The disintegration of the German nation

The German constitutional developments between 1945 and 1948 were oriented by the will of the Allied Powers to undermine the German nation. Somehow the idea of the constituent power observed in the German process may be qualified as the contrary of what Sieyes exposed in his theory: if according to Sieyes the constituent power relied on the nation, the Allied Powers undertook, instead, the mission to build a political structure without a nation, or to be more precise, they designed a constitutional framework while they were demolishing the German national structures existing until the end of the war.

The strategy of disbanding the German nation activated from die Stunde Null, however, persisted in the constitutional proposals that would crystallize in the 1949 Basic Law. The new constitutional system represented a refusal of the ethnic and cultural perception of the nation that had flourished from the Romantic movement between the end of the eighteenth and the nineteenth century, and to which the Nazis added supremacist attributes. That concept of nation had, furthermore, its territorial consequences since it encompassed not only the ethnic German inhabitants within the borders of the Reich existing before 1945 (which included Eastern Prussia or Silesia) but also the Austrians and the ethnic and cultural Germans (die Volksdeutsche) that had lived for generations in vast territories of Eastern Europe (from the Sudetes in what is now the Czech Republic to the Baltic States or Ukraine) and it was precisely such a territorially expanded idea of Germany that the Allies sought to take down in the first stance through the political decisions that they adopted.

Plans for dismembering Germany had already been formulated in the midst of the war (see Backer, 1981, pp. 23-32; Graml, 1983, pp. 23-31; Stolleis, 2003, p. 275; and Vogel, 1967). As early as in the Moscow Conference of October 1943, which brought together the Allied Ministers of Foreign Affairs, and in the summit of the Allied leaders in Teheran (November 28-December 1, 1943) was outlined the Soviet annexation of a part of Eastern Prussia, Polish administration in some of the Eastern German territories, the internationalization of the Ruhr and Saarland or the control of Hamburg and the Kiel Canal in Western Allied

Constituent power without “We the People” 139 hands. “Decentralization” of Germany was already a keyword used in the Tehran Conference while referring to the political organization of the future Germany (Stolleis, 2003, p. 275). Later on, the London Protocol of September 12, 1944, went forward in the partition of the Reich, confirming the Soviet administration of Eastern Prussia, the Polish administration of a part of Pomerania and the Upper Silesia, the control of Bremen and Bremerhaven by the Americans, Austria's independence, or the establishment of three zones within the German borders of 1937.

But even more relevant than the Allies' attitude towards the German nation was that the spirit of overcoming the ethno-cultural approach was internalized by the Germans themselves and would decisively mark German political culture until our times in terms of intellectual creation, such as the idea of Constitutional Patriotism (Verfassungspatriotismus) that are only understandable considering the context of the total defeat of Germany in 1945, and the enormous moral burden that the actions of a German nationalistic regime transmitted to the fol­lowing generations of Germans.⁵

The constitutional rules established after the Second World War, in summary, reflected the intention to hamper forever the resurrection of a unified and strong German nation.

A nation of refugees

The Allies carved up, territorially, the annexations carried out by the Reich and the Nazis but, ironically, due to the waves of German refugees coming from Eastern Europe, postwar Western Germany achieved in the long run the goal of cultural and ethnic homogeneity that Hitler had envisaged, though on a smaller scale. Some historians such as Mark Mazower (2008, p. 63) or Toni Judt (2000, p. 298) suggested that the ethnically purified model of the nation-State that stems from the massive deportations of the 1940s contributed to postwar political stability in some countries of Central and Eastern Europe including Western Germany. According to such authors, internal cohesion would also later lay the groundwork for integration into supranational organizations, as was the case of the European Union.

But the final outcome would not be achieved without a preliminary phase of profound German internal divisions and an immense amount of outrages, including the perishing of at least half a million Germans in the three different phases in which the removals occurred (the evacuation organized by the Nazi government in the face of the Red Army advance, the chaotic fleeing immediately following the unravelling of the Third Reich, and the expulsions decided by the Allies from the former German territories transferred to Poland, Russia, or Czechoslovakia).

The landscape that the newcomers found was daunting: since most of the German cities had been reduced to rubble by Allied bombing, the country's infrastructure was unable to offer shelter, medical aid, or food after their journey (Lowe, 2013, p. 244). Some, the most vulnerable, were interned in refugee camps for several years (De Zayas, 2006, p.

Given the misery in which everybody had to live, conflicts between the native population and the deported spread in several places. On the one hand, the refugees were bitter over the fact that the natives enjoyed better housing, jobs, and living conditions. The native population, on the other hand, often regarded the refugees as unwanted additional burdens to be housed, fed, and clothed at a time when existing supplies did not meet the elementary demands of the resident population (Fischer, 1974, p. 95) The Volksdeutsche, in spite of the former Nazi propaganda and the fact that the 1949 Basic Law would recognize them as German citizens (Article 116 of the Basic Law) were sometimes regarded as foreigners by other Germans. They themselves did not recognize Western Germany as their home and their alienation from the political community went to the extent of founding a party, the Union of Expellees and Dispossessed (Block der Heimatvertriebenen und Entrechteten: BHE), more commonly known as the Refugee Party, that in the 1953 Federal election entered the Bundestag Parliament with 27 seats and became coalition partner in Adenauer's second cabinet.

The path of the German refugees from Eastern Europe ended with assimilation but it might not have been so if Adenauer had not acted with shrewdness when the Refugee Party reached its high point in 1953. Had the Chancellor not brought about the decline of that force by breaking it up and bringing one faction to his Christian Democratic party, those millions of German refugees might have jeopardized the very foundations of the new Republic (Mazower, 2000, p.

The refugees' final integration into Western Germany had another postponed consequence by the time of the German reunification that up to now is still maintained: the German government's complete relinquishing of the territories east of the Oder-Neisse line that before 1945 were inhabited by a large German population. The conclusion of the German-Polish Treaty in 1990 covered by the treaty between Western and Eastern Germany and the Allied Powers that allowed reunification (the Treaty on the Final Settlement with Respect to Germany or the “Two Plus Four” Agreement) signified the legal certification, with its constitutional reverberations in terms of institutional settlement, of one face of the national dismemberment that the Allies had planned by 1944-1945.

The two Germanies

The decision to go ahead in building the German Federal Republic was somehow the answer of the Western Allies at the end of the London Six-Power Conference, by February 1948, once the relations with the Soviet Union were irreversibly broken by the Communist takeover in Czechoslovakia, the withdrawal of the Soviet delegation from Berlin's Allied command, and the beginning of the Berlin-Blockade (Mufignung, 2003, pp. 321-322). But the Western movement towards a divided Germany had not only been inspired by the Soviet shadow. The willingness of the Americans, the British, and, especially, the French to keep Germany divided had also been a motivation to act beyond Soviet initiatives. In fact, as we shall see, the Soviet challenge triggered the American and British efforts to build a more centralized Western Germany than they originally planned and that the French rejected at first (Hahn, 1995, pp. 14-17).

Already during the war in 1944, and while the Allies seemed to be approaching victory, the Americans conceived a plan for a future defeated Germany which included not only the total destruction of Germany's industrial power and its reduction to a rural economy, but also the division of the country in two sides.

I have noticed that among the Allies the will to territorially divide Germany was coupled, looking back at the Weimar experience, with their plans to avoid such mechanisms in the constitutional design that might eventually enable the Germans to participate by direct democratic means. But the circumstance of the German division between the Western and the Eastern zone also explained the unwillingness to include devices of popular direct participation in the constituent process on the part of the German representatives. Since the Western German negotiators during the Basic Law drafting did not want to identify the Western constituent initiative with the acceptance of the definitive partition of Germany, they were also suspicious towards any expression of popular participation prone to confirm that the popular basis of the German Federal Republic were only the Western Germans (Preuss, 2006-2007, p. 476). The latter may justify, for instance, that even the Occupation Powers in the West were likely to conceive a popular referendum as a final stage in the approval of the German Basic Law. Those who set out the strongest objections against such a referendum on the ratification of the Basic Law were precisely the German politicians [to the extent that such a disagreement on the constitution-making procedure and the involvement of the Western German People almost led to the collapse of the Allied-German negotiations (Markovits, 2008, p. 1309)]. The locals, thus, were mainly motivated by the aim of national division, and as such were those who avoided any full democratic legitimation of the new charter which, as we shall see, was only passed by the ratifying vote of the Lander's assemblies.

Fragmenting the nation through federalism

But probably the main strike to the notion of the German nation was represented by the Western Allied imposition of federalism. After the war, some of the new Lander had been artificially outlined since they did not reflect the territorial enti­ties existing under the Weimar Constitution or even during the empire. The most powerful of them (Prussia) was eliminated⁷ and besides the recognition of their role of constituent agents they were chiefly conceived to counterweight the future federation. One evidence of the Lander’s relevance vis-a-vis the federation was that the Basic Law would prohibit any constitutional amendment related both to the abolition of the division between the Bund and the Lander and to jeopardize the Lander’s participation in the federal legislative process [Article 79.3 of the Basic Law (see Blank, 1995)]. While in the United States federalism was motivated by the urge to create a strong national government, in postwar Germany the Allies saw in federalism a way to contain the empowerment of the centre.

As I have remarked, a decentralized Germany had been the option proposed by the Allies already in the conferences celebrated during the war and it was reiterated in Potsdam (Friedrich, 1949a, p. 465). Among Western Allies circulated the idea of splitting Germany into small States and establishing weak ties among them limited to economic and foreign policy. Though the French did not participate in said conferences, they were the main supporters of such a German confederation (Mufignung, 2003, p. 321; Spevack, 2001, p. 116). After all, a centralist and militarized Germany had invaded their country⁸ and they were obsessed with preventing such a situation from happening again. By contrast, Stalin, before his rupture with the Western Allies, was not completely opposed to a more centralized German postwar government since he deemed that a neutral but united Germany in a first phase would be easier to turn into a socialist State. But, as I have said, it was precisely the entrenchment of the Soviet Union’s position in Eastern Europe, including its German occupied zone, that was the reason that compelled the Americans and the British to depart from the confederative plans for Germany that the French so warmly supported. It was necessary to reshape their respective occupied zones into a stronger entity, with a central Parliament elected by universal suffrage and a federal executive, able to raise itself as a stronghold of free market liberal democracy in Central Europe (Hahn, 1995, p. 16).

The Lander, thus, would become the main channel of German local involvement in the 1949 Basic Law drafting process, but such participation

Constituent power without “We the People” 143 would be developed through levels of representation distant from the citizenry. While it is true that popular participation was more intense in the drafting of the previous Lander constitutions [to the extent that even there were examples of referenda in ratifying the texts passed by the Lander parliaments, as happened in Bavaria, Hessen (both referenda took place on December 1, 1946) and Rhineland-Palatinate (referendum of May 18, 1947)] it cannot be omitted that the settlement of German's postwar Lander had been all along supervised by the occupying forces in their respective assigned zones. As Ulrich Preuss admitted (2006-2007, pp. 475-476), the peoples in the Lander did not strictly speaking exercise their constituent power when they enacted constitutions because the supreme authority was vested, with full effect in international law, either jointly with the Allied Powers or with any one of them in respect of the part of the German territory placed under its administration. The Western Allied Powers, indeed, decided, as I have mentioned before, on some Lander’s borders, contributed decisively in the determination of the Lander’s constitutional framework (Fait, 1985; Lewis, 1948), and even vetoed some excessively centrifugal trends, as was shown by the American attitude towards Bavarian separatism (Hahn, 1995, p. 10; Spevack, 2001, p. 102).

Once it was decided by the occupants to organize a central government in Western Germany, the Lander’s assemblies were the bodies that appointed the representatives that would gather themselves in the kind of constitutional Convention that would discuss the German Basic Law: the Parliamentarian Council (der Parlamentarische Rat). The German citizenry, thus, did not participate at any level in the 1949 German federal constitution-making process. Although the members of the Lander’s assemblies had been elected by the people of each State, the drafting of a Federal Constitution was not an issue when elections took place between 1946 and 1947 (Neuberg, 2001), at which the citizenry could not choose between eventual constituent ideas proposed by the different parties that participated in the electoral contest. As Donald Kommers explained (quoted by Ackerman, 2015, p. 711), opinion polls of that time showed that a majority of the respondents were not even aware of the Parliamentary Council's existence. In May 1949, a survey found that two-thirds of the respondents were not sure what the Basic Law was.

It may be argued that, as I have explained in the previous chapter, the lack of popular involvement in 1949 Germany was not so distant in comparison with what happened in the American States by 1787 when the delegates appointed by the States’ legislatures met at Philadelphia after the Continental Congress called for a constitutional Convention. However, at least in the America of the eighteenth century, the citizenry of the States had the opportunity, disregarding the manoeuvres of the Federalists, to choose representatives for the State Conventions whereby the ratification of the constitutional proposal was discussed. In the Western Germany of 1949, there were no specially elected Conventions in the Lander to deliberate on the draft passed by the members of the Parliamentarian Council. The proposal went to the same bodies (the Lander’s legislatures) that had appointed the delegates and proceeded to the debate on

ratification (Mufignung, 2003, p. 255; Schneider, 1992, p. 22). Also different from the American experience (aside from the resistance shown by Rhode Island which in the end ratified the Federal Constitution) in Germany there was one major Land that never ratified the Basic Law: Bavaria.⁹ Since the Bonner draft established that the consent of two-thirds of the Lander would be sufficient to enter into force (Article 144 of the Basic Law) it was considered that a Bavarian legislative supporting vote would not be needed in order to give birth to the German Federal Republic. It was scarcely argued if the German federation might anyhow run leaving Bavaria aside as it was likely to have been in America if Rhode Island had not ratified the Federal Constitution. It was taken for granted that Bavaria was a part of the new German federation without considering the fact that the integration was not supported by any democratic argument. Only afterwards, when the Bavarian people participated in the first elections to the Bundestag, as they have been doing since then, can the democratic legitimacy of Bavarian belonging to the German federation be appreciated. Certainly, the participation of the Germans in ordinary elections to the Bundestag would be repeatedly invoked to silence the objections to the weakness of the German constitution-making process. But I shall later isolate some of the problems entailing such a strategy of appealing to the day-to-day democratic procedures in order to conceal the democratic lack of the founding moment.

The position of the Lander concerning the federal constituent process might be summarized by observing that:

1. on the one hand, the system recognized the Lander as constituent agents. The Parliamentarian Council was composed by delegates chosen by the Lander legislatures, the constituent draft had to be ratified by at least two- thirds of those entities, and the division between the federation and the Lander was intangible to future constitutional amendments.

2. on the other hand, federalism, as was going to be constant in German postwar constitutionalism, represented a mechanism to tame democracy to the extent that the constitutional system might be applied to a space in which its inhabitants did not support the Basic Law by democratic means (neither directly nor indirectly). Federalism was also seen as a safeguard against the resurrection of the German nation expressed by the democratic will of a single people (Dietze, 1960, p. 130). Due to the problem regarding the division between Western and Eastern Germany, the German drafters themselves refused to attribute the constitutional decision to a performance exercised by the German citizenry considered in its entirety. But from the preamble of the Basic Law in 1949 may be inferred a reluctance as well to recognize the involvement of the People in grounding the Federal Republic independently from the Lander. The latter may be noticed from the mention of the People as a subject that lies “in the Lander” [the expression “in the Lander” was not even changed when the preamble was amended in 1990 with reunification].¹⁰ In a different sense to the American case, it is not the “We the People” who introduces an idea of unity beyond the fragmentation of the States (and, as

Constituent power without “We the People” 145 we have seen, a source of popular legitimacy upon the States) but in Germany the States were outlined as barriers of the people's scope of action.

3. even considering the Land a pillar of the Western German constitutional order, its will did not mean much, as the Bavarian case made clear, because what mattered was the will of the powers that occupied Bavaria at that time and the Americans wanted a territory that bordered the Communist bloc to be inside Western Germany whether the Bavarian representatives voted in favour or not.

That last point leads me to tackle the structure of power that materially founded the German constituent process in 1949: the Western Allied Powers.