Is the word constituted taken from the constitution

Basic Law and Parliamentary Council

Hans Vorländer

To person

Hans Vorländer, born in 1954, is Professor of Political Theory and the History of Ideas at the Technical University of Dresden. His research interests include constitutional theory and constitutional politics.

Social upheavals, revolutions, violent conflicts and wars are reasons why a political community gives itself a new constitution. How did it come about that the constitution of the Federal Republic of Germany was "only" a basic law?

Even if the Basic Law was not to be passed by the people, there was great interest: spectators looked through an open window into the meeting room of the Parliamentary Council. (& copy House of History / Erna Wagner-Hehmke inventory)
Social upheavals, revolutions, violent conflicts and wars are reasons why a political community gives itself a new constitution. As a rule, constitutions determine the organization of the state and contain basic human and civil rights. After a constituent assembly has drafted the text of the constitution, it is approved by the people in a referendum.

The history of the German Basic Law was different - only in a few, but in crucial points.




The Basic Law was not a constitution

The Basic Law was given after the end of National Socialism and World War II. Like other constitutions, it also had a constitutive meaning for the new state, because the proclamation of the Basic Law on May 23, 1949 also marked the birth of the Federal Republic of Germany. Nevertheless, it lacked decisive attributes: the Basic Law was not a constitution. Nor was it ratified by the people in a referendum. In addition, it should not establish a new German nation-state, but initially only make a single national territory out of the three western occupation zones, i.e. only establish a West German state.

But how did it come about that the constitution of the Federal Republic of Germany was "only" a basic law? And why was it not passed by the German people in a vote? From today's perspective, especially after German reunification on October 3, 1990, this question seems to be anachronistic. We have long since got used to the fact that the Basic Law is the constitution of the Federal Republic of Germany. In contrast, the fact that the Basic Law was not passed by the people in 1949 has almost been forgotten.

A western state is to be created

For the situation in 1948, all of this, the way in which the western state was to be constituted, but also how long such a constitution should apply, was completely unclear. It was evident, however, that Germany was beginning to reorganize itself in two parts. On the one hand, the Western Allies made the decision at the London Six Power Conference in 1948 that a new western state should grow out of the three western zones of occupation. The American Secretary of State James F. Byrnes had already announced in September 1946 that he would "return the German government to the German people". The American and British occupation zones had merged to form the bizone on January 1, 1947, institutions such as the Economic Council, the Food Council or the Transport Council were founded as joint organs of the countries. Fixed national structures with constitutions and representative bodies established through elections had also already emerged in the newly established countries.

In the final communiqué of the London Foreign Ministers' Conference on June 17, 1948, a constitution was officially mentioned for the first time. This should do two things. On the one hand, "the German people should now be given the freedom in the various countries ... to set up the political organizations and institutions for themselves that will enable them to assume government responsibility". On the other hand, this constitution should be structured in such a way that the division of Germany could be lifted again at a later point in time by means of a federal form of government. According to the final communiqué, this constitution had to be designed in such a way that it could be reconciled with the requirements of the occupation and control by the (Western) Allies.

Frankfurt documents show the way

The decisive step seemed to have been taken on July 1, 1948, when the eleven Prime Ministers of the three West German occupation zones in Frankfurt am Main received the decisions of the London Six Power Conference on Germany's political decisions from the military governors. These so-called Frankfurt documents contained the request to the prime ministers to convene a "constituent assembly" in order to work out "a democratic constitution". This constitution should create a form of government of the federal type, protect the rights of the participating countries, contain guarantees of individual rights and freedoms, and create an adequate central authority. This constitution had to be approved by the military governors and put into effect "for ratification by referendum in the participating countries".

Everything seemed to be heading towards a constitution and a constitutional referendum. But the foreign ministers and the military governors of the Western powers had drawn up the bill without the German prime ministers and parts of the revived parties. As much as the prime ministers saw themselves upgraded to their own "institution" by the Frankfurt events and could see themselves as "mouthpieces for the Germans", they were reluctant to give the western state all the attributes that would make it a full-fledged state Nation state. In their eyes, the division of Germany was only temporary and could not be strengthened by a constitution.

Picture gallery: The Parliamentary Council
The CDU / CSU suggested electing a "parliamentary council" through the state parliaments, which should create the "preliminary organizational basis" for the merger of the three zones and "assert the interests of the German population vis-à-vis the occupying powers". Since, it seemed, the constitution and the occupation statute were closely linked, the aim was to prevent the constitution and the occupation statute from being adopted by referendum. The SPD also wanted to forego drawing up a constitution. They should be replaced by an "administrative statute", an "organizational statute" or a "provisional constitution". The SPD was also against a referendum, thinking more of a committee of the state parliaments through which the constitution would have to be passed.

Provisional instead of a unitary state

Not only the Basic Law, but also the capital Bonn should be a provisional solution. Construction of the future plenary hall began in February 1949. (& copy House of History / Erna Wagner-Hehmke inventory)
When the minister-presidents of the West German occupation zones met in Koblenz from July 8 to 10, 1948 - incidentally without the four East German minister-presidents, which symbolically expressed the factual split that already existed - they very quickly agreed on the creation of a West German state dispense. The calling of a constituent assembly or even a "national assembly" was out of the question for them in view of the division of Germany. The Prime Ministers discussed for a long time the question of the forms in which the political organization of the three western zones of occupation should be cast. Finally, in the Koblenz resolutions, they pleaded for a "provisional solution" and decidedly rejected a referendum. The Prime Ministers made it clear that they did not want to take responsibility for the division of Germany. That is why they expressed themselves very reserved about the intention to "give the structure to be created the character of a state". The Prime Ministers agreed to recommend that the state parliaments elect "a representative" (Parliamentary Council) and instruct them to work out "a basic law for the uniform administration of the occupied territory of the Western powers". Thus the decisive two terms were coined: instead of a "Constituent Assembly" a "Parliamentary Council", instead of a "Constitution" a "Basic Law".

But at that time it was by no means certain whether the Prime Ministers would be able to prevail over the Western Allies. Because they rejected the drafting of a Basic Law instead of a constitution and initially also adhered to the constitutional referendum. Nevertheless, after their conference in the Niederwald hunting lodge on July 21, 1948, the Prime Ministers informed the military governors that they had decided to speak of the Basic Law and that they were sticking to their refusal to ratify such a Basic Law by referendum. The Western Allies gave in. The way was mapped out. The Parliamentary Council did not change anything in the designation "Basic Law" either.

From provisional to definitive

C'est le provisoire qui dure - it is the temporary solution that lasts. As paradoxical as the French phrase may be, it accurately characterizes the fact that the Basic Law has become a constitution. The Basic Law, only intended for a transitional period, namely until the point in time when, as the original Article 146 prescribed, the German people freely self-determined a new constitution, remained in place. It persisted even when the road to the unification of the Federal Republic of Germany and the German Democratic Republic was taken in 1989/90. The alternative was to allow the GDR to join the scope of application of the Basic Law in accordance with Article 23 (old) or, in accordance with the meaning of Article 146, to draw up a new constitution by a constituent assembly and then freely decide on the way by the German people ratify a referendum.

Article 23 and 146 GG before 1990
For various reasons, not least due to the acceleration of the unification process, the first-mentioned path was taken. A new constitution was not drawn up, the necessary changes were made within the framework of the old Basic Law. Even a revision of the Basic Law, which was planned for the period after the unification, did not lead to a total revision or a newly drafted constitution. In the end, the provisional arrangement became a definitive, and the Basic Law became a constitution.

In terms of content and structure, validity and recognition, the Basic Law was already a fully-fledged constitution in the (old) Federal Republic of Germany. The Basic Law had no defects, on the contrary: it was the basis for the development of a free and stable democracy that managed to avoid the mistakes of Weimar. Fundamental and human rights were given a prominent place, the Federal Constitutional Court developed into an advocate for the citizens and their rights, the political forces and institutions mostly acted within the framework of the constitutional rules. And finally, it was the Basic Law that gave the citizens of the Federal Republic of Germany a feeling of belonging, as the talk of "constitutional patriotism" since the 1980s shows. The citizens had adopted the Basic Law as their constitution, even if they were not able to ratify it themselves in 1949. In 1990 the Basic Law was not subjected to a referendum, which is now a constitution for the whole of Germany, which was not only regretted by many citizens of the GDR. For their part, they were now dependent on appropriating the Basic Law themselves in order to make it their (overall) German constitution.