What makes essential elements essential

Basic Law and Parliamentary Council

Michael F. Feldkamp

To person

The historian Michael F. Feldkamp, ​​born on April 23, 1962, has been working as a research assistant in the archive of the German Bundestag / Scientific Services of the Bundestag since 1993. There he was entrusted with editing the edition "The Parliamentary Council 1948-1949. Files and Minutes". In 1998 he wrote the book "The Parliamentary Council 1948-1949".

The Basic Law of 1949 comprised 146 articles - they were preceded by a preamble. Fundamental rights and the federal structure were given particular importance. At the same time, however, the provisional character of the Basic Law was underlined.

The members of the Parliamentary Council on their way to their meeting place, the Pedagogical Academy on the Rhine. (& copy House of History / Erna Wagner-Hehmke inventory)
The Basic Law in the version of 1949 was a self-contained body of 146 articles that formed a uniform constitutional document. The Basic Law is divided into eleven (later 14) sections, which can essentially be summarized in four areas, with the preamble preceding.

preamble

The preamble is one of the central passages of the Basic Law. It stands as a legally relevant text at the beginning of the Basic Law and contains, among other things, four outstanding statements that should characterize the self-image of the young Federal Republic of Germany to be founded:

  • First, the preamble underlined the will to "serve world peace in a united Europe".
  • Second, the new order created should guarantee state life "for a transitional period".
  • Third, the "entire German people [...] remained called upon to complete the unity and freedom of Germany through free self-determination".
  • Fourth, the binding force was legitimized in the preamble with the constitution-making power of the German people.
The last point in particular was significant: because the constitutional
mothers and fathers refused to accept the Basic Law in a referendum.


Provisional

The Basic Law was designed as a provisional solution from the start. Nevertheless, the Basic Law was characterized by the fact that it contained the essential requirements for a complete constitution. From the point of view of the provisional arrangement, however, there have been some compromise formulas in the Parliamentary Council that might not have come about under other conditions. This also includes the adoption of the Weimar provisions on state church law, the basic regulation of which should be reserved for later constitutional work.

Structure of the Basic Law

The first area comprises fundamental rights (Section I:
Art. 1-19, 33, 38, 101-104); In a second complex, the federal state structure, ie the relationship between the Federation and the Länder, is determined (Section II: Art. 20-37); the third area describes the function and tasks of the highest state organs Bundestag, Bundesrat, Federal President and Federal Government (Sections III-VI: Articles 38-69); State functions such as the execution of federal laws, federal administration, jurisdiction and finance are dealt with in the fourth part (Section VII-X: Art 70-115); Finally, in the last part, the transitional and final provisions follow (Section XI: Art., 116-146).

Later additions to the Basic Law

Various amendments to the Basic Law were later added as new sections, including in particular:
  • 1968 Section IVa .: With the creation of a joint committee (Art. 53a) for the case of defense.
  • 1969 Section VIIIa: Joint tasks of the Federation and the Länder (Art. 91a-b).
  • 1968 Section Xa: Defense Case (115a-l).

Fundamental rights (civil liberties)

The Basic Law also contains state objectives and a core protected from constitutional repeal (Art. 79 Para. 3). This includes the basic rights, the free-democratic basic order of western parliamentary tradition, the federal structural principle (federalism) and the principle of the welfare state. In contrast to the Paulskirche constitution of 1849, the Reich constitution of Bismarck of 1871 and the Weimar constitution of 1919, the constitution-givers put the catalog of 16 so-called material rights at the beginning of the Basic Law. Not only in this decision did the mothers and fathers of the Basic Law demonstrate a sense of contemporary history. In contrast to the position of the Reich President in the Weimar Republic, that of the Federal President was weakened, but the political power of the Chancellor elected by the German Bundestag was significantly strengthened. Furthermore, the Basic Law does not provide for any plebiscitary elements, except for the planned reorganization of the federal territory. Changes to the Basic Law are not permitted if the federal structure, the involvement of the states in legislation and the fundamental rights are affected in their essence. Another new feature of the Basic Law was the safeguarding of constitutional law by binding the legislature to pre-state fundamental rights, comprehensive legal control by the Federal Constitutional Court, the possibility of transferring sovereign rights of the federal government to intergovernmental institutions by simple law, the recognition of the parties and their participation in the political Formation of will and finally the article on equality, as a result of which the legal position of women improved.

reunion

The reunification requirement of the Basic Law was decisive for domestic German politics. The democratic concept of the Basic Law follows the principle of parliamentary representation, with almost no plebiscitary elements. The Basic Law thus elevates the parliamentary system of government to the bearer of political responsibility - in contrast to direct democracy, which eliminates the difference between bearer and addressee of responsibility. Parliament has a decisive influence on the overall political leadership under the control of the government. With reference to the provisional character of the Basic Law, the authors of the Basic Law expressly waived the establishment of a specific economic order and the creation of basic social rights. This left the way free for the successful implementation of the social market economy.