Making of a German Constitution : a Slow Revolution

194 • The Making of a German Constitutionfigure of Planck, despite the ups and downs of National Liberal representation in theReichstag, and the aging or death of Lasker (d. 1884), Miquel (d. 1901) and Bennigsen(d. 1902), the liberal ideal of legislative revolution was carried through to its finalcompletion. Planck, who was blind by the time the BGB was passed, died in 1910. Hehad outlived not only his fellow National Liberals, but indeed the other original membersof the first commission. This was pure luck, but in the same way that Mittermaier,Grimm and Savigny lived a good long time and were around to see constitutionaltransformation through its theoretical development, Planck saw it through its practicaldevelopment.The Lay of the Imperial LandThe vital importance of giving close scrutiny to language and the grammatical arrangementof words in order to decipher the deep meaning of law and legislationcannot be emphasized enough. Legal language, even where claim is made to the vernacularof the people, remains highly technical, and any analysis, historical or otherwise,must necessarily begin with what the law says, although its full meaning mayonly become apparent in its life of adjudication. Equally as important as what the lawsays is what the law does not say; its silences or gaps may be as important as its writtenwords. In this regard, at least, the Bismarckian constitution was an open-endedmasterpiece.As early as 1868, Bismarck expressed to Eulenburg his opinion that the Reichstagwas a parliamentary body ‘whose reinforcement is at present the most importanttask of Prussian policy’. 27 ‘Toward this end’, as Pflanze suggested, ‘he permitted andeven encouraged the expansion of its legislative competence and the exploitation ofthat competence in the first decade of its existence’. 28 As the Saxon envoy in Berlin,Koennerizt soon observed from Bismarck’s actions, ‘Prussia will eventually mergeinto Germany and not the reverse’. 29 Prussian ministers complained that Bismarckwas ‘ruining the entire Prussian state’, and the Hessian minister-president wrote thatthey were seething with dissatisfaction. 30 As for the Kaiser, Bismarck remarked toHohenlohe that he ‘must above all become accustomed to seeing that he is moreimportant as Kaiser than as King of Prussia’. 31In German historiography, to some degree, Bismarck’s legacy has shared a similarfate as that of Savigny, but here, also, there is some indication of conservativeliberalism. Pflanze, for example, suggested that he equated republicanism with parliamentaryrule and monarchism with the constitutional system of mixed powers. ‘Ofall the experiments that have taken place in the sphere of politics since Montesquieuand others,’ as Pflanze cites Bismarck’s comments in 1884, ‘the only truly usefulresult is the [concept of the separation of powers] between the executive, legislature,and judiciary.’ 32 No more fundamental articulation of the modern conception of thestate could be uttered, and there was no ideological requirement that such branches