Constitution Making after National Catastrophes: Germany in 1949 and 1990

By Markovits, Inga | William and Mary Law Review, March 2008 | Go to article overview

Constitution Making after National Catastrophes: Germany in 1949 and 1990


Markovits, Inga, William and Mary Law Review


Constitutions, usually, are new beginnings: after some seismic shift in a country's history--a revolution, a lost war, a collapse of government--a nation sets out to reinvent itself. It can do so by looking back into the past or forward into the future. Most constitutions will do a bit of both, but their character will differ depending on which time perspective is foremost in the drafters' minds. A backward-looking constitution will look to past mistakes--perhaps mistakes that brought about the nation's current predicaments in the first place; will try to prevent their repetition, hold on to past successes, and will favor solid and cautious government structures based on reason and experience. A forward-looking constitution will try to create a new and better world. It will distrust the solutions of the past, which, after all, did not prevent the disarray that the new constitution now must help to overcome. Instead, it will aim for new government structures whose design is fueled by hopes and political convictions.

In this Essay, I will compare three twentieth century German constitutions; all three, responses to political disintegration and collapse. The first, the German Grundgesetz of 1949, drew its inspiration mainly from the past and became extraordinarily successful. The other two, the first East German Constitution, also of 1949, and the last East German attempt at constitution making, the Roundtable Constitution of 1990, looked mainly to the future and were thorough failures. I will describe how considerations for the past or for the future shaped these constitutions, examine what went right or wrong in their respective lives, and ask whether we can draw any lessons from their fate that may explain what it is

that makes a constitution succeed or fail. Did the drafters' attitudes to time play any role in the effectiveness of their creations?

I. THE THREE CONSTITUTIONS

A. When the three Western Military Governors, in the "Frankfurt Documents" of July 1, 1948, authorized the West Germans to create a constitution that would establish a new, democratic, law-abiding federal state in their war-torn and divided country, local and regional German self-government already existed in all four Allied occupation zones. (1) It was a more or less independent, central German government that the Allies now were looking for. In the West, newly recognized political parties--above all, the Christian Democratic Union (CDU) and the Social Democratic Party (SPD)--ran eleven Land (state) governments, each with its own parliamentary body. A similar multiparty structure of local and Land governments existed in the Soviet Occupation Zone but was increasingly undermined by the ascendance of the Communist Party. When it became obvious that the Soviet and Western occupation powers could not agree on how to reconstruct a united Germany, the Western Allies decided to create their own consolidated West German state. Hence the Allied request that the West Germans establish a constitutional convention to prepare a constitution that was to be ratified by a West German plebiscite.

The West Germans were keen on self-government but feared that the creation of a West German state would block the path to Germany's future reunification. Instead, they hoped for a provisional governmental structure that would eliminate "the conditions of disorder and anarchy" that plagued their devastated country, "a temporary shelter, not more," (2) to enable citizens to lead an ordinary daily life until the Soviet Occupation Zone would be allowed to join a free and democratic Germany. In the negotiations over the new constitution, some of the most fervent disagreements between the Allied and German representatives concerned semantics. The Germans objected to the lofty title "constitution." They wanted to produce "a functional structure serving the tasks of a transition period" (3) and accordingly favored giving the document a humdrum, administrative-sounding name such as "Grundgesetz" (Basic Law). …

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