What was wanted was a way to hedge against the strategic assets that might end up in the hands of a hostile fascist or communist state, and at the same time to shore up the fragile parliamentary regimes who would be accused by their domestic opponents of selling out the nation's strategic interests. House and Wilson thought this might be done by getting states to participate in a system of legal adjustments of political disputes: this process would tend to legitimate the governments of the participating states with their domestic publics, while defusing strategic crises. I very much doubt such reliance upon legal systems would have been feasible. That reliance depends upon an idea about law, and its power, that was far from a natural assumption for the states of the world where the basic legitimacy of the regime was a contested notion. In such environments, the political resolution provided by the operation of law does not reinforce legitimacy but only puts it in play. Law is dragged into the most intense political disputes and “exposed” as a mere façade for political action.
The settlement that finally emerged at Versailles was on the scale of, but did not share the transforming finality of, earlier constitutional settlements. The state-nation form had already been abandoned in Russia, Germany, Austria, Hungary, and Turkey, and even before the war in Portugal and China. Norway had seceded from Sweden, without the benefit of a blessing by the Conference, just as Ireland would break away four years later from Britain. Moreover, wars arising from this transition from state-nation to nation-state outlasted the “peace” of Versailles: the Greco-Turkish war began in 1920 and lingered until 1923; the Russian wars continued until 1922, involving Britain, the United States, Japan, and France in various parts of Russia; 15 the Russo-Polish War broke out in 1920 and lasted until the next year, supplanted in part by the Polish-Lithuanian War that continued until 1923.
There was widespread disillusion with the Treaty. The American Secretary of State, Lansing, noted that “the impression made of it is one of disappointment, of regret, and of depression.”16 Harold Nicolson recorded in his letters, “The more I read [the Treaty draft] the sicker it makes me… There is not a single person among the younger people here who is not unhappy and disappointed at the terms.”17 This disappointment, though profound, cannot simply be attributed to the failure to live up to the magnanimous peace promised by Wilson's Fourteen Points. Rather it reflected, especially among the younger persons present, the conviction that another war would soon come. The Congress model, faithfully reproduced at Versailles and sought to be institutionalized in a League of Nations, became globalized with the 1919 Conference. The society of states had expanded beyond Europe, and its peculiar pattern of war and constitution making had also spread. What was missing—and what would remain missing after World War II, whose victors did not even attempt a general peace treaty—was the political, constitutional basis within each of the great powers that would make a general constitution for their society possible.
To make this point, let us examine the constitutional situation of the crucial parliamentary nation-state of Germany and, following this, focus the discussion on its legal interpreters of Versailles to make the constitutional conflicts of the Weimar Republic more vivid and comprehensible.
WEIMAR
At the congresses both of Westphalia in 1648 and of Vienna in 1815, the great powers had approved a constitution for Germany. At the Peace Conference of Paris in 1919, however, this was not done, and indeed might have been thought improper in some quarters because the Versailles powers' commitment to self-determination, a principle of the nation-state, also committed them to letting each state choose its own constitution. Nevertheless, the constitution that governed postwar Germany was very much in accord with Allied political views.
In the waning days of World War I, revolution had broken out in Germany. A new government was created virtually simultaneously with the deliberations at Versailles. The day the kaiser abdicated and fled, the chancellorship was given to the Social Democrat Friedrich Ebert; the German delegates to the Paris Conference had already left Berlin by this time. After the suppression of a violent left-wing revolt, elections for a constituent assembly were held in mid-January while the Peace Conference was underway. A new national assembly met on February 6, 1919, at Weimar, a German city associated with the liberal heritage of Goethe and Schiller, which was distant in a great many ways from the Prussian capital, Berlin. There a new constitution was promulgated in August providing for a legislative body, the Reichstag, to be chosen by a system of proportional representation based on universal suffrage. This is characteristic of democracies that came of age in the era of the nation-state (whereas proportional representation is rare in democracies that originated in the state-nation period). The new constitution was made easy to amend: as little as four-ninths of the membership of the Reichstag could change the fundamental law by a constitutional convention or by referendum without any requirement of subsequent ratification by the federal states.
Under this constitution, the chief executive was given unusually broad powers: elected by a national vote to a seven-year term and eligible for reelection, he could dissolve the Reichstag and submit any law enacted by it to a public referendum. Most significantly, under the notorious Article 48, the president could suspend civil liberties in case of an emergency and rule by decree.
This constitution and the “Weimar” Republic it established were barely in place when the Allies presented their draft treaty proposals on May 7, 1919. The new German republic earnestly exemplified the parliamentary form of the nation-state, 18 whose advocates had contended in German politics since their break with Bismarck in 1878 – 1879. Nevertheless, the treaty terms were harsh. In addition to the various European cessions extracted from Germany—Upper Silesia, most of Posen, and what is now Pomerania all went to Poland; North Schleswig went to Denmark; three small frontier districts went to Belgium; Memel went to Lithuania; Alsace-Lorraine and the subsoil rights to the mines of the Saar went to France—all German colonies were handed over to the Allies, who were also to occupy the west bank of the Rhine for an unspecified period between five and fifteen years, a period during which France was to administer the Saar, whose ultimate future would be determined by plebiscite. The German army was to be limited to 100,000 troops (no more than 4,000 of whom could be officers); the navy was similarly reduced; the German general staff was dissolved; no military aircraft were allowed; artillery was limited to 105 mm guns;* and vast quantities of war matériel were handed over to the Allies.
Although the treaty made no final determination of reparations, Germany was to make an initial down payment of twenty billion gold marks. German assets abroad were confiscated, and the German merchant fleet was reduced by 90 percent.
There was a widespread reaction among Germans, shared by all parties including the Left, that Germany had been tricked into an armistice by the inducement of the Fourteen Points and then presented with a punitive settlement agreement once it had sacrificed any defensible military position. In June the Allies presented an ultimatum. The Weimar chancellor, Schneidermann, who opposed ratification, was forced to resign. On June 23, with Germany facing famine and there really being no alternative, the Reichstag voted to accept the treaty terms.
The Weimar coalition of Social Democrats and two center parties continued to govern until the elections of June 1920, when parties to the left and right of the coalition gained strength. A new chancellor formed a coalition with the center parties, joined by a right-wing populist party and without the Social Democrats.
A right-wing coup d‘état was attempted in March 1920, but it failed. There were left-wing armed revolts in 1920 and again in 1921, but gradually the republic stabilized. On April 27, 1921, the Allied Reparation Commission fixed the amount to be paid by Germany at 132 billion gold marks. The German government immediately fell, but the new chancellor nevertheless managed to secure a pointless acceptance by the Reichstag—the sum was far in excess of Germany's ability to pay. When a technical default in timber deliveries
occurred, the French used this as a pretext for occupying the industrial Ruhr Valley. The value of the German mark deteriorated steadily, partly owing to reparations transfers and partly to the result of monetary expansion to cover budget deficits. Inflation flared wildly. In 1922, the value of the mark fell from 162 marks per U.S. dollar to more than 7,000.
This situation was considerably exacerbated by France's seizure of the Ruhr, to which the German government responded by organizing a campaign of passive resistance. French occupation forces replied with mass arrests, and with an economic blockade that cut off the greater part of the occupied Rhineland from the rest of Germany. By July 1, the mark had fallen to 160,000 to the dollar (the prewar figure had been 4.2 marks to the dollar); by November 20, to 4.2 trillion to the dollar. Barter replaced currency; food riots broke out; savings and pensions were erased.
The extreme parties gained by this situation, their ranks swollen by veterans who formed paramilitary groups attached to left-wing and right-wing movements. The communists attempted a revolt in Hamburg in October 1923; the fascists attempted a coup in Munich on November 8 of the same year. A new chancellor, however, Gustav Stresemann, canceled the campaign of passive resistance, resumed reparation deliveries, simultaneously declaring an emergency and using the army to suppress the uprisings. Gradually, better relations were established with the Allies. Inflation was brought down by the issuance of a new mark, supported by mortgages on the entire industrial and agricultural resources of the country. Foreign investment began to flow back into Germany, and production, as well as employment, boomed. A new reparations agreement, the Dawes Plan, restructured the reparations schedule and provided for foreign loans; eventually the total amount was set at 121 billion marks, to be paid over a period of sixty years.
Throughout this period, Germany's relations with the international community were a principal domestic political issue. Stresemann, now foreign minister, pledged to fulfill German treaty obligations, which had the effect of securing substantial Allied concessions, and restoring Germany's international stature; but his policies were violently attacked within the country. In return for German acceptance of the Dawes figures, Stresemann won the withdrawal of French troops from the Ruhr in 1924. In return for a renunciation of claims on Alsace-Lorraine and guarantees of the Versailles borders, Germany gained the Allies' evacuation of the Cologne zone of the occupied Rhineland, and entry into the League of Nations in 1926.
These links to the international community were largely responsible for Germany's recovery and Stresemann has been rightly honored for forging them, but they also meant that German prosperity was dependent on foreign credit so that when the worldwide depression caused a contraction of liquidity and a sharp reduction in overseas Allied investment, Germany was particularly vulnerable. Moreover, the actions of foreign governments—like the blocking of a customs union between Austria and Germany by French and Italian opposition—were viewed in Germany, not unreasonably, as impeding any economic rebound.
Through all this, Hitler rose to power. He made his first public impression, and he continued to draw audiences, and hold and augment them, by delivering the same speech over and over again: a vitriolic speech entitled, The Treaty of Versailles.19
Notice that this is an example of an inner constitutional movement—the fascist attempt to seize the German nation-state—in reaction to an external constitutional movement—the attempt by the society of nation-states to impose a parliamentary form on Germany. Hitler saw this relationship and we must not miss it.
In early 1932, the number of unemployed reached six million, or about one-third of the workforce. The Nazi Party, which had come into being out of hostility to the Versailles Treaty,* became the largest party in the legislature of Prussia, the largest of the German states. Adolf Hitler, the party leader, came in second in the national presidential election to the incumbent, the venerated World War I general Paul von Hindenburg. After the election, a new chancellor was named, Franz von Papen, who negotiated the virtual abolition of reparations at a conference in Lausanne in June 1932; a lump-sum payment of three billion marks was to be made into a fund for European conservation.
Nevertheless, elections in July gave the Nazis 230 out of 647 seats in the Reichstag. They immediately brought down von Papen when the parliamentary session began, and he then dissolved the Reichstag and began to govern by decree, as provided by the constitution. Fresh elections were held in November; a new chancellor was named, General Kurt von Schleicher, but he too was unable to put together a governing coalition. This time Hindenburg refused to permit the Reichstag to be dissolved. In this crisis, von Papen brokered a deal whereby the Nazi Party would be brought into a governing coalition. The Nazi ministers would be heavily outnumbered in the cabinet and would hold no key posts, but the chancellorship would go to Hitler. On January 30, 1933, he was given the seals of office.
Hitler immediately pressed for fresh elections, reassuring the cabinet that the composition of the coalition would remain unchanged. The election day was set for March 5. On the night of February 27, however, the Reichstag building was destroyed by arson. On the plausible pretext that this event presaged a Communist coup, Hitler assumed emergency powers. In the election, the Nazis increased their numbers to 288 and with the 52 conservative Nationalist members achieved a working majority.
Now Hitler proposed the Enabling Act, which would allow the government to rule by decree independently of the Reichstag or the president. Such a step required a two-thirds majority, but this was achieved once Hitler was able to persuade the center party to support the measure. The Enabling Act remained the statutory basis for Hitler's dictatorship throughout the Third Reich. Prior to this, the Weimar constitution had permitted several chancellors to stay in office even after the president had dissolved the parliament in which the chancellor had held his majority; these chancellors had continued to govern through the use of presidential emergency powers, and by legislating on the basis of powers previously delegated to them by the Reichstag.20 The Enabling Act was a more extreme step in the direction of making the emergency state a continuous constitutional one.
CONSTITUTIONAL INTERPRETATION: THE LEGAL PHILOSPHERS
Weimar presents a drama that illuminates the constitutional difficulty that faced the peacemakers at Versailles, for in Weimar21 the constitutional problems that led to and extenuated the Long War were conspicuously acute. We can usefully link these problems with the important legal interpreters who addressed them, and gain an understanding of the moral choices facing constitutional decision makers at this historic juncture.
First, there was the transition from the state-nation to the nation-state, which required a complete rethinking about the sources of state legitimacy; the legal figure most associated with this rethinking in Germany was Georg Jellinek. Second, there was the unresolved ideological conflict among liberals, fascists, and communists, a conflict that reflected in miniature the worldwide struggle that would last until the end of the 1980s. Two emblematic Weimar figures symbolized for their contemporaries the liberal and fascist approaches to the bases for law: Hans Kelsen and Carl Schmitt; to them should be added the leading members of the Marxist Frankfurt School. Their three approaches to the construction of consti-tutional jurisprudence were fundamentally incompatible; there was no mediating approach that could reconcile them. In such circumstances, Germany—and the world for which Germany provided a stage for this struggle—had to resolve the conflict by the triumph of one approach and the destruction of the others before a constitution for Germany (or for Europe) could endure.
JELLINEK
Georg Jellinek was born in Leipzig in 1851, the child of a highly distinguished Moravian Jewish family.22 Like many of his contemporaries, Georg Jellinek converted to Christianity, perhaps to remove any legal disabilities that were attached to Jews.
Jellinek taught in Vienna for ten years (1879 – 1889), briefly at Basel (1890 – 1891), and for the last twenty years at Heidelberg (1891 – 1911). He achie
ved international fame with Die Erklärung der Menschen- und Bür-gerrechte (1895), which was translated in 1901 into English as The Declaration of the Rights of Man and of Citizens. This book presented the thesis that the French Declaration of the Rights of Man was derived not so much from the thought of Rousseau, as was (and is today) generally believed, but largely from the Anglo-American theories used to support the American Revolution. Book I of the present work suggested a similar relationship.
The State, Jellinek held, is a psychological mass-function. It has no reality apart from its human constituents, who associate in order to form a community of purpose. This emphasis on the nation's role in endowing the State with meaning is the nation-state's reversal of the ideology of the state-nation, which held that it was the State that endowed the nation with meaning.23 Jellinek saw that the legitimacy of the State itself was at stake whenever it changed constitutional form. “To think of the sovereign as a ‘determinate human superior' without qualifications concerning the legitimacy of this superior's position… is a misunderstanding derived from the days of autocratic monarchy.”24
Jellinek analyzed law through two overlays: sociological and normative. These two are in some tension, for according to the former analysis, a legal rule earns the status of law to the degree it is accepted, as reflected in popular behavior; whereas for the latter approach, a legal rule retains the status of law even if it is disobeyed. Reconciling the two perspectives is critical to Jellinek's overall view.
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