75 Years of Basic Law

On the history of constitutions in Germany

Interview with educational consultant Andreas Ziepa | 22 May 2024

75 years ago, on 23 May 1949, the Grundgesetz der Bundesrepublik – the Basic Law of the Federal Republic of Germany – was proclaimed in Bonn. For the exhibition “Roads not Taken”, the educational consultant Andreas Ziepa designed a tour that provides an overview of the various approaches to constitutions in German history. In this DHM blog he explains the most important differences and innovations in an interview.

The model for all later systems of government in Germany was the constitution developed by the deputies of the Frankfurt Paulskirche in 1848/49. What parts of these drafts can still be found in the current constitution?

The deputies of the Frankfurt Paulskirche laid down the essential structures for a German national state in the constitution they worked out. These include, for example, the federal character of Germany and above all the basic rights.

Deputies of the Frankfurt Paulskirche, Pauk Bürde, after 1848 © DHM

The constitution of 1849 provided for a bicameral system, as is the case today in the Federal Republic with the Bundesrat (Federal Council, representing the states) and the Bundestag (German Parliament, with elected delegates). The importance of the individual states back then and the Bundesländer (federal states) today is evident above all in the fact that they participate in the making of legislation. However, the planned composition of the Staatenhaus (“House of States”) was fundamentally different from that of the present Bundesrat. According to the Paulskirche constitution, half of the members of the “House of States” would be delegated by the governments of the individual states and half by the state parliaments. Today the delegates to the Bundesrat are selected only by the respective state governments. With 69 delegates today, the membership of the Bundesrat is considerably smaller than the 192 delegates that were proposed in 1849. What both have in common is that they represent the interests of the federal states.

The Basic Rights of the German People were to be a fundamental component of the constitution. After long negotiations in parliament they were passed on 21 December 1848. The “Law on the Basic Rights of the German People” came into effect on 28 December 1848 and was taken into the constitution. The basic rights were to guarantee, for example, the freedom of the press, the freedom of assembly, the freedom of research and teaching, the inviolability of the home, and the confidentiality of correspondence. It is remarkable that the death penalty (except in the case of martial law and maritime law) and corporal punishment were to be abolished, and this was also taken into the Basic Rights.

Copy of the Constitution of 1848/49 in the exhibition “Roads not Taken. Or: It could have turned out differently” © DHM / David von Becker

The Weimar Constitution, which was proclaimed on 14 August 1919, was the first democratic constitution of Germany. What were its distinguishing characteristics?

There were two major innovations in that constitution. On the one hand, the German Reich now became a republic, and on the other, women were granted the active and passive right to vote. Both represented far-reaching changes in the political parameters, which were anchored in the constitution. The proclamation of the republic meant that there was to be a new head of state. In place of the Kaiser a president was now vested with wide-ranging powers. The president of the Reich took on the role of an “Ersatz-Kaiser”.

The Council of the People’s Deputies had already introduced women’s suffrage on 12 November 1918, which was first effected in the elections of 12 November 1919. Thus for the first time in history, Germany had universal, equal and secret voting rights for women and men. What had deliberately not been effectuated during the drafting of the Paulskirche constitution or in the constitution of the German Empire from 1871 now became a reality. Although one could not yet speak of an overall equality of rights for men and women, the introduction of women’s suffrage was an important step in the direction of women’s emancipation and participation.

Did the Weimar Republic have a strong parliament?

As in all democracies, the parliament during the Weimar Republic was the central constitutional organ. The Reichstag was responsible for passing the laws and the budget. Thus, the strength needed for the role played by parliament corresponded to the intentions provided for it in the constitution.

However, there were mechanisms in the constitution that reveal a certain scepticism vis-à-vis the new system of government. The president of the Reich had an elevated position within the political system and had the power to take action in case of a possible emergency. In this way he took over the role of the Kaiser, who was no longer present. It was therefore incumbent upon the president to appoint and dismiss the Reich chancellor. In the course of the worldwide economic crisis, the government coalition of Social Democrats (SPD), the German Democratic Party (DDP), the German People’s Party (DVP) and the Centre Party (Zentrum) under Chancellor Hermann Müller collapsed in 1930. After the subsequent Reichstag elections, there was no longer a democratic majority in the parliament. Lacking a parliamentary majority, the new Chancellor Heinrich Brüning (Centre) could only carry out the business of government with the help of the emergency decrees provided for in Article 48 of the constitution. The emergency decrees were supposed to remain in effect only for a limited time in order to maintain the government’s ability to conduct its political affairs. But at this point in time, the presidial cabinet turned into a lasting institution, because the democratic parties could not bring together a parliamentary majority even after the following Reichstag elections. While Heinrich Brüning was a chancellor who still saw himself bound to the democratic constitution, his successors Franz von Papen (Centre), Kurt von Schleicher (Independent), and especially Adolf Hitler (NSDAP) were intent upon fundamentally reorganising the political system in the direction of an authoritarian and dictatorial regime. A strong parliament was not to be tolerated in this kind of regime.

In front of the National Theatre in Weimar during the swearing-in of the Reich President, 21 August 1919 © DHM
Reich Chancellor Heinrich Brüning during a speech in the Reichstag, February 1931 © DHM

Our current constitution is that of the old Federal Republic. Were there discussions about the constitution in the course of reunification? Was it debated whether a unified Germany should give itself a new constitution?

In the course of setting the agenda for the reunification of Germany in the year 1990, the question arose as to how German unity should be implemented under constitutional law. According to Basic Law, it could come into effect on the basis of either Article 23 or Article 146. In the end, unification was achieved by integrating the German Democratic Republic into the scope of application of the Basic Law of the Federal Republic according to Article 23. This decision allowed for a rapid implementation of the unification, because the Basic Law did not have to be changed. As of 3 October 1990, this law came into effect for the five new federal states as well.

A reunification according to Article 146 would have meant that a new constitution would have had to be worked out, which would then have to be approved in a referendum. That would have taken much longer, which was out of the question for the politicians negotiating the unification. For them a quick reunification was foremost and they argued that Basic Law was the optimum constitution that Germany had ever had.

Copy of the Basic Law with the signatures of the members of the Parliamentary Council © DHM

Parallel to this, there were public discussions about whether it would be better for the soon-to-be unified Germany to have a new, pan-German constitution, one that would stand for an equal integration of the East Germans into the process of reunification and at the same time be a sign of the beginning of a new epoch of German history.

In the end the rapid unification according to Article 23 prevailed. Article 146 is nevertheless still part of Basic Law. It could be implemented at any time and thus supersede the “provisional” constitution. But as has often been shown, provisional decisions can be lasting and stable. Our Basic Law is now 75 years old and is enjoying a healthy constitution!

The Federal Government celebrates the 75th anniversary of the reunification with a big democracy celebration, during which the Deutsches Historisches Museum will offer thematic exhibition tours free of charge.