Fundamental law of the Federal Republic of Germany

History

In 1948, whereas the Cold war begins, the allied powers (the United States, the United Kingdom and France) which occupy the Western part of the Germany decide to equip this one with a Constitution. In July 1948 the military governors transmit to the Minister-president S different Länder from the documents specifying the conditions to fill by the future constitution, the “Documents of Frankfurt”.

As of August 1948, a committee of experts meets on the island of Herrenchiemsee to prepare a first outline of the future constitution. Starting from September 1st 1948 meets in Bonn a convention of representatives elected by the Parliaments of different Länder from the Western zones, called the parliamentary Conseil ( Parlamentarischer Rat ) which must write the fundamental law starting from the guiding lines fixed at Herrenchiemsee. After sometimes surging debates the parliamentary Council proposed the May 8th 1949 a text which was approved, after some minor modifications, by the military governors American, British and French the May 12th 1949. The Fundamental law was ratified by the Parliaments of the ten Länder of Bade, Lower Saxony, Bremen, Hamburg, Hesse, Rhineland-of-North-Westphalia, the Rhineland-Palatinat, the Schleswig-Holstein, Wurtemberg-Bade and Wurtemberg-Hohenzollern between the May 16th and 22nd 1949. The Landtag of Bavaria refused it but accepted its validity on the Bavarian territory. It was promulgated on May 23rd 1949 and came into effect the following day.

The constitution resulting from this work was regarded as a provisional text on the one hand because of its preparation strongly influenced by the allied powers and of its indirect approval in the majority by Länder, and on the other hand because it was to be useful only like transitory text while waiting to be able to write a constitution for the whole of Germany (including the zone under Soviet control ). The drafting of a new constitution to the reunification, initially envisaged, finally did not take place. The German constitution until never was the subject today of a Référendum.

The influence of the Nazism

The text of the Fundamental law is marked by the historical context with leaving the Second world war. This influence is felt for example in the particularly detailed description of the political parties. The political parties were not mentioned in the Constitution of Weimar and could be easily prohibited in 1933. Another remarkable characteristic of this constitution is that it includes/understands a very complete declaration of the basic rights in the text even and not in preamble (as in France for example) or in addendum (like the Bill off Rights).

But the most known heritage of this spirit is the clause of eternity ( Ewigkeitsklausel ) of article 79 subparagraph 3 which prohibits any modification of the fundamental law touching with the principles of articles 1 (dignity of the man) and 20 (structure of the political system) and very reached with the principle of a federal organization of the country. Federal, social and democratic nature of the German State must remain out of reach of the constitutional modifications. L´article 19 subparagraph 2 interdict all restrictions of the substance of a basic right. Article 18 even lays down that whoever misuses its basic rights to harm the constitutional order liberal and democratic can be deposed of its civic rights.

Paradoxically articles 1 and 20, protected by the clause from eternity, were revised in 1956 and 1968, which is not without posing problem on the plan of the constitutional law. The revision of article 1 subparagraph 3 per law of the March 19th 1956 replaces the word “administration” by the formula “executive power” (what can pass for a purely editorial correction) whereas that of the law of the June 24th 1968 inserts a subparagraph 4 into article 20 protecting the right of resistance to oppression. It is in general considered that this new principle cannot - for legal reason of logic - be protected by the clause from eternity.

The writers also envisaged active mechanisms of defense to protect this core from basic principles and to prevent that the civil laws guaranteed by the text weaken the democracy itself. It is thus possible to go until the prohibition (by decision of the federal constitutional Tribunal, on request for various federal bodies) of political parties opposed to the democratic and liberal organization of the Federal republic. This procedure what is called belongs to the “combative Démocratie” ( streitbare Demokratie ). She was already used several times, leading to prohibition of SRP in 1952 and KPD in 1956 but without success against NPD in 2001.

Constitutional revision

The modification of the Fundamental law must collect a majority reinforced (two thirds) as well with the Bundestag as with the Bundesrat. Since its coming into effect, the Fundamental law made the object of fifty-and-a laws of revision.

A grammatical mistake in the preamble, “ verfassungsgebende ” instead of “ verfassunggebende ”, with a S of connection incorrect between a Participle and its object, corrected forever.

Structure

The Fundamental law consists of the thirteen following chapters:

I. the basic rights
II. The federation and Länder
III. The Bundestag
IV. Bundesrat
IVa. Common Commission (inserted by law of June 24th, 1968)
V. the federal president
VI. The Federal government
VII. The legislation of the Federation
VIII. Execution of the federal laws and federal administration
VIIIa. Common tasks
IX. The jurisdiction
X. financial questions
Xa. The state of defense (inserted by law of June 24th, 1968)
XI. Transitional provisions and finales

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