Making of a German Constitution : a Slow Revolution

Last Bastion • 195be equal, as their functions were not equal, but different. Bismarck was fascinated bythe English parliamentary system, and it offered an example of separation of powers.Given Bismarck’s hand in the growth of conservatism, there is cause for caution,but it is worth keeping in mind that in the face of an obstinate Wilhelm II, Bismarckwrote that ‘after experiencing how difficult ruling monarchs made it for their ministersto serve the country, one could almost become a republican’. 33Whether or not Bismarck was transformationist-minded or not, constitutionaltransformation was aided by his early cooperation with National Liberals in installingthe constitutional and legal avenues for the gradual formation of a representativestate. The key to transformation was the Bundesrat and Reichstag’s acquisition ofKompetenz-Kompetenz, as noted, in the early twentieth century, by Paul Laband andHeinrich Triepel amongst others. 34 Accordingly, the only distinction the constitutionmade between ordinary legislation and constitutional amendments was that the lattercould be defeated by fourteen negative votes in the Bundesrat. Kompetenz-Kompetenzallowed that no statute passed by the Bundesrat and the Reichstag could later bepronounced unconstitutional whether or not it conformed to, altered or amendedthe constitution. The Bundesrat and the Reichtag held the power to extend the competenceof the Reich by simple legislation, and as a result there were significantchanges to the constitution over time. While some of these changes were ‘formallywritten into the constitution’ such as the Lex Miquel-Lasker, ‘most were not’. 35 Thisis where Jellinek drew the distinction between constitutional amendment, a ‘changein the text through a purposeful act of will’, and constitutional transformation, ‘achange that allows the text to remain formally unchanged and is caused by facts thatneed not be accompanied by an intention or awareness of the change’. 36As Reichstag deputies and members of the Bundesrat were no doubt well aware,the 1871 Constitution of the German Empire was flexible, and it did not confirmthe supremacy of the monarchical principle. An indication of this was discerniblein the written Constitution’s silences and the order of priority of its construction. Itfirst sought to establish the Reich’s geographical boundaries and, then, in the discussionof legislation, essentially the Reich’s jurisdiction. It also addressed the realm ofthe Bundesrat, and not until section four did the question of the imperial office becomethe main subject. Article 11 specifically stated that ‘the King of Prussia shall hold thePräsidium (presidency) of the Bund, and shall have the title of German Emperor’. 37Even a strict constructionist interpretation would have held that the King of Prussiawas only the president of the confederation. His kingship was tied to Prussia aloneand emperor was merely a name devoid of any constitutional authority. ‘The ReichConstitution of 1871 did not renew the universal imperium of the Holy RomanEmpire’; rather, as Ernst Huber wrote some time ago, the old notion of the ‘Emperorof the Germans’ evolved into a conception of an imperial office as a symbol of nationalintegration and ‘an institution whose legitimacy and authority was based onthe common consciousness of the nation’. 38 ‘The Reich’, as such, ‘was a democracyand monarchy at the same time’. 39 It aimed to install the democratical, aristocratical