On September 8, 1948, Professor Dr. Carlo Schmid, a Social Democrat, gave the following speech to the Parliamentary Council. On September 13, 2024, we submitted petition 172544 to the German Bundestag requesting that the speech be played in full in the plenary session of the German Bundestag in front of all members of parliament and that an open debate be allowed afterwards. It is vitally important to understand the German Question in it’s full extent as otherwise similar problems that led to two world wars may arise again and again. Deutschlandkongress is deriving it’s fundamental democratic powers from exactly this argumentation laid down in this speech. Therefore, until a peace treaty for the entire Germany in the borders of the 31st December 1937, as the Potsdam Agreement of 1st August 1945 states clearly, the German Question is open. According to Article 146 of the basic law Deutschlandkongress has called for a constitutional assembly and formed such preparatory council in 1990 and since then is the legal entity representing Germany in it’s borders under the Potsdam Agreement, but does not claim to represent the Federal Republic of Germany in any way or by any means. As clearly that Deutschlandkongress recognizes the existence of the Federal Republic of Germany and it’s instititutions it also maintains that the lacking of a Peace Treaty (which the so called Two plus Four Treaty is not under International People’s Law), is still not fully sovereign and due to the NATO troop deployment act as well as various secret agreements with the United States of America continuing the occupation of West-Germany, legally not able to draw it’s right to self determination as every other nation does. In absence of a Peace Treaty as proclaimed by the Potsdam Agreement of 1945, technically speaking WW II has not ended yet but we are living under ceasefire conditions. Especially, since the Federal Republic of Germany government continues to refuse to make public the secret agreements with the US-occupants, and by pretending that the occupation status had ended by the Two plus Four Treaty of 1990, it is obvious that the Federal Republic of Germany is not sovereign because one can only dissolve an 4-allies agreement like the Potsdam Agreement with all powers simultaneously but not one by one. The fact that the Soviet Red Army (after 1991, the Russian Army) had left from East Germany in 1994 while the Two plus Four treaty states that the government of the united Germany would “ask” the United States of America to stay until such time that the Soviets had left, as a “security guarantee”, says it all. The Soviets had left as agreed in 1994. Now, 30 years later, the US Army is still there and even demands from the German taxpayer to pay ever more for it “protecting” us Germans. Truth be told, the US are using their airbases in Ramstein and Grafenwöhr, Stuttgart and Wiesbaden for conducting their wars in Afghanistan, Iraq, Syria and Ukraine. This is against the International People’s Law and against of the will of the German people as all opinion polls consistently over decades clearly show. Only peace shall come from German soil, that was our promis in 1949 when the basic law was becoming effective and we also vowed this in 1990 when the German Democratic Republic joined the Federal Republic of Germany which accurately should be called Federal Republic in Germany.
Keynote speech to the Parliamentary Council
08th September 1948
Before I begin with the actual statements that I have to make to you, allow me to say a few words about the method of my explanations. They are necessary because some of the audience may find that my statements, at least at the beginning, were merely a presentation of theories. It is not a question of theorizing here, but of the engineer who has to use a slide rule and a table of logarithms occasionally pulling out his physics book to determine exactly where he is working in the system of mechanics, to see for once in which area we have to move.
Theory is not an idle pastime, but sometimes the only way to clarify complex relationships and sometimes the only way to stay on the right path. The only way to define the position of the Archimedean point at which we have to apply the lever of our political activity. Only through a clear understanding of what is can we obtain the basis for calculation that we will need in order to act correctly.
The attempt to understand a situation in all its aspects is the only method that enables one to make a decision in such a way that the decision can also be justified.
Ladies and gentlemen, what is the matter that we have to deal with here?
What does the Parliamentary Council mean, what does the Basic Law mean? If the people in a sovereign state convene a constituent national assembly, its task is clear and does not need to be discussed further.
It has to create a constitution.
But what does a constitution mean? A constitution is the overall decision of a free people about the forms and content of its political existence. Such a constitution is then the basic norm of the state. It determines in the final instance, without having to be referred back to a third party, the delimitation of sovereignty in the area. And in addition, it determines the rights of individuals and the limits of state power. Nothing is above it. No one can override it. No one can ignore it. A constitution is nothing other than the self-realization of a people’s freedom given legal form. This is where its pathos lies and this is why people have taken to the barricades. If we had to work in these, such circumstances, then we would not need to ask the question of why it is actually happening. This concept of a constitution is indispensable in a world that wants to be democratic, that wants to recognize the laws of democracy as its laws of life. Of course, everyone of us knows that other types of regulatory laws have also been called constitutions, for example the imposed constitutions of the Restoration period from about 1814 onwards. These imposed constitutions were undoubtedly not bad from a technical point of view and the princes who issued them may have had good intentions from time to time.
But the people never viewed these things as constitutions, and the revolutions of 1830 were nothing other than the uprising of the peoples of Europe against imposed constitutions that did not arise through the self-determination of the peoples, but were imposed. These revolutions expressed the realization that a constitution in a democratic world must be something more than a mere set of rules, a mere organizational statute. The order of the structure of the authorities, the order of state functions, the delimitation of rights, of individuals and of the authorities are entirely conceivable, and this has happened in the area of the organic articles of the absolutist status of authority and also in the area of foreign rule.
But one cannot speak of a constitution if words are to retain their meaning, because these structures lack the character of the right of self-determination that is not subject to any foreign will.
What is at issue here is organization and not constitution.
Whether an organization is created by oneself or is the result of someone else’s will makes no fundamental difference, because with organizations it is essentially and exclusively a question of whether they function well or badly. But with a constitution it is different. There it makes a fundamental difference whether it was created by oneself or whether it is the result of someone else’s will, because a constitution is nothing other than coming into being as a political bearer of destiny out of one’s own will. All of this also applies to the creation of a state. Of course, states can be created in a variety of ways. They can even be created through external coercion. But then a state is nothing other than an expression for a ruling apparatus, just as the political theorists of the early Renaissance spoke of “il stato”. Il stato was simply the ruling apparatus that exercised power in an organized manner somewhere. But that was precisely the great progress that democracy made for people: it began to see the state as something other than a mere apparatus of domination. For it, the state has always been the fate of the people taken into their own hands, an expression of the people’s decision about themselves. You have to know what you want when you speak of the state, whether it is a mere apparatus of domination that can also be at the disposal of a foreign ruler, or a living reality, a democracy that has come into being of its own free will. I believe that in a democratic age you should only speak of a state in the legitimate sense of the word when it is the product of a freely occurring constitutive act of a sovereign people. Where that is not the case, where a people has to organize itself under foreign rule and in recognition of it, it does not constitute itself. Unless against the foreign rule itself. Rather, it simply organizes itself, perhaps very similarly to a state, but not as a state in the democratic sense.
If you will allow me an image, it is from Roman law, as there was a free man and a slave and a freedman, a community organized in this way would not be a state, but would have the same relationship to the state as the freedman has to the free man.
This organization as a state-like entity can of course go very far. But what distinguishes the structure from genuine democratically legitimated statehood is that it is basically nothing other than the organizational form of a modality for exercising foreign rule.
Because self-organization despite the lack of full freedom presupposes the recognition of foreign power as a superior and legitimate power. Only where the will of the people flows from itself, only where this will is not constrained by requirements, by a foreign will that demands obedience and is obeyed, is a state born in the genuine democratic sense of the word.
Where this is not the case, where the people organize themselves solely in accordance with the will of a foreign, superior authority, even under the obligation to follow certain directives and to have their work approved, what emerges is merely an organism of a more or less administrative nature.
This organism may have all the normal, I would say, internal state functions. If it is deprived of the possibility of determining the forms of its activity and the limits of its decision-making power, it lacks what constitutes the state, namely the competence of competences in the deeper sense of the word; that is, the ultimate sovereignty over itself and thus the possibility of ultimate responsibility. None of this prevents this organism from being able to exercise authoritarian power internally in a highly effective manner.
What is the situation in Germany today? On May 8, 1945, the German Wehrmacht surrendered unconditionally. The most diverse effects are linked to this act from various sides. This unconditional surrender had legal effects exclusively in the military field.
The capitulation document that was signed there did not mean that the German people wanted to express through legitimate representatives that it no longer existed as a state, but merely meant that the Allies should not be denied the right to deal with the German armed forces as they saw fit.
That is the meaning of the unconditional surrender and no other. Some have linked other legal consequences to it. They have said that Germany as a state entity has perished due to this unconditional surrender. They argue in this with the international law term “debellatio”, the military defeat of an enemy.
This view is simply wrong. According to international law, a state is not destroyed when its armed forces and the state itself are defeated militarily. The debellatio does not destroy statehood by itself. It merely gives the victor a legal title to destroy the statehood of the defeated. The victor must therefore make use of the state of debellatio if the statehood of the defeated is to be destroyed. And here there are two possibilities under international law.
One is annexation. He must annex the territory of the defeated, incorporate it into his territory, but then statehood is destroyed, or the so-called subjugation, the enslavement of the defeated people. But the victors did none of that. In Potsdam they expressly declared, firstly, that no German territory should be taken away by way of annexation. And secondly, that the German people should not be enslaved. This means that at least from the events of 1945, the conclusion cannot be drawn that Germany has ceased to exist as a state. But something did happen in 1945 that had a very significant impact on our state and political conditions. But what happened was not the destruction of German statehood. But what is it that happened? Firstly, the power apparatus of the dictatorship was destroyed. Since this apparatus of power of the dictatorship was identical with the state apparatus due to the identity of party and state, the German state was disorganized by the destruction of this apparatus of power. Disorganization of the state apparatus, however, is not the destruction of the state in substance.
We must not forget that in the first months after the capitulation in the summer of 1945, when there was no central authority at all, but when the mayors of the communities ruled like little kings, the district administrators too, and the first state administrations even more so, that all these people and all these offices exercised their powers not for themselves, not for the community and for the country, but almost everywhere for the German Reich.
It was a kind of trusteeship from below that asserted itself there. I still remember exactly in those months how it was, how the district administrators collected the taxes, not because they believed they were entitled to them, but because someone had to take care of the business on behalf of the whole. And the mayors did something similar, and the state administrations did it too. When, for example, the states in the French zone were persuaded to conclude a contract in which they were generously allowed to transfer the German railway assets to the states, the states in the French zone refused to do it and said that the contract might be necessary for technical reasons, but we would only take over the Reichsbahn assets in trust for Germany. This view that Germany’s existence as a state has not been destroyed and that it has been preserved as a legal entity is now largely common knowledge in legal science, even abroad.
Germany still exists as a state entity, it has legal capacity, but it is no longer capable of doing business, not yet capable of doing business. The overall state power is exercised, at least in certain areas, by the occupying powers, by the Control Council as a whole and by the military commanders in the individual zones. The connection is maintained by trusteeship from above. So sovereign power in Germany has not disappeared. It has changed its holder, it has become a trusteeship. The area has been largely damaged, but its substance has been preserved and the German people have been preserved as a national people. Allow me to say a few words about the national people here. In this part of Germany, the number has increased enormously through the refugees, through the people who have been driven out of homes where their ancestors had lived for centuries. The world should not forget what happened here so quickly. Because if we were to forget it, if we were to suppress this knowledge from our consciousness, then it could happen that a few generations later what was suppressed could resurface in an evil form.
We should also talk about these things, especially in the era of the Nuremberg trials. Of course, we know very well that the expulsion of populations was not invented by the victors of this war, but by the National Socialists in Central Europe. And what is happening here is merely the return of the boomerang that was once thrown from here. Nevertheless, what has happened here is also wrong. There is a French saying: On excuse pas le mal par le pir! You cannot justify evil by pointing to something even worse. The fact that the three elements of the state have been preserved means that Germany has been preserved as a state reality. Germany does not need to be recreated, but it must be reorganized.
This statement is unavoidable from a legal point of view. However, we must briefly consider here whether political acts that may have occurred in Germany itself after May 1945 did not lead to the dissolution of Germany as a state entity. But I believe that nothing that has happened in the last three years gives us any reason to assume that the German people or significant parts of the German people have decided to dissolve Germany. If we take an example where this has actually happened, then we can see best that it is wrong to speak of such a thing as far as Germany is concerned. Austria-Hungary after 1918 not only disintegrated, but was actually dissolved as a state by the decision of the peoples who previously made it up, and new states have taken its place, which do not need to consider themselves the legal successors to the old dual monarchy. Nothing like this has happened in Germany. Now the question is whether it has perhaps happened here and there in Germany, whether individual parts of Germany have broken away from the whole and wanted to separate. Can one conclude that such an act was the result of any event that has taken place here since the summer of 1945? Some may point to this or that provision, this or that state constitution, where it says, for example, that state x y is ready to join a new German federal state or a new Germany.
I don’t think one should draw too far-reaching conclusions from such sentences. I certainly don’t believe that the state parliaments and the populations of the states in whose constitutions this sentence appears wanted to declare that the country wanted to separate from Germany. This is the codification of a legal error that may have been excusable and understandable at the time when the constitution was being discussed, but that’s all. Now one could further raise the question of whether another consideration should perhaps be added here. Eric Reger, whose vitriolic article is worth reading even if you think it is not entirely appropriate to the situation, recently wrote that this is not a legal question, but the expression of a political will to clearly mark the turning point in political continuity.
Well, I completely agree that a break should be marked between yesterday and today, and even more so between yesterday and tomorrow. But does a change in a political system necessarily lead to the downfall of the state? For example, when the French moved from the Second Empire to the Third Republic in 1870, did they first dissolve the French state as a state entity? A change in system is precisely characterized by the fact that the state entity in which the change in system takes place is preserved. The legal situation in which Germany finds itself is also characterized by the following. The Allies are not only occupying Germany on the basis of the Hague Convention on Land Warfare. In addition, their occupation of Germany has an interventionist character. What does intervention mean? It means that a foreign power, or foreign powers, want to shape internal German conditions on German soil according to their will, which international law actually prohibits them from dealing with.
There is no point in complaining that it is like this. There are good reasons why it could happen. It is understandable that our neighbors want to ensure their own security after what has been done in the world in Germany’s name. Whether they have done this wisely or not is not to be discussed here. That is another story. But intervention can only create reality, it cannot bring about legal effects.
Under international law, an interventionist measure must be legitimized, either by a previously concluded treaty or by a subsequent agreement. A previously concluded treaty is not the most important thing. The Hague Convention on Land Warfare actually prohibits interventionist measures as permanent phenomena. So we will have to wait for later agreements to answer the question of whether we must recognize these measures as law.
But there can be no doubt that these interventionist measures by the occupying powers are provisionally legal because the German people are obeying these measures. This is an act of submission, let’s say it as it is. A kind of negative plebiscite through which the German people express that they are prepared to give up the assertion of their popular sovereignty for a time. We must be clear about what popular sovereignty means. Not every possibility of establishing oneself here and there according to one’s will with more or less restrictions, but popular sovereignty, if the word is to have any meaning, also includes the determination to defend it and to resist it when it is attacked. As long as that does not happen – and there are very good reasons why it does not happen – we will have to recognize the legality of the interventionist measures, at least for the time being.
That was precisely the legal significance of the Resistance in France, that as a result of this “non-submission”, the measures of the interim governments did not have to be considered legal. One of the interventionist measures that the occupying powers have taken in Germany is that they have blocked the exercise of German popular sovereignty. In and of itself, popular sovereignty is, at least in substance, indestructible and indispensable in a democratic age. I believe I can say that this is also the position of the American official authorities today. But the exercise of popular sovereignty can be blocked completely or partially. That is what happened to us in 1945. It was originally blocked completely. Then this block was lifted piece by piece by the occupying powers. Ever more layers of German popular sovereignty were released for exercise. First the layer from which the self-constitution and self-administration of the communities takes place. Then the layer from which the political and administrative organization of parts of the territory, for example in the form of our states, takes place. The regional layer of German popular sovereignty with reservation of the whole was exposed here. But let us not be mistaken, these constitutive acts were not free exercises of popular sovereignty. Because there too, the decision was largely predetermined. Most of all because it was the occupying powers themselves who marked out and thus determined the majority of these countries. And in the British zone, the countries have not yet had the opportunity to constitute themselves.
This is where it becomes clearest to what extent the existence and configuration of our countries are essentially the result of the will of the occupying powers. Now a further layer has been opened up to us. And we must ask ourselves whether what has now been opened up to us is the entire remainder of the previously blocked popular sovereignty. Some want to answer the question in the affirmative, but I would like to firmly deny it. Not all of the remainder has been opened up, but only a part of it. First, let us look at it spatially: popular sovereignty is, when one speaks of its fullness, indivisible. It is also not divisible spatially. If one were to consider it divisible spatially, then that would mean that one would be forced to create a separate national people here in the West. But the German people in the three western zones do not want to be that. There is no West German national people and there will never be one. That is the meaning of the French constitutional phrase “La nation une et indivisible!” One and indivisible nation, which means nothing other than that popular sovereignty is not divisible even spatially. Only the entire German people can act as popular sovereignty, and not a particle of it. A part of it could only do so if it was legitimized to act as a representative of the entire nation, or if a part of the German people were ultimately prevented by external coercion from exercising its civil liberties. Then only the rest that remains is a free German people that could exercise German popular sovereignty.
Has this situation already arisen today? Some say so, but we should not forget: Negotiations are still ongoing, and there is still at least official agreement that the diversity of zone rule is a temporary solution. Something that everyone, including the occupying powers, wants to pass. And it does not seem to me to be in our interest to give an occupying power a pretext for turning the provisional separation of the individual zones into a definitive separation of East Germany, through our actions. But that is a political decision. The question is whether we can make it. Can we make it in a situation in which we are deprived of the opportunity to determine the extent of the risk that Germany would have to face? A constitutional solution for the whole of Germany will only be possible when one day a German National Assembly can be elected in complete freedom. But that presupposes either the agreement of the four occupying powers on a common policy towards Germany, or an act of violence on the part of one side or the other. Some may like to toy with this idea. But it might be worth meditating on this idea for a moment. What does violence mean in this context? Either the expulsion of an occupying power that opposes a democratic unification of the whole of Germany. Could that be anything other than a catastrophe for the whole world? Or it means the final separation of a zone through the use of force by an occupying power with the simultaneous political emasculation of the German people in this zone and thus the final reduction of Germany to the part that could still decide for itself in freedom.
That too would be a catastrophe, and a world catastrophe, not just a German one. Therefore, nothing should be done that could contribute to making these catastrophes more likely than they perhaps are in themselves. In addition to this spatial restriction on the ability of the Germans to exercise popular sovereignty, there is another substantial restriction. If you read documents one and three, which the military commanders are to hand over to the Prime Ministers, you will see that the occupying powers have reserved a whole series of subject areas and powers for their own or competing jurisdiction. There are almost more restrictions on German powers in these documents than there are releases of German powers. The first restriction is that we have been given certain contents for this Basic Law, and that, after it has been discussed and decided here, we will have to submit it to the occupying powers for approval. Now I would like to say that a constitution that someone else has to approve is a piece of policy on the part of the party entitled to approve it, but not an expression of the popular sovereignty of the party required to approve it. The second restriction is that crucial state functions are denied.
Foreign relations, free exercise of economic policy, a number of subject areas are reserved, the legislature, executive and even the judiciary are subject to certain restrictions. The third restriction: the occupying powers have reserved the right to take back the full power in the event of an emergency. The autonomy granted to us is therefore an autonomy that can be revoked. According to the previous texts, it is the occupying powers that have sole authority to determine whether the case exists or not. Fourth restriction: constitutional changes must be approved. So even the layer of German popular sovereignty that was originally completely blocked and has now been released is not the whole, but is only a fragment. And this has the following practical consequence.
In order to organize a state in the full sense, popular sovereignty must be able to take effect in its fullness. Where only a fragmentary exercise is possible, only a fragment of the state can be organized. We cannot achieve more than that. Unless, as a political decision would require, we assert rights against the occupying powers that they do not yet want to grant us. But that would have to be fought through against them. Until that has happened, we cannot create a constitution if words are to have any meaning. Not even a provisional constitution, if provision is only intended to be a temporary determination; what we can do is only the basic law for a fragment of a state. The actual constitution that we have today is still the written or unwritten occupation statute. The way in which the occupying powers exercise their sovereignty determines how the sovereign powers should be distributed on German soil. And it also determines what of the basic rights in our state constitutions are actually effective and what is just literature. Everything else is secondary to this occupation statute, as long as one acts in recognition of its reality.
Nothing is more characteristic of this situation than the final sentence of document number three, which expressly states that after the decision of the Parliamentary Council and before the ratification of this decision in the states, the occupying powers will announce the Occupation Statute so that the German people know, it says, within what framework this constitution applies. If you do not want such a situation, then you must want to act against it. But that would then be a matter for the German people themselves and not for so-called state bodies, which must have their acts approved in advance. I believe that I have thus answered the question of what our actions actually involve. With the confirmation of the Allies, we have reservations about discussing and adopting the Basic Law for the organization of the sovereign powers of the German people in a part of Germany that have been released today. We do not have to create the constitution of Germany or West Germany.
We do not have to establish a state. We have something to do here that gives us the opportunity to master certain emergencies, to master them better than we have been able to do so far. Even a fragmentary state must have an organization that is suitable for meeting the practical needs of the internal order of a region. Even a fragmentary state needs a legislature, an executive, and a judiciary. And if one now asks where the limits are in relation to the full state, in relation to the full constitution, well, that is a question of practical assessment in individual cases. But agreement should be reached on the following things. Firstly: The basic law for this fragmentary state must, precisely because of its inner nature, carry its own temporal limitation. The future full constitution of Germany must not have to come about by amending the basic law of this fragmentary state, but must be able to come about originally. But that presupposes that the basic law contains a provision according to which it automatically ceases to apply if certain events occur.
When should it cease to apply? I believe that there can be no doubt about this day: the day on which a constitution adopted by the German people in free self-determination comes into force.
Secondly: It is characteristic of the territory of a genuine, full state that this territory is closed. That is, that nothing can extend into it, beyond its borders, or beyond these borders in terms of sovereign power. With a fragmented state, this is different and may be different. Here, spatial openness is not excluded by itself. And this can and, I believe, must be reflected in our work in a twofold sense.
This Basic Law must contain a provision according to which every part of German territory that wishes to be admitted must also be admitted. The question of how this should happen and whether conditions should be set here still needs to be clarified. I believe, and this brings me to the second point, that admission should be made as easy as possible.
Finally, the question remains whether the parts of Germany that must remain outside the area of application of the Basic Law should not be given the opportunity to participate in the legislative bodies that the Basic Law will create. How they should be able to do this in general is something that we will have to discuss here. But one prerequisite seems to me to be necessary. Free elections must be possible in this area and there must be the possibility of sending representatives here.
That is the case in Berlin today. And that is why the Basic Law should provide for the appointment of representatives from Berlin to the legislative bodies. Of course, I know, you could say that that is not logical. Because it is not logical to allow representatives from areas to which the laws do not apply to participate in legislation. Of course, that is not very logical. But this is not so much about being logical as it is about being political. And I think that it could not be expressed more effectively that only external force is preventing us all Germans from being united here.
The third way in which the fragmentary nature must be expressed is the internal limitation of the organs to the possibilities that are still limited today by external pressure. And here, to give just one example, the problem of the question of the establishment of the organs arises. For example, to take just one example, the question: Should a head of state, a federal president, be provided for? Is he needed in a fragmented state? Does it correspond to the necessary dignity of such a function? To create this function today, is it not better to entrust a more modest organ with the tasks that a president should otherwise reasonably perform instead of a president? Should the office just be suspended? All of these are questions that must be asked from these fundamental considerations. But even if the order we are creating here is only the order for a fragment of the state, it can be designed in such a way, and in our opinion it should be designed in such a way that if the sphere of freedom granted today is expanded, the organization created is capable of filling it to the full. And I would also like to say that this organization should be made so strong and complete that it is capable of bringing about and implementing such an expansion through its work.
The nature of the provisional arrangement then gives rise to a number of other questions, practical questions, for example the problem of whether or not the Weimar Constitution should be mentioned in this Basic Law. Of course, and that is my personal opinion, it no longer exists as a whole. The disorganization caused by the Nazi regime and the occupation put an end to it, at least in large parts.
On the other hand, case law in Germany has made it clear that it at least still applies, and in part still applies. So there is legal uncertainty in this area at least. The question is whether this legal uncertainty should not be eliminated by making a reference to the Weimar Constitution in one way or another in the Basic Law, perhaps by saying that to the extent that its provisions contradict this Basic Law, it is suspended.
Furthermore, provisions will have to be included in the Basic Law that concern the question of the continued validity of laws and regulations that were passed before the Basic Law, whether by the states in areas that are no longer to be the responsibility of the states, whether by
zone bodies, whether by the Economic Council, and finally we will have to provide provisions for the transfer of powers to any new bodies that may be created.
And now, ladies and gentlemen, I come to another fundamental chapter. Where do the sovereign powers lie on the basis of which we are debating and adopting this Basic Law?
Who is acting through us? Is it the German people who are acting through us, or are the states acting through us, and the states as a self-contained regional body?
Answering this question is not idle. I believe that the way we answer this question is crucial for this work. I believe I have proven that Germany has not perished as a state entity. In order for Germany to continue to exist, there is still a German national people today. So that in the area that is now defined by the three western zones, a collective act by this German national people is still possible. And such a collective act cannot be prohibited by state constitutions.
The German people are not an amorphous mass, however; they are divided into states. And throughout their history they have always appeared politically in this division into states. Even when it is the German people in the states of Baden, Bavaria, Hesse and so on who are acting, it is the German people as a whole who are acting. I believe that it is therefore certain that this state fragment, this Basic Law, does not need to come into being as a result of an agreement between the German states, that the source of sovereignty does not lie with the states, but with the German people. The occupying powers also seem to be of this opinion. Documents one and two are very clear here.
For example, in document two it says that the German prime ministers should make proposals about changing the state borders, mind you, all prime ministers for any part of the German state territory. That is only possible if one assumes that the occupying powers wanted the prime ministers to act as fiduciaries in safeguarding the interests of the whole of Germany. Because how else would the prime minister of Württemberg Baden come to declare that he does not agree that, for example, the borders of Schleswig-Holstein should run as they are today and not otherwise? His state constitution does not authorize him to do that. He is only authorized to do that if one can assume that there is still a possibility of directly representing the interests of the whole of Germany.
Furthermore, the Parliamentary Council is a pan-German body. Ladies and gentlemen, we do not represent specific states here, but rather the entire German people, insofar as they can express themselves. And the German people, the fact that they are divided into states, is expressed in the fact that, firstly, the representatives for this House were elected by the state parliaments and, secondly, that the decision we are about to reach must be ratified in the states. But, mind you, only ratified and not passed as a law.
And finally, and this seems to me to exclude any doubt, the provision that this Basic Law will apply to the entire territory of the eleven states, even if only two thirds of the states agree. How could it be possible for two thirds to outnumber one third if one does not assume from the outset that a German nation already exists, that a German state reality already exists that is capable of producing a “volonté générale”, even where the “volonté de tous” might look different.
These are not idle theories, but rather a statement that seems necessary to me. Because we need to know who has the right to decide whether Germany must be negotiated between countries or whether the German people must build their own house.
Now another question. Should the structure that we are organizing here, whose organization we have to create here, be given a name or not? The question is of the utmost importance. Nouns and omens, names express what is actually being created or should be created. Now the question is
whether a name is at all compatible with a provisional arrangement, whether a mere designation would not be better here than a name. The question seems to me to be of the greatest difficulty. A political decision will have to be made here in this House. I do not believe that it is possible to provide any systematic evidence that this or that is right or wrong from a rational perspective. A decision must be made here. But whatever name is given and whether a name is given, in the area to which the Basic Law applies, no separate West German territorial sovereignty is exercised, but rather all-German sovereignty in West Germany. This should be reflected in the names of the organs. Because what is happening here is spatially limited to a part of Germany, but – we should never forget – it derives from the rights of the entire German people.
We will have to consider whether we should introduce this Basic Law with a preamble. For my part, I think this is necessary, because the preamble characterizes the essence of the Basic Law.
It states what should be. And in particular, it will have to state what the Basic Law should not be. The preamble will, in a sense, set the tone of the piece. And it will therefore have to identify and contain all constitutive features.
Another question: Should this fragment of the state be given symbols, colors and flags, general symbols that should be common to the entire people? Or do we want to be content with symbols for specific purposes, for example for shipping, for foreign missions and so on? Or do we want to not write anything at all in the Basic Law about what the symbols could mean? Do we want to rely on a future flag law here? Or how should we behave here? That too will be a political decision that we have to make. But one thing seems certain to me: if this House were to decide on a symbol, it can only be a common German symbol. And I believe that nothing else can be considered for this than the beautiful colors of the German unity and freedom movement, the colors black, red and gold.
Ladies and gentlemen, we have been given the task of creating a Basic Law that is democratic and that must establish a federalist type of structure. What does that mean? What general content must the Basic Law have if these requirements are to be met? What does democratic actually mean when we talk about constitutions? Today, in particular, people like to develop democracy further, as they say. To invent progressive democracies, locus sanon luzendo.
Personally, when we talk about democracy, I prefer to think of the classical democracy for which the peoples of Europe have fought so far. And if we look at what has been fought for, we find that a number of things must be fulfilled if we are to speak of a democratic constitution. The first is that the community must be based on and founded on the general equality and freedom of its citizens. This is expressed in two things: firstly, in the constitutional postulate that every command and every prohibition can only be made on the basis of a law. And that this law must be the same for everyone. And secondly, in the popular state postulate.
This means that every citizen must participate equally in the creation of laws. Whether this takes the form of plebiscitary direct democracy or representative democracy will generally be a question of expediency, in which the quantitative element will have to be the deciding factor. The crucial point is that every sovereign, directly or indirectly, must be traceable to an electoral act. An appointed official, for example, must be traced to the signature of a minister who has himself been confirmed and appointed by a universally elected parliament.
Now the question arises: should this equality and freedom be completely unrestricted and absolute? Should it also be granted to those whose sole aim is to eradicate freedom itself after seizing power? So should we behave in the future as we behaved towards the National Socialists during the Weimar Republic, for example?
This question will also have to be discussed and decided in this House. For my part, I am of the opinion that it is not part of the concept of democracy that it itself creates the conditions for its elimination. Yes, I would like to go further.
I would like to say that democracy is only more than a mere expediency decision where people have the courage to believe in it as something necessary for human dignity. And if you have this courage, you also have the courage to be intolerant towards those who abuse democracy in order to abolish it.
The second thing that must be implemented when we speak of a democratic constitution in the classic sense of the word is the principle of the separation of powers. You know that the constitution of 1792 even contained the sentence that a state that is not based on the principle of the separation of powers has no constitution at all.
What does this principle mean? It means that the three functions of the state – legislation, executive power and jurisdiction – must be in the hands of equal and distinct bodies. And they must be in the hands of different bodies so that they can control each other and maintain a balance.
This doctrine has its origins in the experience that wherever the entire state power is united in the hands of one body, this body will abuse its power. Only where several people exercise the supreme power is there certainty that power will not become an abuse of itself. Of course, there is also the possibility that the individual powers will abuse the power that lies in their independence. You know the harsh criticism that was leveled at the judicial power during the Weimar Republic and, I believe, not always unjustly.
Perhaps one of our tasks will have to be to ensure that this power cannot be abused against democracy.
Today it is necessary to talk about these old things again. Because this democracy, which describes itself as particularly progressive, wants to live out the separation of powers, at least to a large extent. In the draft of a German constitution that the German People’s Council has drawn up, for example, there are a number of provisions that mean nothing other than the expression that the principle of the separation of powers should no longer apply in this constitution. Ultimately, all power is concentrated in parliament.
Ultimately, parliament should not only be able to pass laws and politically control the government, but it should also ultimately be able to decide on the legality of an event. If you do that, then you have already realized all the prerequisites for installing a
dictatorship. And that is why you should clearly state in the Basic Law that we have to pass that the principle of the separation of powers must be realized.
The third requirement for the existence of a democratic constitution is generally the guarantee of fundamental rights. In modern constitutions we find catalogues of fundamental rights everywhere, in which the rights of persons, of individuals, are protected against the claims of state reasons.
The state should not be able to do whatever it wants, even if it finds a compliant legislator, but people should have rights that the state cannot fully control.
The Basic Law, the basic rights, must govern the Basic Law. They must not be just an appendage to the Basic Law, like the Weimar catalogue of basic rights was an appendage to the Constitution. And these basic rights should not be mere declamations, declarations or
directives, not just requirements for the state constitutions, not just a guarantee of the basic rights of the states, but directly applicable federal law, on the basis of which every single German, every single resident of our country, should be able to bring a lawsuit in the courts. The only question will be how far one wants to extend the scope of this catalogue of basic rights. Should only the so-called real basic rights be included, i.e. the rights of the individual? Or also the legal provisions on the so-called life orders that are so numerously scattered throughout our state constitutions, economy, culture, family and so on.
Perhaps it will be advisable not to attempt to create a definitive order of life in a provisional arrangement. Instead, it will be best to draw up a fairly clear and effective catalogue of individual basic rights, as in the classic “Bills of Rights” of the Anglo-Saxon countries. But, on the other hand, this Basic Law should not prevent the states from making use of their more extensive basic rights and regulations.
The question will also be whether these basic rights are viewed as rights that the state has to lose, or as pre-state rights, as rights that the state already encounters when it is created and which it only has to guarantee and observe. This is not only of theoretical importance, but of eminent practical importance. In particular, for deciding whether these basic rights should also be subject to restrictions.
Should they be absolutely absolute and inviolable? I believe that an inherent restriction will have to be recognized in the case of basic rights. Those who only want to use basic rights to fight against the democratic and liberal basic order should not be allowed to invoke them. We no longer want the basic right to freedom of the press to be invoked for the sole purpose of eliminating a republic and replacing it with a dictatorship that will no longer recognize freedom of the press. We also do not want these basic rights to be eliminated by a general legal reservation, as is the case in the constitution, in the constitutional guidelines of the People’s Council and in some constitutions of the countries in the Eastern zone. If I can restrict every basic right by law, then it is completely pointless to guarantee it by the constitution. Then it is a mere declamation and not an effective reality. The general legal reservation devalues the basic right, reduces it to zero. But for some basic rights it will not be possible to get by without a limited legal reservation. I am just reminding you of everything that results from the fact of housing management, for example, of billeting and much more. But these limited reservations should only be used very sparingly. And under no circumstances should the legislature’s powers go so far that it can violate the substance of the fundamental right.
And now, decision-makers, should the state be able to use the state emergency law in relation to fundamental rights? So that if it cannot cope with the normal means, it suspends the fundamental rights in order to restore peace, order and security?
This question will have to be considered very carefully. We will have to ask ourselves whether the fact of fundamental rights, the inviolability of fundamental rights in themselves, is not such a valuable asset that the state should have to give way to them even in times of emergency.
Perhaps an investigation of the facts can show that in emergencies such as those conceivable here, the state will generally be able to cope with them using general police means. Perhaps, however, we will also come to the realization that these means may not be sufficient and that the individual must then take second place to the state of emergency. If we come to this conclusion, we will have to be careful that even in the event of an emergency, only certain basic rights should be suspended, and then only for a limited period of time and only under the control of democratic institutions.
Ladies and gentlemen, every constitutional reality ultimately depends on the electoral law that applies in a certain area. I believe that this House will also have to address this question. If only to come to a conclusion about whether or not provisions on the modalities of an electoral law should be included in this Basic Law. Nota bene: To date, it seems to me that there is still no clarity as to who should issue the electoral law for the election of the first parliamentary representation of the German people. Should it be issued by the military commanders or by the Prime Ministers? So far, the only thing that seems certain to me is that it should not be the Parliamentary Council that issues this electoral law. The question is, however, whether we should not include general provisions for such an electoral law in the Basic Law? For my part, I would see this as a disadvantage. Electoral laws should not be subject to too much constitutional protection. Electoral laws should be left flexible so that certain experiences can have an impact and so that something like a change in style can also have an effect on political life.
But I believe that something else should be included in our considerations.
Namely the phenomenon of political parties. I have always found it strange that even the most modern constitutions, with a few exceptions, make no mention of the existence of political parties. Of course, one thing is certain: political parties are not state organs, but they are
decisive factors in our state life. And depending on whether they are organized in one way or another, our state organs have one or another purpose.
Now it seems to me right that a party law should be passed very soon. And it also seems right to me that minimum provisions for such a party law should be included in this Basic Law. Provisions that provide for a certain democratic minimum standard for the organizational life of political parties. I am not thinking of compulsory licensing. I think it is a bad thing to make political parties subject to compulsory licensing. But I am thinking that perhaps it could be stipulated that political parties must periodically account for the funds they receive. Or that they must nominate their candidates in primary elections. Or that they must account for their actions once a year in members’ meetings, and the like. I could imagine that in this way a number of things could change in our country for the benefit of a real democracy. Perhaps one could even consider whether a provision should be included in this Basic Law that renders the provisions on the electoral system – which I believe were hastily included in the state constitutions – irrelevant. But that is just one idea that I would like to put forward for consideration here. Ladies and gentlemen, democracy also includes the recognition of the principle that right comes before might.
And I believe and would like to assert that today a state can only call itself democratic in itself if it expresses this principle in its relationship with other states. I do not need to remind you of the great ideas of Immanuel Kant here. There, in his treatise on eternal peace, where he says that the state itself can only embed the human being, the citizen, in law if the states are embedded in the law in relation to one another. I believe that the Basic Law should contain a provision stating that the general rules of international law are directly applicable law in this country. That is, that we do not view international law exclusively as a legal system that is directed at states, but also as a legal system that establishes rights and duties directly for the individual. Furthermore, a provision should be made that allows sovereign powers to be transferred to international organizations by way of legislation. I believe that this Basic Law would vividly express through such a provision that the German people are at least determined to move from the national state phase of existence to the supranational state phase. If we do not include such a provision, then a constitutional amendment law will be necessary in every single case. And I probably do not need to say what that means here. Instead, we should open the doors wide to a newly structured supranational political world.
Because we don’t want to fool ourselves. In this day and age, there is no longer a problem that can be solved exclusively by national means. Just as the cause of all our needs has a supranational basis, we can only find the means to overcome these needs on a supranational basis. Of course, the internationalizations that are taking place must be real internationalizations and not mortgages unilaterally to the detriment of the German people.
And that raises another problem: the problem of the security of this area. We will no longer have a Wehrmacht. For my part, I welcome the fact that the age of national Wehrmachts seems to be coming to an end. And that the exercise of military sovereignty, if you will, will take place on a supranational sphere.
This presupposes that the countries, the states, join together in a system of collective security, where security is no longer guaranteed exclusively by the national military and industrial power potential, but where the security of the individual is guaranteed by all others. I believe that the Basic Law should contain a provision that makes it possible to join such a system of collective security on the basis of reciprocity.
Some people think that it is enough for a state to neutralize itself through its constitution. This wish is understandable, everyone likes to look over to Switzerland. But that is not how it works. There is no institution of neutralization that can be declared unilaterally. There are only areas that are neutralized by a series of international treaties. And if I impose the obligation on a number of neighboring states to guarantee the neutrality of this area, then they must also be given the right to take care of the
policy of this area. Because if a wrong policy is pursued here, that commits their obligation. And no one can be expected to take on obligations without demanding corresponding rights. For this reason, the concept of neutralization should not be treated so lightly.
I believe that the Basic Law should also contain a provision that punishes anyone who disrupts the peaceful coexistence of nations and who acts with the intention of preparing for war. I am not only thinking of the manufacture and trade of weapons, but also of the gymnastics club, which in reality is used for military sports, i.e. pre-military training. We know where these things have led us. And today we are paying the price for the nonsense that we once tolerated.
I believe that the Basic Law should also contain a provision that we do not recognize the cession of German territory without the consent of the population living in that territory. Perhaps we can be forced to suffer and endure what has been done to us here so far. But we will never be forced to recognize that as a right. Neither in the West nor in the East. That is part of the honor of a people and therefore also of democracy. A tyranny can afford to sell people, but democracy cannot. We are currently reading in the newspapers again about territorial demands that are being made on us here in the West. We must recognize that there are certain problems at the borders that must be solved. But we do not believe that today, in the middle of the twentieth century, such problems must necessarily be solved using methods that might have been modern in 1814.
These problems can be solved on an international basis. One can come to an agreement from state to state about the solution to the difficulties that may arise here and there at the borders and there is no need to immediately proceed to ceding territory. If one is determined to oppose nationalist movements in one’s own country, then one is also obliged to call something that happens elsewhere nationalism.
We are supposed to make this Basic Law in such a way that the structure that emerges from it is a federalist type structure. This has been imposed on us, obviously, as something that should be within the framework of the
security policy that they want to pursue towards us. Because while everywhere else in the world federalism means “unification of what is separated”, they obviously want to introduce it here in order to dissociate what is already united. In other words, exactly the opposite process to that which has been chosen in our own country.
Well, I think it is worth saying a few words about this. Do people really seriously believe that the security of our neighbors can be guaranteed by constitutional tricks?
I do not believe that federalization as such is a guarantee of security for our neighbors. But I do believe that democratization of Germany could provide security for our neighbors. If we had had a government under parliamentary control in 1914, peace would have been more secure than it was in Germany, which was very federal at the time. The Federal Council did not prevent the war. But a parliament would probably have prevented it.
Now, what can be said about this, about the question of federalism, is just a few words: What does federal order mean? I believe there are as many answers to this as there are to the question of what democracy means? There are a number of historical constitutional models that people have agreed to call federal. They differ enormously from one another. But I do believe that there are some characteristics that must be realized if a constitution is to be given the label federal.
The first thing seems to me to be that the region must be divided into a series of differentiated local authorities of their own order. The second thing is that there must be a federal authority that takes precedence over the authority of the members within its jurisdiction. Thirdly, that there must be an independent, exclusive or concurrent authority of the members in certain subject areas. Fourthly, that the members must participate in the bodies that form the will of the Federation, the legislative or executive will of the Federation. And finally, fifthly, that there must be qualified protection against changes to the federal structure of the constitution.
There is no doubt in our minds that the German states must be the basis of the region that we are now organizing. That they must have their own constitutional sovereignty, organizational sovereignty, their own legislation, administration and jurisdiction and a financial system separate from the Federation within the framework of the provisions of the Basic Law.
Furthermore, there is no doubt in our minds that a federal authority must be created that is not the sum of the state authorities, but an independent authority that has priority over the state authorities within the framework of the provisions of the Basic Law. Federal law should override state law.
The relationship between the executive powers at both levels will be difficult… but I don’t want to anticipate what will be said tomorrow by a more qualified person. Let me just point out a few basic points here. It will be necessary for us to delimit legislative competence according to subject areas. The question will be how we should go about this. I would regret it if we were to go about this based on some formalistic standpoint. Based on a formalistic federalism or a formalistic unitarism. We should not go about these things deductively at all, but inductively. That is, based on the principle of professional expediency. I believe that there are two principles on which we can agree. The first is: the vital interests of the whole must not be endangered by particular egoisms. The second principle: whatever the country can do without harming the whole, it should do on its own. Because it has the advantage of being close to the subject matter. Structure from below, but planning from above. The first sentence is only correct if this sentence is also uttered.
The question of how the states are to be involved in the formation of the federal will will probably be discussed tomorrow, when the structure of the organs is discussed. I just want to talk about one special case here. The question of the territorial structure of the federal territory.
Should the structure of the federal territory remain unalterably as it is today? Should the historical development be the final criterion, or should rational considerations prevail in deciding this question? I am of the opinion, and my friends agree with me, that healthy federalism is only possible if there are states that are reasonably balanced against each other and not purely random entities, most of which are no more than three years old and owe their existence to the coincidence of the demarcation line between two infantry divisions.
The prime ministers should now sort out this problem. Before our work is finished, you are said to have reorganized Germany by changing the state borders. Will you succeed or not? We can only guess, but we cannot know. Let us assume that you do not succeed. Should we then finally be satisfied with the situation that the Prime Ministers could not deal with?
We will have to come to a conclusion on this. Should the Basic Law provide for the possibility of reorganizing the federal territory from the federal level? Should this reorganization be carried out by the states themselves, perhaps by means of mutual treaties and agreements? The experience gained so far can, I believe, allow all those interested in the current situation to continue to sleep soundly. If such a change can be made by federal law, should the will of the populations involved be taken into account? One way or another? These are all questions that we will have to try to address here. I do not believe that we can avoid the question. But I would like to say one thing: if it ever succeeds in structuring Germany according to reasonable principles, then we should leave the situation as it is. Then we should proceed conservatively.
Ladies and gentlemen, I have reached the end of my remarks. They may have seemed a little theoretical to you at times. But believe me, I have not done so for the sake of speculation. I have tried to give a clear definition of reality. Because only on a clearly defined reality can one build a policy that deserves the name. Illusions and fictions can fool oneself. Perhaps for a while too. Perhaps one can even use them as instruments of policy for a while. But fictions cannot be used as foundations and a policy, nor even as starting points for leveraging individual political actions.
My aim has been to convey clear insight while remaining sober myself. Clear insight and sobriety and passionate love for the German people and burning concern for peace will guide the Social Democratic Party in its work in the parliamentary council.
Insight and sobriety require us to recognize the limitations to which our possibilities are subject. The more we take this reality into account when making full use of this possibility, the more effective the instrument we have to forge will be.
What are we forging this instrument for? Are we forging it to divide Germany?
We are forging it because we need it in order to complete the first stage on the road to the national unification of all Germans. The further stages are still beyond our power.
May the occupying powers be aware of the responsibility they have assumed when they set themselves up as masters of our destiny.
This responsibility includes the duty, for the sake of peace in Europe, to give Germany back peace and thus the German people the opportunity to make use of their indestructible right to shape the forms and content of their own political existence.
A united, democratic Germany, which has its seat in the Council of Nations, will be a better guarantor of peace and prosperity in Europe than a Germany that is chained up like a vicious chained dog.
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