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The front page article of the 187th issue of the Deutsche constitutionelle Zeitung  (German constitutional newspaper), written on 30 June and published on 5 July 1848 is entitled “Der Entwurf der Grundrechte des deutschen Volkes”, which translates to “The draft of the fundamental rights of the German people” and is the first in a three-part series of the same name. Its aim is to analyse the contents of the proposed constitutional text and to shed light on any shortcomings it may have.

In the article’s introduction, the author praises the efforts made by the Committee appointed by the National Assembly in order to achieve a draft constitution that is as comprehensive and precise as possible. At the same time, he notes that it remains the duty of a free press to point out the errors that have been made in the proposed text thus far. With this, he begins an in-depth analysis of selected paragraphs of the constitution.

Citizenship for everyone! Or maybe not?

§ 3 contains the provision that the citizenship in a German state may not be denied to any respectable German. While this may win the thankful approval of the people, the author criticizes how vague the provision is: the attribute “respectable” (also: blameless, spotless; German: unbescholten) is incredibly nondescript and open to interpretation. Lacking a precise definition or set of rules to determine someone’s respectability, who gains citizenship in a German state and who is denied will remain at the discretion of the authorities on a case-by-case basis.

Military service and equality

The provision in § 6 declares that the military service is equal for all. Once again, the author criticizes the indefinite nature of this clause, with most constitutions of German states containing similar ones.  Furthermore, he questions the true nature of the so-called equality concerning military service. While it is true that all youths (the self-evident exclusion of females illustrates the vastly different understanding of the term equal in 1848 compared to today) with a legal duty to perform military service may be drafted in the conscription process, there is a major class difference concerning what happens once the lot has fallen. While anyone who can afford to may send a replacement in his stead, those without the financial means are left without a choice. The so-created loophole is unacceptable to the author, who provocatively suggests a rephrasing of the provision to something more honest, such as: the impecunious are subject to compulsory military service. Furthermore, the author harshly criticizes the current conscription process, where young men are chosen at random to then spend six years in military service while missing out on regular civic, professional and married life. He proposes a duty for every man to keep themselves armed in the case of war, but is of the opinion that a standing army should only ever be a professional force.

Judicial and ministerial arbitrariness

§ 7 contains two provisions the author deems questionable: Firstly, it forbids special courts, which in itself is a commendable addition. However, the author questions whether the simple ban will have any effect whatsoever and criticizes that ministerial arbitrariness has not been addressed more effectively or in more detail. Furthermore, § 7 grants the authorities the freedom of producing a warrant up to 24 hours after an arrest. He compares this to the situation in England, where citizens have the right to defend themselves using force against arrests without a court-issued warrant. The same questionable 24 hour period is granted for house searches without a warrant in § 8.

On education

The author is completely opposed to § 18, which grants every German the right to teach and to establish educational institutions, regardless of their qualification. He states that, just as much as no one should be allowed to sell or produce medicine without proving that they have the necessary knowledge, no one must be allowed to educate the youth without producing proof of their qualifications. As it is, the provision appears to be a sign that the state is putting body over mind, the physical health over the mental health of its citizens.

Protecting the independence of the judiciary

The author praises § 36, which protects judges from being removed from office against their will, unless through a lawful ruling following official procedure. A second part, granting the same protection in the case of retirement against the judge’s will, is contained in the draft but written in brackets. The author references Bavarian legal history and appeals to the commission that the addition is absolutely vital. For further information, the author refers to his previous analysis of the topic in issue 141 of the deutsche constitutionelle Zeitung.

Restraint in a heated political climate

The article mentions some further paragraphs of the proposed constitution and gives a brief opinion without going into similar depth. For example, the author demands more specific wording of § 9, which guards the privacy of correspondence. Overall, the author’s attitude towards the constitutional committee can be described as sympathetic – where possible, he states that he believes in their good intentions and is willing to give them the benefit of the doubt where the reasoning behind a provision remains unclear. At least the author of this particular article shows a commendable professional restraint in what undoubtedly must have been a heated political situation and constitutional debate.

This source, as well as the following articles in the series on the draft of the fundamental rights of the German people, is accessible from our database on constitutional formation at sources.reconfort.eu. In the coming months, we will continue to analyse the articles in the series here on our Reconfort  research blog.

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