The Privilege of the Will of the Founders and the Impotence of the Derived Pouvoir Constituant: The Example of the 4th Paragraph of Article 20 of the German Basic Law
The will of the original pouvoir constituant, due to its superiority to any other will, is sovereign and thus, it is the only power to determine the unamendable provisions. Consequently, the reason for the derived pouvoir constituants’ inability to violate the unamendable provisions of the Constitution stems from the respect which must be shown to the original pouvoir constituant.
3.1 The Source of the Hierarchy Between the Original and Derived Pouvoir Constituants
The original pouvoir constituant is in a different, higher and privileged level than the derived pouvoir constituants which succeeds it. Therefore, it’s normal and possible that it has a right to bind them.
3.1.1 The Special Qualities of the Original Pouvoir Constituant
Schmitt distinguishes strictly the power who writes the constitution for the first time from the powers whose existence depends on the constitution. He believes that the pouvoir constituant[1069] is used in the execution of the founding decision and the concretization of this decision can be left to national assemblies or to some other institutions. But, he adds that the pouvoir constituant cannot be transferred, delegated, incorporated or consumed. Schmitt assumes that this power exists virtually till the end of time[1070] in conjunction with the other power (to amend the constitution) and prevails over all of the ancient constitutions and actual constitutional provisions.[1071]
As it is clearly seen, Schmitt defends that the original pouvoir constituant does not disappear after having completed the duty of writing the constitution and that, instead, it stays alive permanently alongside the derived one. In case of accepting Schmitt’s view, it is automatically accepted that the original pouvoir constituant and the power to amend the constitution which is called derived pouvoir constituant in this paper cannot exist at the same level because, theoretically, there cannot be two sovereigns at the same time within the same country.
Thus, if the original pouvoir constituant is the sovereign, the derived one is not; the latter depends on former.In other words, the will who writes the constitution is not an ordinary pouvoir constituant but it is different than any other constituent power. On the other hand, there cannot be any supremacy between derived pouvoirs constituants. They are all at the same level. Therefore, any act done by a derived pouvoir constituant can be amended or annulled by one of its successors. But the founders’ will has established the basic principles of the new country and has established the legality of the derived pouvoirs constituants. Consequently, it has the right to order them to act within the limits which are determined by the unamendable provisions. The principles within the constitution cannot be split from one another. All as a whole bind anybody who wants to act in conformity of the constitution.[1072]
Beaud objects to this idea of continuity. He defends that constituent sovereignty expires and dies with the termination of the founding act. Beaud thinks that the constitution cannot be amended nor annulled by an amendment procedure or another act of founding. As a fruit of human will, it becomes institutionalized. But the impossibility to be changed shows that the founding act has always a revolutionary and non-legal character. Therefore, constituent sovereignty is a tool which aims for the stability of the constitution and thus, of the sovereignty of the people.[1073]
At this point, it should be mentioned that, what is described as unamendable by Beau is the total annulation of the constitution. The provisions other than unamendable ones can definitely be amended and even annulled. The important thing is to avoid the violation of the essence of the constitution and—if there are some—the amendment of the provisions or principles described as unamendable by the original pouvoir constituant.
3.1.2 Derived Pouvoir Constituant’s Duty to Show Respect
to the Founders’ Will
Although Sieyes established in his theory the foundation for the supremacy of the parliament, in his book Fragments Politiques, he spoke of putting a curb on the majorities’ passion in parliaments.
Sieyes, who split-off the general will and the will of the majority, emphasized the threat of the latter becoming a tyranny. He equated the separation of powers with the constitution which is in a higher position than any law accepted in the parliament by a simple majority.[1074]Right after the revolution, in July 21-22, 1789, Sieyes talked about the difference between the original and derived pouvoir constituant. In his speech, he described the original as independent from all rules and as the greatest and the most important one used by the nation. For Sieyes the constituent power was nothing else than the national will. Consequently, public forces called “constituted powers” were bound by the constitution because their existences depended on it. Within this framework, the function of the constitution is to order and limit the constituted powers in order to protect individual freedoms.[1075]
At this point, the famous French author Carre de Malberg deserves to be mentioned because he found such a difference in the foundation of the constitutional order in the United States. From his point of view, in the United States, while they were creating the constitutional order the sovereign constituent people not only isolated some of the rules from the functional space of the legislative organ, but also took the necessary measures to bind and limit its legislative capacity. Thus, from the American point of view, the constituent power and the legislative organ not only have different qualities but also different natures and consequently they are strictly separated from one another.[1076]
This view is supported by some contemporary authors too. For example Beaud mentions that the people who write the constitution are the only power which has the quality of being “sovereign” and because there cannot be a determined—and consequently limited—“sovereign” in the constitution, this sovereign people should be considered superior than the constitution.[1077] Therefore, the people who write the constitution, through their sovereignty, are able to determine some limits for the powers, including the derived pouvoir constituant, which will succeed them.
Correspondingly, the duty of the latter is to respect the rules put by the sovereign power because it owes its own existence to it.3.1.3 Derived Pouvoir Constituant’s Duty to Show Respect
to the Unamendable Provisions
According to the idea that the derived the pouvoir constituant is a limited power, the process of amending the constitution is also a limited authority. The necessity to have limits for the amending power is accepted first by the doctrine, before relevant decisions have been adopted by the constitutional courts.[1078] For example Duverger argued that the limits to amend the constitution bind the amending power because the latter should respect the constitution which it stems from.[1079] In the same direction, Gozler defends that derived pouvoir constituant should comply with the limits foreseen within the constitution by the original one, if it does not, the former would destroy its own source and creator. According to legal logic, no power could do this. Otherwise, we would be letting it violate the constitution.[1080] And in this case, it becomes a de facto power and we can no longer call it derived pouvoir constituant.
In fact, at the beginning of the twentieth century, Esmein was already arguing that the parliament should not be considered as a sovereign power. Although he admitted that the French National Assembly is a pouvoir constituant, he defended that this power should only be used within the limits and conditions determined by the constitution. Except for its delegated powers, the National Assembly had neither title nor authority.[1081] Therefore, the derived pouvoir constituant is a political power which has to act within the boundaries drawn by the constitution. In other words, it is bound by the constitution, by its letter and soul. The power to amend is not absolute but limited.[1082] But it is still constituant because it has the right and power to amend and annul some of the articles of the constitution.
But in doing this, it cannot go beyond the authority given by the constitution. Consequently, the derived pouvoir constituant is bound by positive law and thus, it is not sovereign.[1083]3.2 The Impossibility for the Derived Pouvoir Constituant
to Create an Unamendable Provision
One of the results of the above mentioned ideas is that the only power which has the right to determine some unamendable provisions in the constitution is the original pouvoir constituant. The derived pouvoir constituants, as their name implies, are derived from the original one and because they stay hierarchically in a lower level, they should respect the sovereignty of the higher one and have to comply with the boundaries determined by it. As it is seen clearly, due to the raison d’etre of the unamendable provisions, there has to be a hierarchical difference between the power which determines the unamendable provisions and the one which has to comply with them. At this point, the question is whether the derived pouvoir constituant which cannot amend or annul the existing unamendable provisions can determine an unamendable provision or principle or not.
3.2.1 The Counter-arguments Which Follows the Misleading Example of the 4th Paragraph of Article 20 of the German Basic Law
Ozbudun, without any reasoning, defends that the 4th article of the 1982 Constitution of Turkey which renders the first three articles unamendable can be amended by the derived pouvoir constituant in order to determine new amending limits.[1084] Onar supports him by giving the example of the amendment of the unamendable 20th article of the 1949 Constitution of the Federal Republic of Germany in 1968 and accepts that in addition to the 4th article of Turkish constitution new unamendable articles can be proclaimed.[1085]
If we look closer to Onar’s example, Article 79 paragraph 3 of the Constitution of the Federal Republic of Germany, the Basic Law, determines the unamendable articles and principles within the German constitutional order.
Known as the Ewigkeitsklausel (eternity clause), Article 79 paragraph 3 protects the basic principles of the constitution from any amendment. The provision was introduced by the framers of the 1949 Constitution in order to prevent Germany from slipping back into dictatorship through the use of legal measures as was the case with the Weimar Constitution.[1086] The prohibition of amendment established by this article, which has been included within the constitutional order of the Basic Law by the original pouvoir constituant, covers the federal structure of the German state and the basic principles established in Articles 1 and 20.At the beginning, Article 20 of the Basic Law as enacted in 1949 was as follows:
II THE FEDERATION AND THE LANDER
Article 20 (Basic principles of state order).
(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
In 1968, the German Parliament adopted the 17th amendment to the Basic Law. This amendment aimed to bring regulation for internal states of emergency which would grant sufficient guarantees to the Three Western Allied Powers (United Kingdom, France and United States of America) so that they could give up emergency rights reserved in Article 5 paragraph 2 of the Convention on relations between the Three Powers and the Federal Republic of Germany[1087] for the protection of the security of their armed forces stationed in West Germany. Because of the federal constitutional structure and, more importantly, the disastrous experiences of emergency powers under the Weimar Constitution of the German Reich, the State of Emergency Amendment of 1968 prohibited internal use of armed forces in general[1088] and with the aim of becoming a member of the United Nations[1089] wanted to prove that Germany was a democratic country in an irreversible way by adding the 4th paragraph to the Article 20. The title of the article was thus extended too to include also the right to resist.
Beside the other amendments, the paragraph inserted to the Article 20 is as follows:
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible.
It is politically understandable why the German Parliament was trying its best to be a part of the United Nations Organization and of the democratic world in general, and wanted to give a guarantee to the allied powers about their democratic will and to foresee citizens’ right to resist as a security measures. In this perspective, as Roznai remarks, unamendability could be viewed as a tool forestalling the possibility of a democracy’s self-destruction.[1090]
However, was this amendment justified or even valid in in a legal context? At this point, the questions were (1) whether this amendment is a violation of
Article 79 paragraph 3 and (2) is this paragraph inserted by the derived pouvoir constituant of 1968 binding on the successor derived pouvoir constituants?
3.2.2 The Judicial Value of the 4th Paragraph of Article 20
of the German Basic Law
When we look at Article 79 paragraph 3 more closely, we see that it prohibits only the restriction of the content of the unamendable provisions and not their extension. The relevant paragraph is as follows:
(3) An amendment of this Basic Law affecting the division of the Federation into Lander, the participation in principle of the Lander in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.
The original word in this paragraph in German translated to English as “affecting” is “beruhrt”. The verb beruhren means also to touch. In this case, to insert new paragraphs to the existing articles would not affect or touch the other paragraphs of the relevant article. In the same direction, Grimm argues that to violate the prohibition in the Article 79 paragraph 3, the content of the Articles 1 and 20 should be repealed or diminished.[1091] Therefore, of course, the constitutional amendment in 1968, amended the article but did not change the already existing content of article 20 of the German Basic Law. It inserted a new paragraph while the rest of the article which constitutes the will of the original pouvoir constituant is still there and has stayed unchanged. Consequently, the problem here stems from the usage of the term “unamendable” in English instead of “unchangeable” or “eternity clause” like Germans does in order to describe the limits of the derived pouvoir constituant. So the answer to the first question is “no”; there is no violation of the Article 79 paragraph 3.
On the other hand, this provision which includes the right to resist, even if inserted into an unamendable article of the German Basic Law, by reason of being added to Article 20 by a derived pouvoir constituant, does not have any binding effect for the other derived pouvoir constituants which are hierarchically at the equal level.[1092] In this sense, it does not matter what was and is the purpose of the paragraph. As Michel and Cofone categorize, some of the unamendable provisions, described as preservative provisions, aim to enshrine a certain part of the constitution that has already been established in a society,[1093] like the right to resist to authoritarian governments for the German society which witnessed the destruction brought by the national-socialist movement under the leadership of Adolf Hitler. Therefore, the 4th paragraph of Article 20 aims to protect democracy. But, while the goal of the parliament by determining this amendment unamendable is very positive, from a technical point of view, it cannot be considered valuable. If we let parliaments add some new unamendable articles to the constitutions, the German Parliament or another one can at some point in time adopt undemocratic articles and declare them unamendable which with the aim of binding future generations.
One can reach this conclusion from another perspective: Judicial review of constitutional amendments. While reviewing the constitutional amendment laws, constitutional courts act as the representative of the founding people and thus possess the authority of the original pouvoir constituent. Consequently, constitutional courts may arrive at a comparison between the will of “the founding people” as a superior legal norm and the present will of the political majority as expressed by the constitutional amending power.[1094] But in the case of paragraph 4, there is no superiority between the two wills of the political majorities. The political majority of 1968 and of today are hierarchically at the same level. Therefore, the German Constitutional Court doesn't have the theoretical basis to review a constitutional amendment which amends or annuls the 4th paragraph of Article 20.
Consequently, there is no “new” unamendable provision inserted to the Constitution of the Federal Republic of Germany in 1968. There is only an addition to the end of the eternity clause as a paragraph which can be amended or even repealed by the German Parliament any time. From this point forward, the protection rendered by the Article 79 paragraph 3 shall not include the new 4th paragraph of the Article 20 because the latter is not a result of the original pouvoir constituent's will and the derived pouvoir constituent does not have the power to constitute at the same level as the sovereign. So, the answer to the second question above is still no: The 4th paragraph of the Article 20 is not binding on the actual German Parliament. Bundestag and Bundesrat can amend and repeal it without any constitutional violation.
3.2.3 Another Misleading Counter-Argument: The Declaration of the Republic in France
An exception-like example to the impossibility for the derived pouvoir constituent to accept an unamendable provision should be mentioned at this point. Additionally, this example is far older than the others and consists of the constitutional amendment in 1884 to the French Constitutional Laws.[1095] When we look at the background of this amendment, we see that at this time in France, there was a high tension between the republicans and the monarchists. After the general elections in 1881 and the elections for the Senate, the republicans had obtained a majority in both of the chambers. With the support of this new situation, the republicans wanted to block a return to the monarchy and in August 14, 1884 adopted a constitutional amendment according to which the republican form of the government was declared as unamendable and the royal family members were banned from holding presidential office.
With the insertion of the unamendable provision to the constitutional laws by a functioning parliament whose status was a derived pouvoir constituant came under fire. First, Duguit attacked this amendment by saying that the provision was voted by a national assembly which had the power to amend the constitution, thus, it could be amended or repealed by another national assembly which had the power to amend the constitution. Duguit defended that, as a consequence, taking into consideration that during the existence of the relevant provision the national assembly could not change the form of the government, and the needed to be done was to remove the new provision. Once it was repealed, the form of the government could be amended in a very constitutional way.[1096] In other words, taking into consideration the general principle of public law which states that “a regulation accepted by an organ can be amended by another organ at the same level”, he defended that, even though the provision was an “unamendable provision”, a regulation inserted to the constitution by a derived pouvoir constituant could be amended by another derived pouvoir constituant.
We know that this provision is still in effect as an unamendable provision within the Constitution of France of 1958 as Article 89 paragraph 5. This means that the provision remained unamended since 1884 till today and, moreover, it became a state tradition. Beaud has an explanation for this situation. He believes that, the constitutional bills of 1875 which were in effect in 1884 did not constitute a real constitution because they were not describing a definitive regime for France. But the amendments approved in 1884 banned any amendment on the subject of the republican form of the regime, brought the prohibition for the royal family from seeking presidential office and regulated the aristocratic structure of the Senate and thus prompted some legal results. The author argues that this amendment included two orders. The first was binding for future parliaments due to the constituent power’s decision and the limitation of its powers. Contrary to what most of the authors argue, he defends that no derived pouvoir constituant can amend the republican form of the government within the constitutional processes and therefore, hereafter, the reconstruction of the monarchy can only become true via a revolution. The second order was that the amendments in 1884 rendered the constitutional laws of 1875 a real constitution. Therefore, Beaud thinks that the amendment in 1884 should be considered as the act of the original pouvoir constituant of the 3rd Republic.[1097] In other words, Beaud claims that the National Assembly which approved the amendment in 1884 was not a derived pouvoir constituant, but an original pouvoir constituant because it gave birth to a brand new state.
In this case, we should accept that a derived pouvoir constituant, by its own will, declared itself an original pouvoir constituant. However, taking into consideration that since no organ can declare on its own itself a higher organ than it is, therefore, Beaud’s thesis is unacceptable.
So, why didn’t any future French parliament amend this “unamendable provision” which was in reality amendable? The answer is simple: Because they did not want to. After this amendment the monarchists could not win any majority in the National Assembly until the next constitution’s approval in 1946. And the drafters of the latter decided to keep the republican form of the government as an unamendable article[1098] and thereafter it truly became an unamendable provision because it was now determined by the only sovereign power which is the original pouvoir constituant.
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