Representation and Constitutional Reform in Europe

• Author: C.J. Friedrich
• Date: 01 June 1948
• Published date: 01 June 1948
• DOI: 10.1177/106591294800100203
• Subject Matter: Articles

124

REPRESENTATION

AND

CONSTITUTIONAL

REFORM

IN

EUROPE

by

C.

J.

FRIEDRICH

Harvard

University

When

Adolph

Hitler

asked

for

a

grant

of

absolute

power

and

secured

passage

of

the

Enabling

Act,

on

March

23,

1933,

he

did

so

with

the

ex-

plicit

provision,

included

in

this

act,

that

the

grant

would

be

limited

to

four

years

and

that

the

parliament’s

(Reichstag’s)

rights

would

remain

as

established

under

the

Weimar

Constitution.’

Thus

Hitler

secured

absolute

power,

unrestrained

by

any

constitutional

limitations,

under

the

disguise

of

a

&dquo;mandate.&dquo;

In

retrospect,

it

seems

incredible

that

anyone

with

political

experience

and

judgment

should

have

overlooked

the

fact

that

this

Act

meant

the

end

of

representative

government,

since

it

failed

to

protect

the

opposition

and

its

rights

to

criticize

the

government

by

free

speech,

through

a

free

press,

and

in

free

assemblies.

In

keeping

with

this

failure,

the

numer-

ous

undertakings

in

postwar

Europe

to

reestablish

or

reform

representative

government

and

its

legislative

process

have

shown

only

a

very

limited

appreciation

of

the

significance

of

civil

liberties

as

a

vital

condition

for

all

representative

government.

In

the

American

Zone

of

Germany,

only

the

most

explicit

&dquo;assistance&dquo;

from

military

government

was

able

to

secure

the

elimination

of

the

clauses

so

common

in

the

Weimar

and

other

European

constitutions

to

the

effect

that

a

particular

right

or

liberty

is

guaranteed

&dquo;within

the

limits

of

legislation,&dquo;

or

&dquo;unless

legislation

provides

otherwise,&dquo;

and

the

like.

While,

for

example,

such

clauses

(although

in

an

attenuated

form),

may

still

be

found

in

Article

11

of

the

constitution

of

W urttemberg-

Baden,2

they

are

no

longer

contained

in

the

corresponding

articles

of

the

constitution

of

Hesse

(Art.

11)

and

of

Bavaria

(Art.

110).

The

newly

adopted

constitutions

of

France

and

Italy,

in

keeping

with

the

revival

of

the

democratic

spirit,

are

both

provided

with

charters

of

individual

rights.

Italy

recognizes

the

importance

of

some

constitutional

safeguards

through

the

establishment

of

a

&dquo;Supreme

Court.&dquo;

How

far

this

court

falls

short

of

being

a

genuine

Supreme

Court

can

be

seen

in

the

fact

that

this

&dquo;Court&dquo;

is

tied

to

the

parliament,

and

that

it

functions

in

cases

1

For

this

episode

see

Arnold

Brecht,

Prelude

to

Silence

(New

York:

Oxford

University

Press,

1944),

chap.

xii.

2See

Constitution

of

the

German

Laender,

Civil

Administration

Division,

Office

of

Military

Govern-

ment

for

Germany

(U.S.),

Berlin,

Germany,

1947.

Reference

is

had

to

the

original

German

texts

contained

in

this

document.

Following

the

preface,

a

Military

Government

Directive

[AG

010.1

(CA)]

defines

inter

alia

Democracy

as

requiring

that "(e)

the

basic

rights

of

the

individual

including

free

speech,

freedom

of

religious

preference,

the

rights

of

assembly,

freedom

of

political

association,

and

other

equally

basic

rights

of

free

men

are

recognized

and

guaranteed."