of federalism espoused by the Americans as the most influential of the allied
powers, or from the history of Germany. ??????????? It was specified by
the allies that the Basic Law should provide for a federal system of
government, although exactly which powers should be reserved to the states was
not made clear.? However, this is not
necessarily an example of the parliamentary council being forced to adopt a
foreign system.? There is a strong
tradition of federalism in Germany, dating back to unification in the 1870?s,
and indeed beyond.? The German
Confederation of 1815 to 1866 was a collection of separate monarchies and
principalities, with the Confederation itself possessing very few, and very
weak, powers.? The Second Reich, finally
established in 1871, gave the central power, represented by the Kaiser as the
executive and the Reichstag as the legislature, much more power, but retained
for the individual states many powers through the Bundesrat.? Further, the states were still responsible
for almost all administration. ??????????? Even under the Weimar
Republic, which certainly did move in the direction of further centralisation,
the newly renamed L?nder retained control over ?the administration of justice,
police, education, and local government?[2]. This gave
them an extensive remit, although they did lose their financial autonomy.? Nevertheless, the L?nder were still
represented in government, via the Reichsrat, the second chamber of the
legislature, to which each Land sent representatives.? It was not until the Nazis took power that federalism disappeared
altogether from Germany.? There is no
room in a totalitarian regime for any degree of regional autonomy.? However, this move to centralised government
must be viewed in the light of previous German history as something of an
aberration, federalism being the norm from which Nazism was a deviation. ??????????? Further evidence
exists that the federalism adopted by the parliamentary assembly was a German
phenomenon, and this can be seen most clearly by underlining the huge
differences that there are between American federalism, surely the pattern
which the allies (dominated by America) would have wished to impose on Germany,
and the federalism adopted in Basic Law. ??????????? American federalism
was brought into being in order to unite the various states.? The states retain considerable control over
themselves and their own affairs.?
However, in Germany the L?nder could not be described as separate
states.? They possessed very little in
the way of state sovereignty, and most of them were new creations, since the
Nazis had done everything in their power to eliminate the original L?nder.? Added to this is the historic form of German
government, which generally has concentrated executive power at the centre
while leaving administrative functions to the L?nder.? Consequently, the federal arrangement in Germany results in the
L?nder sending representatives to the Bundesrat, which is the guardian of the
rights of the L?nder, and which has direct involvement in the making of federal
law.? The contrast with the American
Supreme Court is obvious, since that court has no role to play in the
formulation of federal law. ??????????? As well as federalism,
other aspects of Basic Law point clearly to German history as the source of
their inspiration.? Article 67, which
restricts the ability of the Bundestag to overthrow the government, is a clear
reaction against the chaotic days of the Weimar Republic and the characteristic
high government turnover of that period.?
However, the fact that it is possible to overthrow the government in the
Bundestag shows that the framers of the Basic Law were well aware of the need
to avoid both the extreme of totalitarianism on the one hand and the weakness
of the Weimar Republic on the other.?
Article 68 also shows an acute awareness of the need for stability, as
it makes it very difficult to dissolve the Bundesrat. ??????????? The role of the
President in the Weimar Republic had been instrumental in the breakdown of
democracy in that system.? Determined to
avoid a repeat of this mistake, the framers of the Basic Law were very careful
to outline the powers of the President in Articles 54 to 56.? It was decided that the President would be
elected by an electoral college made up of members of the Bundestag and
delegates of the L?nder.? A popularly
elected Presidency, it was felt, would be open to the demagogue, and Germany
had experience of what such a person could do once elected.? Further, a directly elected President might
be felt to have the legitimacy to act against the Bundestag.? This clearly had to be avoided if a repeat
of the Hindenburg crisis was not to be suffered. ??????????? In conclusion, then,
the Basic Law of Germany has its origins primarily in the history of Germany,
albeit in a negative way.? The Basic Law
was a reaction to that history, and an attempt to avoid a repetition of
it.? The role of the allied powers was
very limited, and they allowed themselves to a great extent to be guided by the
parliamentary assembly which they had requested be called. [1]Decision in Germany, Lucius D. Clay p 399 [2]The Founding of the Federal Republic of Germany, John Golay, p 36