AN OVERVIEW OF THE GERMAN FEDERAL SYSTEM
Federal systems may share certain features, such as a central government serving a common territory but divided into a number of smaller territorial units headed by their own governments that have some degree of autonomy in the functions they exercise.
Federal systems, however, like parliamentary or presidential arrangements, can and do vary widely in a number of ways: with respect to the geographical size of the common territory (for example, the United States vs Switzerland); the number of territorial units; the ethnic, religious, and linguistic composition of the population and the extent to which people live in territorial units that contain mostly one group with a special identity; the scope of legislative and taxation competences; and other matters.3 Germany is not a large country geographically or, in comparison to many other federations, even in terms of population size. Nor is it made up of different ethnic groups with their own cultural identity, although some Bavarians might disagree. Germany is a federation primarily because of history.The old Holy Roman Empire was a unique league of princes and ecclesiastical leaders, not a state, and it was dissolved under pressure by Napoleon in 1806. The German Confederation emerged in 1815, consisting of thirty-nine mostly small states that formed a customs union in 1834 (which excluded Austria). In 1867 the North German Federation was formed by more than twenty German states (without Austria and Switzerland), and in 1871 the four independent South German states joined with these states to create a united Germany for the first time.4 The twenty-five states of the Bismarck Reich of 1871, which collapsed in 1918 at the end of World War I, were consolidated into seventeen states, now called Länder, with the formation of the Weimar Republic in the autumn of 1919, but these states were dissolved by Hitler during the Third Reich of 1933–45.
The Federal Republic of Germany, established in 1949 under a new democratic constitution, consisted of eleven Länder by the end of 1955 (West Berlin was technically under Allied control, but in practice it was a West German city-state, along with Bremen and Hamburg). Five new Länder were added in 1990, when East and West Germany were united (East and West Berlin were also united, and the whole of Berlin remained a city-state). Since 1990, then, Germany has consisted of sixteen Länder.5 There have been proposals and efforts to consolidate some of them (e.g., Berlin and Brandenburg in 1996) and to reduce the number to ten or twelve), but these efforts have failed, and the prospects for future consolidations are rather dim.6The five new Länder introduced constitutions that represented the third generation of Land constitutions. The first generation was characterized by “full constitutions” written before the federal constitution, or Basic Law, went into effect in 1949. The second generation, after 1949, focused more on organizational principles, relying on the Basic Law (Grundgesetz) for the protection of human rights. And the constitutions of the third generation were written after unification in 1990. While the third generation in the new Länder followed the Western models in large part, they were influenced far more by “modern values, ” including social rights and state goals that are not generally enforceable by law. Another feature of the constitutions in the new Länder was direct democracy, which exists in the old Länder as well; however, the new Länder generally followed the 1990 constitutional model of Schleswig-Holstein, which provided more generous provisions for referenda of various kinds. (There is no provision for referenda in the Basic Law, except in Article 29, which deals with the reorganization of Land boundaries.)7 While the Land constitutions of the third generation differed from those of the previous generations, the impact on the federal system was limited. More extensive changes would have to wait until the reforms of 1994 and, especially, the reforms of 2006 and 2009 discussed below.