Obrázky stránek
PDF
ePub

fore, any organization of the sovereignty within the constitu tion which would prevent the whole German people and the Prussian organization from amending the constitution is more or less artificial. It prevents the natural development of the German state. It sets law in opposition to fact, the result of which, in the long run, will be a period of stagnation followed by a period of violent changes.

The constitutional provision which gives to a majority of the representatives of the whole German people, or to the Prussian executive, the power to prevent an amendment to the constitution is certainly a truthful legalization of the facts; but that is only one side of this transcendent question. The mere power to prevent is not the test of sovereignty: the sovereign must also have the power to overcome the attempt of any other force to prevent. When, therefore, we reflect that, according to the organization of the sovereignty within the imperial constitution, the whole German people together with the executives of Prussia, Bavaria, Saxony, Württemberg, Baden, Hesse, Brunswick, MecklenburgSchwerin, Lubeck, Bremen, and Hamburg could not legally change the constitution upon a single point, in case the fourteen petty princes of Waldeck, Reuss, Lippe, etc. should object, we cannot fail to see that upon this side of the question the organization of the sovereignty within the constitution departs very far from the real conditions of power back of the constitution.

And when, in the second place, we come to the provision which recognizes to a single prince the power to prevent constitutional development by legal means upon many subjects which naturally concern the entire German state, thus really dethroning the sovereign by making the will of its subject superior to its own will, then must every healthy mind come to the conclusion that there is not only incompleteness, but positive error, in such an organization of the state. It does not require a great deal of scientific reflection to detect the

root of the error. It lies in the doctrine of the federal state. I contend that there is no such thing in political science as a federal state; that this political adjective is applicable only to government; and that the attempt to make a federal state in law is caused by confounding the conceptions of state and government. This political phenomenon always appears in that period of the history of a state when, through the expansion of the state, the organization of the sovereignty suffers natural changes which do not express themselves immediately in new forms of law. The dull mind of the average legislator cannot at once be made conscious of such changes. It takes them in only piecemeal, and formulates them only piecemeal, and is always deceived by the tempting conceit that the whole thing is a matter of legislative will.

The third great difficulty with the organization of the state in the German constitution is its confusion with the government. The sovereign acts through the ordinary organs of legislation and according to the ordinary forms of legislation; and its acts are distinguished from the ordinary acts of the legislature only by the extraordinary majority required in the Federal Council for their validity. The first consideration, therefore, as to any project which is presented in either house of the imperial legislature is whether it be a project of ordinary law or of constitutional amendment and, if the latter, whether it touches a specifically guaranteed right of a particular commonwealth. Who shall decide these questions? The constitution makes no express provision in regard to such a power. If it makes any provision, it must be by implication. Some of the commentators hold that this is a question of constitutional interpretation, to be determined preliminary to the passage of the bill, and that the constitution impliedly vests this power in the legislature, since the legislature must exercise the same whenever it passes any act; and that the power is to be exercised in the manner of ordinary legislation, i.e. by vote of the simple majority in the Federal Coun

cil and in the Diet. But if this be true, then what becomes of that most vital power of the King of Prussia to veto any proposition for constitutional change through his more than fourteen voices in the Federal Council? The simple majority in the Federal Council and in the Diet would only find it necessary to declare a project for changing the constitution to be a project of ordinary law, and the Prussian government would be helpless. Moreover, of what value would be the constitutional reservation of specific rights to particular commonwealths, and the requirements that these rights shall not be changed without the consent of the particular commonwealths, if the simple majority in the Federal Council and in the Diet could legally avoid this requirement through this power of preliminary interpretation?

Other commentators have been so impressed by this consideration that they have found in the Emperor's prerogative of promulgating the laws the power to examine their contents and determine therefrom their character and leave them unpromulgated if, in the Emperor's opinion, they have not been passed in the manner and with the legislative majority prescribed by the constitution.2 But what a tremendous power this would place in the hands of the Emperor. He would only find it necessary to declare any project distasteful to him a constitutional amendment in order to be able to veto it in the Federal Council by the Prussian votes. Moreover, this power of the Emperor would not legally protect the other commonwealths against an attempt of the imperial legislature to deprive them of their specifically guaranteed rights by the power of interpretation. It would protect Prussia only. It may be said, of course, that the simple majority of the Federal Council and of the Diet on the one side, or the Emperor on the other, would not so abuse the

1 Von Rönne, Das Staatsrecht des deutschen Reiches, Bd. II, Erste Abtheilung, S. 35.

2 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 119; Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 549 ff.

power of interpretation as to achieve the results above indicated; but we are treating of law now, not of personal disposition; not of what probably would be, but of what might be.

This close connection, almost identification, of the organization of the state with the government, has already led to some indistinctness as to what is constitutional law and what merely ordinary law. For example: a project of law, which could be passed by the imperial legislature only after an amendment to the constitution had been made empowering the legislature thereto, has been considered valid without such formal preliminary change of the constitution, provided it shall have been passed by a majority sufficient to have made the constitutional change. Now is this law a part of the constitution? It has been held by precedent that it is not as to form, only as to matter, and that it may be changed subsequently as a piece of ordinary legislation, even though the change would involve further modifications of the original constitutional provision.2 All this is most unscientific and confusing. The question of amendment should be considered and decided separately, apart from and antecedent to the passage of any law authorized by such amendment. If the organization of the state, the constitution-making power, were distinct from the government, this source of confusion would not exist.

Of course the German state may reorganize itself in the constitution; but it can do so, legally, only through the forms of procedure prescribed therein for its present organization. The likelihood of its being able to do so in fact is not, therefore, great. It is more probable that the reappearance of the actual, though unorganized, power back of the constitution will precede any further advance in the development of the fundamental principles of the constitution. If so, however, the organization of the state within the constitution will have. so far, failed of its purpose.

1 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, S. 547 ff.

2 Ibid., S. 549.

CHAPTER IV.

THE ORGANIZATION OF THE STATE IN THE FRENCH

CONSTITUTION.

THE eighth article of that part of the constitution passed in February of 1875 reads as follows: "The chambers shall have the power, upon their own motion, or upon the motion of the President of the Republic, to determine, separately and by absolute majority in each, whether a revision of the constitution shall be undertaken. After each of the two chambers shall have passed this resolution in the affirmative they shall unite in National Assembly and proceed to the revision.1 The propositions of revision shall be valid parts of the constitution when voted by an absolute majority of the members composing the National Assembly." 2

These provisions are quite clear and very simple. They require but little explanation and not a great deal of criticism.

1. As to the principles of the composition of the two chambers, we may say here, generally, that they both proceed from universal suffrage, and that the one is chosen by direct and the other by indirect election. Their power to initiate and ordain the revision of the constitution is thus popular sovereignty, pure and simple.

2. As to the procedure in the chambers when acting separately, we may say that the constitution leaves all questions regarding the inception of the motion for revision to be settled by each chamber for itself, and only requires that in the

1 Loi relative a l'organisation des pouvoirs publics, 25-28 février, 1875, Art. 8. 2 Ibid.

« PředchozíPokračovat »