Western Allied tutelage in the constitutional framing

The Allied influence in framing the German Basic Law is still a controversial issue among historians. There are several and radically confronted interpreta­tions which have consequences in the present German constitutional narrative.

the United States, Great Britain, and France had a decisive role in the con­stitutional reconstruction of Western Germany after 1945, when they began the democratization of local and State government in their zones. The Basic Law, which capped the process, was initiated by the Western powers, vetted by them as it was being drafted, and ratified only after their approval.¹⁴

The decision to build a Western German Republic corresponding to the three zones occupied by the Western Allies was adopted by their authorities in the London Six-Power Conference developed between February and June 1948 [called “Six-Power” because it gathered not only the three Western Second World War military victors, the United States, the United Kingdom, and France, but also the three neighbours of Western Germany to its west, Belgium, Netherlands,

and Luxembourg (Gortemaker, 1999, pp.

TheLondonConferenceconclusionswouldbereflectedintherecommendations that later would be issued by the three Western military Governors in Germany to the minister presidents of the Western Germany Lander in the so-called Frankfurt Documents, which established the main premises of the future Western Germany constitutional settlement (Benz, 1984, pp. 156-161; Eschenburg and Benz, 1983, pp. 459-462). The first Frankfurt Document authorized the Lander minister presidents to convene a constituent assembly; the second authorized them also to review the Lander boundaries [a consequence of that would be the foundation of Baden-Wurtemberg in 1952 (Mufignung, 2003, p. 323)]; and the third one included provisions regarding the occupation statute (Hahn, 1995, p. 22). The central issues concerning Germany's future constitutional framework, thus, were entitled in Frankfurt Document I, where it was established that a constitutional Convention had to draft a new Constitution which had to provide German division into Lander, as well as guarantees on human rights. That draft, according to the Frankfurt Document I, would require the consent of the military governors to be passed, and the ratification by two-thirds of the 11 German Western States (Mufignung, 2003, pp. 323-324). Foreseeing that the constitutional architecture designed by the Allied Powers would confirm the division of Germany into two zones, the only substantial concession that the minister presidents of Western Germany succeeded in obtaining from the Allied Military powers (as a consequence of the minister presidents meeting at Koblenz from July 8-10, 1948) was that the foundation of the Western German Federation would only have a provisory character.

The Western Allied Powers controlled every step on the path which shaped the 1949 German Basic Law: the assembling of the constitutional Convention (the Parlamentarischer Rat) and its deliberations (Benz, 1984, pp. 191-200; Eschenburg and Benz, 1983, pp. 483-490; Gortemaker, 1999, pp. 59-65; Spevack, 2001, pp. 357-393) as well as the works of the first Basic Law drafting by a commission of constitutional experts who met at Herrenchiemsee Abbey in Bavaria (Eschenburg and Benz, 1983, pp. 479-483). All these stages needed the consent of the Western Allies representation. The final draft had also to be approved by the occupying Powers (Schneider, 1954, p. 937), a consent

Constituent power without “We the People” 147 that was given on May 12, 1949, after the Basic Law had been passed by the Parlamentarischer Rat. For the reasons exposed, basically the fear of the German politicians to make Germany's division perpetual, the result of the deliberations of the Parliamentary Council was not submitted to plebiscitary approval (Merkl, 1963, pp. 128-129; Preuss, 2006-2007, p. 479).

Although there is relevant evidence that the German agents in the Parlamentarischer Rat provided the Basic Law draft with ideas coming from the German legal tradition [Steinberg, 1990, pp. 41-70]¹⁵ and that the stubborn stand of some German politicians transformed the Basic Law into something dif­ferent from what the Allies ideally wished (Grabbe, 1978, pp. 393-418; Benz, 1984, pp. 212-226), it is historically hardly undeniable that the Allies remained the main actors in setting the entire framework of the Western German State.

The Allies and the majority of the German domestic actors, nevertheless, shared similar conceptions on the rule of law and constitutional supremacy as constraints on democracy.

to prevent the creation of a type of democracy under which the individual would be in danger of being absorbed by the volonte generale and subdued by the majority. Therefore, a system was established under which the democratic principle, while recognized as an ideal, was, as a mere means, subordinated to the liberal principle of the protection of individual freedom, as an end.

One watchful eye was kept towards the Nazis' immediate totalitarian past. But the other, more concerning issue, was the socialist world that was being organized in the backyard. The fear that an unrestrained democracy would derive into socialism was acute for actors as diverse as the Americans or Adenauer [who was a vehement anticommunist (Stadelmann, 1995, p. 2)]. But in order to place some principles beyond democratic accountability (as happened with the clause that prohibited the core of the constitutional system from being amended, the so-called “eternity clause,” die Ewigkeitsklausel, in Article 79.3 of the Basic Law) another source oflegitimacy, different from that provided by the will of the people, was needed. That source was the system of fundamental rights safeguarded by constitutional supremacy and able to trump democratic majorities. Entrenching rights for citizens and requiring the State to defend those rights against violation would represent the foundation of postwar German constitutional architecture (Bark and Gress, 1989, p. 225).

Fundamental rights were another topic on which both the locals and the occupants coincided, particularly because they were mostly restrained to a liberal conception though, given both the Nazi experience and the Soviet threat,

emphasizing the centrality of the humanist ideal of dignity (Article 1 of the Basic Law).

A potent welfare State would be later developed in Western Germany as a consequence of economic growth without precedent. But in the 1949 Basic Law there were scarce traces of mechanisms for establishing redistributive politics and there were still fewer expressed in the language of fundamental rights. The most relevant commitment to social justice was the definition of the Federal Republic enshrined in Article 20 of the Basic Law which proclaimed with solemnity that the German Federal Republic was a federal, democratic, and social State (a definition also excluded from the amendment processes as were both federalism and fundamental rights) but whereas the liberal rights were intended to be strongly enforced by the courts against the legislator, the precision of the social clause was left to the democratic majorities of the day-to-day political debate and always insofar as the legislative decision on redistributive politics did not affect individual liberties. In contrast with the strong mark of social concerns that embedded both the 1946 French Fourth Republic Constitution and the 1948 Italian Constitution, the 1949 German Basic Law was quite meagre in constitutional provisions envisaging a more egalitarian horizon. It was not unrelated to this circumstance that Communists influenced the constituent processes both in France and in Italy and even they had been integrated into the respective provisional governments (they had gained considerable prestige in the resistance against the Germans) while the German Basic Law was precisely being drafted against the Communist model that was being built in Eastern Germany and, generally, in Eastern Europe.

At any rate, the cornerstone of Western Germany's constitutional design composed of federalism, free market economy, and democracy limited by the rule oflaw and fundamental freedoms conceived as an irradiating instrument ofpolitical legitimacy was sculptured through the decisions adopted by the Western Allies to which the German representatives accommodated with more or less enthusiasm providing their autochthonous vision of the different institutions according to their legal tradition.

Another piece of evidence that shows that the Basic Law was to a high degree imposed was that in the final article of the Basic Law, Article 146, in which there is provision for a procedure to call for the constituent power and, thus, according to part of the German doctrine, even able to amend the principles included in the eternity clause¹⁶ it was established that in applying such a provision the German people would give itself “freely” a constitution as insinuating that the adoption of the Basic Law in 1949 was not genuinely free. We shall see to what extent the

Constituent power without “We the People” 149 abandonment of Article 146 of the Basic Law by the political cadres as a proce­dure to carry out reunification would explain that question.¹⁷