, 1939), pp. 93 ff., 131 ff., who calls the two patterns the "condescended" and the "negotiated" state, respectively.
what was at best an oligarchy of wealth, actually, however, the political monopoly of the propertied classes. The competition for power was conducted at first between the bourgeoisie and the royal prerogative, which was successfully whittled away; subsequently, after the victory of the propertied oligarchy, between the latter and the lower middle classes and labor. Its political core was the suffrage rather than the constitution itself. That the constitutions, on the whole, succeeded in rationalizing the power conflict by subjecting it to the regulatory procedures of positive law was due to the fact that they were applied to a relatively self-contained and homogeneous society, not yet exposed to the challenges of social forces basically opposed to the existing distribution of political power. Constitutions function well so long as the competition for power is confined to different groups of the same social class; but they are strained to the limit, and often break, when their rules become insufficient to accommodate the power ambitions of a class excluded by its very rules. The considerable esteem in which the nineteenth century held the constitutions as a method for the peaceful compromise of political dynamics was responsible also for their improved functional utility, devoid of any emotional or transcendental implications. Compared with, for example, the functional matter-offactness of the Bismarckian Constitution of 1871, the American Constitution reads like a dissertation on political philosophy.
Constitutions after World War I
The magic spell of the constitution was briefly and deceptively recaptured after World War I. The conceptual heritage of the French Revolution -- popular sovereignty -- gained emotional strength in some of the older states, which were offered an opportunity for wiping the slate clean of the residues of the monarchical tradition. To the host of new states emerging from the ruins of the Czarist, Austro-Hungarian, and Ottoman empires, the constitutions became the symbols of nationhood and independence, in line with Wilson's political ethics of national self-determination, internationally applied. Democratic parliamentarism ( France and Britain) had won the war; monarchical authoritarianism had lost. Constitutional democracy was like an incantation invoked everywhere, regardless of how little the professionals and the masses were socially, morally, and politically prepared for it. Constitutions were inspired and carried by the bourgeoisie, which subconsciously expected to tame labor by tying it down to constitutionalism. Labor went along because it hoped to gain power by constitutional majorities. A refreshing wind blew over the world, which once again, for a fleeting moment, believed that democratic fundamentalism would be as permanent as it was deemed absolute. The constitutions of this period, no longer confined to functional mechanics, are boldly constructive, 8 filled with the spirit of experimentation and socially conscious in their bills of rights. The Mexican Constitution ( 1917) in this hemisphere and the Weimar Constitution ( 1919) are outstanding illustrations. Simultaneously, the new constitutions were functionally perfected, leaving nothing to chance, trying to bridle all potential power elements by legal arrangement. It was, in short, the maximum effort to "constitutionalize" political power.
The Indian summer of constitutional democracy lasted less than a decade. Almost without exception the new constitutions became the victims of the revolt of the masses. The practice of violence, which, in the meantime, had been raised to the rank of a potent political theory, triumphed over the juste milieu of bourgeois rationalism. By and large, the constitutions were anachronistic at the time they were written. The error of the bourgeoisie consisted in the assumption that labor and the dispossessed lower classes could be paid off with promises or, at the most, token installments of economic security, and that the dominant position which the ruling capitalistic bourgeoisie had obtained in its struggle with landed wealth would be permanent.
The aftermath of the brief interlude of constitutional universalism was the dislodgment of constitutional democracy and, with it, of the constitution it had fashioned. Dictatorship spread like wildfire over Europe, sparing only those nations where ingrained tradition of political compromise resisted mass emotionalism, and also over
8 See Arnold J. Zurcher, The Experiment with Democracy in Central Europe ( New York, 1933).
Latin America with similarly shallow constitutional habits. Fascism did not require formalization of political power, which, however sweepingly formulated, would have been a limitation on its exercise. Where authoritarianism resorted to the device of a constitution, as in Poland ( 1935), it served merely as a frame to make the existing configuration of power "legally" unchallengeable.
Constitutions after World War II
The expectation that the nations liberated from Nazi-Fascist despotism would return to their constitutions with jubilation did not materialize. Return they did. What else could they do? But it was a far cry from the democratic é lan the preceding generation had exhibited. In some marginal states (the Benelux countries and Norway) the existing constitutions, which had been virtually preserved through governments in exile, were put into application without requiring any changes; here the monarchical continuity proved useful. 9 But in the Continental key states of France, Germany, and Italy, the pre-Fascist instruments having been weighed and found wanting, new ones were created. The business of contitution-making was attended to dutifully and without enthusiasm. Very few people in Western Europe will admit that their constitutions partake of the quality of the "higher law," except in the purely formal sense that they establish certain regulatory norms for the conduct of the governmental business. For the tired, neurotic, cynical, disenchanted society of the West, divided against itself, the importance of the written constitution has visibly faded. And in the people's democracies of the East where the powers that be played up to the limit the symbolism of the new order, who would dare to pretend that they embody what democracy prides itself on, the identity of the governors and the governed?
The reasons for the evanescence of the emotional attachment to a constitution lie deeper than the mere mental fatigue of nations after occupation and war. True, the people relish that no longer, in the small hours of the night, will the bell ring for the uncertain fate
9 See Karl Loewenstein, Political Reconstruction ( New York, 1946), pp. 138 ff., 168 ff.
arbitrariness may have in store for them. But this generation has seen too much of the viscera of the political process and the demonism of power to put much store by the protection of paper documents. War and postwar inflation have brought about a revolutionary change in social stratification. The bottom has fallen out from under the economic stability of the propertied middle classes, major proportions of which are precariously close to outright proletarianization. There are few antidotes to economic materialism, and what purports to be the "philosophy" of the period -- pessimism disguised as existentialism -- is not among them. This generation has become alienated from its governments, realizing that political power is the monopoly of party oligarchies, vested-interest cliques, and pressure groups. After the emotionalization by the dictators, the mass mind has not yet found a new center of moral gravity. Liberty the constitutions could and did promise, but not bread and the modicum of economic security the little man yearns for. To him it is the plain and unadorned truth that the political decisions which are vital for the well-being of all no longer occur within the frame of the constitution. The social forces move -- and battle -extraconstitutionally, because the constitutions did not even attempt the required solutions. 10 Constitutions are considered stale compromises and extemporizations of the accidental party configuration. It is not difficult to realize that for the cynic, the disillusioned, and the desperate among the laboring and salaried masses the blandishments of Communist collectivism, which they are told has reversed the class situation in their favor, cannot fail to be attractive.
But even the constitutional lawyer whose vision is not blinded by his profession will find little moral comfort in the study of the new constitutions. He realizes with suspicion that those of the Soviet orbit are technically too simple, functionally too straightforward, to allow for a fair adjustment of the power conflict. On the other
10 A striking illustration is the issue of industrial codetermination in Western Germany, to all intents and purposes the most significant development in management-labor relations in postwar Europe. The Bonn Constitution was prudently silent on it; the federal parliament unable to solve it. When the pressure of the labor unions in coal and steel forced the issue, the Bundestag had to yield. The constitutional machinery was used merely for ex post facto ratification.
hand, the Western constitutions, appraised as a group, are stationary and strangely retrospective, overly legalistic and complex, and yet timid and evasive. Both the French Constitution of 1946 and the Bonn Constitution in many respects are merely responsories to 1875 and 1919, respectively, trying to find foolproof answers to past mistakes. In general, these remedial efforts are understandable and commendable. Illustrations are the prohibition of delegated legislation in France (Art. 13), and the "neutralization" of presidential powers by election through a constitutional convention instead of through the people in Western Germany (Art. 54). By the same token, the attempts at rationalizing parliamentary dynamics (vote of nonconfidence and dissolution) and similar efforts to obtain a stable government are useful. Contrariwise, the constitutions reflect diffidence in the people themselves, with the hardly unintended result of playing the actual exercise of political power into the hands of the party oligarchies. Compared with France and Western Germany, Italy's Constitution is much more optimistic and self-confident. With the elimination of the monarchy, Italian parliamentarism could start from scratch without the inhibitions of adverse past experience.
The So-called "Form of Government" 11
The term "form of government" usually describes the functional arrangement -- co-ordination or subordination -- of the various organs in the process of determining the will of the state. Here the postwar constitutions did not add anything new to the traditional repertory. None turned to the monarchical solution: in Italy and Bulgaria monarchy was voted out of existence formally by plebiscite; in other Balkan states it was dismissed informally; and India ( 1949) not only severed the Commonwealth link with the British Crown (though not with Great Britain) but also made short shrift of indigenous residues of monarchical feudalism. All constitutions, those behind the Iron Curtain no less than the others, profess the
11 For a detailed discussion of the postwar patterns of government, see Karl Loewenstein , "The Presidency Outside the United States," The Journal of Politics, XI ( 1949), 447 ff.
democratic fundamentals; all adhere, with varying accents, to the functional division of powers (though not to their separation). Outwardly they are very similar, and if one would strike off the U.S.S.R. Constitution ( 1936), chapters I and X, it would be next to impossible to realize that this is the model of a new social order.
The separation-of-powers pattern of government found no favor outside the sphere of influence of the United States, such as in Latin America where, however, more recently a tendency toward approximation to parliamentarism is discernible, or China ( 1947) and Southern Korea ( 1948), serving here a protective coloration for unmitigated authoritarian government. The generally favored pattern is parliamentary government in the sense that the government requires the continuous support of a majority party or a coalition of parties ( France, Italy, India, Israel, and others). An interesting variation was produced in Western Germany for which the name "demo-authoritarian" may seem appropriate; the Federal Chancellor can be removed from office by vote of confidence only if the absolute majority of all members of the Bundestag simultaneously have elected a successor (Art. 67). This implies that the Chancellor is virtually irremovable during the four-year term of the parliament except when the government coalition breaks and a substantial part of it combines with the opposition. Similar efforts to stabilize the government were undertaken in some of the Western German Länder, and the same device, though in a most hypothetical manner, figures also in the constitution of Eastern Germany (Deutsche Demokratische Republik) (Art. 95, 2). The cabinet system, under which the Prime Minister, by virtue of strict party discipline and the threat of dissolution, is in undisputed exercise of political power between elections, is so much predicated on the interplay of two parties that none of the new constitutions could effectively institutionalize it.
The real surprise, however, is the revival, in the Soviet orbit, of the historically discredited and half-forgotten pattern of assembly government, which not only prevails in the U.S.S.R. itself but also in practically all 12 satellite states including Eastern Germany
12 Albania, Bulgaria, Hungary, Yugoslavia, Rumania. Poland and Czechoslovakia are exceptions, the former having re-established, with some streamlining, the constitution of 1920 (Constitutional Act of February 19, 1947); the latter rewrote the constitution of 1920 in 1948.
(German Democratic Republic and Länder). Why the Soviets abandoned their previous ( 1918, 1923) undisguised rule of the new proletarian agencies in favor of the more orthodox assembly government cannot be discussed here. But the archdemocratic pattern of the omnipotence of the popularly elected assembly, free from any checks and balances and, therefore, also from conformance with the separation of functions, lent itself perfectly to the rule of the single party, confirming the historical experience that assembly government is the convenient façade behind which the dictatorship of a person, group, party, or ruling clique can be disguised. Since the rule of the assembly is nominal only -- it meets rarely and at great intervals-the Presidium, its permanent steering committee, is a logical innovation. 13 At least in Eastern Germany, where the pretense of the multiple-party state is maintained, assembly government is implemented by the "block technique," 14 the prearranged (by persuasion, pressure, and other means) unanimity of the parliamentary parties and cabinets. The ingenious device serves for the "voluntary" elimination of the opposition and presents to those who wish to believe it the picture of a monolithic democracy. In the Eastern German Republic the technique is even institutionalized in the constitution (Art. 92): Any party with forty deputies must be represented in the government according to its strength in the lower house (Volkskammer). Suppression of the opposition certainly is nothing new; but to make a coalition government mandatory in the constitution is evidently the limit of "constitutional" democracy.
The "Living" Constitution: Shadow and Substance
For an ontological evaluation of constitutions it is essential to recognize that the reality of a specific functional arrangement of powers depends to a large measure on the sociopolitical environment to which the pattern is applied. From its own experience the
13 See, for example, Hungary (Arts. 19-22), where it is called "Presidential Council." It does not exist, however, in the German Democratic Republic and is seemingly less well endowed with power in Czechoslovakia and Poland.
14 The leading discussion is Alfons Steiniger, Das Blocksystem ( Berlin, 1949).
politically advanced Western world is apt to draw the conclusion that, once a constitutional order has been formally accepted by a nation, it is not only valid in the sense of being legal but also real in the sense of being fully activated and effective. If this is the case, a constitution is normative. To use a homely simile: The constitution is a suit made to measure and is actually worn. It is, however, an assumption that requires verification in every single case.
There are other cases where a constitution, though legally valid, is actually not lived up to. Its reality and activation are imperfect. This should not be confused with the universally recognized situation that the constitution as written differs from the constitution as applied. Constitutions change, not only by formal constitutional amendments, but even more so, imperceptibly, by constitutional usages. What is aimed at here is the factual state of affairs that a constitution, though legally valid, has no integrated reality. The American Constitution is the law of the land in all the United States, but the Fourteenth Amendment is not fully activated in, for example, Mississippi and Alabama. To continue the simile: It is a readymade suit which is not worn; it hangs in the closet. In this case the constitution is merely nominal.
Finally, there are cases in which the constitution is fully applied and activated, but it is merely the formalization of the existing location and exercise of political power. The mobility of power dynamics, to adjust which is the essential purpose of any constitution, is "frozen" in the interest of the actual power holder. The suit is no suit at all but a fancy dress or a mere cloak. In this case the constitution is nothing but "semantic."
The normative constitution prevails in the West where it serves as the procedural frame for the compromise of the power contest. Of the new constitutions, in addition to those of France, Germany, and Italy, those of Israel, India, and Ceylon come under this category, the first because it is manipulated by an intellectually Westernized people, the latter two because of the education the political elite had received in contacts with the British. Burma (constitution of 1947) can hardly be counted here, her experience with self-government being too scanty.
The nominal constitution, on the other hand, is merely a declaration of constitutional intent, a blueprint expected to become a reality in the future. Its habitat is in nations where Western constitutionalism is implanted into a colonial and/or agrarian-feudal social structure. Literacy, of course, is indispensable for the reality of a constitution. But even where literacy is extensive it may seem that the rationality of Western constitutionalism is alien, at least for the time being, to the Asiatic or African mind. This situation prevails definitely in states accustomed to authoritarianism like China ( Chiang Kai-shek's constitution of 1947), Southern Korea ( 1948) and Siam, and possibly also in the Philippines and most of the Arab states. But it is also not uncommon in Latin America where, however, Brazil, Argentina, Chile, Colombia, Uruguay, and Cuba must explicitly be exempted and ranked with Western normativism. The borderline may often be fluid. In the Latin American ambiente, constitutions are frequently abolished and rewritten, or suspended by the state of siege, according to shifts of the power cliques temporarily in control of the army. 15 The existence or nonexistence of a constitution does, as a rule, not much affect the life of the business community or the common people.
The case of Japan (constitution of 1946) defies classification. Even the older ( 1889) constitution was not normative in the sense that it served as the frame for the orderly adjustment of the power conflict. In spite of its Westernized "neutrality," it was wholly subservient to the ruling groups of industrial and agrarian feudalism and the army. The new constitution is S.C.A.P. inspired, S.C.A.P. dictated, and S.C.A.P. enforced, the democratically elected Diet operating as a mixed chorus. In the political vacuum of foreign occupation, under a foreign general as pseudo-Mikado and with party dynamics strictly controlled by him, there can hardly be a reality of the constitution even for a nation so adaptable as the Japanese.
Finally, where the written constitution is advisedly used for "legalizing," stabilizing, and perpetuating an existing configuration
15 Venezuela's Constitution of 1947 (now suspended) is the twenty-second in one hundred and thirty-six years.
of power, it cannot serve as the procedural frame for the competitive power elements. This is probably the generic characteristic of all or most authoritarian constitutions, with the instruments of the years VIII and X in France or the constitution of Napoleon III ( 1852) as historical and the Pilsudski Constitution of 1935 as more recent examples. The existence of the written constitution is merely the face-saving gesture demanded by the present-time universal belief in democratic legitimacy. If no constitution existed at all, the prevailing power monopoly of a person, group, class, or party would not be changed to a substantial degree. At the most, such constitutions regulate the assignment of high-level jurisdictions as the formal basis for the orderly conduct of the governmental business no state can do without. In the narrow sense of the term these instruments are positivist in that they "freeze" the existing power situation. Actually their purpose is semantic camouflage.
Under this category come most of the Soviet satellite constitutions, 16 but equally so those of other states of quasi-feudal structure ( Egypt, Iran, Iraq). In underdeveloped countries the distinction between the semantic and the nominal constitution cannot always be applied with satisfactory precision.
Comparative Observations on the Functional Structure
1. The legislative-executive relations. The legislative-executive relationship -- whether operating in co-ordination or in subordination -- is the essence of the "form of government." The solutions attempted reveal the differences between the normativism of the West and the semanticism of the East. In the fully developed "people's democracy," exemplified by Hungary ( 1949), the problem
16 Samuel L. Sharp, in "Communist Regimes in Eastern Europe," Foreign Policy Reports, XXVI, No. 16 ( January 1, 1951), 183, states that, "in accordance with Stalinist doctrine, constitutions merely register situations of fact already achieved." This explains convincingly that the still existing differences of the constitutions in the Soviet-controlled area, between themselves as well as with the Soviet prototype, are due to the gradualism of evolution toward the Soviet pattern. Hungary, as the latest formulation ( 1949), is closest and without Westernized pretenses of objectivity. It may be added that the comparative affinity of the Eastern German constitutions (which Sharp does not discuss) to the Western system is occasioned by the desire not to antagonize the Western Germans directly. Therefore, the multiple-party system is nominally preserved.
offers no difficulty. In the place of co-ordination and co-operation there exists, by a curious inversion characteristic of assembly government, a strictly hierarchical system of subordination. The parliament, allegedly "the highest state organ" (Art. 10), is completely dominated by its presidium (called "Presidential Council of the People's Democracy," Arts. 20 and 21), which, in turn, completely controls the Council of Ministers, spoken of as the "highest organ of state administration" (Art. 22) and controlling the local councils hierarchically. All levels are of course linked together by the Communist party (or, in other satellites, the National Front) concerning which the document is semantically silent. No simpler, less complex, and more direct technique for the exercise of political power ever has been put on paper.
In the Western climate, on the other hand, the executive-legislative relationship continues to remain the core of constitutional engineering. There is no longer the eighteenth-century illusion that government and parliament could be harmoniously equilibrized or mutually balanced. The alternatives are either a strong government superior to the parliament, at the expense of responsiveness to public opinion, or a government continually dependent on the whims of the parliamentary parties. The controlling viewpoint is the avoidance of cabinet crises occasioned by the lack of stability of the party coalition supporting the government.
The framers of the new constitutions were visibly impressed by the one hundred-odd cabinets that had occurred under the Third Republic in France within sixty-five years and the twenty-odd under Weimar within fourteen years. A sizable number thereof, being accidental and without deeper political implications, could have been avoided by rationalized parliamentary procedures. Consequently, technical efforts are now made to limit them by the injection of cooling-off periods between the motion for, and the vote of, nonconfidence, or the requirement of a minimum of signatures for the former ( Italy, Art. 94) and of absolute majorities for the latter ( France, Art. 45; Germany, Bonn, Arts. 67, 68). But the danger of recurrent cabinet crises seems somewhat overemphasized. The record will disclose that many, if not the majority, of the cabinet changes were occasioned by justified demands of the opposition for a change in legislative policies to which the new government conformed. This, after all, is the inherent function of parliamentary government. The exceptional situation under Weimar, to the effect that heterogeneous and basically antidemocratic opposition parties combine "unconstructively" for the overthrow of the government without being able or willing to form an alternative government, may not easily present itself elsewhere. Moreover, breaks in governmental continuity are often mitigated by the "replastering" technique in constituting the new cabinets. Outside France the record of governmental stability since 1945 leaves little to be desired, perhaps with the exception of Belgium while laboring under the singular pressure of the question constitutionnelle (the struggle for the removal of Leopold III). Moreover, it may seem doubtful whether cabinet crises are actually the congenital vice of parliamentarism, or whether it is the inability of any "pattern of government" to reconcile political opposites refusing to agree on the socioeconomic fundamentals of the common existence. The common people, with their unstunted sense of realities, are much more aware of this basic dilemma than the politicians and party manipulators themselves.
At any rate, the search for the magic formula to establish a crisisproof system continues, but the circle remains as unsquared as before. Where the distrust of the strong executive is nationally ingrained as in France, the recourse to unmitigated parliamentarism seems the lesser evil. The French rely largely on the skill of their parliamentarians. Where, as in Germany, the strong executive is an article of national faith, the legislature -- and with it the democratic fundamentals -- have to foot the bill. The Germans try to ward off spontaneous eruptions of the power conflict by making the Chancellor quasi-irremovable during the four-year term of the Bundestag and strengthening his hands, with the dolus eventualis of authoritarian government, by the ominous "legislative emergency powers" (Art. 81), under which even if defeated he can operate without parliamentary support for at least six months. The historically less inhibited Italians trust the natural balance of the political forces and the fear of Communism holding together the artificial majority of the Christian Democrats. Evidently parliamentary crises are the price to pay for multiple parties, which Continental politics seemingly cannot be disabused of.
2. Dissolution. In the authentic form of parliamentary government, 17 dissolution is the democratic fulcrum of the entire process of adjusting power conflicts by making the electorate the ultimate policy-determining factor. Compared with the period after 1919 dissolution takes a serious beating in the new constitutions even though the French have at long last cautiously revived it (Arts. 51, 52). The curbs to which it is subjected in France and Bonn, Germany, come under the same heading of the search for the crisisproof constitution. Only in Italy (Art. 88) does the institution preserve its genuine plebiscitary function. Five years of experience in France have demonstrated that the party oligarchies, shifting power among themselves, are as afraid of the people as before, meaning the Communists to the left and the De Gaullists to the right. In Germany, likewise, where dissolution has been resorted to frequently under the empire and Weimar, it seems destined to wither on the vine. Moreover, as F. A. Hermens has emphasized, 18 dissolution loses much of its plebiscitary effect if conducted under proportional representation, which tends to stabilize the existing party pattern. Dissolution, of course, is incompatible with assembly government except in the remote contingency of self-dissolution ( Hungary, Art. 18, 1). 19
3. Position of the President. Within the same context of legislative-executive relations the position of the President has been noticeably weakened in comparison with 1919 and after. Because of its greater democratic prestige, popular election is no longer favored
17 Robert Redslob Die parlamentarische Regierung ( Tübingen, 1918) ( French edition, Le Régime parlementaire [ Paris, 1924 ]), most influential after 1919, is now almost forgotten.
18 Ferdinand A. Hermens, Mehrheitswahlrecht oder Verhältniswahlrecht? ( Munich, 1949); Europe between Democracy and Anarchy ( Notre Dame, 1951). See also Maurice Duverger, L'Influence des systèmes électoraux sur la vie politique ( Paris, 1950).
19 See also the equally unlikely case of dissolution in Art. 95, 6, of the Eastern German Constitution.
except where, as in Latin America, the American pattern is followed. The President is generally confined to state integrating and ceremonial functions. He retains, however, the designation of the Prime Minister ( France, Italy, Israel, India); in Western Germany this function has shifted to the Bundestag by election (Art. 63) and in Eastern Germany the strongest party automatically is charged to name the executive-designate (Art. 92). The discretionary powers of the President in dissolution are completely eliminated in France (Arts. 51, 52) and severely restricted by the mechanization of the entire procedure in Western Germany (Arts. 58, 63, 4). Assembly government as a rule dispenses with the office altogether, its functions being performed by the Presidium; for reasons of expediency, however, the office is retained without an actual share in power, in the U.S.S.R., Eastern Germany, Poland, Czechoslovakia, and Yugoslavia.
4. Second chambers. Except in federal states the unicameral organization is now generally preferred. The final emasculation of the British House of Lords by the Labour government is paralleled by the powerless Council of the Republic in France and reflected, to some extent, in the position of the Federal Council (Bundesrat) under Bonn, which, while strengthening the position of the territorial subdivisions in matters affecting them, is confined to a suspensive veto in federal affairs and without influence on federal political dynamics. Italy has seen fit to restate full-fledged bicameralism with political equality of the Chamber and the Senate, the latter based on a spurious effort to achieve a different composition by "Regions" and, at least in theory, capable of overthrowing the government.
If an "upper" house were to serve as the brake on, or balance of, accidental party fluctuations within the lower house, it would require a different composition, based on corporate units, specific social strata, more mature age groups, or meritorious individual personalities. But this traditional function of the second chamber has become largely obsolete; an exception is the strictly consultative Senate in Bavaria (constitution of 1946, Arts. 34 ff.). While, thus, the decay of the second-chamber technique is a universal phe- nomenon, it may seem regrettable that corporativism, whose natural location would be the second chamber, though discredited by totalitarian abuse, has not been given the chance of a democratic trial; the Economic Council in France is weaker than other applications (in Czechoslovakia and Weimar Germany) after 1919. The professional stratification of socioeconomic life in organized power groups is one of the undeniable realities of countries professing a free economy; the powerful combines of labor, co-operatives, management, agriculture, civil servants, professional and other interest groups, deprived of legitimate participation in the formation of public policies, are forced to operate either through political parties or to exert power outside the constitution itself. On this score the postwar constitutions have not been able to face realities.
Under assembly government in nonfederal states the second chamber is at variance with the political doctrine and has been discarded everywhere.
5. Federalism. Federalism is on the decline, and this in spite of various institutionalizations in the West and the East. Experience in the oldest and best integrated federal states, the United States and Switzerland, demonstrates that, whatever strength of tradition and emotional values of political theory federalism is still imbued with, the economic imperatives of the technological state require unified if not uniform economic policies throughout the entire territory and do not brook that kind of economic fragmentation which goes with effective member-state sovereignties. 20 To point it up sententiously: A state with a federal income tax is no longer a genuinely federal state. On the other hand, the realization is equally general that, even in relatively small areas, decentralization enhances administrative efficiency. Federalism as an organizational device cannot be divorced from the general political philosophy of the age. Federalism is a product of liberal thinking. It applied the (relative) freedom of the individual to the (relative) freedom of organization of territorial entities. It thrives as long as a free economy thrives.
20 The case of Switzerland is particularly illustrative. The partial revision of the constitution in 1947 (Arts. 31 ff.) practically not only modified the policy of economic laissez faire but subjected the entire economic life of the Swiss confederation to federal control.
Speaking again sententiously: Economic planning is the DDT of federalism. Constitutions, therefore, that take their federal premises too seriously can hardly escape becoming anachronistic.
However, federalism is essential and indispensable where strong tendencies of multinational or tribal diversity prevail. The Indian Constitution, trying to organize and govern a multinational subcontinent, could not operate without evolving a sort of superfederalism, being applied, in terms of the First Schedule to Article 1, to at least three different categories of states and territorial subdivisions with different legal status in regard to their relations to the Union. This kind of "quantitative" federalism obviously is imperative for the growing together of literally hundreds of socially widely divergent separate communities. Federalism in India, and also in Burma, likewise a "Union," seems a method of social integration rather than of perpetuated diversification.
Of the Iron Curtain constitutions, only that of Yugoslavia follows the Soviet federal pattern. But if the inclusive evidence permits an evaluation, the emphasis, as in the U.S.S.R., is on cultural autonomy rather than political self-government. How far the new collectivist way of life, emanating from planning, has succeeded in overcoming the age-old nationalism of the Croats, Montenegrins, and Macedonians, and their resentment of Serb ascendancy, remains to be seen. Whatever may be the degree of effectiveness of cultural autonomy, the social-planning mechanism extends uniformly to all subdivisions. With the older type of federalism in the West it has evidently nothing in common but the name. Federalism of the five Länder in Eastern Germany is wholly semantic, as can be easily seen from the unitarian constitution of the German Democratic Republic.
Nor is federalism in Western Germany any longer the genuine article, belying the endless labor of the military governments and the Germans in fashioning it. On the surface the constitution of Bonn is less unitarian than Weimar. But the facts of economic interdependence of the area militate against genuine federalism, except in certain cultural matters. Actually the elaborate and ambitious Land constitutions of the Western zones mean little for the people. The decisive socioeconomic issues, such as economic policies, social security, codetermination, and tax distribution, devolve on the federal government in Bonn. In Italy the new "Regions" 21 remain to date a dead letter (except, to a limited extent, in Sicily, Sardinia, and Alto Adige), and this for the same reasons as elsewhere; namely, that local autonomy cannot but be subservient to nation-wide economic and social policies. Federalism in Latin America ( Argentina, Brazil, Venezuela, Mexico) finally never amounted to much in practice because of the constitutionally legalized and frequently used practice of federal intervention.
6. Suffrage, electoral system, and political parties. Democratic equality for the formation of the will of the state is no longer problematic. Universal suffrage with, in some instances, a considerably lowered voting age is the general standard. All censitory vestiges have disappeared. But it is indicative of the existing cleavage between constitutional nominalism and political reality that, while proportional representation is universally favored, the operative technique of this (and any) electoral system, the political party, is almost universally ignored. Political parties are mentioned, it is true, in the Bonn (Art. 21) and the Italian (Art. 49) Constitutions as recognized instruments for the formation of the political will of the people. But the fact is carefully ignored that proportional representation, more than any other electoral system, puts the actual exercise of political power into the hands of the party oligarchies and their bureaucracies, which are entirely beyond popular control. The ubiquitous result is the political vacuum in which the party-manipulated parliaments everywhere operate. The general lack of prestige of the political congeries called political parties cannot fail to be reflected in the waning respect the people have for the parliaments themselves.
It is readily admitted that the integration of the political party into the mechanism of the frame of government -- recognition of the party within the bill of rights as a phenomenon of the individual right of political association is, of course, merely declaratory -is one of the most difficult aspects of constitutional renovation. The
21 See Pietro Virga, La region ( Milan, 1949).
issue may, for the time being, be inaccessible to legal formulas. But it is equally obvious that silence of all constitutions on the emergence of new elites -- in the West the party bosses and their bureaucracies, the parliamentary oligarchies, and, in the East, the powerful layer of the officials of the state party and the managerial technicians of the state-owned industries -- is a much more potent reality than the ubiquitously proclaimed "sovereignty of the people" ( France, Art. 3, 1; Italy, Art. 1, :2; Germany, Bonn, Art. 20, 2). Sovereignty actually is located in the political parties. 22 The statement ( Germany, Bonn, Art. 38, 1) that the individual deputies in parliament represent the entire nation is a piece of undiluted semantics.
The situation is aggravated by the visibly declining emphasis on participation of the people in the political process. It is confined to elections of the parliament at regular intervals or in the (rare) case of dissolution. Initiative and referendum -- the latter only in connection with the amending process ( France, Art. 90; Italy, Art. 138) -- are conspicuous by their absence in Western Europe, let alone elsewhere, probably because of the inconclusive result of direct democracy in the constitutions after 1919. Monopolization of political power by the party oligarchies makes the new constitutions less democratic than their predecessors.
In the monopolization of the popular will by the single or state party, the people's democracies are more honest, and probably can afford to be. The constitution is not a blueprint to be activated in the future, but it closely reflects, and is synchronized with, the actual power configuration reached in the particular country. The paramount function of the single party is admitted and exalted. No longer an abstraction, it is a stark reality, incorporated in the frame of government proper. In the Soviet Constitution of 1936 the Communist party as "the vanguard of the toilers" is an official
22 Constitutional theory, on the other hand, has become widely aware of the changed situation. See, for example, Pascal Arrighi, Le Statut des partis ( Paris, 1948); Pedro J. Frias, El ordenamiento legal de los partidos politicos ( Buenos Aires, 1944); Wilhelm Grewe, Zum Begriff der politischen Partei, Festgabe für Erich Kaufmann ( Stuttgart, 1950), pp. 65 ff.
state organ (Arts. 126, 141). Since in the earlier elaborations of the Soviet system the transition to the single-party state was not completed, the Communist party (or its equivalent) could not yet be given the privileged position. But in the Hungarian Constitution ( 1949) the "People's Democracy bases itself on the organization of the class conscious workers" and "the leading force in [such] political and social activities is the working class" (Art. 56, 2). Of the thirty-six times the "workers," "working class," or "class conscious workers" are mentioned in this document, not a few refer to the workers as activators of political power rather than as its addressees. And the constitution of the German Democratic Republic could openly assign (Art. 92.) the position of the MinisterPresident to the strongest party because the power apparatus could by now be trusted to identify this as the Socialist Unity party.
7. Constitutional amendment. In this revolutionary age constitutions, however carefully projected into the future, cannot aspire to make permanent their political solutions In this they differ from the optimism of the eighteenth century; the Directory Constitution of 1795 was practically unamendable. Consequently, the process of constitutional amendment everywhere is kept sensibly elastic, neither too rigid to invite, with changing conditions, revolutionary rupture, nor too flexible to allow basic modifications without the consent of qualified majorities. However, the amending procedure is rationalized in the sense that it can no longer be "bypassed." In France the Constitutional Committee (Arts. 91 ff.) determines whether a law passed by the National Assembly requires a revision of the constitution; this is a sort of substitute for judicial review of the constitutionality of statutes. In Western Germany the amendment requires the effective change of the text of the constitution (Art. 79, 2). All the more surprising is the increasing illusion that certain fundamentals can be made "unamendable" (republican form of government, Italy, Art. 139; France, Art. 95; federal structure and basic rights, Germany, Bonn, Art. 79, 3). The Indian provision (Sec. 305), to the effect that certain minorities (Muslims, Scheduled Castes, etc.) shall not be deprived of their seats in the federal and state legislatures for a period of ten years, is one of functional utility rather than of governmental philosophy.
8. Judicial power and the judicialization of political power. Western constitutionalism believes traditionally in the clear-cut separation of the judicial function from the other two branches of government and, correspondingly, in the independence of the judiciary secured by tenure. The Soviet approach deliberately discards the separation of powers in whatever form and under whatever disguise. Assembly government, therefore, does not countenance any capitis diminutio either by an independent judiciary or by judicial review of legislation. In spite of some face-saving semantics the judicial function is strictly subordinated to the legislative by election and recall through the parliament, for example in the German Democratic Republic (Arts. 130, 131) or Hungary (Art. 39).
In the West serious efforts were undertaken to protect appointment and promotion of the judiciary from extraneous influence or political pressure. Neutralization of the patronage by the political parties is sought in France through the Supreme Council of the Magistrature (Arts. 83 ff.), and in Italy by the creation of the magistrature as an autonomous organization, charged with the exclusive responsibility for the composition and supervision of the judiciary (Arts. 104 ff.). Western Germany has gone furthest in setting up the judicial branch as co-equal with the other two. While the technical arrangements may seem impeccable, they do not go into the core of the problem. In Germany the judges are public officials and, therefore, not independent of the state. De-Nazification has not succeeded in breaking their class consciousness. Basically the independence of the judiciary resolves itself into the sociological dilemma of a judicial caste, a situation with which the American public in its own environment is thoroughly familiar.
Judicial review of the constitutionality of laws that previously had been recognized only for federal-state relations is now viewed with more favor. In Italy (Art. 134) and Germany, Bonn (Art. 93), it is assigned to a special Constitutional Court. It is generally implied in the judicial function in Japan (Art. 76, 3, 8), while in France it is attenuated to the determination, by the Constitutional Committee acting only on a joint request by the President and the Council of the Republic, whether a law passed by the National Assembly would actually require a constitutional amendment (Arts. 91 ff.). Unavoidable differences of opinion in the interpretation of the new constitutions may well call for an objective judicial decision; but it may seem doubtful whether the institution will integrate itself into political life as the unique regulatory force it is in the United States.
But perhaps more important may become what may be called the judicialization of political power; namely, the efforts to tame the power conflict by subjecting political dynamics to judicial decisions. In Italy (Arts. 134 ff.) and Germany, Bonn (Art. 93), the constitutional tribunal is charged with deciding "conflicts of jurisdiction between the powers of the state" or, in the German version, "disputes concerning rights and duties of the supreme federal organs." Insofar as such conflicts are determinable by positive constitutional norms -- the rare exception -- judicialization may lead to beneficial results. If, however, jurisdictional attributions of the constitution are being used by the various state organs -- for example, by the President against the government or by the government against the parliament -- in the competition for political power, the belief that power aspirations can be "decontaminated" by legal formulas may seem to overtax the function of the judiciary. Seemingly the poor showing of the German Supreme Court in an analogous power conflict between the Prussian and the Reich Governments in 1932 was no deterrent. In older and wiser countries the courts exercise selfrestraint by refusing to pass on "political questions" or actes de gouvernement, which the Germans call "justizlose Hohheitsakte." 23 The basic issues of the power process are not justiciable. Reliance on normative legality may impede rather than promote the need for political compromise.
9. The function of the bill of rights. Particularly pertinent for the inquiry into the ontological meaning of the constitutions are
23 See, for example, Werner Weber, Weimarer Verfassung und Bonner Grundgesetz ( Göttingen, 1949).
the principles contained in the bill of rights. In the earlier develop ment of written constitutions the libertarian and equalitarian postu lates of the bills of rights were as important as the functional arrangements of the frame of government. The French Declaration of 1789 has assumed the quality of a superconstitutional validity and reality even if the constitution, as, for example, that of 1875, did not contain a restatement or failed to refer to it expresris verbis. The (second) constitution of 1946, therefore, could confine itself to a global incorporation by confirming it in the preamble, with some additional socioeconomic rights which the revolutionary fathers could not foresee. But during the nineteenth century, when liberalism was taken for granted, the accent shifted definitely to the functional organization, which, if properly arranged, could be expected to accommodate any socioeconomic system the majority desired to establish by constitutional means. That the Bismarckian Constitution of 1871 failed to register a bill of rights was not due to the authoritarian neglect of the framer but rather to the belief generally adhered to in the period that a constitution should confine itself to functional arrangements and that the main virtue of the declaration of rights consisted in symbolizing the state under the rule of law.
The constitutions after World War I, in whose elaboration the Socialist parties shared for the first time, appear more alerted toward the need of implementing the classic catalogue of libertarian and equalitarian freedoms from the state by a new socioeconomic pattern of economic security and social justice. But again the concept prevails that, beyond certain programmatic aspirations, the decision should be left to the social and political forces contending for power within the framework of the constitution itself. The sociopolitical content of the bills of rights became more important but still not important enough actually to determine and control the functional arrangements in the form of government.
Nothing is more indicative of the parting of the roads between West and East after World War II than the changed position of the bill of rights. In most of the "people's democracies" the relationship between the functional and the ideological parts of the constitution is reversed. What is variously called socioeconomic structure or organization 24 is not only separated from the classical libertarian rights and freedoms -- whose actuality under a police state is obviously nominal -- but is moved forward into the body of the functional provisions and, thus, considered as binding as the latter. Nationalization of natural resources, state ownership of the means of production, economic planning, the foreign-trade monopoly of the state, and the restrictions on private ownership and property that go with them are no longer programmatic aspirations; they are now part and parcel of the structure of government necessitating a new type of administrative organization. The functional organization is conditioned on the socioeconomic pattern.
In the West the program of the bills of rights has not materially advanced beyond what was reached after World War I. The bills are still large-scale and pretentious catechisms of socioeconomic, cultural, and educational postulates, nowhere raised to the rank of subjective rights the individual can enforce against the state or, what amounts to the same, implying duties of the state to carry out and implement the program by positive legislation. Moreover, without corresponding judicial protection even most of the libertarian freedoms are of paper value only. On the other hand, Bonn, Germany, is more advanced in converting the basic rights into positive rules of law immediately binding legislation, administration, and adjudication (Art. 1, 3) and opening, by way of a general clause, access to the courts for redress against any violation of the constitutionally guaranteed private sphere by governmental or administrative action (Art. 19, 4).
What may seem more important is the twilight zone in which the political philosophy moves. The bills of rights are as articulate and comprehensive as they are evasive on the decisive social issues of labor-management relations and the property complex as the key to the alternatives of private capitalism or socialization, laissez
24 Hungary (social structure, Arts. 4-9); Rumania (social and economic structure, Arts. 5-15); Yugoslavia (socioeconomic organization, Arts. 14-20); Bulgaria (public economic organization, Arts. 6-14). In the German Democratic Republic the break with the tradition is less visible because the economic order (Arts. 19-29) is placed together with other categories of rights under a common heading, "Substance and Limits of Sovereignty."
faire or planning. These temporizations are due, of course, to the structure of the party coalition, which was primarily responsible for them (in the three key states dominated by the Christian Democrats). That the elusiveness of the socioeconomic program deprives the most vital parts of the constitution of attraction for the masses can be easily realized by a comparison with Great Britain, where the unformalized character of the basic order permitted the general election of 1945 to become the plebiscite inaugurating a social revolution of the first magnitude.
On the Craftsmanship of Constitutions The sociological implications of the craftsmanship in writing a constitution -- the drafting skill and the "style" 25 -- are still unexplored. The symbolic value of the American Constitution, no less than its functional utility, derives to a considerable degree from the unusually felicitous combination of form and content. Craftsmanship is conditioned, besides national traditions, on the sociological and professional composition of the constituent assembly; the intellectual climate of the period; and foreign influences or even foreign intervention (as in the cases of the recent Japanese and German constitutions). A nation starting its constitutional life from scratch is probably less inhibited than a people whose new constitution is merely another link in the traditional' chain of the national manifestations of the political will, as in Germany or in France. The indifferent craftsmanship of the French Constitution of 1875, merely a bundle of unrelated organic laws, reflects the "attente monarchique." Instruments drafted by an individual leader for his own use are, as a rule, consistent and responsive to the actual power configuration, as evidenced by Napoleon's Constitution of the year VIII or Bismarck's Constitution of 1871. 26 The craftsmanship of constitutions emanating from party coalitions is bound to reflect the
25 See Heinrich Triepel, Vom Stil des Rechts ( Heidelberg, 1947). The issue is of practical importance, for example, in dealing with the positive validity of preambles, which are a common feature of most recent constitutions.
26 Unique in the history of constitution-making is the poetic vision incorporated by Gabriele d'Annunzio in his constitution for Fiume, "La reggenza italiana del Carnero"; see Il Popolo d'Italia, September 1, 1920.
compromises of conflicting aspirations. It is also fairly obvious that the more a constitution aims at ultimately "neutralizing" and regularizing the power process by injecting into it checks and balances, the more complex it must become, and complexity taxes drafting skill. Since the Iron Curtain instruments merely confirm the existing power situation, they can afford to be simple, straightforward, and direct and can dispense with the complex strategy of distributing functions among various state organs to avoid abuse of power by any one of them. Regarding their stylistic craftsmanship a considered judgment is possible only for one who can read the originals; in translation they all sound alike and are alike drab. The French Constitution of 1946, owing to its being grafted on a previous instrument, does not live up to the national reputation, while both the constitution of Italy and the (draft) constitution of Israel are distinguished by clarity and logical arrangement.
A related problem is that of elaborateness and length. The ideal constitution will contain only the essentials of the national political order -- organs, functions, jurisdictional delineation -- but, at the same time, all the essentials. If a constitution wishes to be crisis proofthat is, in practice, to avoid deadlocks between the constituted organs -- it can leave nothing to chance and must spell out all contingencies. In trying to be "gapless" it approximates the substance of a code that is necessarily more lengthy and complex. Other constitutions, setting greater store by the wisdom and moderation of their manipulators to compromise the power conflict, need be less specific. Once again the semantic constitutions of the East have the advantage of brevity and conciseness in the functional arrangements because they are not likely to be exposed to the strain of competitive political forces.
On the whole, the recent vintage of constitutions is more verbose and articulate than the previous families of constitutions. But here the national "style" tradition comes into focus. Anglo-Saxon legal training and habits of statutory formulation, which try to cover all foreseeable eventualities, are responsible for the length and the minutiae of the Indian Constitution whose 315 articles and 8 schedules fill a book, with the Burmese Constitution of 234 articles run- ning a close second. Much of this is, of course, due to the conditions of a multinational federalism and religious differences. In the West the Bavarian Constitution of 1946 holds the record in the number of words without claiming the palm of craftsmanship.
There is no evidence that any of the new constitutions will attain either the symbolic value or the rank of a piece of classic literature that distinguishes the American Constitution. They are instruments written by lawyers for lawyers. Excessive legalism in craftsmanship necessarily minimizes the appeal to, and the emotional attachment of, the people. This, in turn, cannot fail to reflect adversely on the potential integration of the new constitutions in the minds of the people as the addressees of political power.
The People and the Constitution
At this point the crucial question may be raised: What do constitutions, in our time, mean to the people? Are they "living" in the sense that they are essential for the life not of the professionals manipulating them but of the common people? Or, somewhat more emotionally pointed up: Is the constitution instrumental for the pursuit of happiness of the people? There is no parallel to the phenomenon of the American Constitution as a living reality for the American people, which, beyond its well-advertised quality as a social myth, is essential because it served, and still serves, for the peaceful (and at times even playful) adjustment of the power conflict. It is, of course, a patriotic distortion to attribute the absence of the class struggle in this country to the constitution; rather, the reverse is true. The continued congruity between constitutional form and socioeconomic substance can be preserved because there is no social class to which the functional organization of the constitution denies its share in political power. With the exception of the War between the States no major social conflict has challenged it. The New Deal was accommodated within the constitutional frame with relative ease.
The new constitutions will find it difficult to integrate themselves in the minds of the people. They mean next to nothing, or very little, to the little man ground between the nether and the upper millstones. To be sure, most people value the return of legal se- curity and administration conducted without galling arbitrariness. But the constitutions are indifferent toward the realities of the life of the people, incapable of satisfying the minimum of social justice and economic security that the common people believe themselves entitled to, the pretentious bills of rights to the contrary notwithstanding. The vital issues are no longer decided by constitutional processes but by the pressure groups operating outside and often in opposition to them. The constitution cannot, and does not, bridge the gap between poverty and wealth. Everywhere, with the possible exception of Britain and the marginal monarchies of Western and Northern Europe, the people distrust their governments, their officials, their parties and parliaments, and their constitutions. What is true for the sophisticated West may even be truer for the East wherever the education of the masses for the Communist eschatology is still incomplete. If the constitution means little for the citizen in Bordeaux or Frankfurt, how much can it mean for the illiterate coolie in Shanghai? The moral crisis of this age cannot fail to vitiate the moral value of a constitution that fails to provide tangible remedies for tangible grievances.
The actual value of a constitutional order can be tested only in the wear and tear of the political process. Predictions, therefore, are mere speculations. Since the constitutions in the Soviet orbit are formalizations of the specific power entrenchment of single-party control and not destined to serve for free power competition, they will not last a day longer than Communist coercion will last. This may be long, and longer than the people living thereunder would desire. How the new constitutions in the West will stand up under the strain of a serious economic or political crisis remains to be seen. In spite of hectic efforts to make them crisis- and shockproof, the inherent defects of the representative parliamentary system have not been exorcised. Authoritarianism remains the skeleton in the closet, except in a political environment with the traditional wisdom of the parliamentary elite trained to govern and, perhaps, the stabilizing influence of respected monarchies.
But obviously the causes for the ambivalence of Western constitutionalism lie deeper than in the inadequacy of functional arrangements. We have not yet begun to investigate the ontological causal- ity between the form of government a constitution endorses and the socioeconomic structure of the society to which it is applied. The inquiry is hampered by still existing residues of the naïve optimism of the eighteenth century that a functionally well-constructed constitution can adjust peacefully any power conflict. That much can be learned from the crude materialism of the Soviet-orbit constitutions; viz., that a definitely chosen socioeconomic pattern requires a commensurate institutionalization of the power situation. The Communists realized that not every constitution can accommodate any form of society, and that a specific society requires a specific constitutional order. The concept that the constitution, confined to the jurisdictional determination of authority, can be "neutral" and "objective" toward the power process is as much a by-product of liberal relativism as is the concept that the written constitution itself is a child of liberal rationalism. In the light of our -- admittedly limited -- historical experience, it seems likely that an inner congruity exists between constitutional form and societal substance.
To state the thesis in more concrete terms: Athenian direct democracy was predicated on the nontechnological economy of a small and socially homogeneous community based on slavery. The absolute monarchy of the prerevolutionary period corresponded to the social stratification of landed wealth and the hereditary privilege of an aristocratic society. Parliamentary democracy, or rather oligarchy, was suitable for the dominance of the middle-class bourgeoisie, rooted politically and economically in laissez faire. Liberal constitutionalism could afford to raise the rule of law to the dignity of an absolute value. When finally the laboring masses, unwilling to abide by the rules of liberal capitalism, claimed their share of economic and political power, this form of government was bound to become inadequate. The transformation of capitalism into all-out socialism by planning and nationalization of the natural resources, the means of production and trade, required the authoritarian form of government for the new ruling class. It is most unlikely that this will be more than a transitional stage in the never-ending political experimentation of mankind. On his appointed day the new Montesquieu will arise.
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