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The Beginning of the constitutional process – The Draft of the Seventeen (Siebzehnerentwurf) and the German Constitution

The drafting and adoption of a constitution, which was to form the basis for the future unified German nation state, required some preparatory and advisory work. Even before the German National Assembly convened for its first session on 18 May 1848, a committee consisting of seventeen men of public trust took up its work on 3 April by order of the Bundesversammlung (Federal Assembly) and drew up a first draft constitution. The additional preparatory committee was intended to ensure the smooth running of the constitutional debate in the National Assembly and to bring the discussions to a rapid conclusion.

The draft constitution prepared by the seventeen confidants - the so-called Siebzehnerentwurf (Draft of the Seventeen) - was presented to the Frankfurt Bundesversammlung (Federal Assembly) on 26 April and subsequently discussed and assessed in the German press.

It was precisely this public debate on constitutional processes in the national and international media, in interaction with the constitutional process itself, that the research project ReConFort was devoted to. Under the direction of Prof. Dr. Ulrike Müßig, researchers at the University of Passau gathered insights into the public constitutional discourse by compiling previously largely unknown primary sources.

The draft in the public debate

One of these primary sources is a two-part article published in the German newspaper “National-Zeitung”, No. 35, 7 May 1848 and No. 36, 8 May 1848, headed “Die Deutsche Verfassung” (The German Constitution). In this text, the author von Bülow deals with the published Siebzehnerentwurf and comments on its core statements.

In principle, von Bülow considers the draft of the seventeen confidants to be suitable for “creating a truly united German state.” Thus, the draft constitution would not allow the continuation of the loose confederation of states, known as Deutscher Bund, but rather lay the foundation for a united federal state as a Basic Law. This was ensured in particular by the implementation of an imperial power under the leadership of a hereditary monarch, which united all “German peoples” under the state and thereby spoke out against the particularism of the individual states.

Fragmentation as a hidden seed? - The future lies in federalism

In spite of this, federalism and the fragmentation of Germany into individual states was a valuable asset that had to be preserved. The foreword to the draft states “[...] that in this fragmentation, which has borne such sad fruit for our fatherland, there are nevertheless hidden many seeds which must remain untrampled if our future is to prosper cheerfully.”

Von Bülow criticizes, however, that the draft itself has forgotten this outstanding significance. The German constitution could not and should not blur the special characteristics of the individual German states and peoples. Rather, it should “in addition to preserving the peculiarities […] formed by different local customs, realise the idea of the one, great and powerful German people [...]”

In this context, he refers to the United States of America and describes how the constitution there has succeeded in “uniting the individual states, which differ from one another in essential points, into one state through a higher power” and, despite the continued independence of each individual state, in creating a sense of Americans’ in belonging to the Union.

Control of power – ensuring justice

However, von Bülow sees the greatest advantage of the federal state construct in the elimination of the possibility of abuse of power by a single state. The connection of the individual states to the federal state made possible by a “strong common element” would make any form of abuse of power and thus injustice impossible. This was due to the fact that each individual state retained its power, but was now subordinated to a higher power, the imperial power. Each individual state is responsible to this higher power for achieving the state purpose of justice.

The abuse of power by the superior imperial power was prevented by the continued existence of the individual states as self-entitled states protected in their particularity by the constitution.

Although the power of the empire originated in the individual states, there were differences between the two powers. However, the draft constitution would not take these into account at all. This is made clear, for example, by granting equal rights to the hereditary emperor and the princes as rulers of the individual states, explained von Bülow.

In the end both the draft and the imperial crown were rejected by the German governments and the Prussian king. Even the German National Assembly did not use the draft as a model for its constitutional work. Nevertheless, the work of the Committee of the Seventeen in many areas forms the basis for all subsequent German constitutions.

You are welcome to visit our database for an insight into further, previously unpublished primary sources on constitutional discourse in the context of the Polish Sejm (1788-1792), the Spanish Cortes (1812), the Belgian National Congress (1830-1831), the Frankfurt Parliament (1848-1849) and the Italian Parlamento Subalpino (1861).

ReConFort