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when the language of the constitution will bear it, these should determine the interpretation. From this point of view all the great reasons of political science and of jurisprudence would justify the adoption of a new law of amendment by the general course of amendment now existing, without the attachment of the exception; and in dealing with the great questions of public law, we must not, as Mirabeau finely expressed it, lose the grande morale in the petite





THE seventy-eighth article of the imperial constitution reads as follows: "Changes of the constitution shall be effected by legislation. Propositions therefor are to be regarded as defeated when fourteen voices in the Federal Council declare against them. Those provisions of the imperial constitution, through which specific rights are secured to an individual commonwealth of the Union in its relation to the Union, can be changed only with the consent of the commonwealth so privileged." This language requires much explanation before any criticism will be intelligible.

1. What is meant by the provision that changes in the constitution shall follow the usual course of legislation? The first element of the answer is, of course, that the legislative department of the imperial government makes constitutional law. No distinction, then, as to personnel or organization, exists between the body which makes constitutional law and the body which makes ordinary law. The second element of the answer requires a description of the usual course of legislation. The two houses of the legislature are the Federal Council (Bundesrath) and the Diet (Reichstag).2 Bills may be originated in either house. They become law when passed by both houses by simple majority vote of those voting, a quorum being present. A quorum in the Diet is

1 Reichsverfassung, Art. 78.
8 Ibid. Arts. 7 and 23.

2 Ibid. Art. 5.

4 Ibid. Art. 5.

the majority of the whole number. In the Federal Council it consists of those present at a meeting regularly called, the chancellor or his representative being among those present.2 The constitution does not require the Emperor's approval to bills which may become law through the general course of legislation, and therefore amendments to the constitution are not subject to his veto, since they, by provision of the constitution, follow this course.

2. But when this general provision of the constitution in reference to legislation is made applicable to the work of changing the constitution, it is placed under one general and one special limitation.

The first limitation requires an extraordinary majority in the Federal Council to effect any constitutional changes. Less than fourteen voices in that body must oppose the proposition in order that its passage may be effected. The Federal Council (Bundesrath) is composed of members appointed by the executives of the twenty-five commonwealths of the German Empire, to the number of fifty-eight voices. The representation therein is distributed as follows: Prussia has seventeen voices; Bavaria, six; Saxony and Württemberg have four each; Baden and Hesse have three each; Brunswick and Mecklenburg-Schwerin have two each; the rest have one each.4 The vote of each commonwealth is cast solid and according to instructions from the executive of the commonwealth. The Diet (Reichstag), on the other hand, is composed of members elected by the universal suffrage of all male Germans twenty-five years of age and in full possession of their civil rights, and the representation is according to population. Each member thereof represents

1 Reichsverfassung, Art. 28.

2 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung

S. 12.

8 Reichsverfassung, Art. 78.

5 Ibid. Arts. 6 and 7.

4 Ibid. Art. 6.

6 Ibid. Art. 20.

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the whole Empire and votes uninstructed.1 Fully threefourths of the members are from Prussia. The vote in this body upon changes of the constitution is by simple majority of those voting thereon, a quorum being present.

It will be seen from an examination of the representation in these two bodies, that while the King of Prussia or the representatives in the Diet from Prussia may prevent any change in the constitution, both of them together cannot effect a change in the constitution. It will also be seen that the Kings of Bavaria, Württemberg and Saxony can together prevent any change in the constitution, but that all the executives, without the King of Prussia, and the unanimous voice of the Diet taken together cannot force a change of the constitution upon the King of Prussia. Finally, it will be seen that the executives of at least twelve of the largest commonwealths must unite with the majority of the Diet in order to effect a change in the constitution.

The second limitation upon the general course of legislation in making constitutional changes is special, and ordains that those provisions of the constitution, through which specific rights are guaranteed to the individual commonwealths in their relation to the Union, cannot be changed except with the consent of the commonwealths so privileged.2

Limitations upon and exceptions to general provisions are of course to be strictly construed. Under this exception to the general course of constitutional amendment, therefore, nothing can be claimed as a specific right requiring, as the condition of its change, the consent of the commonwealth affected, unless it shall be expressly guaranteed in the consti tution, and unless it shall affect the relation of the particular commonwealth to the Union. For example, the general rights and powers of local self-government not withdrawn from the commonwealths by the imperial constitution, but

1 Reichsverfassung, Art. 29.

2 Ibid. Art. 78.

not expressly secured to the commonwealths by that constitution, are not protected by this exception from the general course of constitutional amendment:


These specific rights, guaranteed in the constitution, are quite numerous. They are either in the form of specific powers conferred upon particular commonwealths, or specific exemptions of particular commonwealths from the general powers of the imperial government. In the first class belong the right of Prussia to the presidency of the Union;1 the right of Bavaria to the chairmanship of the standing committee of the Federal Council for Foreign Affairs, and to a permanent seat in the standing committee of the Federal Council for the Army and Fortifications; the right of Württemberg to a permanent seat in the standing committees for Foreign Affairs and for the Army and Fortifications; and the right of Saxony to a permanent seat in the standing committee of the Federal Council for Foreign Affairs. These are clearly all specific powers touching the relation of the particular commonwealth to the Union, and guaranteed by the express provisions of the constitution to the particular commonwealth, and there is no difference of opinion among the commentators in regard to their falling under the class of rights which may be dealt with only by consent of the commonwealth so privileged. The commentators, however, generally go further, and bring under this class also powers not guaranteed to a particular commonwealth by the constitution, but by the treaty made between the North German Union. and Bavaria, connecting Bavaria with the North German Union in the present German Union or Empire. The powers guar

1 Reichsverfassung, Art. 11.

3 Ibid. Art. 8.

2 Ibid. Art. 8.

4 Ibid. Art. 8.

Ibid. Schlussbestimmung zum XI. Abschnitt, Art. 15.

• Reichsverfassung, Art. 8.

7 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 14; von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung S. 46, 47.

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