Article 48 (Weimar Constitution)
Article 48 of the constitution of the Weimar Republic of Germany (1919–1933) allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag. This power was understood to include the promulgation of "emergency decrees (Notverordnungen)".[1]
Interpretation
The text of the Article did not precisely define the kind of emergency that would justify its usage, and did not expressly give the President the power to enact, issue or otherwise promulgate legislation. However, such an inherent Presidential legislative power is fairly implied, since the Article expressly gives the Reichstag the power to cancel the emergency decree by a simple majority vote, and this parliamentary power implies that the issuance of the decree could, by its express terms or its operation, impinge on the Reichstag's constitutional function.[2]
Article 48 required the President to inform the Reichstag immediately of the issuance of the emergency decree and gave the Reichstag the power to nullify the emergency decree by simple majority action. The Reichsrat, or upper house, was not involved in this process at all.[2][3] If the Reichstag nullified the decree, the President could in effect counter-retaliate under Article 25, and dissolve the Reichstag and call for new elections within 60 days.
History
Following the Treaty of Versailles, there was a period of hyperinflation in the Weimar Republic between 1921 and 1923, then the Occupation of the Ruhr between 1923 and 1925. Friedrich Ebert, a Social Democrat and the Republic's first President, used Article 48 on 136 occasions, including the deposition of lawfully elected governments in Saxony and Thuringia when those appeared disorderly.[3] On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current serving members of the armed forces.[4][5] Ebert had granted Chancellor Wilhelm Cuno considerable latitude under Article 48 to deal with the inflation and with matters related to the Mark. The Emminger Reform of 4 January 1924 abolished the jury system as triers of fact within the judiciary of Germany and replaced it with a mixed system of judges and lay judges which still exists today.[6]
Article 48 was used by President Paul von Hindenburg in 1930 to deal with the economic crisis of the time. During spring and summer 1930, Chancellor Heinrich Brüning[7] found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag.[8] but the government did not seriously try to negotiate with the Parliament to find a modus vivendi. Instead, Brüning asked Hindenburg to invoke Article 48 in order to promulgate the bill as an emergency decree and thereby give Brüning's government the authority to act without the consent of the Reichstag.[9] When Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree, by a small majority[10] on July 18, 1930. Under Article 48, this vote by a majority of the Reichstag members invalidated the presidential decree. Faced with a breakdown of parliamentary rule at a time when the economic situation demanded action, Brüning asked Hindenburg to dissolve parliament and call for new elections. The Reichstag was accordingly dissolved on 18 July and new elections were scheduled for 14 September 1930.[11][12]
The election produced increased representation in the Reichstag for both the Communists and, most dramatically, for the Nazis, at the expense of the moderate middle-class parties.[13] Forming a parliamentary majority became even more difficult for Brüning. In fact, just to conduct the normal business of government, he was forced to invoke Article 48 several times between 1930 and 1932. Subsequent governments under chancellors Franz von Papen and Kurt von Schleicher during the tumultuous year 1932 obtained President Hindenburg's decree of legislation under Article 48 when they too found it impossible to obtain a parliamentary majority as the extremist parties on the left and right gained power.
The invocation of Article 48 by successive governments helped seal the fate of the Weimar Republic. While Brüning's first invocation of a Notverordnung may have been well-intentioned, the power to rule by decree became increasingly used not in response to a specific emergency but as a substitute for parliamentary leadership. The excessive use of the decree power and the fact that successive chancellors were no longer responsible to the Reichstag probably played a significant part in the loss of public confidence in constitutional democracy, in turn leading to the rise of the extremist parties.
Nazi use
On January 30, 1933, Adolf Hitler was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for March 5. Six days before the election, on February 27, the Reichstag fire damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get the President, Hindenburg, to sign the Reichstag Fire Decree, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State).
Under the decree, issued by Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including habeas corpus, free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended.
The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a one-party dictatorship in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power to suppress, intimidate and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality.
The March 5 elections gave the Nazi-DNVP coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on March 23, 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). Over the years, Hitler used Article 48 to give his dictatorship the stamp of legality. The Reichstag Fire Decree was never abolished during Nazi time; thus, for the next 12 years Hitler ruled under what amounted to martial law.
Lessons learned
The misuse of Article 48 was fresh in the minds of the framers of the Basic Law for the Federal Republic of Germany. They decided to significantly curb the powers of the president, to the point that he, unlike his Weimar predecessor, has little de facto executive power. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor may be removed from office only if there is already a positive majority for a prospective successor.
Text of Article 48
| Artikel 48 | Article 48 |
| Wenn ein Land die ihm nach der Reichsverfassung oder den Reichsgesetzen obliegenden Pflichten nicht erfüllt, kann der Reichspräsident es dazu mit Hilfe der bewaffneten Macht anhalten. | In the event of a State[14] not fulfilling the duties imposed upon it by the Reich[15] Constitution or by the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to do so. |
| Der Reichspräsident kann, wenn im Deutschen Reiche die öffentliche Sicherheit und Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen Sicherheit und Ordnung nötigen Maßnahmen treffen, erforderlichenfalls mit Hilfe der bewaffneten Macht einschreiten. Zu diesem Zwecke darf er vorübergehend die in den Artikeln 114, 115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft setzen. | If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153. |
| Von allen gemäß Abs. 1 oder Abs. 2 dieses Artikels getroffenen Maßnahmen hat der Reichspräsident unverzüglich dem Reichstag Kenntnis zu geben. Die Maßnahmen sind auf Verlangen des Reichstags außer Kraft zu setzen. | The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag. |
| Bei Gefahr im Verzuge kann die Landesregierung für ihr Gebiet einstweilige Maßnahmen der in Abs. 2 bezeichneten Art treffen. Die Maßnahmen sind auf Verlangen des Reichspräsidenten oder des Reichstags außer Kraft zu setzen. | If danger is imminent, a State government may, for its own territory, take temporary measures as provided in Paragraph 2. These measures are to be revoked on the demand of the President of the Reich or of the Reichstag. |
| Das Nähere bestimmt ein Reichsgesetz. | Details are to be determined by a law of the Reich. |
Footnotes
- ↑ Singular, Notverordnung.
- 1 2 Mommsen, Hans (1998). The Rise and Fall of Weimar Democracy. UNC Press. pp. 57–58. ISBN 0-8078-4721-6. ("Mommsen")(confirming that only a simple majority of Reichstag was necessary to overturn an emergency decree)
- 1 2 Evans, Richard J. (2004). The Coming of the Third Reich. Penguin. pp. 80–84. ISBN 1-59420-004-1.
- ↑ "100,000 Berliners Rally for Republic". New York Times. August 31, 1921. pp. 1, 6.
- ↑ Graham, Malbone Watson; Binkley, Robert Cedric (1924). New Governments of Central Europe. p. 499.
- ↑ Kahn-Freund, Otto (January 1974). "On Uses and Misuses of Comparative Law". Modern Law Review. 37 (1). footnote 73, p. 18. JSTOR 1094713.
- ↑ He was appointed Chancellor on 30 March 1930 after considerable political intrigue
- ↑ On 16 July, the Chancellor presented his wide-ranging financial bill to the Reichstag; it sought, among other things, to reform government finances through both higher taxes and decreases in government spending (an obviously deflationary policy). The government bill was rejected by the Reichstag, by a vote of 256 to 193,
- ↑ This was, in fact, the first time that a bill which had been legislatively rejected was later promulgated by way of executive decree, and the constitutionality of such "second bite at the apple" tactics has been questioned (Kershaw, pp 320-325).
- ↑ The Social Democrats cooperated with the Nazis to reject the decree, as did Alfred Hugenberg's Nationalists and the Communists. See Maehl, The German Socialist Party, p 168. The decree was voted down, by a vote of 236 to 221.
- ↑ Under the constitution, new elections had to be held within 60 days of the dissolution
- ↑ Historians have not been kind to Brüning. According to Maehl (p 168), the Chancellor "foolishly" dissolved the Reichstag as a result of the financial imbroglio. The decision to dissolve parliament was, in Kershaw's phrase, one of "breathtaking irresponsibility." Brüning had stunningly misjudged the discontent and anger within the country. It is difficult to avoid the conclusions that (a) the democratic processes—namely, parliamentary negotiation to achieve a working majority, either on a single piece of legislation or on a legislative program—were just too difficult for this cast of characters and (b) the parties were too parochial and self-interested to cooperate in the greater interests of the whole (Kershaw, Vol 1, pp 324-325: Hubris, pp 73-75; Collier, p 167). Collier maintains that this single act—the dissolution in the face of a legitimate exercise by the Parliamentary body of its constitutional authority—was one of them most crucial steps in the Nazi rise to power, as it demonstrated the contempt in which the President and his advisers held the concept of democracy and the function of the Reichstag. "It ... marks the shift from parliamentary ... to presidential government ... [which] gave the Nazis a 'legal' route to success that Hitler so needed" (Collier and Pedley, p 167).
- ↑ See Election Results. The Nazis increased their seats from a pitiful 12 to a respectable 107, out of a total of 577, becoming the second largest party in the Reichstag as a result; only the Social Democrats were larger at 143 seats.
- ↑ The German term Land translates into English most appropriately as "state", as Weimar Germany, like Germany under the monarchy until 1918 and the modern Federal Republic, was a federation consisting of several Länder with some degree of autonomy.
- ↑ Reich translates literally as "empire" or "realm". The term persisted even after the end of the monarchy in 1918. The German state's official name was therefore Deutsches Reich through the Weimar Republic and to the end of World War II.