Constitution of the State of Hesse

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The constitution of the State of Hesse (unofficial abbreviation: HV for Hessian Constitution ) of December 1, 1946 is the constitutional basis for the state order of the State of Hesse . It is the oldest German state constitution that is still in force.

Basic data
Title: Constitution of the State of Hesse
Short title: Hessian constitution (not official)
Abbreviation: HV (not official)
Type: State Law
Scope: Hesse
Legal matter: Constitutional law
References : Text of the constitution
Issued on: December 1, 1946
( GVBl. P. 229,
corrected 1947 p. 106,
corrected 1948 p. 68)
Entry into force on: December 1, 1946
Last change by: Law to supplement Article 4 (Strengthening children's rights) of December 12, 2018
( GVBl. I p. 752 )
Effective date of the
last change: 		22nd December 2018
Please note the note on the applicable legal version.
Title page (red) of the publication of the constitution of the state of Hesse by the (US) military government for Hesse, Wiesbaden, 1946

Emergence

In order to prepare for the creation of a constitution , a preparatory constitutional committee was formed whose members were not elected, but appointed by the Hessian Prime Minister Karl Geiler with the approval of the American military government . In accordance with the instructions of the military government, the committee was not made up strictly according to party proportionality, but also according to the point of view of expertise. In addition to Prime Minister Geiler as chairman, its members included Minister Werner Hilpert (CDU), as deputy chairman, Hans Venedey and Georg-August Zinn (both SPD), State Secretary Hugo Swart , the regional presidents Ludwig Bergsträsser and Fritz Hoch (both SPD), the Frankfurt Lord Mayor Kurt Blaum (CDU), Professors Walter Jellinek , constitutional lawyer from Heidelberg, and Karl Vossler , historian from Frankfurt, as well as politicians such as the later Federal Foreign Minister Heinrich von Brentano (CDU), Leo Bauer (KPD) and later also Georg Weinhausen ( LDP ). The Preparatory Constitutional Committee, which began its work on March 12, 1946, should not be confused with the Provincial Advisory Committee, which acted as a kind of pre-parliament and to which twelve participants from the four parties relevant in Hesse belonged and that from February 26 to July 14, 1946 met.

On June 30, 1946, elections for the constitutional state assembly took place. With a turnout of 71%, the SPD achieved 44.3%, the CDU 37.3%, the KPD 9.7% and the FDP 6%.

On the part of the appointed all-party government (the Geiler cabinet ), the Interior Ministry (officially at that time: the Minister of the Interior ) under Minister Hans Venedey (SPD) and State Secretary Valentin Heckert (KPD) was involved in drafting the draft of the new constitution.

The state assembly passed the draft of the Hessian constitution on September 30, 1946. The referendum on the constitution took place on December 1, 1946 : the voters voted with 76.4% for the entire constitution and with 72% for the socialization article 41.This made it the second German state constitution of the post-war period (two days after the state constitution of 1952 dissolved State of Württemberg-Baden ) in the American zone in force.

Article 41 provided for socialization in the mining, iron and steel, and energy and transport sectors, but these were never fully implemented.

Other important points with constitutional status were: Recognition of the dignity and personality of people in the economy, the right to work, the eight-hour day, a minimum of twelve days' leave, the right to strike and uniform labor law for workers, employees and civil servants, whereby lockouts remain prohibited.

Points of conflict

The Hessian Constitution largely reflects the economic and political upheaval in the immediate post-war months. Numerous provisions of the constitution that have been overtaken by social reality are barely noticed in legal practice; the entire constitution is in need of comprehensive reform. A number of provisions contradict the Basic Law. Since the principle of federal law breaks state law in accordance with Art. 31 of the Basic Law , these regulations are not applied.

The main points of criticism of the Hessian constitution are:

  • A much-cited legal curiosity in this context is the prohibition of lockouts standardized in the Hessian constitution .
  • Members of ruling and formerly ruling houses ( federal princes ) are not allowed to become members of the state government (Art. 101 para. 3 HV); this norm collides with the general principle of equality from Art. 3 and Art. 33.2 of the Basic Law.
  • The immediate socialization under Article 41 is only of historical importance
  • The electoral review procedure is not incumbent on the State Court of Hesse , but first of all an "election review court" (Art. 78 HV), which is dominated by politicians.
  • The "Hessian citizenship" (Art. 154 HV) has more of a historical value.

Up until it was abolished in 2018, Article 21 (1) HV was a well-known curiosity, according to which the death penalty could be imposed for particularly serious crimes . However, this regulation was irrelevant because the German Criminal Code does not provide for the death penalty, it is not permitted under the Basic Law ( Art. 102 ) and federal law breaks state law ( Art. 31 ).

In the context of the discussion on the introduction of tuition fees , Art. 59 HV was the focus of the debate. This prohibits school and tuition fees as a matter of principle, since it demands that school and university tuition be free of charge and also stipulates that educational allowances are to be paid for "gifted children of socially disadvantaged people." As an exception, it only allows a corresponding law to order "That an appropriate school fee is to be paid if the economic situation of the student, his parents or other maintenance debtors allows it." In implementing this regulation, the Hessian regulation exempted almost a third of the students from paying tuition fees. Nevertheless, a lawsuit was brought before the State Court. On June 11, 2008, however, the State Court of Justice declared the previous fee system to be permissible. In the opinion of the majority of the judges, the requirements in Art. 59 HV do not guarantee a free course if a loan system provides a social cushion and nobody is excluded from the course. For details, see the section Regulatory Control Procedure before the State Court of Hesse including the background in the article Tuition fees in Germany .

Constitutional amendments

Although the constitution of the state of Hesse is older than the Basic Law , there were some constitutional changes, but no major constitutional reform until 2018:

  • Law of July 22, 1950 (GVBl. P. 131): Art. 75 Paragraph 3 and Art. 137 Paragraph 6 ( Passive voting right for 21 years (from 25 years previously))
  • Law of March 23, 1970 (GVBl. I p. 281): Art. 73, Paragraph 1 and Art. 75, Paragraph 2 ( Active voting right for 18 years (from 21 years previously))
  • Law of March 20, 1991 (GVBl. I p. 101) and Law of March 20, 1991 (GVBl. I p. 102): Art. 26a, Art. 138 and Art. 161 Direct election of mayors , mayors and district administrators (previously by the relevant parliaments)
  • Law of October 18, 2002 (GVBl. I p. 626): Heading to Section V., Art. 62a ( State objective sport ) (newly included)
  • Law of October 18, 2002 (GVBl. I p. 627): Art. 79, 161 (extension of the legislative period from 4 to 5 years)
  • Law of October 18, 2002 (GVBl. I p. 628): Art. 137 ( principle of connectivity )

In 2003, a commission of inquiry was set up by all parties represented in the state parliament in order to fundamentally reform the Hessian constitution. The work of the study commission was not ended, however, because the plans of the CDU, FDP and the Greens provided for some of the social provisions of the constitution (including the ban on lockouts) to be deleted, which the SPD did not support.

Debt brake

On December 15, 2010, with the votes of the parliamentary groups of CDU, SPD, FDP and Bündnis 90 / Die Grünen, the parliamentary party decided to introduce a “debt brake” in Article 141 of the Constitution if the request was rejected by the parliamentary group of Die Linke. The content of the exemptions from the debt ban associated with the German debt brake is primarily intended to be adopted. If the state of Hesse did not do this, an absolute ban on debts would apply in Hesse without exception from 2020, the budget would be “to be balanced without income from loans” ( Art. 109 (3) sentence 1 GG). The constitutional amendment was carried out by the referendum at the same time as the local elections in Hesse 2011 on March 27, 2011; 70.0% of the voters approved the constitutional amendment (debt brake).

Constitutional reform 2018

In 2015, the Hessian State Parliament set up the Constitutional Convention Study Commission to amend the Constitution of the State of Hesse (EKV). Various amendments to the constitution were drawn up with broad public participation. In mid-December 2017, 15 laws to amend the constitution were introduced into the Hessian state parliament . On May 24, 2018, the bills were passed in the state parliament. On June 15, 2018, the Hessian state government decided to hold the referendum together with the 2018 state elections. With a turnout of 67.2%, all proposed constitutional amendments were adopted.

Abolition of the death penalty

Among other things, the sentences "For particularly serious crimes he can be sentenced to death." ( Article 21 ) and "The state government reserves the right to confirm a death sentence." ( Article 109 ), identical to Article 102 of the Basic Law, replaced by the sentence "The The death penalty has been abolished. "

Further changes

Also were

  • equality between men and women,
  • the commitment to European integration,
  • the guarantee of children's rights and
  • Referendum

changed. As additional state goals were

  • Sustainability,
  • Culture,
  • Volunteering and
  • Infrastructure

inserted. The CDU dropped its demand for a reference to God in the preamble, as there was no broad parliamentary consensus on this. There was agreement on the amendment laws between the CDU, SPD, Greens and FDP. The left supported the removal of the death penalty, but not all other amending laws. The mentioned changes were accepted by the people with a large majority in the 2018 referendums in Hessen . They came into force on December 22, 2018.

Constitutions of earlier states on the territory of today's State of Hesse

Remembrance day

Every 1st of December, the day of remembrance of the entry into force of the Constitution, all public buildings will be flagged in Hesse.

literature

  • Helmut Berding (ed.): The emergence of the Hessian constitution from 1946. A documentation . Historical Commission for Nassau Wiesbaden 1996, ISBN 3-922244-98-X , ( Prehistory and history of parliamentarism in Hessen 10), ( Publications of the Historical Commission for Nassau 58).
  • Pascale Cancik: The constitutional development in Hessen . In: Yearbook of the Public Law of the Present New Series Vol. 51, ISSN  0075-2517 , 2003, pp. 271-299.
  • Karl Reinhard Hinkel: Constitution of the State of Hesse. Comment . Kommunal- und Schulverlag, Wiesbaden 1999, ISBN 3-8293-0220-7 .
  • Jochen Lengemann : The Hessen Parliament 1946–1986 . Biographical handbook of the advisory state committee, the state assembly advising the constitution and the Hessian state parliament (1st – 11th electoral period). Ed .: President of the Hessian State Parliament. Insel-Verlag, Frankfurt am Main 1986, ISBN 3-458-14330-0 ( hessen.de [PDF; 12.4 MB ]).
  • Wolf-Dietrich Schmidt: The dispute over the state constitutions in Hesse and Bavaria in 1946. Documents . Published by the Institute for Marxist Studies and Research (IMSF). Verlag Marxistische Blätter, Frankfurt am Main 1978, ISBN 3-88012-560-0 , ( Marxistische Paperbacks 87).
  • Erwin Stein (Ed.): 30 years of the Hessian constitution. 1946-1976 . Franz Steiner Verlag, Wiesbaden 1976, ISBN 3-515-02555-3 .
  • Martin Will: The emergence of the constitution of the state of Hesse from 1946 , Tübingen 2009. ( Contributions to the legal history of the 20th century 63), ISBN 978-3-16-149894-7 .

Web links

Individual evidence

  1. ↑ a b Lukas C. Gundling: On the reform of the Hessian constitution 2018 . In: Journal for State Constitutional Law and State Administrative Law (ZLVR), 2/2019, pp. 33–38
  2. ↑ Martin Will: The emergence of the constitution of the state of Hesse from 1946 , 2009, p. 45 ff.
  3. ↑ Article 21 paragraph 1 of the Hessian constitution
  4. ^ Judgment of the Hessian State Court AZ: P.St. 2133, P.St. 2158
  5. ↑ Report of the Constitutional Study Commission (PDF; 535 kB)
  6. ↑ The State Returning Officer for Hesse: Information brochure on the referendum on March 27, 2011  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. PDF file (9 MB) - see in particular the explanation of the law by the Hessian state parliament@1@ 2Template: Toter Link / www.wahlen.hessen.de  
  7. ↑ Pitt von Bebenburg: "Historical Constitutional Reform". Frankfurter Rundschau , December 16, 2017, accessed on December 18, 2017 .
  8. ↑ GVBl Law and Ordinance Gazette for the State of Hesse (PDF) jura.fu-berlin.de. December 21, 2018. Retrieved November 17, 2019.
  9. ^ A. Rauch, Parliamentary paperback containing the constitution ... , Erlangen, 1849, ( limited preview in the Google book search) p. 168 ff.
  10. ↑ Flagging dates in Hesse