POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY AND PRACTICE OF WEIMAR CONSTITUTIONALISM by Peter C. Caldwell. Durham, NC: Duke University Press, 1997. 300 pp. $49.95 Cloth. $17.95 Paper. ISBN 0-8223-1988-8.

Reviewed by Kenneth Holland, Department of Political Science, The University of Memphis.
 

The thesis of this important contribution to our understanding of the failure of liberalism to take root in Germany in the 1920s is that anti-liberal conceptions of constitutionalism prevailed in the debate among constitutional scholars during the Weimar period. The work is a breath of fresh air for American students of constitutional theory, because the current debates over the U. S. Constitution’s meaning take for granted such fundamental questions as popular sovereignty and the legitimacy of the welfare state. The book also contributes to the understanding of the basic law of the Federal Republic of Germany, since the 1949 document embodies one of the theories rejected by the German courts and government in 1932. Caldwell also points to the alarming rise in Germany since reunification in 1990 of anti-liberal theories of the constitution on both the left and the right of the political spectrum, theories first developed during the great theoretical debates spawned by the Weimar constitution.

The author’s method was to identify the major players in these debates, read their work, and summarize their conflicting conceptions of constitutionalism. The summaries are remarkably clear and concise. Caldwell has rendered an invaluable service to constitutional scholars, since most of this work is not accessible to the English-speaking world. He analyzes the writings of six participants in the debate over the Weimar constitution’s nature and meaning. Hugo Preuss and Hans Kelsen presented liberal views of constitutionalism, defending the view that the constitution as a political act constituted the German people. The people could never act outside the constitution since they did not exist independently of it. Preuss and Kelsen were legal positivists. They argued that all authority had to be traced to the constitution. They valued the rule of law and adherence to legal procedures in all cases. In John Austin’s words, law is the will of the sovereign backed by force. Other liberals, such as Rudolf Smend and Heinrich Triepel, regarded positivism as a defective conception of constitutionalism because it attempted to separate law from morality. They emphasized the grounding of the Weimar constitution in principles of natural law, suggesting that there was an unwritten constitution on which the written document was based and from which it acquired its legitimacy. The German people, they contended, are defined by their commitment to these inviolable principles of right. For Smend and Triepel, constitutional rights become constitutional values, which impose positive obligations upon government to take action to aid the individual and not just negative restraints upon government.

Hermann Heller regarded the constitution in class terms. The Weimar constitution guaranteed substantial social equality and required the redistribution of wealth to sustain an effective welfare system. Although a leftist, Heller rejected Marxist theories of constitutionalism, according to which law always serves the interest of the ruling class and is inevitably a means of repression of the working class. The Weimar constitution, claimed Heller, combined protections for private property with a commitment to popular sovereignty and social justice.

The theory that prevailed, however, discounted the rule of law, individual rights and social justice. What was more valuable, according to theorists such as Carl Schmitt, was the will of the German people, conceived of as a homogeneous racial group with deep attachment to the soil and united by biological ties. In a parliamentary system the leader of the political party with the largest number of seats in the parliament, the chancellor, negotiates with his own party members and the members of the opposition parties to enact legislation. Schmitt declaimed that the president’s duty was not to defer to the outcome of this haggling by self-interested groups but to personify the people and to act in their interest as he perceived it. Constitutional and statutory restrictions on the president’s powers, he said, could be ignored in times of emergency. The survival and health of the Aryan nation was paramount. Schmitt’s constitutionalism left no room for judicial review, because the judges had no authority to question either the legislature or the president. Their task was simply to apply the law as it came to them from the lawmaker.

These competing theories came face to face in one of the most portentous trials of German history. In order to purge socialist ministers from the Prussian state government, who were suppressing Nazi activity, federal Chancellor Franz von Papen in 1932 by emergency decree declared himself Imperial Commisar for Prussia, replaced the head of the Berlin police, dismissed the socialist ministers, fired civil servants and appointed Prussia’s representative to the upper house of the federal parliament. The Prussian ministers, the Socialist and Catholic Parties and the states of Bavaria and Baden filed a complaint in the State Court, a tribunal whose only function was to decide matters of constitutional law, a precursor of the German Constitutional Court. After six days of arguments from the country’s leading constitutional scholars, including Schmitt and Heller, the justices of the State Court issued a judgment sustaining the chancellor’s actions. Although the court said it was not the function of the judiciary to review discretionary actions by the executive, the right attacked its judgment. The chancellor should not be required to appear before a court of law, they said, to justify acts he deemed necessary to protect the German nation. A few months later, President Paul von Hindenburg asked the leader of the National Socialist Party, Adolf Hitler, to form the government. Quickly the Fuehrer principle replaced constitutionalism and the rule of law as the basis of authority.

An account of these events highlights the main institutions established by the West German Basic Law, whose framers were determined not to repeat the mistakes of those who designed and interpreted the Weimar constitution. The Basic Law limits the role of plebiscites, restricts the power of the president, eliminates the power of the parliament to paralyze the government, divides power between the federation and the states, asserts the supremacy of individual rights over both the legislature and the executive, and empowers the Constitutional Court to enforce these guarantees through the power of judicial review. The framers, in their words, created a "fighting democracy." The Constitutional Court, for instance, can ban political parties committed to illiberal platforms, a power it has exercised twice--against the Communists and the Neo-Nazis.

Another interesting revelation is the author’s summary of Triepel’s brief submitted to the Imperial Court in 1924. In response to the hyper-inflation gripping Germany, the government revalued the currency. As a result of the revalution, creditors lost large percentages of their wealth. In his brief Triepel rejected both legal positivism and the doctrine of emergency power. He called upon the court to conceive of property as a "bundle of rights" each aspect of which had to be respected by the government. The modern welfare state, he said, can deprive an owner of his property not simply by physical confiscation but also by regulations intended to benefit the general public. To be just, such "regulatory takings" require compensation. Triepel maintained that such a concept of rights could only be realized by an activist judiciary empowered with judicial review. Such prominent constitutional theorists as U. S. Supreme Court Justice Antonin Scalia adopted this expanded view of property in the 1980s.

Although an analysis of sometimes highly abstract debates among German constitutional scholars in the 1920s, the book sheds light on contemporary constitutional debates in both the United States and Germany. In both countries, calls are heard for the view that the constitution’s foundation lies in a pre-constitutional homogeneity.

Reactionary conservatives describe Germany and the United States Christian nations, as white nations, as nations grounded in long-standing religious and racial traditions. Communitarianism, however, is not the sole province of the right. Some theorists on the left point to the existence of a pre-constitutional community united by commitment to principles of republican virtue. The constitution, they say, is more than merely procedures for reaching decisions and protections for property and other individual rights. Other critics point to the unjustified and meddlesome interference by the U. S. Supreme Court and the German Constitutional Court in sensitive matters better left to the people to decide through the political process. Judicial frustration of the majority’s will, they say, is inconsistent with the constitution as the people’s incarnation.

Federalism remains controversial in both systems, attacked mostly by the left in the United States and Germany, who prefer highly centralized government. Caldwell reminds both Germans and Americans that the institutions they take for granted--constitutionalism, the rule of law, federalism, pluralism, parliamentary democracy and judicial review—have thoughtful critics on the left and right and to survive must be defended by knowledgeable citizens armed with reasoned arguments rather than bullets.