The Unconstitutional Verdict
The parliament was once again in the midst of a fierce battle.
“No, either make a decision quickly or at least report to the parliament on how the discussions are progressing. How can you just sit there wasting time?”
“Didn’t I already explain that we require sufficient legal review and countermeasures?”
“That might be true for a day or two, but it’s been a month and a half now. Are you still not finished?”
“Legal procedures are a task that demands extensive interpretation and debate, Representative Heinz. Both politics and jurisprudence are equally complex and difficult acts. The review is not yet complete, so please wait patiently.”
“Then can’t you at least report how far the talks have gone and what progress has been made in the discussions?”
“Does the cabinet have any obligation to report the contents of its meetings to parliament?”
“Huh?”
Was he trying to pick a fight?
“In an indirectly democratic nation like Germany, the separation of powers exists to ensure that none of the legislative, executive, or judicial branches grows too strong. If the cabinet distrusts parliament and withholds information, that means the cabinet is exceeding parliament’s authority. Doesn’t that break the separation of powers?”
Where did he get the nerve…
“Then I will ask only this. Is the consensus that the reform bill is constitutional, or that it is unconstitutional?”
“...”
Even though Wels had borrowed my right to speak to ask the question, Brüning offered no reply whatsoever.
Wow, he was really keeping his mouth sealed. Was it necessary to go that far…?
“I truly don’t understand why you’re behaving this way.”
Still, I was now the chair of the People’s Front and wanted to remain courteous, but…
“Unless you’re plotting something sinister, Chancellor, there is no need for such silence. A self-coup? Those worries ended the moment you issued the Emergency Decree. You were the one who declared that you would no longer listen to parliament.”
“Are you interrogating me, Representative Heinz?”
“It is partly an interrogation, but no—don’t you see it?”
If he feared rebellion, he should have used the Emergency Decree long ago. Because he refused to heed the people’s will? Because it seemed like the destruction of democracy? Since when had he ever been so democratic?
Nothing made sense. Everything was incomprehensible.
“So what I’m saying is, stop staying silent and share the internal progress of your meetings with us—with parliament. If you keep this up, the public will grow anxious whether they support the reforms or oppose them. I’m already so frustrated I feel like I’m going to explode.”
“...Then let us make a proposal.”
“I keep telling you to just tell me the proposal! Go ahead and speak.”
“We will suspend all further discussion depending on the constitutional court’s ruling on the constitutionality of the reform bill we submitted last week. If the court rules the reform constitutional, the cabinet will cancel the austerity measures without complaint and proceed with elections under equal suffrage.”
Brüning spoke as though this were his final card.
“However, should the ruling deem it unconstitutional, the People’s Front must immediately withdraw the reform bill. You must also cease operation of the factories currently running under the name Worker’s Factory, which we consider unconstitutional.”
“No thanks. What exactly do we gain from that?”
Why should we do them any favors…?
“In any case, once the constitutional court rules on constitutionality or lack thereof, the cabinet will abide by the decision. Why phrase something so obvious as a ‘proposal’? It is simply what must be done. Were you planning to ignore the reform bill even if it was ruled constitutional?”
“...We will replace the cabinet and actively appoint figures from the People’s Front. We will enable a new cabinet heavily staffed with your personnel to aggressively advance both the reforms and a new budget proposal.”
“Oh, really?”
Now that changed things.
Normally cabinet positions were filled by the ruling party and the chancellor, and a chancellor’s term lasted four years. Even if elections were held now, replacing the chancellor and forming the next cabinet would still require waiting another three years. This proposal meant advancing that timeline to right after the election.
It was tempting.
“Hmm...”
It didn’t feel right to decide alone, so I glanced at Wels and Thälmann. Both of them looked rather pleased with the chancellor’s offer.
“Very well. We accept. But you must keep your word—understood?”
Thus the People’s Front accepted the proposal.
Just as stated, the ruling on the reform bill’s constitutionality was expedited at remarkable speed and scheduled for announcement the following Monday. I wondered whether such acceleration was normally possible, but a good outcome was a good outcome.
Because the matter was so critical, several parliamentarians—including myself, Thälmann, and Wels—traveled directly to Leipzig, home of the Constitutional Court and Supreme Court, and took seats in the gallery.
“What do you think, Heinz?”
“What else could it be? It has to be constitutional.”
“If the democratic imperial constitution established by Ebert and Chancellor Scheidemann remains valid, there can be no objection—it must be ruled constitutional.”
“Of course it must. Beyond democracy or the constitution, this is a bill proposed by labor unions representing half the German people—the workers. There is no conceivable condition under which it could be unconstitutional.”
Our views differed on the details, but the three of us were in complete agreement that the ruling would affirm its constitutionality.
By any reasonable standard, there was simply no way this could be unconstitutional.
“At most, the third clause—partial collectivization of agriculture and industry—might offer some grounds for challenge. The other four points are cleanly constitutional.”
“Naturally, Chairwoman Heinz. Should it be ruled unconstitutional, it would mean the executive is exerting pressure on the judiciary. It would signify a far more severe violation of the separation of powers. In that event, even the most passive constitution in the world would justify the people’s right to resist.”
No matter how one examined it, the reform bill was constitutional… and precisely because of that, a faint unease lingered.
It meant Germany’s legislative, judicial, and administrative systems had deteriorated to the point that the constitutionality of this matter required judgment by the constitutional court.
The court has reviewed the constitutional petition regarding the ‘People’s Front Five Major Reform Bills,’ hereinafter referred to as the ‘Reform Bill,’ jointly filed by the General German Trade Union Confederation… and rules as follows.
The petitioners’ petition is hereby dismissed in full. The relevant reform bill contains unconstitutional elements that threaten the continued existence of the German Empire.
First, concerning the implementation of national referendums and elections.
While lifting the Emergency Decree and introducing equal suffrage embody democratic values, under a ‘national state of emergency’ the continuity of governing authority takes precedence. Germany is currently experiencing an unprecedented crisis known as the Great Depression. In this situation, where the nation’s economic survival is at stake, holding a general election that fundamentally disrupts constitutional order will cause administrative paralysis. This can only be viewed as an act that destroys the national well-being the constitution exists to protect.
Second, concerning the suspension of austerity measures. The drafting and execution of the budget is the exclusive prerogative of the executive branch. Even though democratic procedures were destroyed to implement austerity, and even though the results may inflict suffering upon the people, the cabinet’s judgment to prevent national bankruptcy is recognized as a necessary measure. For the judiciary to strip the executive of its administrative powers on the basis of a policy’s economic validity would constitute unconstitutional interference that crosses the boundary of separation of powers. This matter is therefore judged to lie beyond the constitutional court’s purview.
Third, the partial collectivization of factories and land. Collectivization refers to the transfer of ownership rights over private property from individuals to the community. This carries grave unconstitutionality under the current constitution. While the constitution stipulates the protection of private property alongside public-interest obligations, this does not imply the fundamental deprivation of ownership rights in cases of inefficiency. The collectivization of private property by workers’ and peasants’ councils is an act that dismantles the foundation of Germany’s free economy—which guarantees every citizen’s free economic activity—and must be seen as damaging the legal stability that forms the basis of public interest rather than safeguarding it.
The law is akin to a living organism. More important than the literal wording of individual articles is the foundation upon which the law stands: the state itself. The state bears the duty to protect the citizens who reside within it. No matter how constitutional the content of a reform may appear, if its outcome leads to the dissolution of the state or civil war instigated by extremist forces, the judiciary cannot possibly approve it. In the face of the absolute imperative of the state’s survival, this reform bill loses all constitutional legitimacy. Accordingly, the Imperial Constitutional Court, having weighed the advantages German democracy would gain by upholding the petition against the greater benefit of dismissing it in order to resolve the current economic and political crisis, rules to dismiss the constitutional petition regarding the bill’s constitutionality.
My skull felt numb.
“We dismiss the constitutional petition concerning the question of constitutionality.”
Bang. Bang. Bang.
“Bull… shit. Don’t.”