Making of a German Constitution : a Slow Revolution

258 • The Making of a German Constitutionof minor children. Beneath what appeared to be a century of promise, however, regressivetendencies were evident in private law scholarship and in appeals courts’decisions, courts that increasingly fell into the hands of liberal judges.One of the remarkable aspects of the making of revolution in Germany is thatconstitutional transformation was carried forward across generations. Gottlieb Planck,for example, was an important link in the chain of constitutional transformation andhe clearly articulated his commitment to legislative revolution in the 1848 letter tohis parents. More than this, however, Planck was a liberal veteran of mid-centuryconstitutional conflicts. He was born into a liberal family of Hanoverian scholars;indeed, his father, Wilhelm Planck, had been an influential jurist, who worked onthe Hanover procedural legislation with Adolf Leonhardt. In addition, the significantinfluence of the Planck family must be taken into consideration. They were originallyfrom Württemberg. Gottlieb Planck’s uncle was Julius Planck and the famousphysicist, Max, and his brother, Hugo were his first cousins. Considering that HugoPlanck was Chief Justice of the Reichsgericht, one can see that Gottlieb Planck’sability to influence, not only the making, but the interpretation of the law was farreaching.The influence of liberalism was already apparent in Planck’s education. At theUniversity of Göttingen, he formed important political friendships, such as that withRudolf von Bennigsen. Amongst a collection of courses with clearly liberal orientation,Planck studied German private law with the Germanist, Wilhelm Kraut. Bymid century, he suffered from disciplinary transfer after disciplinary transfer for hisliberal agitation, a road he often shared with his good friend Bennigsen. Their generationno longer viewed themselves as Fürstendiener; rather they were the peoplebehind the powerful movement of institutional change and modern state-building,which had a major importance for the place of the bourgeoisie in German society. 24Unlike the earlier generation of liberal legal scholars, the second generation had beenencouraged to seek careers in the civil service and represented a second phase inGervinus’s path of legalism. This is an important point, because some historians havepersisted in viewing the bureaucracy as a conservative force in Central Europeansociety. 25 At the same time, Werner Conze, James Retallack and others have foundthat at the local and town level, the liberal spirit survived during the Restoration andthat the bourgeoisie was more powerful than had been assumed. 26The key to constitutional transformation after the founding of the Reich wasthe Bundesrat’s and Reichstag’s acquisition of Kompetenz-Kompetenz. 27 Indeed,this might just as well be termed jurisdiction-jurisdiction. No statute passed by theBundesrat and Reichstag could later be pronounced unconstitutional, whether or notit conformed to, altered or amended the constitution. The Bundesrat and the Reichtagheld the power to extend the competence of the Reich by simple legislation, andas a result there were significant changes to the constitution over time. There wereimportant formal amendments, such as the Lex Miquel-Lasker, but most of the transformationwas informal. 28 The constitution was flexible, and it did not cement the