Constitutional Convention on Herrenchiemsee
The Constitutional Convention on Herrenchiemsee met from 10 to 23 August 1948 on behalf of the Prime Ministers of the West German states in the Old Castle on Herreninsel in Bavaria. It was a body of experts with the task of "working out a draft constitution that could serve as a basis for the Parliamentary Council ". The result was the “Herrenchiemsee Report” approved by the Prime Ministers of the federal states, a working basis for the Basic Law for the Federal Republic of Germany , which among other things also contained a complete draft constitution with 149 articles.
An official name has not been established. The convention was intended as an “expert committee for constitutional questions”, but also referred to itself as the “constitutional committee of the conference of prime ministers of the West German occupation zones” and as the “constitutional convention”, and was finally also referred to by the parliamentary council as the “Herrenchiemsee convention”.
At the London Six Power Conference on Germany in 1948, recommendations had been drawn up that included the mandate to the military governors of the three western zones of occupation to instruct the West German prime ministers to convene a "constituent assembly". This assembly should deliberate and draft a constitution. According to the London recommendations, the political integration of the western zones should be a first step on the way towards regaining German unity. The minister-presidents of the West German states were thereupon empowered with the Frankfurt documents to convene a constituent assembly that was to meet on September 1, 1948 at the latest. This should work out a federal constitution based on democratic principles, "which is best suited to restore the currently torn German unity, and protects the rights of the countries involved, creates an appropriate central authority and contains guarantees of individual rights and freedoms". Subject to Allied approval, it should be ratified by referendum in each country .
The Prime Ministers met from July 8 to 10, 1948 at the “Rittersturz” in Koblenz . They decided that a constitution for a German "western state" should not be created because that would mean "renouncing imperial unity". After a sharp reaction by the occupying powers and under the impression of the Berlin blockade , they met for a second meeting in July 1948 in the Niederwald hunting lodge near Rüdesheim , in the shadow of the Niederwald monument , which was then erected as a national monument to commemorate the establishment of the German Empire in 1871. Here they agreed to the creation of a western state with considerable reservations and reservations that were intended to emphasize its provisional character. The mayor of Berlin, Ernst Reuter, had made a not insignificant contribution to this departure from the Koblenz resolutions, pointing out that Berlin in the east could no longer bear, that the west of Germany could remain politically undecided. Against Carlo Schmid's theses, he had put forward a “dynamic core state concept” for Germany , which the Minister-Presidents' Conference largely adopted. Because the prerequisites for an all-German settlement were not yet in place and German sovereignty had not yet been adequately restored, no constitution could be drawn up, only a “Basic Law”. Only confirmation by the parliaments of the participating countries is possible, but no direct referendums. As a result, it was decided not to have a Constituent Assembly but a Parliamentary Council . Influential party politicians were added to the prime ministers at this meeting. The occupying powers granted the Niederwald resolutions, so that on September 1, 1948, the Parliamentary Council elected by the state parliaments could be constituted in Bonn for its deliberations. The task of the Constitutional Convention was to carry out preparatory work and submit a coordinated overall report to the Parliamentary Council.
Eleven delegates took part in the deliberations of the convention, accompanied by 14 expert staff. The head of the Bavarian State Chancellery, Minister of State Anton Pfeiffer , was elected by the delegates as chairman of the convention and entrusted with the technical management of the work. He opened it on August 10, 1948 in room number 7, the former dining room of King Ludwig II. The chairman of the Berlin city council , Otto Suhr , attended as a guest. After an introductory plenary debate, the body was divided into three committees. The results of the committee deliberations were discussed and approved in two plenary sessions.
The eleven countries of the western zones sent
- for Baden Paul Zürcher ,
- for Bayern Josef Schwalber ,
- for Bremen Theodor Spitta ,
- for Hamburg Wilhelm Drexelius ,
- for Hessen Hermann Brill ,
- for Lower Saxony Justus Danckwerts ,
- for North Rhine-Westphalia Theodor Kordt ,
- for Rhineland-Palatinate Adolf Süsterhenn ,
- for Schleswig-Holstein Fritz Baade ,
- for Württemberg-Baden Josef Beyerle ,
- for Württemberg-Hohenzollern Carlo Schmid .
Occupation status of Germany
Germany was still under occupation law . With the Berlin Declaration of June 5, 1945, the victorious powers had restricted Germany's sovereignty, and this meant that a future German Federal Republic would also lack important attributes that were conceptually necessary for every state. This includes the right to conduct one's own foreign policy, the right to exercise state power internally without being restricted by foreign powers, and the right to defend oneself with one's own armed forces. The constitutional convention could only draft the constitution for a fragment of the state, i.e. only for the area in which the occupation law (→ occupation statute ) allowed to organize one's own political ideas. The room for maneuver that the western victorious powers granted the Germans on constitutional issues was, however, relatively large. This resulted from the agreement on basic questions: a federalist democracy, a constitutional state and the respect (or restoration) of human rights were among the basic pillars. However, the occupying powers largely held back when it came to questions of the specific design. Ultimately it was also about the political order of three of the four zones of occupation in Germany: The existed problem to be solved is to provide this order in a part of Germany that was to be avoided in the turn, "that they are an obstacle to the reunification of Germany affected ".
Controversies on the German question
On the question of who has the right to create a new legal order and who has constituent power , there were different views among the participants in the constitutional convention.
The majority saw this right with the German people who live on the territory of Germany . As long as it has a will to national unity, it is entitled to this right in all parts of Germany. This right was not perished by the unconditional surrender of the Wehrmacht . By the will of the victorious powers (→ Berlin Declaration ) this right of the German people had only been suspended, but it would be revived if the victorious powers relaxed the lock. Carlo Schmid was the main representative of this view. He was of the opinion “that Germany continued to exist as a legal entity , but was currently disorganized and therefore not legally competent . Germany's statehood does not need to be reconstituted ”(see theories of survival and the legal position of Germany after 1945 ). “Only a basic law could be passed for a transitional state up to German unity, for a state constitution there was no West German state nation. Whoever establishes this fiction is preparing the ground for another German state in East Germany ... ”The establishment of a“ state ”in West Germany presupposes that there is a West German state nation, and that there is no such thing. Instead, a “fragment of the state” should be created, a structure that could at least do internally “what a state normally does”. If one does not want to deepen the incipient division in Germany , however, this should only have the character of a provisional arrangement. His Hessian colleague Hermann Brill also attached great importance to this point: he saw the danger that in the Soviet-occupied zone otherwise the impression would arise “as if agents of a foreign imperialism with reactionary- romantic ideas had created a total constitution in the west and that other countries should then be imposed [...] A restriction to the absolutely necessary areas "is therefore absolutely necessary.
The minority around the head of the Bavarian State Chancellery Anton Pfeiffer, on the other hand, was of the opinion that the unconditional surrender of the Wehrmacht had documented a debellation that the German people no longer existed as a state people . A new state would have to be constituted that could not be identical with the German Reich (see identity theories and legal position in Germany after 1945 ). This would also create a new sovereignty that was no longer legally linked to the German Reich. Because there is no longer an organized German nation, only the federal states of Germany are still legal subjects , and these must now form a new federal community. This should be called the Bund Deutscher Länder and offer other German Länder an opportunity to join. As far as Bavaria was concerned, it was a matter of giving the “Federation” only a limited number of competencies , which were transferred to it by the states with sovereign rights, and of giving the executive a strong position vis-à-vis parliament. This goal was clearly expressed in the paper Bavarian Guiding Principles for the Creation of the Basic Law by constitutional lawyer Hans Nawiasky , which was presented to the Convention on August 10 and was intended to serve as a basis for discussion for the Bavarian delegates. No other papers were submitted to the Convention. He emphatically contradicted the territorial restriction of the state to be established as proposed by Brill.
A German confederation was the declared aim of the Bavarian Party . Its chairman Joseph Baumgartner commented on the draft of a constitution that was passed in Herrenchiemsee : “We will not allow ourselves to be drowned in the Chiemsee. […] The goal of the Bavarian Party is to restore the state of 1848, whereby Bavaria would become an independent state in a loose confederation of states. ”The majority of the CSU was skeptical of every German central authority. In the CDU there was no unified direction, but also extreme federalists and unitarists. For the SPD , in which German unity was one of the most important issues, Kurt Schumacher coined the phrase: "You can only be a German patriot and not the patriot of eleven German states".
As a result, the majority of delegates prevailed with the view that a German state can only derive its legitimacy directly from the peoples' right to self-determination . All Germans who lived in the part of Germany to which a new legal order should apply should also be able to decide on their content. Because this right could only be exercised in the western part of Germany , the western German state could only be a temporary arrangement and the “Basic Law for a Federation of German States” would be open to all parts of Germany to join.
With this result there was no longer any question that this “Federation of German States” could only be a confederation of sovereign states. There was now also agreement that this was not about a new federal treaty like 1867 or 1871 . Rather, the continued existence of the German Reich should be assumed. This was an important preliminary decision that was adopted in the constitutional deliberations of the Parliamentary Council.
The “Herrenchiemsee Report” adopted by the Constitutional Convention, 95 printed pages, contains a detailed descriptive part and a complete draft of a Basic Law, the “Chiemsee Draft”. This consisted of 149 articles, with some alternative suggestions and comments. All constitutional problems that were important in West Germany at the time were discussed in this report. The West German state system conceived therein was understood as a “double (spatial-temporal) provisional arrangement”. The majority had decided that it was not a question of “reconstituting Germany as a state, but expressly about reorganizing it provisionally - albeit limited to its western territories”.
A number of points remained controversial at the end of the convention: for example, questions of financial constitution and administration, the division of legislative competence between the federal government and the states, and the question of whether a “ second chamber ” should be designed as a Federal Council or a Senate .
However, they agreed on some "undisputed main ideas":
- There are two chambers. One of them is a real parliament . The other is based on the countries.
- The federal government is dependent on parliament if it is capable of forming a government. The trust of a working majority is essential and sufficient at all times to bring a man to the head of government.
- A majority unable to work, on the other hand, can neither thwart the formation of a government nor overthrow an existing government. The way out of a presidential government is avoided.
- The head of state stands alongside the government as a neutral authority. The function is initially provided as a makeshift. After the establishment of an adequate freedom of action under international law and after clarification of the relationship with the East German states, it will be taken over by a Federal President according to the prevailing opinion.
- Emergency ordinance law and federal compulsion lie with the federal government and the regional chamber, not with the head of state.
- The federal judiciary provides assistance with federal supervision.
- The presumption speaks in favor of legislation, administration, justice, financial sovereignty and financing obligations of the states.
- The federal and state governments run a separate financial sector.
- There is no referendum . There is a referendum only in the event of changes to the Basic Law.
- An amendment to the Basic Law that would remove the free and democratic basic order is not permitted.
The strongly federal character of the draft constitution can be seen among other things. a. based on the principle that "the presumption speaks in favor of legislation, administration, financial sovereignty and financing obligations of the federal states".
Use in the further process of the constitution
The leaders of some parties were reserved or even hostile to the convention, which was created “on the basis of a private agreement between the Prime Ministers of the German states”. Only the parties are legitimized to make and draft proposals for a Basic Law, but not the Prime Minister. The major political parties also worked out drafts of the Constitution and presented them to the Prime Minister. The Herrenchiemsee report was sent to the permanent office of the Prime Minister's Conference in Wiesbaden . The political parties did not receive it directly. Together with the drafts of the parties, it was discussed on August 31, 1948 by the Prime Minister's Conference at Jagdschloss Niederwald. The collected material was eventually forwarded to the Parliamentary Council.
The very extensive executive rights that the draft constitution wanted to grant the federal government or the affected state governments in the event of an emergency (emergency ordinance law including the suspension of basic rights ) were not incorporated into the Basic Law.
The draft clarified a number of problem points in advance and created a qualified basis for deliberations in the Parliamentary Council.
The historian Wolfgang Benz assesses the report of the Constitutional Convention "as an impressive compendium of constitutional law", which was "of importance for the debates of the following months in the Parliamentary Council that can hardly be overestimated." Without a doubt, the Herrenchiemsee Constitutional Convention made a significant contribution to the creation of the Basic Law and thus also of the Federal Republic of Germany.
In 2009, BR-alpha , the television education channel of Bayerischer Rundfunk, filmed the convention's meeting as a 60-minute documentary game based on diary entries and original protocols under the title The state is there for people. The Constitutional Convention of Herrenchiemsee . Directed by Bernd Fischerauer , the script is by Klaus Gietinger and Bernd Fischerauer. Contributors include a. Wilfried Klaus , Franjo Marincic , Torsten Münchow , Alexander Goebel and Andreas Nickl . The program was broadcast twice in May 2009 (on Bavarian TV and on BR-alpha).
- ^ German Bundestag and Federal Archives (ed.): The Parliamentary Council 1948–1949. Files and protocols , Vol. I: Prehistory, Boppard am Rhein 1981, p. 328, fn. 47.
- ↑ Quoted from Theo Stammen , Gerold Maier: The process of constitution , in: Josef Becker , Theo Stammen, Peter Waldmann (ed.): Prehistory of the Federal Republic of Germany. Between surrender and the Basic Law , Munich 1979, ISBN 3-7705-1769-5 , p. 384 f.
- ↑ Edgar Mass: Montesquieu and the emergence of the Basic Law , in: Detlef Merten (Ed.): Separation of powers in the rule of law. On the 300th birthday of Charles de Montesquieu: Lectures and contributions to discussions at the 57th Political Science Conference 1989 of the University of Administrative Sciences Speyer. 2nd ed., Duncker & Humblot, Berlin 1997, pp. 47-53, here p. 49.
- ↑ Marie-Luise Recker : The adoption of the Basic Law , in: The Basic Law ( Bürger & Staat , Heft 1–2019, 69th year), ed. from the State Center for Civic Education Baden-Württemberg , 2019, p. 4–12, here p. 6 f .; Peter Bender : Germany's return. An undivided post-war history 1945–1990 , Klett-Cotta, Stuttgart 2007, p. 38; Horst Möller : Changes in Occupation Policy in Germany 1945–1949 , in: Bernhard Diestelkamp , Zentarô Kitagawa, Josef Kreiner u. a. (Ed.): Between continuity and external determination. On the influence of the occupying powers on the German and Japanese legal system from 1945 to 1950. German-Japanese symposium in Tokyo from April 6 to 9, 1994 , Mohr, Tübingen 1996, pp. 37–53, here p. 49.
- ^ Theo Stammen, Gerold Maier: The process of constitution , in: Josef Becker, Theo Stammen, Peter Waldmann (Ed.): Prehistory of the Federal Republic of Germany. Between surrender and the Basic Law , Munich 1979, p. 391 f.
- ^ Peter Graf von Kielmansegg : After the catastrophe. A history of divided Germany , Siedler, Berlin 2000, ISBN 3-88680-329-5 , p. 89.
- ^ Quote from Carlo Schmid : Memories , Goldmann Verlag, 1981, ISBN 3-442-11316-4 , p. 337.
- ^ Both quotations from Carlo Schmid: Memories , Goldmann Verlag, 1981, p. 360.
- ^ Carlo Schmid: Memories , Goldmann Verlag, 1981, p. 328.
- ↑ Erhard HM Lange: The discussion about the position of the head of state 1945-1949 with special consideration of the discussions in the Parliamentary Council. In: Vierteljahrshefte für Zeitgeschichte 26 (1978), issue 4, p. 624 f. ( online , accessed June 20, 2018).
- ^ Manfred Görtemaker : History of the Federal Republic of Germany. From the foundation to the present , CH Beck, Munich 1999, ISBN 3-596-16043-X , p. 56; Carlo Schmid: Memories , Goldmann Verlag, 1981, p. 335.
- ↑ Erhard HM Lange: The discussion about the position of the head of state 1945-1949 with special consideration of the discussions in the Parliamentary Council. In: Vierteljahrshefte für Zeitgeschichte 26 (1978), issue 4, p. 625 ( online , accessed on June 20, 2018).
- ^ Quotations and positions of the parties according to Paul Noack : Die deutsche Nachkriegszeit , Munich 1966, p. 83.
- ^ Manfred Görtemaker: History of the Federal Republic of Germany. From the foundation to the present , Munich 2004, p. 58 f.
- ^ Peter Graf von Kielmansegg: After the catastrophe. A history of divided Germany , Siedler, Berlin 2000, p. 91.
- ↑ Herrenchiemsee report , p. 18, quoted from Theo Stamen, Gerold Maier: The Process of Constitutionalization , in: Josef Becker, Theo Stamen, Peter Waldmann (ed.): Prehistory of the Federal Republic of Germany. Between surrender and the Basic Law , Munich 1979, p. 394 f.
- ^ German Bundestag and Federal Archives (ed.): The Parliamentary Council 1948–1949. Files and protocols , Vol. II, Boppard am Rhein 1981, p. 505 ff.
- ^ German Bundestag and Federal Archives (ed.): The Parliamentary Council 1948–1949. Files and protocols , Vol. II, Boppard am Rhein 1981, CXX.
- ^ Theo Stammen, Gerold Maier: The process of constitution , in: Josef Becker, Theo Stammen, Peter Waldmann (Ed.): Prehistory of the Federal Republic of Germany. Between surrender and the Basic Law , Munich 1979, p. 395 f.
- ↑ Martin Diebel: "The hour of the executive". The Federal Ministry of the Interior and the Emergency Acts 1949–1968 . Wallstein, Göttingen 2019, p. 17.
- ↑ Wolfgang Benz: The founding of the Federal Republic. From the bizone to the sovereign state , Munich 1994.
- ↑ Documentary play Vom Reich zur Republik: The state is there for people , broadcast on May 23 on Bavarian TV and on May 29 on BR-alpha.
- Angela Bauer-Kirsch: Herrenchiemsee. The Constitutional Convention of Herrenchiemsee - pioneer of the Parliamentary Council. Diss., Rheinische Friedrich-Wilhelms-Universität zu Bonn, 2005 ( PDF ).
- German Bundestag and Federal Archives (ed.): The Parliamentary Council 1948–1949. Files and Protocols , Vol. II: The Constitutional Convention on Herrenchiemsee , edit. v. Peter Buchter, Harald Boldt Verlag, Boppard am Rhein 1981, ISBN 3-7646-1671-7 .
- Sabine Kurtenacker: The influence of political experiences on the constitutional convention of Herrenchiemsee. Development and significance of the ideas about the state and constitution of Carlo Schmid, Hermann Brill, Anton Pfeiffer and Adolf Süsterhenn. Herbert Utz Verlag, Munich 2017, ISBN 978-3-8316-4631-9 .
- Peter March, Heinrich Obereuther (Ed.): Setting the course for Germany. The Constitutional Convention of Herrenchiemsee , Olzog, Munich 1999, ISBN 3-7892-9373-3 .