Prussia versus Reich

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Prussia contra Reich is the abbreviation for a legal dispute that was fought before the State Court for the German Reich in 1932 in response to the Prussian strike. The constitutionality of the appointment of Reich Chancellor Franz von Papen as Commissioner for Prussia was to be checked at the request of the Prussian state government, which had been deposed, and other applicants.

History and context

Through an (emergency) ordinance of the Reich President based on Article 48 Paragraphs 1 and 2 of the Weimar Constitution on the restoration of public security and order in the territory of the State of Prussia of July 20, 1932 ( RGBl. I p. 377), President Paul von Hindenburg appointed Reich Chancellor Franz von Papen as Reich Commissioner for the State of Prussia and brought the country under Reich control (so-called Prussian strike ).

The process and the discussion about it must also be seen in the context of the debate about the reform of the Reich and the demands of the Federation for the renewal of the Reich and the dualism of Prussia and Reich.

reaction

Application for an injunction

The State of Prussia, represented by the Prussian State Ministry , as well as the parliamentary group of the Center and the parliamentary group of the Social Democratic Party of Germany in the Prussian Landtag then applied to the State Court for an injunction against the German Reich ( StGH . 15/32).

The applicants contested the constitutionality of the regulation , since the non-governability of Prussia assumed in the regulation was not given. They therefore applied for a temporary injunction to prohibit the appointed Reich Commissioner from performing their duties. During the oral hearing on July 23rd and 25th, the Prussian State Ministry changed its application. It now coveted the order

  • that the Reich Commissioners are not allowed to call themselves Prussian Prime Minister, Prussian State Minister or member of the Prussian state government.
  • Only the Prussian ministers of state are entitled to the status of ministers of state.
  • The Reich Commissioners were not allowed to represent Prussia in the Reichstag without the authority of the Minister of State .
  • They would not have the authority to deprive members of the Prussian state government of the right to represent Prussia in the Reichsrat and to instruct those authorized by the Reichsrat.
  • They do not have the right to appoint or dismiss civil servants with permanent effect.

The two parliamentary groups stuck to their original proposal.

In its reasoning for the rejection, the State Court stated that it could not anticipate the final decision,

  • because for a declaration of ineffectiveness of the urgent emergency decree of the Reich President, reasons would have to be presented which the Court of Justice could not yet have at the time of the decision.
  • An interim injunction is only to be issued if this appears necessary to avert significant disadvantages, but any disadvantages of the Emergency Ordinance for Prussia cannot be proven at the present time.
  • The later introduced individual demands for restrictions on the powers of the provisional government should be understood as a wish for a "division of state power" between the Reich Commissioner and the commissioners appointed by him on the one hand and the complaining Prussian state ministers on the other. This would be likely to "cause confusion in state life."

The main proceedings

The State Court of Justice combined various requests to establish the unconstitutionality of the appointment of a Reich Commissioner for the State of Prussia (StGH. 15, 16, 17 and 19/32) for the main proceedings in a dispute.

The parties

The first group of applicants included the State of Prussia, represented by the Prussian State Ministry as well as the center parliamentary group and the parliamentary group of the Social Democratic Party of Germany in the Prussian state parliament; The respondent was the German Reich.

The second group included the Prussian Prime Minister Otto Braun and the Prussian Minister of the Interior Carl Severing , for welfare Heinrich Hirtsiefer for agriculture, domains and forests Heinrich Steiger , for trade and commerce Walther Schreiber , the judiciary Hermann Schmidt , of Science, Art and Education Adolf Grimme and Finance Otto Klepper . The opponents here were the German Reich and the Reich Chancellor as Reich Commissioner for Prussia.

The third application was that of the State of Bavaria, the fourth that of the State of Baden , both also against the German Reich.

The Reich government was represented by Georg Gottheiner , Carl Schmitt , Erwin Jacobi and Carl Bilfinger . The SPD parliamentary group in the Prussian state parliament was represented by Hermann Heller . Representatives of the Prussian state government were the Ministerialdirektor in the State Ministry Arnold Brecht , Gerhard Anschütz and as an expert Friedrich Giese , for the Prussian Center Party Hans Peters , for Bavaria Hans Nawiasky and Theodor Maunz .

The decision of the state court

After the hearing on October 10, 14 and 17, 1932, the State Court of Justice made its decision on October 25 ( RGZ 138, Appendix pp. 1 to 43).

However , the State Court only carried out an examination of the existence of the prerequisites for a significant disruption or endangerment of public safety and order when it was established that the government was capable of acting in itself and remained able to assert itself against the KPD. The article (1) of the emergency ordinance paragraph does not apply: "If a country does not fulfill the obligations incumbent on it under the Reich constitution or the Reich laws, the Reich President can urge it to do so with the help of the armed force." The facts of Article (2) lie but before: The security and order within the country is endangered. The court thus declared the application of the emergency ordinance as a whole to be constitutional insofar as it appointed the Reich Chancellor as Reich Commissioner for Prussia and authorized him to temporarily withdraw official powers from Prussian state ministers and to take over these powers himself or to transfer them to other Reich commissioners. On the other hand, the court comes to the conclusion that the government continues to exist, its removal was unlawful, and that the representation of Prussia in the Reichsrat or otherwise in relation to the Reich or the Prussian state parliament is excluded from the provisional administration.

“The ordinance of the Reich President of July 20, 1932 for the restoration of public security and order in the territory of the Land of Prussia is compatible with the Reich Constitution, insofar as it appoints the Reich Chancellor as Reich Commissioner for the Land of Prussia and authorizes him to temporarily withdraw official powers from Prussian ministers to assume these powers himself or to delegate them to other persons as commissioners of the Reich. This authorization could not, however, extend to withdrawing the Prussian State Ministry and its members from representing the State of Prussia in the Reichstag, in the Reichsrat or vis-à-vis other countries. If the requests are not met, they will be rejected. "

The cooperation between government and commission, which was indirectly called for in the judgment, was not possible from the outset, the Reich government disregarded the provisions of the judgment, and the return of government power to the lawful government after the temporary work of the commission was not intended.

The judgment partially agreed on both sides and preserved the dualism of Prussia and Reich. However, since the removal of the government was considered unlawful, the reinstatement of the government should have been demanded. In the end, the court surrenders to the facts created. The ruling basically tolerates a breach of the constitution because the court shied away from accusing the Reich President of a constitutional breach. Michael Stolleis rated the judgment in his book History of Public Law in Germany as a “milestone in the constitutional history that describes the fall of the republic . The commentators of that time already sensed that, and it was even more so from a distance. "

The hearing

In the stormy oral hearing, which received a lot of public attention, Arnold Brecht pointed out that the civil war-like conditions in Prussia, which led to the emergency ordinance, were only inflamed by the lifting of the uniform ban and the SA on June 14th. The alleged "internal bondage" of the Prussian government did not exist, rather that of the Reich government in its connection with the National Socialists . Brecht tried to prove that the Reich government, in agreement with the National Socialists, had worked purposefully towards the impeachment of the Prussian government with its previous measures. She wanted to take the wind out of the sails of the National Socialists.

Georg Gottheiner spoke as the main representative of the government. He rejected Brecht's argument. There were no agreements with the National Socialists. The "arousal" of the National Socialists had just built up due to the "one-sided treatment" by the Prussian government. Prussia fought against National Socialism and favored communism . The lifting of the SA prohibition should have served as a valve.

Public reaction

According to Dirk Blasius , the verdict was perceived by almost all sides as a gratifying defeat or a clumsy failure of the Reich government, only the pro-government press demanded a further consistent step towards the authoritarian state. The “political passages” of the judgment were disseminated by most newspapers and prepared the ground for the later view of the population that in a time of uncertainty and disorder, emergency law must be used.

literature

  • Jürgen Bay: The Prussian Conflict 1932/33. A chapter from the constitutional history of the Weimar Republic. Erlangen 1965 (also: Erlangen-Nürnberg, Univ., Diss., 1965).
  • Henning Grund: “Preußenschlag” and the State Court of Justice in 1932 (=  studies and materials on constitutional jurisdiction , vol. 5). Nomos-Verlagsgesellschaft, Baden-Baden 1976, ISBN 3-7890-0209-7 (also: Göttingen, Univ., Diss., 1976).
  • Gabriel Seiberth: Attorney of the Reich. Carl Schmitt and the trial “Prussia versus Reich” before the State Court (=  contemporary historical research , vol. 12). Duncker & Humblot, Berlin 2001, ISBN 3-42810444-7 (also: Berlin, Freie Univ., Diss., 2000).
  • Heinrich Triepel , The decision of the state court in the constitutional dispute between Prussia and the Reich. A final word. In: Deutsche Juristen-Zeitung (DJZ) 1932, pp. 1501–1508.

Individual evidence

  1. ^ Decision of the State Court of Justice. RGZ 138. Retrieved March 24, 2016 .
  2. ^ Decision of the State Court of Justice. RGZ 137 (pp. 65-71). Retrieved March 24, 2016 .
  3. ↑ a b Wolfgang Neugebauer (Ed.): Handbook of Prussian History. Volume III: From the Empire to the 20th Century and Major Topics in the History of Prussia. Walter de Gruyter, Berlin / New York 2001, ISBN 978-3-11014-092-7 , p. 170 .
  4. ↑ Michael Stolleis: History of Public Law in Germany , CH Beck, Munich 1999, p. 121 f.
  5. ↑ Dirk Blasius: Weimar's end. Civil War and Politics 1930–1933 . Vandenhoeck & Ruprecht, Göttingen 2005, ISBN 978-3-525-36279-2 ( online [accessed August 17, 2020]).