CONTENTS I. PARLIAMENTARY SUPREMACY AS A PROBLEM IN GERMAN AND FRENCH CONSTITUTIONAL HISTORY A. Comparative Reflections on the Struggle To Reconcile Democracy and Delegation in the First Half of the Twentieth Century B. The German and French Experiences in the Broader Context of Western European Constitutional History II. DELEGATION AND THE INTERWAR CRISIS OF PARLIAMENTARY DEMOCRACY A. Germany: "For the Relief of the Distress of the People and the Reich" B. France: "Questions of Pleins Pouvoirs Are Above All Questions of Confidence" C. Executive Power, Democracy, and Dictatorship III. SURMOUNTING THE "INSURMOUNTABLE": THE POSTWAR CONSTITUTIONAL SETTLEMENTS IN WEST GERMANY AND FRANCE A. West Germany: "The Basic Law Reflects a Decision in Favor of Stricter Separation of Powers" B. France: "It Is Now Advisable To Put Law in Accord with Fact" C. Parliamentarism, Plebiscitarian Leadership, and Administrative Governance IV. THE CONDITIONS FOR CONSTITUTIONAL STABILITY IN THE TWO POSTWAR ERAS: MEDIATED LEGITIMACY IN THE GERMAN AND FRENCH ADMINISTRATIVE STATES I. PARLIAMENTARY SUPREMACY AS A PROBLEM IN GERMAN AND FRENCH CONSTITUTIONAL HISTORY
Comparative Reflections on the Struggle To Reconcile Democracy and Delegation in the First Half of the Twentieth Century
Over the course of the first half of the twentieth century, nation-states throughout the industrialized world underwent a dramatic institutional transformation with important legal and constitutional consequences. Even in countries with well-established bureaucratic traditions, the emergence of the welfare state entailed a significant diffusion of normative power away from elected legislatures into an often fragmented and complex executive and administrative sphere. The 1920s and 1930s, in particular, marked a breakdown of notions of separation of powers derived from the nineteenth century--the old trias political. This concept, at least in theory, had made the popularly elected legislature (parliament) the principal legitimating mechanism of a state structure that also included the executive and judicial branches.
In the prevailing nineteenth-century conception, the national parliament, as the cornerstone of representative government, was to possess ultimate authority over the adoption of generally applicable legislative norms governing society. (1) By contrast, the primary role of the national executive and its administrative subordinates was, consistent with the prevailing political liberalism, to serve as agents of the legislature with very limited normative autonomy or discretion--the so-called "transmission belt" theory of administration. (2) The principal function of judicial control in this scheme (whether exercised by courts or court-like jurisdictions administrative in the French tradition) was to ensure that the executive and the administration remained within the confines of the authority delegated by the legislature--the classical judicial concern with ultra vires.
By the 1950s, "few could deny that ... a much more complex reality" prevailed. (3) First and most importantly, the vast expansion of the welfare state had transformed the legislative function of parliaments significantly. Rather than attempt to produce most norms directly in statutes, elected assemblies now more often than not simply delegated broad normative power to executive or administrative bodies "to make the rules via some form of subordinate legislation, subject to certain general statutory guidelines." (4) Second, aided by a purportedly "depoliticized" and "technocratic" administrative apparatus, (5) executives throughout the industrialized world came to exercise extensive normative authority in their own right, whether in the production of quasi-legislative rules or in the adjudication of disputes that arose in connection with their expanding regulatory authority. Finally, in the face of this concentration of normative power in the executive, the nature of judicial oversight also evolved, with courts and court-like juridictions administratives now focusing to a much greater degree on the internal substantive and procedural regularity of this delegated normative power, rather than simply on whether the executive and administration were operating within the bounds of the authority conferred by the legislature in the enabling legislation.
This general description of legal-historical developments over the middle third of the last century should sound quite familiar to American lawyers. In the aftermath of World War I, and more particularly with the arrival of the New Deal, the discrepancy between the constitutional ideal of separation of powers (in which Congress was to play the central role in the system of norm production) and the socio-institutional reality of executive and administrative power became a major theme in American public law. As James Landis famously argued in The Administrative Process in 1938, the fusion of legislative, executive, and judicial functions in administrative bodies in the United States had emerged over the prior half-century "from the inadequacy of a simple tripartite form of government to deal with modern problems." (6) As a supporter of the New Deal expansion of federal regulatory power, Landis welcomed this effort "to adapt governmental technique," but he also recognized that the emergent forms of administrative governance had to "preserve those elements of responsibility and those conditions of balance that have distinguished Anglo-American government." (7) A kind of legal-cultural reconciliation was thus required, Landis seemed to suggest, between the constitutional values inherited from the past and the "exigencies of governance" in the present. (8)
The challenge for American administrative law in the twentieth century would indeed be to develop constitutional doctrines--such as a relaxed but not wholly ineffective no delegation principle (9)--as well as other legal and political mechanisms--such as those found in the Administrative Procedure Act and numerous other statutes and executive orders (10)--that might help to reconcile the concentration of authority in the executive and administrative spheres with the constitutional vision of balanced and separated powers. The development of American public law in the decades after 1945 suggests a compromise--a kind of "postwar constitutional settlement," as this Article calls it. The concentration of power in the executive and administrative spheres would be tolerated as a constitutional matter, but only on the condition that, at the sub constitutional level, delegated authority would be subject to a range of political and legal controls that would act as a substitute for the formal structural protections of separation of powers. (11) The existence of sub constitutional constraints allowed the courts to broadly eschew formalist notions of separation of powers, (12) focusing rather on "finding a way of maintaining the connection between each of the generalist institutions and the paradigmatic function which it alone is empowered to serve, while also retaining a grasp on government as a whole that respects our commitments to the control of law." (13) As long as each of the three branches of government could exercise its paradigmatic function--legislative, executive, or judicial--American public law generally found that the structural demands of the Constitution would be satisfied, even if, formally speaking, the three governmental powers might, on a subordinate level and in particular regulatory domains, be fused in single administrative agencies to meet the demands of modern governance.
This brief excursus into American administrative and constitutional law in the twentieth century is necessarily schematic. Its aim is simply to put into relief certain elements of the corresponding French and German constitutional experiences that are the focus of this Article. On the level of legal doctrine, both France and Germany faced a challenge of constitutional reconciliation that, in its broad contours, was similar to that of the United States, even as it differed in important particulars. As compared to the United States, of course, both France and Germany began from very different institutional and doctrinal baselines--most notably, a much longer heritage of bureaucratic centralization stretching back to the absolute monarchies of France and Prussia in the seventeenth and eighteenth centuries (14)--as well as a cultural tradition that viewed the bureaucratic class as a sort of boudoir neuter above social and political divisions in society. (15) Both France and Germany also built on very different constitutional histories--most recently, the horror of the National Socialist dictatorship and the capitulation, humiliation, and collaboration of the Vichy regime--that the United States had obviously not experienced. Finally, French and German constitutional cultures differed greatly from each other--France with its revolutionary-republican tradition going back to 1789, and Germany with its Sundered, or purported "special path" to modernity, characterized by the failed "bourgeois" revolution of 1848 and the "late" political unification of the German states on a Prussian Imperial basis two decades later, with all its attendant constitutional consequences. (16)
As a general matter, however, French and German constitutional history in the nineteenth century could nevertheless be said to involve a similar struggle between the pretenses of an imperial-monarchical executive and the claims of an elected assembly as the supreme constitutional representative of the nation. In France, the moment of the parliament's seeming constitutional triumph (the 1870s) would come a half-century earlier than it would in Germany (in the immediate aftermath of World War I), but, ironically, in each country that triumph came as the result of a military defeat at the hands of the other. Indeed, the ironic parallel perhaps...