Making of a German Constitution : a Slow Revolution

252 • The Making of a German Constitutionand Triepel. Jellinek’s Verfassungsänderung und Verfassungswandlung (1906) isparticularly instructive. He drew a distinction between constitutional amendment,‘change in the text of the constitution through a purposeful act of will’, and constitutionaltransformation, which ‘allows the text to remain formally unchanged and iscaused by facts that need not be accompanied by an intention or awareness of thechange’. 4 Closely connected with constitutional transformation was this idea of filling‘gaps in the constitution’. The historical experience, Jellinek wrote, ‘leads to therealization that every constitution is fraught with gaps, which often become evidentonly after a long time’, and with ‘such unexpected discoveries’, the task of the legislaturemay lead to constitutional transformation. 5Incomparably more instructive than all the constitutional transformations discussed,which take on one or another part of the constitution, are those that, without any suddendisruption of the state itself, completely destroy the existing state system and have astheir ultimate result the complete rebuilding of the state. Long periods of time and theeffect of great historical forces are necessary to give rise to something like this. If welook backwards through history we must grant, in astonishment, how even the most solidfoundations of a state entity upon which it rested, apparently unshakably, for many centuriescan crumble, shake, collapse, without the hand of a purposeful legislature havingshaken them. The doctrine of such slow death of a constitution has been little cultivated.It could die because the value of its institutions sinks so low that no one desires themanymore—that ultimately none can be found to place their wills in the service of suchinstitutions. 6Several points in Jellinek’s commentary stand out in the context of this study.Most notable is that fact that he perhaps was only able to recognize constitutionaltransformation because it had happened in his lifetime. The attributes of constitutionaltransformation he describes bear striking resemblance to the ideas articulatedin Gaetano Filangieri’s La Scienza della Legislazione (1784–1791), which shapedSavigny’s theory of politics and modern legislation articulated in Vom Beruf unsererZeit für Gesetzgebung und Rechtswissenschaft (1814). Filangieri wrote:‘The first step to be taken is to create in the public a wish for the proposed reformation.A change in the constitution of a country is not the work of a moment, and to prepare theway for it, the inclinations of the people should be gradually led towards it.’ ‘They’, hecontinued, ‘should be made fully sensible of the inefficacy of their established laws, andbe convinced their hardships and oppression are owing to them. The ablest writers shouldbe employed to state the errors and inconveniences of the old system, and the propriety aswell as the necessity of abolishing it, and adopting a more advantageous one.’ 7It was from here that Filangieri went on to offer an important alternative conceptionof revolution: ‘A decline of the legislative system is a political revolution, but a