Part 23 (1/2)

It is the people themselves, however, to whom the supreme power is given, or, perhaps better expressed, who have reserved the supreme power for themselves by extensive provisions for referendum and initiative. In addition to the provisions for referendum already referred to, the President can decree, within one month after its pa.s.sage, that any law enacted by the Reichstag shall be referred to the people.

The law-giving powers delegated to the Reichstag can also be exercised directly by the people. One-twentieth of the registered voters can require that a referendum be held on any Reichstag enactment against whose formal proclamation as law at least one-third of the Reichstag members shall have protested. One-tenth of the registered voters can present the draft of a legislative measure and demand that it be referred to a general election. The Reichstag can prevent the holding of such a referendum only by adopting the proposed measure unchanged.

Enactments of the Reichstag can be declared invalid by referendum only by the vote of a majority of a majority of all registered voters. Only the President can order that a referendum be held on the national budgets, customs and taxation, and salaries of officials and civil servants. No initiative is possible as to these things.

The people's initiative was one of the various concessions to the Socialists of which more will be said later. It was not contemplated by the framers of the original drafts of the const.i.tution and was introduced at a late period in the deliberations.

The provisions regulating the amendment of the const.i.tution are more definite than those of the United States const.i.tution, and they also make it possible for the voters to make their will known by the democratic method of the direct ballot.[77] Amendments originating with the Reichstag or government may be adopted by the same procedure as is prescribed for ordinary legislative measures, except that two-thirds of two-thirds of all members, i.e., four-ninths of the whole house, must vote for them.[78] A tenth of the registered voters of the country may present a draft of a proposed amendment, as is provided for ordinary bills, and this amendment must be referred to a vote of the people unless the Reichstag adopt it unchanged. For the adoption of an amendment by referendum the affirmative vote of a majority of the registered voters is required.[79]

[77] The United States Supreme Court has decided that the const.i.tutional requirement of a vote of ”two-thirds of both houses” (art. v) for amendments does not mean two-thirds of both houses, but merely two-thirds of a quorum of both houses. It has further decided that the people of the various states have no right to vote directly upon const.i.tutional amendments; they are confined to indirect representation through their legislatures.

[78] Every European people regards its const.i.tution merely as a fundamental law, and ascribes no sacrosanct character to it.

Hence the departure from the American requirement of an affirmative vote of three-fourths of the states. On the other hand, the framers of the Weimar const.i.tution, by providing for a direct vote of the people, rendered it impossible for an aggressive and unscrupulous minority to force through an amendment against the wishes of a majority of the people.

[79] The question of the return of the monarchy in some form is and will be for some years chiefly of academic interest, but it will be noted that, from a purely juristic viewpoint, a monarchy can be re-established at any time by a bare majority of all German men and women twenty years of age or over, and that one-tenth of the voters, or somewhat less than four millions, could at any time force a vote on the question.

Seven articles deal with the judicial department of the government. They make no important changes from the old const.i.tution, except that courts-martial are forbidden except in time of war or aboard wars.h.i.+ps.

An attempt by the parties of the Left to do away with state courts and place the dispensing of justice solely in the hands of the federal courts failed.

The second ”main division” of the const.i.tution deals with the ”fundamental rights and fundamental duties of the Germans.” Excluding fifteen ”transitional and concluding decrees,” the const.i.tution contains 165 articles. No less than 56 of these, or more than one-third, are devoted to sections bearing the following t.i.tles:

The individual; social life; religion and religious societies; education and school; economic life.

The first ten articles, dealing with the individual, begin by declaring the equality of all Germans before the law. All t.i.tles of n.o.bility are abolished, but they may be borne hereafter as parts of a name. Orders and decorations may not be conferred by the state, and ”no German may accept t.i.tles or orders from a foreign government.”[80] That part of the Bill of Rights contained in amendments i, iv, vi, and xiv of the American const.i.tution is taken over in effect, but with much enlargement of the rights of the individual. Thus, to the provision for freedom of speech and the press is added the declaration that ”no employment or salaried relation shall deprive any person of this right, and no person may prejudice him for making use of this right.” Later, in the articles dealing with economic life, it is further provided:

[80] This goes even farther than the American const.i.tution, which provides merely that ”no person holding any office of profit or trust” under the federal government shall, without the consent of Congress, accept any present or t.i.tle from a foreign power. (Art. I, sect. 9, par. 8.)

”Freedom to a.s.sociate for the protection and furthering of labor and economic conditions is guaranteed to every person and for all callings. All agreements and measures which endeavor to restrict or prevent the exercise of this freedom are illegal.[81]

[81] Under this provision workmen cannot be required to sign contracts binding them not to join labor-unions, nor can employers contract with each other not to hire members of such unions.

A right to the protection of the Reich as against foreign countries is expressly granted ”to all nationals of the Reich both within and without the territory of the Reich.”[82] Nor may any German be delivered up to a foreign nation for prosecution or punishment. It is expressly provided that men and women ”have, in principle, the same rights and duties.” The right to a.s.semble peaceably without previous notification or permission is granted--a flat contrast to the situation under the monarchy--but the Reichstag is empowered to enact a law requiring previous notification of such a.s.semblages if they are to be held outdoors, and may prohibit them in case the public safety be threatened.

[82] This, too, is a departure from the American model. An American citizen has no const.i.tutional right to the protection of his government while he is without the country.

Up to this point the Weimar const.i.tution does not present any marked evidence of the circ.u.mstances under which it came into being. In comparison with the imperial const.i.tution it may fairly be regarded as revolutionary, but considered by itself it is merely an advancedly democratic instrument with provisions insuring thoroughly parliamentary government in the best sense of the word. It is not until one reaches the articles dealing with social and economic life, the church and the school that the traces of Socialist influence become unmistakable.

There, however, they are found on every page, beginning with the declaration that ”motherhood has a right to the protection and care of the state,” followed by an article providing that ”illegitimate children are to be granted by legislation the same conditions for their bodily, mental and social development as are granted to legitimate children.”

Essentially, of course, neither provision is especially Socialistic, but both really represent a compromise with the parties of the Left. The Majority Socialists tried to have an article inserted giving to illegitimate children full rights of inheritance with legitimate children of their father's estate, and the right to bear his name. The motion was defeated, 167 to 129 votes. The Independent Socialists wanted a provision protecting women civil servants who become mothers of illegitimate children, and granting them the right to be addressed as _Frau_ (Mrs.) instead of _Fraulein_ (Miss). This, too, was defeated.

Other articles due to Socialist advocacy, some of a princ.i.p.al nature, others merely doctrinaire, are:

Providing that legal rights may not be refused to any a.s.sociation because it has a political, politico-social or religious aim;

Providing that ”no person is obliged to state his religious belief”;

Disestablis.h.i.+ng the state church;

Providing for secular (non-religious) schools, freeing teachers from the duty to give religious instruction, and permitting parents or guardians to free their children from religious instruction;