Constitutional Agreement
A constitutional agreement is the name of the process by which two (or more) powers in a state agree on a constitution . The term comes from the time of constitutionalism or the constitutional monarchy , especially in the 19th century. As a rule, the powers are the monarch on the one hand and the representative body on the other. The opposite of an agreed (also: “pacted”) constitution is an imposed constitution . It is unilaterally put into effect by the monarch.
Type of agreement
In historical retrospect, the difference between an agreed and an imposed constitution has not always been very clear. A constitution could already have been negotiated between both sides, but it could have come into force without the formal consent of either side. It is possible that the monarch's partner in the agreement was not a modern representative parliament, but an old state assembly. In constitutionalism, however, a constitution could also be viewed as agreed if the people later took part in elections and thus recognized it through implied behavior .
The Liberals believed that a constitution should be agreed; the Democrats found that, due to popular sovereignty, the parliament should decide alone. The political background of the constitutions in the 19th century was a compromise between monarch and liberals, according to Huber, with the intention of “combining traditional monarchical rule with civil liberties and rights of participation.” The constitutions also did not assume democratic equality of subjects: landowners Nobles were given special say in the first chambers, rich citizens were given unequal and unequal voting rights in the second chambers.
If a monarch had imposed a constitution or agreed to an agreed constitution, he was bound by it. Constitutional amendments had to come about in the way described in the constitution itself. If the monarch unilaterally revoked a constitution, he lost a lot of respect in society.
In a democratic state it is also conceivable that a constitution is first drawn up by an assembly and then approved by the people in a referendum before it comes into force. This was the case in France in 1946 and the constitution of the Fifth French Republic in 1958, as well as with some constitutions of German federal states .
A problem of its own is that in an unconstitutional state there is often no parliament with which the constitution could be agreed. In such a situation, the monarch can have a provisional representative body elected and agree the constitution with it. In some cases, as in Mecklenburg-Schwerin, there was already an assembly of estates that could not be ignored. Such a representation of the estates may not have been prepared to agree to a modern representative constitution (and thus to abolish itself).
Constitutions of the German nation-state
| Reason or attempted agreement | Preliminary contract or other
basis |
constitutional or constitutional
Assembly |
other partners in the constitution | Draft, template or model; Constitution | Remarks |
|---|---|---|---|---|---|
|
German Empire 1848/1849 ,
provisional constitutional order |
Federal Election Act March / April 1848 | Frankfurt National Assembly | (Recognition of the Reich Administrator by the Bundestag ) | Central Power Act June 1848 | led to the provisional central authority and imperial legislation |
| German Empire 1848/1849 , Imperial Constitution | Federal Election Act March / April 1848 | Frankfurt National Assembly | (Approval by, inter alia, a grade of twenty-eight ) | Seventeen draft ; Frankfurt Constitution of March 28, 1849 | has not become effective through resistance from the larger states |
| Erfurt Union | Epiphany Covenant | Erfurt Union Parliament | Governments represented on the Board of Directors | Frankfurt Imperial Constitution; | Union board of directors King Friedrich Wilhelm IV did not set up any union organs despite the constitution |
| North German Confederation | August Alliance | constituent Reichstag | "Allied Governments" (no formal body) | Constitution of the North German Confederation | Founding of the state |
| The German Imperium | November contracts | North German Reichstag | Parliaments of the states concerned | Constitution of the German Confederation | no founding of a state, only southern Germany joining |
| Weimar Republic | Election regulations of the Council of People's Deputies November 30, 1918 | Weimar National Assembly | (Involvement and approval of the State Committee) | Drafts by Interior Minister Hugo Preuss ; | Reform of the imperial constitution |
| Federal Republic of Germany | Frankfurt Documents , Rittersturz Conference | Parliamentary Council | State parliaments of the states concerned (approval of the three Western Allied military governors) |
Constitutional Convention on Herrenchiemsee ;
"Bonn" Basic Law |
Reconstitution on part of the national territory |
| United Germany | Unification Agreement | Bundestag | People's Chamber of the GDR | (Amendments to the Basic Law) | no founding of a state, only accession of East Germany |
In 1848 the Bundestag , the representation of the individual states in the German Confederation , had a constituent national assembly elected. It should draw up a draft constitution and agree it with the individual states. This, however, already established a provisional constitutional order in its own right and elected an imperial administrator as a substitute monarch. The National Assembly was also of the opinion that it alone had put the final Imperial Constitution of March 28, 1849 into force. 28 governments adopted the constitution. The monarchs of the larger member states such as Prussia, however, insisted on the constitutional agreement.
The Prussian king rejected the imperial crown and the imperial constitution from Frankfurt. With the Epiphany in May 1849, he presented a more conservative draft constitution. This attempted unification was later given the name Erfurt Union . The plan was for the governments involved to elect a Union parliament that adopted the draft constitution. This happened in the spring of 1850. But the king had lost interest in the Union and still thought the constitution was too liberal. Instead of setting up a government, he suddenly made the establishment of the Union dependent on the other states formally approving the constitution (again). In the autumn crisis of 1850 , Prussia finally gave up the Union.
When the North German Confederation became a ( federal ) state in 1867 , the individual states initially had a constituent Reichstag elected. The sole purpose of this assembly was to discuss and approve the constitution. With her, the allied governments of the individual states agreed on Bismarck's draft constitution. In addition, the state parliaments accepted the draft. The Federal Constitution was thus agreed twice: between the individual state governments and the state representatives, and between the state representatives and the people in the individual states. After that, the federal government was deemed to have been established and the federal organs were set up. The Prussian king appointed a Federal Chancellor (the executive branch) as the Federal Presidium in accordance with the Federal Constitution and had the first ordinary Reichstag (parliament) elected in August .
There was no agreement at the cradle of the Weimar constitution . The Weimar National Assembly , elected in 1919 according to revolutionary law, adopted the constitution on its own initiative on July 30, 1919. However, when the law was cited, it was not this date that counted, but August 11, when Reich President Friedrich Ebert signed the constitution. This was not provided for in the constitution, but “a small piece of monarchical tradition”, according to Stefan Danz.
The Basic Law of 1949 was agreed again. At first there was an order from the western occupation powers to draw up a constitution. The state parliaments of the West German states sent members to the Parliamentary Council . This discussed a draft constitution and adopted it. The occupying powers approved the draft. Finally the diets decided; It was sufficient that more than two thirds of the state parliaments adopted the Basic Law - but initially only in the countries concerned.
See also
supporting documents
- ↑ a b Ernst Rudolf Huber: German constitutional history since 1789. Volume II: The struggle for unity and freedom 1830 to 1850. 3rd edition, W. Kohlhammer, Stuttgart [u. a.] 1988, p. 318.
- ^ Ralf Heikaus: The first months of the provisional central authority for Germany (July to December 1848). Diss., Peter Lang, Frankfurt am Main 1997, p. 370 f.
- ^ Stefan Danz: Law and Revolution. The continuity of the state and legal system as a legal problem, illustrated using the example of the November Revolution of 1918 in Germany. Publishing house Dr. Kovač, Hamburg 2008, p. 164.