Making of a German Constitution : a Slow Revolution

Conclusion • 259supremacy of the monarchical principle. Article 11 specifically read that ‘the Kingof Prussia shall hold the Präsidium (presidency) of the Bund, and shall have the titleof German Emperor,’ and over time this was legislated into reality. The final form ofthe German constitution remained an open question in 1871, and how that questionwas answered was wholly dependent, not only on the character and content of thelegislation, but also on public opinion. This in turn contributed to a latent primacy ofthe legislative branch in German politics and constitutional formation.Although the Kaiser attempted to reassert personal rule in the 1890s, this positionin the Reich was in progressive decline almost from its inception and declinesped up as soon as Wilhelm II ascended the throne of Prussia. In addition, withpublic relations nightmare after public relations nightmare, every major piece oflegislation that passed the Bundesrat and Reichstag clipped away at his domesticauthority. By the time public criticism mounted against him in the 1890s, his abilityto act was limited by the Reichsjustizgesetze, the leniency of the Strafgesetzbuch onMajestätsbeleidigung and, above all, by the reluctance of jurors and judges to holddefendants accountable. Increasingly, criticism of the Kaiser took on the languageof legalism and held dire consequences for his position, particularly under §6 of theBGB. No doubt the memory of King Frederick Wilhelm IV having been declaredinsane and removed from the throne loomed large. More than the BGB, however,its Einführungsgesetz fundamentally deprived the Kaiser of traditional realms ofpower. Alsace-Lorraine became a state and its citizens were given the full benefitsof bürgerliche legal protections, giving the Reichstag and Bundesrat some measureof jurisdiction. This certainly became apparent during the notorious Zabern Affair,when the offenders were hauled before the Reichstag and the army’s constitutionaltransgressions were redressed. 29It is no accident of history that Tirpitz was brought on board in 1897, and that it isdirectly in the aftermath of the BGB that we may locate the beginning of Weltpolitik.It was precisely a ‘feeling of suffering a loss of power’ which aroused the Kaiser’s‘determination to defend his [monarchical] right, if necessary by force’. 30 Yet,historians have generally pointed toward the rise of this sentiment in the years immediatelyprior to the First World War. In fact, however, the Kaiser’s and his entourage’srising anxiety about his domestic power may be located in the immediate aftermathof the enactment of the BGB, as Eulenburg’s comments that open this conclusionclearly indicate. As one scholar has noted: ‘By 1913 the question of civil war andforeign war had indeed become the two sides of the same coin in the minds of theKaiser and his advisers.’ 31 The crisis of the monarchy reached the breaking point in1896, when the BGB and Einführungsgesetz severely clipped the kaiser’s wings.After 1896 there was one—and only one—loophole in the constitutional systemthat might be exploited as an avenue for personal rule, and this was through the imminentthreat provisions of Article 68. It read: ‘The Emperor shall have the power, if thepublic security of the Empire demands it, to declare martial law in any part thereof.Until the publication of a law regulating the grounds, the form of announcement and